J 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 

ON  THE  LAW  OF 

MARRIAGE, 
DIVORCE,  SEPARATION 

AND 

DOMESTIC   RELATIONS 

By  JAMES  SCHOULER 

AtJithor  of  "Wills,  Executors  and  Administrators"; 
"The  Law  of  Personal  Property";  Etc. 

SIXTH  EDITION 

IN  THREE  VOLUMES 

By  ARTHUR  W.  BLAKEMORE 

Of  tie  Boston  Bar;  Author  of  "  Blakemore  and  Bancroft  on  Inheritance 
Taxes";  Tlie  Article  on  Wills  in  "Cyo";  Etc. 

VOLUME  I 

THE  LAW  OF 
DOMESTIC  RELATIONS 

EMBRACING 

Husband  and  Wife,  Parent  and  Child,  Guardian  and  Ward, 
Infancy,  Separation  and  Divorce 


ALBAl^^,  I^.  T. 
MATTHEW  BE:N'DER  &  COMPANY 

INCORPORATED 

1921 


OoPTBiGHT,  1870,  1874,  1862,  1889,  1896    1905, 
By  JAMES  SCHOULEE. 


Ck)PTRIGHT  1921, 

By  ilATTHEW  BENDER  &  COiU'ANY, 

IKOOBPOaATED. 

33 


PREFACE  TO  THE  SIXTH  EDITION 


It  is  over  twenty  years  since  any  compreliensive  work  has  been 
ifiBued  for  the  American  Bar  on  the  subject  of  Marriage,  Divorce, 
Separation  and  Domestic  Relations. 

CJonditions  arising  from  the  Great  War  increased  the  demand, 
already  urgent,  for  a  work  on  this  branch  of  the  law,  and  this  new 
work  is  the  result  of  the  publisher's  desire  to  meet  the  needs  of 
the  situation. 

This  present  work  is  an  enlargement  of  Prof.  James  Schouler's 
former  works  on  "  Husband  and  Wife  "  and  "  Domestic 
Relations." 

The  plan  of  the  present  editor  has  been  to  preserve  Schouler'a 
text  intact,  but  the  development  of  the  law  during  the  last  twenty- 
five  years  has  made  necessary  the  addition  of  many  subjects  not 
considered  by  him,  and  the  thousands  of  new  cases  which  the  user 
will  find  in  this  volume  have  also  rendered  necessary  a  complete 
re-arrangement  of  the  whole  work. 

It  is  believed  that  substantially  every  case  of  importance  during 
the  last  twentv-five  vears  has  been  cited. 

Appreciation  is  hereby  expressed  for  the  valuable  assistance 
rendered  on  certain  chapters  by  Mr.  William  L.  Scoville,  of  the 
Boston  bar. 

ARTHUR  W.  BLAKEMORE. 

Boston,  December  1,  1920. 


fV71  ?  ^^^ 


TABLE  OF  CONTENTS 

Volume  I. 


PAET  I. 

INTRODUCTORY  CHAPTER. 

Page 

I  1.     Domestic  Relations  Defined;  Earlier  Writers 1 

2.  Plan  of  Classification,  etc 1 

3.  General  Characteristics  of  the  Law  of  Family 3 

4.  Law  of  Husband  and  Wife  Now  in  a  Transition  State;  Various 

Property  Schemes  Stated 5 

5.  Common-Law  Property  Scheme 6 

6.  Civil-Law  Property  Scheme 6 

7.  Community  Property  Scheme 8 

8.  The  Eecent  Married  Women's  Acts 11 

9.  Marriage  and  Marital  Influence 12 

10.  General  Conclusions  as  t©  the  Law  of  Husband  and  Wife 13 

11.  Remaining  Topics  of  the  Domestic  Relations;  Modern  Changes...  15 


PAET  II. 

HUSBAND  AND  WIFE. 

CHAPTER  I. 
MABEIAGE. 

12.  Definition  of  Marriage 16 

13.  Marriage  More  Than  a  Civil  Contract 17 

14.  Marriage  Void  and  Voidable 19 

15.  Essentials  of  Marriage 20 

16.  Disqualification  of  Blood ;  Consanguinity  and  Affinity 21 

17.  Disqualification   of   Ci\'il   Condition;    Raee,   Color,   Social   Rank, 

Religion 24 

18.  Mental  Capacity  of  Parties  to  a  Marriage •  25 

19.  Physical  Capacity  of  Parties  to  Marriage ;  Impote-noe,  etc 28 

20.  Disqualification  of  Infancy 2f> 

21.  Disqualification    of    Prior     Marriage    Undissolved;     Polygamy; 

Bigamy 31 

22.  Same  Subject;   Impediments  Following  Divorce 33 

23.  Force,  Fraud,  and  Error,  in  Marriage 34 

24.  Force.  Fraud,  and  Error,  Subject  Continued 38 

25.  Essential  of  Marriage  Celebration 39 

26.  Same  Subject ;  Informal  Celebration 40 

27.  Same  Subject;  Informal  Celebration 45 

•  • 

Vll 


Vlll  TABLE  OF  CONTENTS  IN  VOL.  I. 

Page* 

§  28.     Same  Subject;  Formal  Celebration 48 

29.  Same  Subject;  Formal  Celebration 50 

30.  Consent  of  Parents  and  Guardians 52 

31.  Legalizing  Defective  ^larriages;  Legislative  Marriage 54 

32.  Restraints  Upon  Marriage  66 

33.  Marriage  in  Another  State  or  Country 56 


CHAPTER  II. 

EFTECT  OF  MABRIAGE;    PERSON   OF  THE   SPOUSE. 

§  34.     Law  of  Husband  and  Wife;  Order  of  Examination 67 

35.  Person    of   the    Spouse;    Common-Law    Principa:   of   Converture; 

Baron  and  Feme  68 

36.  Husband  Head  of  tlie  Family  at  Common  Law;  Reciprocal  Rights 

and  Duties  of  the  Union 58 

37-     Duty  of  Spouses  to  Adhere  or  Live  Together 69 

38.  Breach  of  this  Obligation ;  Desertion 60 

39.  Duty  of  Making  Cohabitation  Toleraible 61 

40.  The  Matrimonial  Domicile 62 

41.  Same  Subject ;  Husband  Establishes  the  Domicile 63 

42.  Same  Subject;  Modifications  in  Wife's  Favor;  Recent  Instances..  64 

43.  Domicile  Relative  to  Alien  and  Citizen 66 

44.  Woman's  Name  Changed  by  Marriage 66 

45.  Husband's  Duty  to  Render  Support 67 

46.  Criminal  Liabilitj^  for  Failure  to  Support 69 

47.  Wife's  Duty  to  Render  Sers'ices 71 

4)8.     Right  of  Chastisement  and  Correction 72 

49.  Husband's  Right  of  Gentle  Restraint 73 

50.  Wife's  Right  to  Submit  to  Surgical  Operation 75 

51.  Right  of  Action  for  Death 75 

52.  Regulation  of  Household,  Visitors,  etc 76 

53.  Custody  of  Children 77 

54.  Remedies  of  Spouses  Against  One  Another  for  Breach  of  Matri- 

monial Obligations 77 


CHAPTER  III. 

THE  SPOUSE  AS   A  CBIMIWAL, 

§  55.     Coverture  Affecting  Private  Wrongs  and  Public  Wrongs 79 

56.  Presumption  of  Husband's  Coercion  and  Wife's  Innocence 79 

57.  Presumption  of  Wife's  Innocence  Applied 80 

5S.     Coercion  May  E.xtend  to  a  Series  of  Crimes 82 

59.     Offences  Against  the  Property  of  Either  Spouse 82 

m.     Adultery ' 83 

61 .     Separate  Penalties  for  Women 84 

CHAPTER  IV. 

DISQUALIFICATIONS   AS  WITNESRES. 

8  62.     Mutual  Disqualification  ns  Witnesses 8B 

63.  Rule  RrHtrict*d  to  IJona  Fide  Spouses 86 

64.  Common-Law  Exceptions   87 

66.  Crimefl  or  Injuries  Inflicted  by  One  on  the  Other 87 

•6.     Adultery 89 

67.  Joint  DcffndantB    8ft 

68.  Rex  (Ifstae  or  Agency 90 

69.  Before  or  After  Termination  of  the  Relfttion 91 

70.  Confidenf inl    Communications    98 

71.  Interest  of  Witness  94 


TABLE  OF  CONTENTS  IN  VOL.  1.  IX 
CHAPTER  V. 

OEREBAL  INSQUALITTEIS. 

Page 

g  7a     What  Each  Spouse  Yields  as  to  Property S6 

73.  Husband's  Liability  for  Wife's  Contracts;  Wife's  Immunity 97 

74.  Wife's  Immunity,  etc.,  as  to  Torts 97 

76.     When  Wife  is  Treated  ae  Feme  Sole 97 


CHAPTER  VI. 
wife's  antenuptiai,  debts. 

76.  Rule  Stated  &9 

77.  Extent  and  Duration  of  Liability 100 

78.  Hardship  of  Rule  101 

79.  Actions  to  Recover  Antenuptial  Debts 102 

80.  Effect  of  Bankruptcy 103 

81.  Effect  of  Contract  Between  Sipouses  ae  to  Antenuptial  Debts 103 

82.  Effect  of  Statute 104 


CHAPTER  VII. 

NECESSARIES. 

i  83.     Foundation  of  Common-Law  Doctrine 105 

84.  Summary  of  Modern  Rule 106 

85.  Liability  of  Husband  —  Rule  Stated 108 

86.  To  Wife   109 

87.  To  Relatives  of  Wife 109 

89.     To  Third  Persons   HO 

89.  For  Necessaries  of  Putative   Wife Ill 

90.  For  Necessaries  of  Family  in  General 112 

fll.     For  Articles  in  Part  Necessaries  and  in  Part  Not 113 

92.  For  Non-necessaries 113 

93.  Agency  of  Wife  to  Bind  Husband  for  Necessaries 114 

94.  Rule  of  Good  Faith   117 

95.  Effect  of  Infancy 117 

96.  Effect  of  Notice'Not  to  Sell  to  Wife 117 

97.  Effect  of  Giving  Credit  to  Wife  or  Third  Person 119 

98.  Effect  of  Money  Provision  for  Wife 120 

99.  Effect  of  Husband's   Ratification   of   Wife's   Unauthorized   Pur- 

chases   1^1 

100.  Effect  of  Separation   in   General 123 

101.  Effect  of  Abandonment  by  Husband 124 

102.  Effect  of  Abandonment  by  Wife 126 

103.  Effect  of  Separation  by  Consent 128 

104.  Effect  of  Wife's  Adultery   }^" 

105.  Effect  of  Divorce  and  Allowance  of  Alimony 1^| 

106.  Effect  of  Banishment,  Insanity  or  Imprisonment 131 

107.  Wife's  Right  to  Sell  Property  to  Obtain  Necessaries 13^ 

108.  Liability  of  Wife {^^ 

109.  What  Constitutes  Necessaries  —  In  General j^a 

110.  Illustration Jg* 

111.  Counsel  Fees   ,,<^ 

112.  Medical  Services  ,' 

113.  Dental  Services .  _„ 

114.  Last  Sickness  and  Funeral  Exipenaes J^- 

115.  What  are  Not  Necessaries • 

116.  Joint  Statutory  Liability  for  "  Family  Expenses    ij| 

117.  Measure  of  Liability . . 

118.  Effect  of  Separation 


TABLE  OF  CONTEXTS  IX  VOL.  I. 

Page 

119.  House  Rent 145 

120.  What   Constitutes  '•  Family  Expenses  " 145 

121.  What  are  Not  "  Family  Expenses  " 146 


CHAPTER  VIII. 
LiABrLirr  for  torts  of  wife. 

122.  Sole  Liability  of  Husband  —  General  Rule  Stated 148 

123.  Presumption  of  Coercion 149 

124.  Xecessitv  of  Valid  Marriage   150 

125.  Extent  o"f  Liability 150 

126.  For  Torts  of  Wife  Arising  from  Contract 150 

127.  For  Devastavit  bv  Wife 152 

128.  Sole  Liabilitv  of  Wife 152 

129.  Joint  Liabili'tv  of  Spouses 152 

130.  EfTect  of  Statute 153 

131.  Wife's  Liabilitv  Under  Statute 155 

13-2.  For  Torts  of  Her  Agent 157 

133.  Damages 157 

134.  English  Rule  in  Equitv 158 


CHAPTER  IX. 

THE  WIFE  AS  AGENT  OF  THE  HUSBAND. 

§  135.     General  Considerations  159 

136.  When  Wife  May  Bind  Husband  as  Agent 160 

137.  Extent  of  Power  as  Agent 162 

138.  Evidence  of  Agency   162 

139.  Wife's  Agency  Lender  Express  Power 163 

140.  Wife's  Agency  Under  Implied  Power 163 

141.  In  Household  Matters  and  Care  of  Husband's  Property 164 

142.  As  to  Real  Estate 164 

143.  Effect  of  Contract  by  Wife  in  Her  Own  Name 165 

144.  Effect  of  Husband's  Ratification  of  Wife's  L^nauthorized  Acts..  165 


CHAPTER  X. 

EFFECT  OF  CX)Vk;RTL'KE  TTPON  THE  WIFE'S  PERSONAL  PROPERTY. 

145  Effect  of  Marriage  —  Operation  as  Gift  to  Husband 167 

146  Exception  to  Rule  —  Per.sonal  Property  Held  by  Wife  in  Trust. .  160 

147.  What  Law  Governs   " 170 

148.  Extent  of  Hu.sband's  Right  — Effect  of  Divorce 171 

149.  Choses  in  Possession  —  In  General 171 

150.  Personal  Apparel  of  Wife 173 

151.  Money 173 

1.%.     Earnings  of  Wife  174 

l.')3.     Property  Purchased  With  Wife's  Earnings 176 

154.     Bank  Deposits 176 

\!yr).     Slaves 176 

l.'iO.     Proceeds  of  Joint  Labor  of  Spouses 177 

1.57.     Choses  in  Action  —  ^Vllat  Constitutes  in  General 177 

158.  Xeopssitv  of  R<^-durt ion  to  Possession 1 79 

159.  Effect  of  Waiver  or  Failure  to  Reduce  to  Possession 180 

160.  Effect  of  Bankruptcy,  Tnsolyencr  and  Assignment  for  Benefit  of 

Creditors " .' 182 

161.  What  Constitutes  Reduction  to  Possession  —  In  General 1*^3 

162.  Effect  of  Insanity  of  Hiiohand    1S4 

163.  Effect  of  Possession  by  Husband 184 


TABLE  OF  CONTENTS  IN  VOL.  I.  XI 

Page 

164.  Constructive  Possession 185 

165.  By  Release 18.5 

166.  By  Pledge 18.5 

167.  By  Suit  or  Arbitration 186 

168.  By  Assignment 188 

169.  By  Delivery  to  Agent  of  Husband 190 

170.  Joint  or  Sole  Receipt 191 

171.  As  to  Commercial  Paper   191 

172.  As  to  Legacies  or  Distributive  Shares 193 

173.  As  to  Money 194 

174.  As  to  Shares  of  Stock 194 

175.  Wife's  Equitv  to  Settlement  —  In  General 195 

176.  Nature  of  Right 196 

177.  Effect  of  Divorce  or  Separation  196 

178.  Effect  of  Antenuptial  Settlement  or  Jointure 197 

179.  Effect  of  Waiver 198 

l&O.  Effect  of  Fraud  of  Wife 198 

181.  As  to  Property  in  Hands  of  Third  Persons 198 

182.  As  to  Vested  Estate 200 

183.  As  to  Life  Estates  and  Reversions 200 

184.  As  to  Property  in  Litigation   201 

185.  Amount  of  Settlement 202 


CHAPTER  XI. 

EFFECT  OF  COVEETTJBE  UPON  THE  "WIFE'S   CHATTELS  BEAL  AND  REAL  ESTATE. 

§   186.     Wife's  Chattels  Real ;   In  General 204 

187.  Nature  of  Husband's  Interest 205 

188.  Husband's  Right  to  Alienate 207 

189.  What  Will  Bar  Wife's  Rights 207 

190.  Effect  of  Deed  to  Wife 209 

191.  Husband's  Right  in  Real  Estate  of  Wife;  General  Rule  Stated.  .  210 

192.  What  Law  Governs 212 

193.  As  to  Estates  in  Exipectancy 212 

194.  As  to  Life  Estates  and  Joint  Tenancies 212 

195.  As  to  Property  in  Possession  of  Third  Person 213 

196.  Rights  of  Husband's  Creditors 213 

197.  Husband's  Power  to  Alienate  Fee 214 

198.  Husband's  Power  to  Mortgage  Fee   215 

199.  Husband's  Power  to  Lease  Fee 215 

200.  Effect  of  Husband's  Contract  to  Convey  Fee 217 

201.  Husband's  Right  to  Dissent  from  Purchase,  Gift  or  Devise  to 

Wife 218 

202.  Effect  of  Conversion 218 

20'3.  Effect  of  Alienage   or   Attainder   of   Husband,   and   Statute   of 

Limitation 219 

204.  Effect  of  Divorce 219 

205.  Husband's  Liability  for  Waste 220 

206.  Effect  of  Statute 220 

207.  Effect  of  Adverse  Possession ;  Generally 221 

208.  Bv  Husband 222 

209.  Effect  of  Wife's  Agreement  to  Convey  or  Purchase 223 

210.  Effect  of  Wife's  Power  of  Attorney  to  Convey 224 

211.  Form  and  Requisites  of  Wife's  Conveyance  in  General 225 

212.  Joinder  of  Husband ^-^ 

213.  Acknowledgment _ 2-» 

214.  Privy  Examination  of  Wife --• 

215.  Effect  of  Abandonment  -^| 

216.  Effect  of  English  Statute --^1 

217.  Validity  of  Wife's  Mortgage 231 

218.  Wife's  Liability  on  Covenants 233 

219.  Effect  of  Fraud  or  Duress 234 


Xll  TABLE  OF  CONTENl'S  IN  VOL.  I. 

Pag* 
§  220.     Efifect  of  Estoppel 234 

221.  Avoidance 235 

222.  Actions 23« 


CHAPTER  XII. 

EFFECT    OF   COVERTURE    ON    WIFE'S    CONTRACTS    IN    GENERAL. 

§  223.     Wife's  Disability  to  Contract  —  Common-Law  Rule  Stated 239 

224.  What  Law  Governs 240 

225.  Exceptions  to  Rule 242 

226.  Extent  of  Disability 242 

227.  Removal  of  Disability 243 

228.  Effect  of  Ratification  244 

229.  Effect  of  Married  Women's  Acts 244 

CHAPTER  XIII. 

EFFECT  OF  COVERTURE  ON  PARTICULAR  CONTRACTS  OF  WIFE. 

§  230.     Promissory  Notes  —  As  Maker  or  Indorser 247 

231.  As  Accomodation  Party   250 

232.  For  Husband's  Debt  .  .' 250 

233.  What  Law  Governs 251 

234.  Suretyship  —  In  General 251 

235.  For  Her  Husband 253 

236.  Guaranty 254 

237.  Contracts  for  Services  254 

23S.     Confession  of  Judgment   255 

239.  Contracts  for  Sale  of  Land 255 

240.  Scaled  Instruments 257 

241.  Releases 257 

242.  Covenants 257 

CHAPTER  XIV. 

THE   wife's   pin-money. 

g  243.     The  Wife's  Pin-Money ;  Nature  and  Origin 26» 

244.  Separate  Estate  and  Paraphernalia  Distinguished 260 

245.  Arrears 260 

246.  House-Keeping  Allowance 200 

CHAPTER  XV. 

wife's  equitable  separate  ESTATE, 

§  247.     Origin,  Nature  and  History  ;  In  England 262 

248.  In  the  United  States ' 264 

249.  Statutory  Separate  Estate  Distinguished 266 

250.  Whin  Siparatc  Estate  Cognizable  in  Courts  of  Law 2<»6 

261.     Eff(  ct  of  Hcnunciation  by  Wife 267 

2^.     Effect  of  Fraud,  Insolvency  or  Bankruptcy 267 

253.  Wlien  Separate  Estate  May  Bo  Ambulatory 267 

254.  Creation  in  General 269 

25.'-).     Bv  Parol  Gift   270 

2.'')^.     Bv  Contract 271 

257.     Bv  Instrument  V(  sfinir  Powf-r  of  Appointment  in  Wifo 271 

2M.     Gift  of  Income  of  Fund  aft  Gift  of  Capital 272 

259.     Savings  from  Wife's  Income 273 


TABLE  OF  CONTENTS  IN  VOL.  I.  xiii 

Page 

t60.  Necessity  of  Trustee 274 

261.  Construction  of  Instrument  Creating  Estate 275 

262.  What  Words  are  Sufficient  to  Create  Estate;  In  England 277 

263.  In  the  United  States 278 

264.  What  Words  are  Insufficient  to  Create  Estate;  In  England 280 

265.  In  the  United  States 281 

266.  Necessity  of  Preserving  Identity  of  Estate 2S2 

267.  Separate  Estate  as  Trust  Fund 'for  Payment  of  Wife's  Debts 283 

268.  Duration  of  Estate 284 

269.  Husband's  Rights  on  W^ife's  Decease 284 

270.  What  Will  Bar  Husband's  Rights 28«5 

271.  Effect  of  Estate  on  Husband's  Marital  Obligations 286 

272.  Rights  of  Bona  Fide  Purchasers  from  Husl^nd 287 

273.  Restraint  on  Anticipation  or  Alienation 287 

274.  Wife's  Power  to  Dispose  of  or  Charge  Separate  Estate  in  Gen- 

eral ;  In  England 292 

275.  In  the  United  States 293 

276.  Necessity  of  Concurrence  of  Trustees 295 

277.  Form  and  Requisites  of  Deed 296 

278.  Of  Real  Estate 296 

279.  Of  Income  or  Profits 296 

280.  Contracts  Relating  to  Separate  Estate  in  General 297 

281.  Contracts  Not  Beneficial  to  Wife 300 

282.  Mortgage  or  Pledge  to  Secure  Husband's  Debts 301 

283.  Gifts  and  Transfers  to  Husband 302 

284.  Enforcement 303 

285.  Estoppel  to  Claim  Property 305 


CHAPTER  XVI. 

MABBIED  women's   ACTS. 

286.  Tendency  and  Purpose  in  General 307 

287.  History  of  American  Married  Women's  Acts 310 

288.  New  York  and  Pennsylvania  Married  Women's  Acts  of  1848 313 

289*.     English  Married  Women's  Act  of  1870 314 

290.  Scope  and  Validity 315 

291.  Construction 317 

292.  What  Law  Governs  in  General 317 

29a     As  to  Rights  of  Husband SIS 

294.  As  to  Rights  of  W^ife _ 320 

295.  Changes  Made  by  Married  Women's  Acts  ini  General 321 


CHAPTER  XVII. 

WIFE  AS   SOLE  TEADEB,   PABTNER  AND   STOCKHOLDER. 

296.  As  Sole  Trader;  Early  English  Doctrine 323 

297.  By  Custom  of  London 324 

298.  Under  Civil  Law  Codes 325 

299.  View  That  Wife  Cannot  be  Separate  Trader  at  Common  Law. . .  326 

300.  Under  Antenuptial  Agreement 326 

301.  American  Equity  Doctrine 327 

302.  Necessity  of  Proceedings  to  Enable  Wife  to  Become  Sole  Trader.  320 

303.  Necessity  of  Assert  of  Husband 330 

304.  English  Statutory  Rule 331 

305.  Under  American  Married  Women's  Acts  in  General 332 

300.     Massachusetts  anrl  Ponnsylvania  Statutory  Rule 333 

307.  What  CoTi=rf  itutes  Sole  Trading 334 

308.  Validitv  of  Wife's  Trading  Contracts  in  General 33 1 

309.  Effect  of  Estor)r>el 33r> 

310.  EfTect  of  Bankruptcy  of  Wife 335 


Xir  TABLE  OF  CONTENTS  IN  VOL.  I. 

Page 

§  31 1.  Liability  of  Husband 336 

312.  Effect  of  Participation  of  Hu^sband  as  Agent 337 

313.  Rights  of  Husband's  Cmiitors 338 

314.  As  Copartner ;  Generally 339 

315.  With   Husband    340 

316.  With  Third  Persons 341 

317.  As  Stockholder   342 

318.  Actions 342 

CHAPTER  XVIII. 

WHAT    CONSTITUTES    WIFE'S    STATUTORY    SEPARATE    ESTATE. 

§  319.  Creation  of  Separate  Estate  in  General 344 

320.  By  Written  Instrument   345 

321.  By  Parol  Transfer  345 

322.  Necessity  of  Schedule   345 

323.  What  Constitutes  Separate  Estate;  Property  Acquired  Prior  to 

Coverture 346 

324.  Property  Acquired  by  Gift,  Grant,   Devise  or  Bequest  During 

Coverture 347 

325.  Wife's  Land  in  General 349 

326.  Rents,  Profits  and  Issues  of  Separate  Estate 351 

327.  Proceeds  of  Sale  of  Separate  Estate 352 

328.  Property  Purchased  at  Judicial  Sale 352 

329.  Property  Held  by  Husband  as  Trustee  for  Wife 363 

330.  Personal  Property  in  General 354 

331.  Alimony  Granted  to  Wife 355 

332.  Damages  Recovered  by  Wife 355 

333.  Proceeds  of  Insurance  Policy  on  Life  or  Property  of  Husband.  .  .  356 

334.  Goods  Bought  by  Husband  on  Wife's  Credit 357 

335'.  Trust  Fund  in  Bastardy  Proceedings 358 

336.  Wife's  Earnings  in  General 358 

337.  Principles  Applicable 359 

338.  In  Separate  Business 360 

339.  In  Keeping  Boarders 361 

340.  Property  Purchased  with  Earnings 361 

341.  Effect  of  Waiver  of  Marital  Rights  by  Husband 362 

342.  Effect  of  Husband's  Desertion 3G3 

343.  Actions  to  Recover  Earnings 363 

344.  Presumptions;  As  Between  Spouses  in  General 364 

345.  Aa  to  Property  Standing  in  Name  of  Husband 366 

346.  As  to  Property  Standing  in  the  Name  of  Third  Persons 367 

347.  As  Against  Husband's  Creditors 368 

348.  Statutory  Presumptions   369 

349.  Burden  of  Proof  as  Against  Creditors  of  Husband 370 

350.  Question  for  Jury  as  Against  Creditors  of  Husband 370 

351.  Effect  of  Estoqipel  in  General 371 

362.  To  Claim  Property  as  Separate  Estate  in  General 372 

353.  By  Deed 373 

354.  By  Record 37.5 

355.  By  Fraudulent  Representations    376 

3.56.  By  Silence 376 

3.'i7.  By   Failure  to  Assert  Her  Title 377 

358.  By  Clothing  Husband  with  Apparent  Title  or  Authority 378 

CHAPTER  XIX. 

nUSBAND'8   POWEU.S,   RIOHTS    A.M)   I.I.MUMTIES   AS   TO   WIFE'S    .STATUTORY 

SKPARATE    ESTATE. 

8  359.  PowerB,    Statutory    Limitation    of    Husband's    Right   to    Reduce 

Wife'n  T'roperty  to  Possesxion 381 

.360.  Statutory  Power  to  Control  S<-parate  Estate 382 


TABLE  OF  CONTENTS  IX  VOL.  I.  XV 

Page 

§  361.  Effect  of  Fraud  of  Husband 383 

362.  To  Dispose  of  Eeal  Estate 384 

363.  Of  Personal  Property 384 

364.  To  Bind  Separate  Estate  by  Mortgage 385 

365.  By  Lease 386 

366.  With  Liability  for  His  Sole  Fraud 386 

367.  By  Contract 386 

368.  By  Lien 387 

369.  By  Release 387 

370.  Rights  of  Purchasers  from  Husband 388 

371.  Notice  to  Husband  as  Notice  to  Wife 389 

372.  Rights  of  Husband's  Creditors;  In  General 390 

373.  As  to  Value  of  Husband's  Services 392 

374.  Effect  of  Husband's  Possession  of  Separate  Estate 394 

375.  Transactions  in  Fraud  of  Creditors 395 

376.  As  Wife's  Agent  in  General 395 

377.  Scope  of  Agency  in  General 396 

378.  Scope  of  General  Agency 397 

379.  Implied  Authority  as  Agent 398 

380.  Power  to  Bind  Wife  by  Declarations 399 

381.  Evidence  of  Agency  in  General 399 

382.  Burden  of  Proof 400 

383.  Presumptions 401 

384.  Admissibility  of  Evidence 402 

3&5.  Estoppel  to  Deny  Agency 403 

386.  Ratification  in  General 404 

387.  What  Constitutes  Ratification 405 

388.  Rights  to  Recover  for  Improvements 406 

389.  To  Recover  for  Services 407 

390.  To  Recover  for  Advances 408 

391.  Liabilities;  For  Wife's  Money  Used  for  Necessaries 408 

392.  For  Wife's  Property  Received 409 

393.  To  Third  Person 411 


CHAPTER  XX. 

VAXIDITY  OF  wife's  CONTRACTS  BELATING  TO  STATUTORY  SEPARATE  ESTATE. 

§  394.  Power  to  Contract  —  Under  Statutes  Limiting  Wife's  Power  to 

Contract 413 

395.  Effect  of  Statute  of  Frauds 414 

396.  By  Agent   414 

397.  Necessity  of  Joinder  or  Assent  of  Husband 415 

398.  Release 415 

399.  In  Judicial  Proceedings 415 

400.  Jointly  with  Husband 415 

401.  For  the  Purchase  of  Property  in  General 416 

402.  On  Credit 416 

403.  For  Improvements  and  Repairs 417 

404.  Submission  to  Arbitration 419 

405.  Promissorv  Notes 419 

406.  Jointly  with  Husband 420 

407.  Consideration 420 

408.  For  Insurance  421 

409.  As  Stockholder  in  Corporation  or  Joint  Stock  Company 421 

410.  Loans  and  Advances 422 

411.  Leases 422 

412.  To  Secure  Husband's  Debts 422 

413.  Suretvship  in  General 423 

414.  For  Third  Persons 425 

415.  What  Constitutes  Contract  of  Suretyship  in  General 425 

416.  Illustrations 425 

417.  Rights  of  Wife  as  Surety 427 


XVI  TABLE  OF  CONTENTS  IN  VOL.  I. 

Page 
§  418.     Enforcement 428 

419.  Ratification 428 

420.  Avoidance 428 


CHAPTER  XXI. 
wife's  poweb  to  charge  statutory  separate  estatb  with  liabilitt 

FOB  DEBT. 

§  421.  Power  to  Charge  in  General 431 

422.  Wliat  Constitutes  Charge 432 

423.  Limitation  of  Power  to  Charge 433 

424.  What  Contracts  Are  For  Benefit  of  Separate  Estate 433 

425.  What  Contracts  Are  Not  For  Benefit  of  Separate  Estate 4i34 

426.  Property  Subject  to  Liability 43.5 

427.  Extent  of  Liability  for  Joint  Debt 436 

428.  Necessity  of  Intention  to  Charge 436 

429.  Evidence  of  Intention  to  Charge 436 

430.  Necessity  of  Joinder  ot  Assent  of  Husband 437 

431.  Effect  of  Separation  or  Abandonment 438 

432.  By  Contract  in  General 438 

433.  Evidence  of  Debt  in  General 430 

434.  Necessity  of  Express  Contract 43^ 

435.  By  Mortgage 439 

436.  By  Equitable  Mortgage 440 

437.  By  Assumption  of  Existing  Mortgage 442 

438.  By  Deficiency  Decree 442 

439.  By  Confes.«?ion  of  Judgment 442 

440.  By  Vendor's  Lien 443 

441.  By  Mechanic's  Lien   443 

442.  Jointly  with  Husband 443 

443.  For  Purchase  of  Land 444 

443a.  For  Imiprovements  and  Materials 444 

444.  For  Services  Rendered 445 

445.  For  Debt  of  Husband 446 

446.  Statutory  Liability  for  Support  of  Hu&band 448 

447.  Liability  for  Breaches  of  Trust 449 

448.  Debts  Contracted  in  Separate  Business 449 

449.  By  Contract  of  Guaranty  or  Suretyship 450 

450.  Rule  of  Yale  v.  Dederer". 451 

451.  Loans 455 

452.  By  Promissory  Note 450 

453.  Procewlings  to  Charge  Separate  Estate;  In  Equity 457 

454.  At  Law 458 

455.  Ratification 4G0 

456.  Estoppel  to  Deny  Validity 460 

457.  Avoidance 462 


CHAPTER  XXIT. 

OONVEYANCE,    MORTOAGR    or    I.F.A.SE    of    STATUTORY    SEPARATE    ESTATB. 

§  458.     Wife's  Powor  to  Dispose  of  Separate  Estate  in  General 4^ 

459.  Wliat  Lnw  Governs   46.5 

460.  C/onsideration 465 

461.  Form  and  Boquisiti's  in  General 466 

462.  Execution  by  Wife 467 

463.  Necrpsily  fif  Husband's  .Toinder 4ft7 

464      EfTrrt  of  Ahnndnnnw-nt,  Separation,  Divorce,  or  Insanity  of  Huh- 

hnnd 470 

465.  Whon  Husband's  Joindor  Not  Reouirod 470 

466.  ProBunipfinn  as  to  TTusband's  Assent 471 

467.  Eviflcnoe  of  Assent 471 


TABLE  OF  CONTENTS  IN  VOL.  I.  XVll 

Page 

468.  Acknowledgment   472 

4^9.  Delivery  in  Escrow 473 

470.  Record." 473 

471.  Conveyance 474 

4-72.  Mortgage  or  Deed  of  Trust 474 

473.  Declaration  of  Trust 476 

474.  Gift 476 

475.  Lease 476 

476.  By  Equitable  Assignment 477 

477.  Dedication  to  Public  Use 478 

478.  Parol  Transfers 478 

479.  By  Power  of  Attorney 478 

480.  Construction  and  Operation 478 

481.  Liability  on  Covenants  in  Conveyance 480 

482.  Extent  of  Lien  or  Liability ' 480 

483.  Effect  of  Extension  of  Time  on  Novation 481 

484.  Conveyances  in  Fraud  of  Creditors 482 

485.  Rights  and  Liabilities  of  Purchasers 482 

486.  Laches 483 

487.  Estoppel  to  Deny  Validity 483 

488.  Ratification 486 

489.  Avoidance 487 

CHAPTER  XXIII. 

ANTENTXPTIAL   SETTLEMENTS. 

490.  What  Law  Governs 490 

491.  Marriage  Settlements  favored  by  Public  Policy 491 

492.  General  Considerations 491 

493.  Promises  to  Marry,  and  Promises  in  Consideration  of  Marriage.  492 

494.  Form  and  Requisites 493 

495.  Necessity  of  Trustee 495 

496.  Reformation 496 

497.  Consideration 498 

498.  Validity  in  General 500 

499.  Oral  Promise  to  Make  Settlement 501 

500.  Postnuptial  Settlements  in  Execution  of  Antenuptial  Agreement.  50 
5fll.  Contracts  Releasing  Rights  in  Estate  of  Other  Spouse 504 

502.  Marriasre  Articles 505 

503.  Settlem'ent  by  Third  Person 507 

504.  Covenant  to  "Settle  After-Acquired  Property 50H 

505.  Provisions  for  Children  or  Heirs 509 

506.  Secret  Settlement  on  Third  Person  in  Fraud  of  Husiband 510 

507.  Construction 513 

508.  Power  of  Disposition  of  Property  Settled 515 

509.  Operation  and  Effect 515 

510.  Enforcement 517 

511.  Rescission  or  Avoidance;   In  General 519 

512.  Bv  Agreement  ^;" 

513.  Fraud 5"' 

514.  Failure  to  Perform  Conditions ^-^ 

515.  Infancy  or  Laches ^^- 

516.  Misconduct  of  Spouse ^^' 

517.  Acts  in  Pais ^-'l 

618.  Inadequacv  of  Provision  for  Wife ^-4 

519.  Rights  of  'Creditors °~^ 

CHAPTER  XXIV. 

POSTNTTPTIAL  SETTLEMENTS. 

I  520.  General  Considerations   z^^ 

521 .  Antenitptial  Settlenrents  Distinguished ^-• 

522.  Necessity  of  Trr^tee ^'*" 


o 


XVlll  TABLE  OF  CONTENTS  IN  VOL.  I. 

Page 

§  523.     Validity  and  Requisites  in  General 530 

524.  Consideration 532 

525.  Property  Subject  to  Claims  of  Creditors 532 

526.  Construction 532 

527.  Settlements  in  Fraud  of  Creditors;  Statutes  of  Elizabeth 533 

528.  Eflfect  of  Bankruptcy  Acts 533 

539.     As  Against  Subsequent  Creditors  534 

530.  Effect  of  Payment  of  Valuable  Consideration  by  Spouse 535 

531.  Effect  of  Intent  of  Settler 538 

532.  Rights  of  Bona  Fide  Purchasers;  English  Doctrine 539 

533.  American  Doctrine 540 

634.     Kescission  and  Avoidance 542 

CHAPTER  XXV. 

CONTBACTS  BETWEEN  SPOUSES. 

§  535.     What  Law  Governs 544 

536.  Contracts  and  Debts  Existing  at  the  Time  of  Marriage 545 

537.  Under  ^Married  Women's  Acti 546 

538.  Contracts  as  to  Wife's  tatutory  Separate  Estate 548 

539.  Validity  in  General 549 

540.  Consideration 550 

541.  Bills  and  Notes 551 

542.  Loans  and  Advances 552 

543.  Contracts  for  Services 554 

544.  Liability  to  Pay  Interest 555 

545.  Spouses  as  Partners 55-"» 

646.     Releases  Between  S'pouses 556 

CHAPTER  XXVI. 

GIFTS    BETWEEN    SPOUSES. 

§  1547.     What  Constitutes  Gift 557 

548.  Intervention  of  Trustee  or  Third  Person 560 

549.  Property  Which  May  Be  Subject  of  Gift ;  Generally 560 

550.  Bank  Deposits 561 

551.  Necessity  of  Intention  to  Make  Gift 663 

552.  Necessity  and  Nature  of  Delivery 564 

553.  Gift  by  Wife  to  Husband 566 

554.  Presumptions;  Husband's  Gift  to  Wife 566 

655.     Wife's  Gift  to  Husband  in  General 56S 

556.     Validity  in  General 571 

657.     Operation  and  Effect 572 

558.     Rescission  or  Avoidance 673 

659.     Gifts  in  Fraud  of  Creditors 57.'> 

CHAPTER  XXVII. 

CONVEYANCES  AND  MORTGAGES  BETWEEN   SPOUSES. 

§  560.     Conveyances  and  Leases 577 

561.     Mortgages 582 

662.  Operation  and  Effect 582 

663.  Transfers  of  Personalty 683 

CHAPTER  XXVIII. 

CONVEYANCES    TO    SPOUSES. 

8  564.     Estafp  by  the  Enf  irr-fv  in  Lands 585 

665.     Estate  hv  the  F.nf  ir.  tv  in  Personalty 588 

566.     Kwvintisla  of  V-fnf,.  l,v  fii,.  Fntir.'tv 5S0 


TABLE  OF  CONTENTS  IN  VOL.  I.  xix 

Page 

§  567.     Possession  as  Between  Spouses 589 

568.  Effect  of  Partition  and  Divorce 590 

569.  Effect  of  Statutes 590 

570.  Spouses  as  Tenants  in  Common 592 

571.  Spouses  as  Joint  Tenants 594 

572.  Rights  of  Creditors 594 

673.     Conveyance  or  Mortgage 596 

574.  Rule  in  Equity  as  to  Gift  or  Conveyance  to  Spouses;  In  General.  597 

575.  Resulting  Trust 598 

576.  Effect  of  Purchase  at  Judicial  Sale 599 

577.  As  to  Insurance  on  Husband's  Life  in  Favor  of  Wife 599 

578.  Equitable  Relief 600 

CHAPTER  XXIX. 

COMMUNITY  DOCTRINE, 

§  579.     Nature  and  History  of  Doctrine " 603 

580.  The  European  Doctrine  of  Community 603 

581.  Effect  of  Doctrine  on  American  Jurisprudence 604 

582.  Nature  of  Community 605 

583.  What  Law  Governs 606 

584.  What  Constitutes  Community  Property  in  General 608 

585.  Property  Acquired  During  Coverture 608 

586.  Public  Lands  Acquired  by  Grant  or  Entry 612 

587.  Rents,  Profits  and  Issues  of  Separate  Estates 614 

588.  Improvements  on  Separate  Estates 615 

589.  Damages  Recovered  by  Spouses 615 

590.  Wife's  Earnings    616 

591.  Property   in  Part  Community  Property  and  in  Part  Separate 

Estate 616 

592.  Separate  Estate  Distinguished 617 

593.  Gifts 620 

594.  Insurance  Policies   620 

595.  Determination  of  Status  of  Property;  Presumptions 621 

596.  Evidence  and  Burden  of  Proof 623 

597.  Change  of  Status  of  Property  by  Agreement 625 

698.     Nature  of  Wife's  Interest 627 

599.  Wife's  Paraphernal  and  Dotal  Property 627 

600.  Control  and  Disposition 629 

601.  Sales,  Mortgages  and  Conveyances;  By  Husband 630 

602.  By  Wife 632 

603.  Lease 633 

604.  Rights  and  Liabilities  of  Purchasers  During  Coverture 634 

605.  Contracts,  Conveyances  and  Gifts  Between  Spouses 635 

606.  Actions ;  By  Spouses 635 

607.  Against  Spouses   637 

608.  Liabilities    Chargeable    on    Community    Property;     Community 

Debts  Generally  638 

609.  Obligations  as  Surety 640 

610.  Bills  and  Notes 640 

611.  Torts 641 

612.  Separate  Debts   •  •  •  •  •  "-^^ 

613.  Rights   and   Remedies   of   Creditors   During   Existence  of   Com- 

munity  • • • •  °^" 

614.  Dissolution  of  Community;   Effect  of  Abandonment,  Separation, 

Insanity  or  Divorce 64- 

61.5'.     Rights  and  Liabilities  of  Survivor 644 

616.  Rights  of  Heirs ^j' 

617.  Effect  of  Remarriage  of  Survivor ^^J^ 

618.  Accounting  or  Settlement  of  Community  Rights 651 

619.  Necessity  of  Acceptance  or  Renunciation 651J 

620.  Sale  or  Mortgage  to  Pay  Debts 65.3 

621.  Rights  and  Liabilities  of  Purchasers  Under  Sale  to  Pay  Debts. .  .  655 


XX  TABLE  OF  CONTENTS  IN  VOL.  L 

Page 

§  622.  Actions  by  or  Against  Survivor 650 

623.  Actions  by  or  Against  Heirs 657 

624.  Administration  in  General 668 

625.  Control,  Management,  and  Collection  of  Community  Assets 660 

626.  Acoountino'  and  Settlement 661 


CHAPTER  XXX. 

ACTIONS 

627.  Actions  Between  Spouses  at  Law 664 

628.  In  Equity 664 

629.  Effect  of  Statute  of  Limitations 667 

630.  Effect  of  Divorce  or  Abandonment 667 

631.  Under  Married  Women's  Acts  in  General 667 

632.  Implied  Statutory  Power  to  Maintain  Action 66S 

633.  Torts  in  General 669 

634.  Assault  by  Husband  on  Wife 671 

63^>.  Ejectment 672 

636.  Replevin 672 

637.  Negligence 673 

638.  Contract 673 

639.  Partition 674 

6'?'0.  Amounts  Expended  for  Necessaries 674 

641.  Confession  of  Judgment 674 

642.  Trover 674 

643.  Actions  by  Wife  Against  Third  Persons 675 

644.  In  Equity 676 

645.  Under  Married  Women's  Acts 677 

646.  Necessity  of  Joining  Husband  as  Party -at-Law 679 

647.  In  Equity 680 

648.  Necessity  of  Guardian  ad  Litem  or  Next  Friend 681 

649.  Effect  of  Husband's  Refusal  to  Join 6S1 

650.  Effect  of  Separation 682 

651.  Compromise  of  Claim 682 

652.  Contract 682 

653.  Confession  of  Judgment 683 

654.  Submission  to  Arbitration 684 

655.  In  Tort;  In  General 684 

656.  Under  Married  Women's  Acts 684 

657.  Trespass 685 

658.  Professional  Negligence 685 

659.  Assault  and  Battery 685 

G60.  Ejectment  and  Forcible  Detainer 686 

661.  Replevin 686 

662.  Personal  Tniuries  to  Wife 686 

663.  Fraud  and  Deceit 688 

664.  T.ibol  or  Slander f!»S 

605.  Malicious  Prosecution   689 

606.  Tnjurv  to  Wife's  Personal  Property 689 

667.  Trover 690 

608.  For  Loss  of  Husband's  Consortium  and  Services 691 

669.  For  Death  of  Husband 692 

070.  Pleading 692 

67L  Defences  to  Action  by  Wife 692 

072.  Damages 69:5 

673.  Abatement  and  Survival  of  Action 695 

674.  Husband's  Rights   COO 

67.5.  For  Mental  Anguish  Suffered  by  Wife 696 

670.  Reduction  of  Wife 696 

677.  T''()r  lyosfl  of  Consortium  and  Medical  Expenses 697 

678.  For  1a>'<»  of  Sfrvices 704 

679.  For  Di-.Tth  of  Wife 704 

680.  NecesBity  of  Joinder  of  Wife 70.". 


TABLE  OF  CONTENTS  IN  VOL.  L  XXi 

Page 

681.  Actions  Against  Vv  iie  in  General 700 

682.  Under  Married  Women's  Acts 706 

683.  Trover 706 

984.     Actions  Against  Wife 707 


PAET  III. 

PARENT  AND  CHILD. 

CHAPTER  I. 
THE   RELATION    IN    GENERAL. 


§  686.  Definitions 709 

686.  Stepoliiidren 700 

687.  One  Standing  in  Loco  Parentis 711 

688.  Gifts  Between  Parent  and  Child 712 

689.  Clothing,  Money,  etc.,  Given  to  the  Child;  Right  to  Insure 715 

690.  Contracts  Between  Parent  and  Child 710 

691.  Suits  Between  Child  and  Parents 717 

692.  Privileged  Communication  to  Ptu  :nt 719 

6^3.  Constitutional  Right  of  Legislature  to  Interfcft  with  Parent. .  .  .  719 


^&' 


CHAPTER  II. 

LEGITIATE   CHILDREN   IN   GENERAL. 

§  694.     Parent  and  Child  in  General ;   Children  Legitimate  and  I:  tgiti- 

mate. 721 

695.  Legitimate  Children  in  General 722 

696.  Presumption  of  Legitimacy ■i22 

697.  Legitimation  of  Illicit  Offspring  by  Subsequent  Marriage 727 

698.  Legitimation  by  Subsequent  Marrfage  Not  Favored  in  England.  .  729 

699.  Legitimacy  of  Offspring  Born  After  Divorce 730 

700.  Legitimacy  in  Marriages  Null  But  Bona  Fide  Contracted 731 

701.  Legitimation  by  the  State  or  Sovereign 731 

702.  Domicile  of  Children;  Citizenship,  etc 731 

703.  Conflict  of  Laws  as  to  Domic5le  and  Legitimacy 733 

CHAPTER  III. 

ILLEGITIMATE    CHILDREN. 

§  704.     Illegitimate  Children ;  Their  Peculiar  Footing 736 

706.     Who  are  Bastards 737 

706.  Presumption  of  T-«gitimacy 7-38 

707.  Custody  Under  English  Law 740 

708.  Custody  Under  American  Law 742 

709.  Maintenance 743 

710.  What  Law  Governs  Property  Rights 746 

711.  Disability  6i  Inheritance  atCommon  Law 747 

712.  Inheritance  by  Bastards  Under  Modern  Statutes 748 

713.  Inheritance  from  Bastards 752 

714.  Bequests  and  Gifts  to  Illegitimate  Children 753 

715.  Effect  of  Recognition 756 

716.  Persons  in  Jjoco  Parcntifi :  Distant  Relatives,  etc 750 

717.  Guardianship  of  an  Illegitimate  Child 75? 


XSll  TABLE  OF  CONTENTS  IN  VOL.  I. 

CHAPTER  IV. 

ADOPTED    CHILDREN. 

Page 

§  718.     Definitions 760 

719.  History 760 

720.  Statutes  Permitting  Adoption 762 

721.  Contracts  to  Adopt   763 

722.  Consent  of  Parents 765 

723.  Adoption  by  Deed  or  by  Judicial  Act 767 

724.  Parties 760 

725.  Evidence 770 

726.  Effect  of  Adoption 771 

727.  Child's  Rights  of  Inheritance  from  Parents 772 

728.  Child's  Rights  of  Inheritance  from  Kindred  of  Parents 774 

729.  Child's  Rights  of  Inheritance  by  Contract 776 

730.  Adoption  as  Revocation  of  Will  of  Adopting  Parent 776 

731.  Rights  of  Inheritance  by  Parents 777 

732.  Inheritance  by  Children  of  Adopted  Child 778 

733.  Effect  of  Adoption  on  Inheritance  by  Widow  of  Adopting  Parent.  778 

734.  Revocation  of  Adoption 779 

735.  Conflict  of  Laws  relating  to  Adoption 780 


CHAPTER  V. 

BIGHTS    OF    PARENTS. 

§  736.     Foundation  of  Parental  Rights 7>82 

737.  Right  of  Chastisement 782 

738.  Parent's  Rights  to  Child's  Property 784 

739.  Child's  Duty  to  Care  for  Parents 786 


CHAPTER  VI. 
parent's  bight  of  custodt. 

740.  Common-Law  Rule;  English  Doctrine 79C 

741.  Chancery  Jurisdiction  in  Custody;  Common  Law  Overruled 791 

742.  English  Rule ;    Statute 793 

743.  American  Rule 794 

744.  Welfare  of  Child 790 

745.  Child's  Own  Wishes 799 

746.  Custody  Under  Divorce  and  Other  Statutes 799 

747.  Parent's  Right  to  Attend  Funeral  of  Child 801 

748.  Contracts  Transferring  Parental   Rights 802 

749.  Proceedings  to  Determine  Custody;   Prior  Adjudication 805 

750.  Suit  for  Harboring  or  Enticing  Away  One's  Child;   Abduction, 

etc 807 

751.  Contests  for  Custody  Between  Husband  and  Wife,  etc 811 


CHAPTER  VII. 
pabent's  bight  to  sekviceb  of  cnrLD. 

7^2.     Right  of  Father  to  Child's  Lnbor  and  Services 81.? 

753.  Mother's  Rights  to  Child's  Services  and  Earnings 815 

754.  LoHH  of  Right  to  Child's  Services 816 

755.  Parent's  Ricrht  of  Action  for  Child's  Labor 820 

756.  Child'.H  Right  of  Compensation  for  Services  to  Parent 821 


TABLE  OF  CONTENTS  IN  VOL.  I.  Xxiii 

CHAPTER  VIII. 
ACTIONS  FOB  INJTJEY  TO  CHILD 

Page 

757.  Action  for  Injury  to  Child;  in  General 823 

758.  Statutes  Affecting  Right  of  Action 827 

759.  Surgeon's  Liability  for  Operating  on  Child 828 

760.  Dangerous  Employment;   Father's  Consent 828 

761.  Suits  for  Seduction  of  a  Child 830 

762.  Parent's  Action   for  Death 834 

763.  Father's  Liability  for  Fraudulent  Misstatement  of  Age 836 

764.  Parties 837 

765'.     Negligence  of  Parent 838 

766.  Contributory  Negligence  of  Child 839 

767.  Pleadings 839 

768.  Evidence 840 

769.  Questions  for  Jury 840 

770.  Damages  for  Injuries  or  Enticement 841 

771.  Damages  for  Seduction 842 


CHAPTER  IX. 

THE  PABENT'S   duties   AND  LIABILITIES. 

§  772.     Leading  Duties  of  Parents  Enumerated 844 

773.  Duty  of  Protection;  Defence,  Personal  and  Legal 844 

774.  Duty  of  Education 845 

775.  Duty  of  Providing  a  Trade  or  Profession 847 

776.  Religious  Education 847 

777.  Parent's  Liability  for  Torts  of  Child 849 

778.  Liability  for  Acts  of  Insane  Child 852 

779.  Parent's  Liability  for  Child's  Acts  in  Driving  Automobile,  etc.. .  853 


CHAPTER  X. 
pabent's  duty  of  suppobt. 

S  780.    Duty  of  Maintenance  in  General 856 

781.  Father's  Support 857 

782.  Mother's   Support 858 

783.  Mother's  Pension  Acts 859 

784.  Ability  of  Parent  to  Support  Child 860 

785.  Duty  to   Stepchildren 860 

786.  Value  of  Parental  Education,  Suprport,  etc 860 

787.  Liability  of  Parent  to  Third  Persons  in  Absence  of  Agreement.  .  .  861 

788.  Child  as  Agent  for  Parent 864 

789.  Agreements   to  Suprport 866 

790.  What  Constitutes  Support  or  "  Necessaries  " 867 

791.  Medical  Expenses 867 

792.  Funeral  Expenses 868 

793.  Maintenance,  etc.,  in  Chancery;  Allowance  from  Child's  Fortune.  869 

794.  Chancery  Maintenance;  Out  of  Income  or  Principal 873 

795.  When  Duty  Ceases 874 

796.  Separation  or  Divorce  of  Parents 875 

797.  Pleadings  and  Evidence  in  Actions  for  Support 878 

798.  English  Statute  Enforcing  Support 879 

799.  American  Penal  Statutes  Enforcing  Support 880 

800.  Support  by  Others  as  a  Defence 882 

801.  Proceedings  to  Compel  Support 883 


XXIT  TABLE  OF  CONTENTS  IN  VOL.  I. 

CHAPTER  XI. 
BIGHTS    OF    CHILDBEN, 

Page 
§  802.     Rights  of  Children  in  General 886 

803.  Claims  Against  the  Parental  Estate  for  Services  Rendered 886 

804.  Advancements 887 

806.     Child's  Rights  of  Inheritance 890 

806.     Rights  of  Full-grown   Children 891 

CHAPTER  XII. 

EMANCirATION, 

§  807.     The  Emancipation  of  a  Child 896 

808.  What  Con.-titutes  Emancipation 897 

809.  Effect  of  Emancipation 903 


PAKT  IV. 

GUARDIAN  AND  WARD. 

CHAPTER  I. 
OF  GtTABDIANS  IN  GENERAL :    THE  SEVERAL  KINDS. 

§  810.     Guardianship  Defined;  Applied  to  Persons  and  Estate 907 

811.  English  Doctrine;  Guardianship  by  Nature  and  Nurture 908 

812.  Classification  of  Guardians  in  England;  Obsolete  Species 909 

813.  English  Doctrine:    Guardiansliip  in   Socage 910 

814.  English   Doctrine ;  Testamentary  Guardianship 911 

815.  English   Doctrine;   Chancery  Guardianship 913 

816.  English  Doctrine;   Guardianship  by  Election  of  Infant 915 

817.  Guardians  by  Nature  and  Nurture."    In  this  Country 916 

818.  Chancery  and  Probate  Guardianship  in  this  Country 917 

819.  Guardians  in  Socage  in  this  Country 919 

820.  Testamentary  Guardians  in  this  Country 919 

821.  Guardians  of  Idiots,  Lunatics,  Spendthrifts,  etc 921 

822.  Guardians  of  Married  Women 922 

823.  Special  Guardians;    Miscellaneous  Trusts 922 

824.  Guardian  ad  Litem  and  Next  Friend 923 

825.  Guardians  de  Facto '^^ 

826.  Guardianship  by  the  Civil  Law 924 

CHAPTER  TI. 

APPOINTMENT  OF  GUARDIANS. 

§  W5      Gonstitutionnl   Power   of  Let^islature 925 

828.  Authority   of  Courts    in   General 92f) 

829.  Jurisdiction    in   CK-neral W8 

830.  What  Courts  May  Appoint 927 

R31       Domicile  or  Residence  of  Minor 928 

832.  Nocofwif V    of    Prop^Ttv 930 

833.  Where  Father  is  Alive 932 

834      Parontft  or  Rolafivf-s  Proferred 933 

836.     Te«tamontant'  Guardianship;   How  Constituted 936 


TABLE  OF  CONTENTS  IN  VOL.  L  XXV 

Page 

$  836.     Parent's  Choice 939 

837.  The  Best  Interest  of  the  Ward  as  a  Test 940 

838.  Administrator;  One  Having  Adverse  Interest 941 

839.  Married  Women 942 

840.  Non-residents 943 

841.  Corporations 944 

842     Prior  Petition  Preferred 944 

843.  Guardians  by  Xature 944 

844.  Guardianship  by  Appointment  of  Infant;  Right  to  Nominate. .  . .  945 
846.     English   Practice 946 

846.  American  Practice ;  Notice ;  Trial  by  Jury 947 

847.  Effect  of  Appointment ;  Conclusiveness  of  Decree,  etc 948 

848.  Civil-Law  Rule  of  Appointing  Guardians 960 


CHAPTER  ni. 

TEBMINATION   OF  THE  GUABDIAN'S   AUTHOBITT. 

84ft.  How  the  Guardian's  Authority  is  Terminated 952 

860.  Natural  Limitation ;  Ward  of  Age,  etc 95^ 

86L  Death  of  the  Ward 954 

862.  Marriage  of  the  Ward 954 

853.  Death   of   Guardian 956 

854.  Resignation  of  the  Guardian 967 

855.  Removal :   Who  ^lay  Remove 960 

856.  Removal ;   Procedure 961 

857.  Removal :   Causes  of 963 

868.  Appointment  of  Successor  —  Duties 966 

869.  Marriage  of  Female  Guardian 967 

860.  Other  Cases  Where  a  New  Guardian  is  Appointed 968 


CHAPTER  TV. 

NATUBE  OF  THE  GUABDIAN'S  OFFICE. 

861.  Guardianship  Relates  to  Person  and  Estate 969 

862.  Whether  a  Guardian  is  a  Trustee 971 

863.  Joint  Guardians 972 

964.     Judicial  Control  of  the  Ward's  Property 974 

865.  Guardianship  and  Other  Trusts  Blended 975 

866.  Administration  Durante  Minore  Aetate 977 

867.  Guardians  de  Facto 977 

868.  Extra-territorial  Riphts  of  Guardians  in  General 978 

869.  Risrhts  of  Foreisn  Guardian  as  to  Ward's  Person 979 

870.  Rights  of  Foreism  Guardian  as  to  Ward's  Property 980 

871.  Constitutional  Questions  Relating  to  Guardianshi-p 983 


CHAPTER  V. 

BIGHTS    AND   DUTIES    OF   GUABDIANS    CONCEBNIKG   THX 
wabd's  PFBSON. 

872.  Division  of  this  Chapter 965 

873.  Guardian's  Right  of  Custody 986 

874.  Testamentarv  Guardians 987 

875.  Parent's  Rights  to  Custody 987 

876.  Parent's  Right  of  Access 9^^ 

877.  Habeas  Corpus  to  Determine  Custody 989 

878.  Guardian's  Risht  to  Change  Ward's  Domicile  or  Residence 990 

879.  Right  to  Personal  Services  of  Ward 992 

880.  Guardian's  Duties  as  to  Ward's  Person ;  In  General 993 


XXVl  TABLE  OF  CONTENTS  IN  VOL.  I. 

Page 

§  881.  Liability  for  Support  of  Ward 994 

882.  Support  by  Guardian  Before  and  After  Guardianship 996 

883.  Board  Furnished  by  Guardian 996 

884.  Services  of  Ward  to  Guardian  to  be  Credited 9^7 

885.  Allowance  to  Parent  for  Ward's  Support;  Chancery  Rules 997 

886.  Secular  and  Religious  Education  of  Ward  by  Guardian lOOO 

887.  Use  of  Income  or  Principal 1001 


CHAPTER  VT. 

BIGHTS  AND  DTTTIES  OF  THE  GUARDIAN   AS   TO  THE  WARD'S   ESTATE. 

§  888.  In  General ;  Leading  Principles 1005 

889.  Guardian's  General  Powers  and  Duties  as  to  Ward's  Estate..  ..  1006 

890.  Duty  of  iwyalty ;  Not  to  Make  Money  from  Estate 1007 

891.  Authority  Before  or  After  Termination  of  Office 1010 

892.  Guardian  Has  no  Title  in  Ward's  Estate 1010 

893.  Character  in  Which  Holds  Funds 1010 

894.  Right  to  Possession  of  Estate 1010 

895.  Collection   of  Assets 1011 

896.  What  Property  is  Assets  of  the  Estate 1013 

897.  Reasonable  Time  Allowed  for  Investment 1013 

898.  Character  of  Investments 1014 

899.  Separation  of  Funds 1018 

900.  Reinvestment 1019 

901.  Statutes  Governing  Investments 1019 

902.  When  Chargeable  with  Interest  on  Investments 1020 

903.  Loans  by  Guardian 1022 

904.  Bank  Account 1024 

906.  Expenditures  Allowed  1025 

906.  Payment  of  Debts •. 1028 

907.  Continuance  in  Business 1028 

908.  Liability  for  Negligence  or  Fraud 1028 

909.  Effect  of  Guardian's  Unauthorized  Acts 1029 

910.  Contracts   in    General 1030 

911.  Contracts   for  Necessaries 1082 

912.  Contracts  for  Services  to  Ward  or  Estate 1034 

913.  Promissory  Notes 1035 

914.  Loans  to  Guardians 1037 

915.  Management  of  Ward's  Real  Estate  in  Detail 1037 

916.  Deeds  of  Property 1039 

917.  Repairs  and  Insurance 1039 

918.  Lease 1040 

919.  Mortgage  or  Pledge 1042 

920.  Guardian's  Occupation  of  Land 1045 

921.  Changes   in   Character  of  Ward's   Property;    Sales;    Exchanges, 

eta 1045 

922.  Right  to  Sue  and  be  Sued,  as  to  Ward's  Estate 1048 

923.  Guardian's  Riglit  of  Action  for  Benefit  of  Ward 1049 

924.  Parties 1050 

925.  Compromise  of  Claims 1053 

926.  Arbitration 1055 


CHAPTER  VIT. 

SALKR    OF   THE    WARD'R    REAL   ESTATE. 

f  927.     In  Ralf-B  of  Ward's  Propertv  a  I>iberal  Rule  Applies 1056 

928.  OfherwiPo   np   to  Real    Estate;    Whotlior   Chaneerv  Can    Sell    Tn- 

fant'H  Landfi '. lO.*;? 

929.  English   Chancery  Doctrine 1059 


TABLE  OF  CONTENTS  IN  VOL.  I.  XXvii 

Page 

930.  Civil-law  Eule  as  to  Sales  of  Ward's  Lands 1060 

931.  Sale  of  Ward's  Lands  Under  Legislative  Authority  Common  in 

the  United  States   1060 

'932.  American  Statutes  on  this  Subject  Considered lOGO 

93i3.  Guardian's  Own  Sale  Not  Binding;  Public  Sale  Usiually  Required  1062 

934.  What  Interests  in  Land  May  be  Sold 1062 

935.  Parties  to  Proceedings 1063 

936.  Purpose  of  Sales 1064 

937.  Requisites    of   Petition 1064 

938.  Requisities   of  Decree 1065 

939.  Rights  of  Purchaser  Under  Guardian's  Deed 1065 

940.  Sale  Void  or  Voidable 1066 

941.  Disposition  of  Proceeds 1072 

942.  Confirmation   of   Sale 1072 

943.  Sales  in  Cases  of  Non-Residents 1073 


CHAPTER  VIII. 

THE  GUABDIAn'S  INVENTORY  AND   ACCOUNTS. 

§  944.     The  Guardian's  Inventory 1074 

945.  The  Guardian's  Accounts;  English  Chancery  Practice 1075 

946.  Accounts ;    Jurisdiction    Over 1076 

947.  Accounts;   Duty  to  Render  Accounts 1076 

948.  Accounts ;  When  Required 1077 

949.  Accounts ;   Form 1077 

949'a.  Accounts;   Intermediate  and  Final  Distinguished 1078 

950.  Accounts;   With  What  Property  Guardian  Chargeable 1081 

951.  Accounts ;  Effect  of  Lapse  of  Time 1083 

952.  Accounts;  In  Case  of  Death,  etc.,  of  Guardian 1083 

953.  Compensation  of  Guardians  in.  England 1084 

954.  Compensation  in  this  Country 1084 

955.  Commissions 1087 


CHAPTER  IX. 

THE  guardian's  BOND. 

§  956.  Guardian's  Recognizance;  Receiver,  etc.;  English  Ckanc^ry  Rule.  1089 

957.  American  Rule;  Bonds  of  Probate  and  Other  Guardians 1090 

958.  Liability  of  Guardian  and  Sureties 1093 

959.  The  Same  Subject 1097 

960.  .Special  Bond  in  Sales  of  Real  Estate 1098 

961.  Suit  on  the  Guardian's  Bond  for  Default  and  Misconduct 1099 

962.  Validity  of  Bond 1099 

963.  Accounting  as  Prerequisite 1100 

964.  Accounting  is  Conclusive 1102 

965.  Sureties  Held  on  Breach  Occuring  While  Bond  Outstanding 1103 

966.  Sureties  on  DifTerent  Bonds.     Special  Bonds 1104 

967.  For  What  Acts  of  Guardian  is  Surety  Liable 1106 

968.  Interest,  Costs  and  Penalty 1107 

969.  In  What  Capacity  Guardian  Acting 1107 

970.  For  What  Property  Sureties  Liable IIOS 

971.  Duty  of  Sureties  as  to  Estate 1109 

972.  Surety  Taking  Collateral IK^^ 

973.  Contribution  Among  Sureties 1 109 

974.  Subrogation  of  Sureties HOO 

975.  Limitation    of   Action ^^^^ 

'976.  Effect  of  Fraudulent  Settlement  with  Ward 11  in 

977.  Ward's  Right  to  Impeach  Fraudulent  Transfers IIT^ 

978.  Release  of  Sureties 1 1 1  f> 


XXVlll  TABLE  OF  CONTENTS  IN  VOL.  I. 

CHAPTER  X. 

BIQHT8  AND  LIABILITIES  OF  THE  WAKD. 

Page 

S  979.     General  Rights  of  the  Ward 1113 

980.  Doctrine  of  Election  as  to  Wards,  Insane  or  Infant 1113 

981.  Insane  Persons  and  Infants  Contrasted 1114 

982.  Res^ponsibility  of  Guardian  to  Ward  as  Wrongdoer,  etc 1115 

983.  Ward's  Action  or  Bill  for  Account 1110 

984.  Limitations,  Laches 1118 

985.  Ward's  Right  to  Recover  Embezzled  Property,  etc 1120 

986.  Fraudulent  Transactions  Set  Aside  on  Ward's  Behalf 1120 

987.  Ward's  Rights  to  Ratify  or  Repudiate  Transactions  of  Guardian. 

Estoppel 1122 

988.  Resulting   Trusts;    Guardian's   Misuse   of   Funds;    Purchase   of 

Ward's  Property,  etc 1126 

989.  Transactions  Between  Guardian  and  Ward;  Undue  Influence..  ..  1130 

990.  Situation  of  Parties  at  Final  Settlement  of  Accounts 1131 

991.  Transactions  After  Guardianship   is  Ended 1138 

992.  Marriage  of  Ward  Against  Consent  of  Chancery  or  Guardian 1139 


PART  V. 

INFANCY. 
CHAPTER  I. 

THE  GENERAL  DISABILITIES   OF  INFANTS, 

i  993.     Age  of  Majority 1141 

994.  Enlarging  Capacity  During  Non-Age;   Legislative  Relief  from 

Non-Age 1 143 

995.  Conflict  of  Laws  as  to  True  Date  of  Majority 1145 

996.  Infant's    Right    of    Holding    Office    and    Performing    Official 

Functions 1 146 

997.  Infant's  Responsibility  for  Crime 1149 

998.  Infant's  Criminal  Complaint;  Discretion  in  Case  of  Peril,  etc.  .  1152 

999.  Power  to  Make  a  Will 1 152 

1000.  Testimony  of  Infants 1 154 

1001.  Marriage  Settlements  of  Infants 115ft 

1002.  Infant's  Exercise  oi  a  Power 115fl 

1003.  Infant's  Commercial  Paper 1189 

1004.  Trusts 1160 

1005.  Adverse  Possession 1 160 


CHAPTER  II. 

ACTS  VOID  AND  VOTDAnLE. 

8   1006.     General  Principle  of  Binding  Acts  and  Contracts,  ns  to  Infants,  llrtt 

1007.     Test  as  to  Void  or  Voidable 11»3 

lOOB.     Privilege  of  Avoidance  Personal   to  Infant;   Rule  as  to  Third 

Person,  etc 1  lft^ 

1009.     Modern    Tendency   to   Regard    Infant's   Acts   and   ContraetH   an 

Voidnble  Rather  Than  Void 1167 

1010      Bonds.  Notes,  etc llftO 

1011.  Rule  of  Zoiieh  v.  Parsons 1171 

1012.  I>?ttera  of  Attorney;  Cognovits,  etc l^.l 


TABLE  OF  CONTENTS  IN  VOL.  I.  XXIX 

Page 
§  1013.     Illustrations 1175 

1014.  Trading  and  Partnership  Contracts 117S 

1015.  Void  and  Voidable  Acts  Contrasted;  When  May  Voidable  Acts 

Be  Affirmed  or  disaffirmed 1181 


CHAPTER  III. 

ACTS    BINDING    UPON    THE    INFANT. 

§  1016.  General  Principle  of  Binding  Acts  and  Contracts 1183 

1017.  Contracts  for  Necessaries;  What  Are  Such  For  Infanta 1183 

1018.  Illustrations 1187 

1019.  Contracts  for  Necessaries;   Same  Subject 1190 

1020.  Money   Advanced   for   Necessaries;    Infant's   Deed,   Note,  etc.; 

Equity  Rules 1195 

1021.  Illustrations 1198 

1022.  Binding  Contracts  as  to  Marriage  Relation;  Promise  to  Marry 

Contrasted 1198 

1023.  Acts  Which  Do  Not  Touch  Infant's  Interest;   WTiere  Trustee, 

Officer,  etc 1199 

1024.  Infant  Meraibers  of  Corporations 1200 

1026.     Acts  Which  the  Law  Would  Have  Compelled 1200 

1026.  Contracts  Binding  Because  of  Statute;  Enlistment;  Indenture.    1201 

1027.  Infant's  Recognizance  for  Appearance  on  Criminal  Charge 1202 

1028.  Whether  Infant's  Contract  for  Service  Binds  Him 1202 


CHAPTER  IV. 

THE  INJURIES  AND  FRAUDS  OF  INFANTS. 

§   1029.     Division  of  This  Chapter 1204 

1030.  Injuries  Committed  by  Infant;  Infant  Civilly  Responsible 1204 

1031.  Immunity  for  Violation  of  Contract  Distinguished 1207 

1031a.  Same  Subject;  Infant's  Fraudulent  Representations  as  to  Age, 

etc.  .  .    1210 

1032.  Estoppel  by  Misrepresentation  of  Age 1211 

1033.  Injuries,  etc.,  SuflFered  by  Infants 12U 

1034.  Child's  Contributory  Negligence   121  < 

1035.  Contributory  Negligence  of  Parent,  Protector,  etc -  1219 

1035a.  Arbitration'  Compromise  and  Settlement  of  Injuries  Committed 

or  Suffered  by  Infants 1223 

CHAPTER  V. 

BATIFICATION    AND    AVOIDANCE   OF   INFANT'S    ACTS    AND   CONTRACTS. 

§  1036.     Nature  of  Defence  of  Infancy • r  ■■ ' '  W  "  ^\i"    ^^^'* 

1037.  Rule     Affected    by     Statute;     Lord    Tenterden  s    Act;     Other 

Statutes ■■■■■■. 1 99Q 

1038.  Rule  Independent  of  Statute;  American  Doctrine i--^ 

1039.  Wliat  Constitutes  Disaffirmance.  . Vt^'-'  ' «  "  '  '  "  o 19^^^ 

1040.  Time,  Nature  and  Effect  of  Ratification  and  Disaffirmance li^o 

1041.  Instances j243 

1042.  Conflicting  Dicta j244 

ml  IST;Uco''n"™rceot  lafanfV  La^i^Ji^^:  MorlgagsVetc  124« 

1045.  Infant's  Conveyance,  Lapse  of  Time   etc. . ^^^ 

1046.  Ratification  as  to  An  Infant's  Purchase,  etc   ...      .  .  .....  ._.^^  i^» 

1047.  Executory    Contracts,    etc.,    Voidable    During    Infancy;     How  ^^^^^ 

Affirmed  or  Disaffirmed    1  '^  '  '  "• 19'5^ 

1048.  Rule  Applied  to  Infant's  Contract  of  Service 


XXX  TABLE  OF  CONTENTS  IN  VOL.  I. 

Page 
§  1049.     Parents,   Guardians,   etc..   Cannot  Render  Transaction  Obliga- 

tury  Upon  the  Infant,  etc 12&5 

10.50.     Miscellaneous    Points;    as    to    New    Promise;    Whether    Infant 

Affirming  Must  Know  His  Legal  Rights 1266 

1051.  Whether  Infant  Who  Disaffirms  Must  Restore  Consideration...    1257 

1052.  Avoidance  Through  Agents,  etc 1263 

1053.  Ratification,  etc.,  as  to  Infant  Married  Spouse 1264 

1054.  Rules;  How  Far  Chancery  May  Elect  For  the  Infant 1265 

CHAPTER  VI. 

ACTIONS  BY  AND  AGAINST  INFANTS. 

§  1055.     Actions  at  Law  by  Infants;  Suit  or  Defence  by  Next  Friend  or 

Guardian 1267 

1056.  General  Rules  as  to  Actions  by  Ne.\t  Friend 1269 

1057.  Powers.  Qualifications  and  Duties  of  Next  Friend 1272 

1058.  Action  at  Law  Against  Infant;  the  Guardian  Ad  Litem 1275 

1059.  Chancery  Proceedings  Bv   or  Against  Infants;    Corresponding 

Rule.' '. 1281 


PART  VI. 

SEPARATION   AND  DIVORCE. 
CHAPTER  I. 

SEPARATION    AND  DIVOBCE. 

]  060.     Deed  of  Separation ;  General  Doctrine 128.'> 

1061.  English  Rule  1286 

1062.  American  Rule 128S 

1063.  What  Covenants  Are  Upheld 1290 

1064.  Abandonment;  Rights  of  Deserted  Wife 1294 

1065.  Divorce  I-*gislation  in  General 1295 

1066.  Legislation    Upon    Divorce:     Divorce    from    Bed    and    Board; 

Divorce  from  Bond  of  Matrimony,  etc 1297 

1067.  Causes  of  Divorce;  Adultery;   Cruelty;   Desertion;   Miscellane- 

ous Causes * .' 1298 

1068.  Defences 1301 

1069.  EfTect  of  Absolute  Divorce  Vpon  Propertv  Riirhts 1302 

1070.  EfTect  of  Partial  Divorce  T^pon  Property"  Rights 1305 

1071.  Validity  of  Foreign  Divorces 1307 


DOMESTIC  RELATIONS  LAW. 

PART  I. 


mTEODUCTORY  CHAPTER. 

Section     1,  Domestic  Eelations  Defined;  Earlier  Writers. 

2.  Plan  of  Classification,  etc. 

3.  General  Characteristics  of  the  Law  of  Family. 

4.  Law  of  Husband  and  Wife  now  in  a  Transition  State;  Various 

Property  Schemes  Stated. 

5.  Common-Law  Property  Scheme. 

6.  Civil-Law  Property  Scheme. 

7.  Community  Property  Scheme. 

8.  The  Recent  Married  Women's  Acts. 

9.  Marriage  and  Marital  Influence. 

10.  General  Conclusions  as  to  the  Law  of  Husband  and  Wife. 

11.  Eemaining  Topics  of  the  Domestic  Relations;  Modern  Changes. 

§  1.  Domestic  Relations  Defined;  Earlier  Writers. 

The  law  of  the  domestic  relations  is  the  law  of  the  household  or 
family,  as  distinguished  from  that  of  individuals  in  the  external 
concerns  of  life.  Four  leading  topics  are  embraced  under  this 
head:  First,  husband  and  wife.  Second,  parent  and  child. 
Third,  guardian  and  ward.  Fourth,  infancy.  These  will  be  suc- 
cessively considered  in  the  present  treatise. 

*  2.  Plan  of  Classification,  &c. 

Starting,  then,  with  a  definition  simple,  natural,  and  well 
adapted  to  the  materials  in  hand,  we  next  ask  what  are  the  proper 
limitations  of  our  subject?  what  should  a  text-book  on  the  English 
and  American  law  of  the  domestic  relations  comprise?  (1)  As  to 
three  of  our  topics,  —  husband  and  wife,  parent  and  child,  and 
infancy,  —  the  question  is  easily  answered.  Their  very  names 
convey  a  distinct  significance  even  to  the  mind  of  the  unprofes- 
sional reader.    Except  it  be  in  the  meaning  of  the  word  "  infancy," 

1 


§    2  INTRODUCTION.  2 

which  the  law  applies  to  all  persons  not  arrived  at  majority,  but 
popular  usage  restricts  to  the  period  of  helplessness,  all  intelligent 
persons  agree  in  the  general  use  of  the  terms  we  have  employed. 
And  so  strong  are  the  moral  obligations  which  attend  marriage  and 
the  training  of  off-spring,  so  intimately  blended  with  the  welfare 
and  happiness  of  mankind  are  the  ties  of  wife  and  child,  that 
scarcely  any  one  grows  up  without  some  knowledge  of  the  general 
principles  of  law  applicable  to  these  topics,  and  particularly  of 
such  of  the  rights  and  duties  as  concern  the  person  rather  than  the 
property.  For  positive  law  but  enforces  the  mandates  of  the  law 
of  nature,  and  develops  rather  than  creates  a  system. 

(2)  Yet  even  here  it  should  be  observed  by  the  professional 
reader  that  the  term  "  husband  and  wife  "  is  acquiring  at  law  a 
more  limited  and  technical  sense  than  formerly.  The  idea  of 
marriage  involves  both  the  entrance  into  the  relation  and  the  rela- 
tion itself;  and  akin  to  marriage  celebration  is  the  dissolution  of 
marriage  by  divorce,  or  what  we  may  term  our  recognized  legal 
exit  from  the  relation.  Hence  marriage  and  divorce  constitute 
an  important  topic  by  themselves;  and  we  find  treatises  which 
profess  to  deal  with  these  alone.  Marriage  and  divorce,  more- 
over, have  in  England  pertained  until  quite  recently  to  the  peculiar 
jurisdiction  of  ecclesiastical  courts,  constituting  what  is  termed  an 
ecclesiastical  law.^  The  rights  and  duties  which  grow  out  of  the 
marriage  relation,  on  the  other  hand,  still  remain  for  separate 
discussion :  the  consequence  of  the  celebration ;  the  effect  of  mar- 
riage upon  the  property  of  each  ;  the  personal  status  of  the  parties, 
—  in  short,  what  new  legal  responsibilities  are  assumed,  and  what 
legal  privileges  are  gained  by  the  two  persons  who  have  once  volun- 
tarily united  as  husband  and  wife.  It  is  to  this  latter  subdivision, 
rather  than  the  former,  that  the  title  of  husband  and  wife  seems 
at  the  present  day  to  apply.  Eeevo  devotes  but  a  brief  chapter  to 
marriage  and  divorce.  Kent  separates  the  subdivisions  com- 
pletely, applying  the  title  of  husband  and  wife  as  above.  Yet 
Blackstone,  writing  before  either,  liml  devoted  two-thirds  of  his 
lecture  on  husband  iiiid  wife  to  the  ti-entniont  of  marriage  and 
divorce  alone,  and  very  briefly  diK{)osf'd  of  the  rights  and  dis- 
abilities of  the  marriage  union  under  the  same  general  heading. 
The  many  and  rapid  changes  to  wliidi  the  entire  law  of  husband 

1.  ■Rurn,  Ecrl.  Law;  1  Bishop,  Mar.  &  Div.,  Sth  cd.,  §§  48-65. 


6  INTRODUCTION.  §    ;j 

and  wife  has  been  latterly  subjected;  the  growth  of  divorce  legis- 
lation on  the  one  hand,  and  of  property  legislation  for  married 
women  on  the  other,  fully  justifies  a  subdivision  so  important. 
We  shall  subordinate,  then,  the  topic  of  marriage  and  divorce  to 
that  of  the  marriage  status,  following,  in  this  respect,  the  modern 
legal  usage;  at  the  same  time  noting  that,  if  some  special  term 
could  be  coined  to  distinguish  the  subdivision  husband  and  wife 
from  that  general  division  which  bears  the  same  name,  legal 
analysis  would  be  more  exact. 

(3)  As  to  guardian  and  ward,  the  limitations  of  our  treatise 
are  not  so  easily  marked  out.  In  respect  of  the  domestic  relations, 
the  guardian  is  a  sort  of  temporary  parent,  created  by  the  law,  to 
supply  to  young  children  the  place  of  a  natural  protector.  But 
the  term  "  guardian  "  is  used  rather  indiscriminately  in  these  days 
with  reference  to  all  who  need  protection  at  the  law.  Thus  we 
have  guardians  of  insane  persons,  guardians  of  spendthrifts,  and 
even  guardians  of  the  poor.  Blackstone  treats  of  these  last  guard- 
ians under  the  head  of  public  relations;  and  certainly  they  do  not 
fall  within  the  clear  scope  of  private  or  domestic  relations.  Yet 
the  legal  principles  applicable  to  one  class  of  guardians  frequently 
extend  as  well  to  all  others ;  and  we  shall  hardly  expect  in  these 
pages  to  trace  with  distinctness  that  shadowy  line  which  separates 
the  temporary  parent  from  the  town  officer ;  nor  would  the  con- 
sulting lawyer  expect  us  to  do  so.  Again,  a  guardian's  duties  are 
chiefly  with  respect  to  property ;  and  herein  they  so  nearly  resemble 
those  of  testamentary  trustees  that  one  frequently  finds  himself 
gliding  unconsciously  from  the  law  of  the  family  into  the  law  of 
trusts. 

§  3.  General  Characteristics  of  the  Law  of  Family. 

Whether  we  consult  the  facts  of  history  or  the  inspirations  of 
human  reason,  the  family  may  be  justly  pronounced  the  earliest  of 
all  social  institutions.  Man,  in  a  state  of  nature  and  alone,  was 
subject  to  no  civil  restrictions.  He  was  independent  of  all  laws, 
except  those  of  God.  But  when  man  united  with  woman,  both 
were  brought  under  certain  restraints  for  their  mutual  well-being. 
The  propagation  of  offspring  afforded  the  only  means  whereby 
society  could  hope  to  grow  into  a  permanent  and  compact  system. 
Hence  the  sexual  cravings  of  nature  were  speedily  brought  under 
wholesome  regulations;  as  otherwise  the  human  race  must  have 
perished  in  the  cradle.     Natural  law,  or  the  teachings  of  a  Divine 


§    3  INTRODUCTION.  4 

Providence,  supplied  these  regulations.  Families  preceded  nations. 
These  families  at  first  lived  under  the  paternal  government  of  the 
person  who  was  their  patriarch  or  chief.  But  as  they  increased, 
they  likewise  divided;  their  interests  became  conflicting,  and 
hostilities  arose.  Hence,  when  men  came  afterwards  to  unite  for 
their  common  defence,  they  composed  a  national  body,  and 
agreed  to  be  governed  by  the  will  of  him  or  those  on  whom  they 
had  conferred  authority.  Thus  did  government  originate.  And 
government,  for  its  legitimate  purposes,  placed  restrictions  upon 
the  governed;  which  restrictions  thenceforth  were  to  apply  to 
individuals  in  both  their  family  and  social  relations."  But  the 
law  of  the  domestic  relations  is  nevertheless  older  than  that  of  civil 
society.  In  fact,  nations  themselves  are  often  regarded  as  so  many 
families;  and  the  very  name  which  is  placed  at  the  head  of  this 
work,  the  legislator  constantly  applies  to  the  public  concerns  of  his 
own  country  as  contrasted  with  those  of  foreign  governments. 

The  supremacy  of  the  law  of  family  should  not  be  forgotten. 
We  come  under  the  dominion  of  this  law  at  the  very  moment  of 
birth ;  we  thus  continue  for  a  certain  period,  whether  we  will  or 
no.  Long  after  infancy  has  ceased,  the  general  obligations  of 
parent  and  child  may  continue;  for  these  last  through  life.  Again, 
we  subject  ourselves  by  marriage  to  a  law  of  family;  this  time  to 
find  our  responsibilities  still  further  enlarged.  And  although  the 
voluntary  act  of  tAvo  parties  brings  them  within  the  law,  they  can- 
not voluntarily  retreat  when  so  minded.  To  an  unusual  extent, 
therefore,  is  the  law  of  family  above,  and  independent  of,  the 
individual.  Society  provides  the  home;  public  policy  fashions 
the  system ;  and  it  remains  for  each  one  of  us  to  accustom  himself 
to  rules  which  are,  and  must  be,  arbitrary. 

So  is  the  law  of  family  universal  in  its  adaptation.  It  deals 
directly  with  the  individual.  Its  provisions  are  for  man  and 
woman  ;  not  for  corporations  or  business  firms.  The  ties  of  wife 
and  child  are  for  all  classes  and  conditions;  neither  rank,  wealth, 
nor  social  influence  weighs  heavily  in  the  scales.  To  every  one 
public  law  assigns  a  home  or  domicile;  aiul  this  domicile  deter- 
mines not  only  the  status,  capacities,  and  rights  of  the  person,  but 
also  his  title  to  personal  property.  There  is  the  political  domicile, 
which  limits  the  exercise  of  political  rights.     There  is  the  forensic 

2.  See   Burlama(jui,   Nat.   Law,   ch.iv,  §§  6,  9. 


5  INTRODUCTION.  §    4 

domicile,  upon  wliich  is  founded  the  jurisdiction  of  the  courts. 
There  is  the  civil  domicile,  which  is  acquired  by  residence  and  con- 
tinuance in  a  certain  place.  The  place  of  birth  determines  the 
domicile  in  the  first  instance;  and  one  continues  until  another  is 
properly  chosen.  The  domicile  of  the  wife  follows  that  of  the 
husband ;  the  domicile  of  the  infant  may  be  changed  by  the  parent. 
Thus  does  the  law  of  domicile  conform  to  the  law  of  nature. 

§  4.  Law  of  Husband  and  Wife  now  in  a  Transition  State; 
Various  Property  Schemes  Stated. 

The  most  interesting  and  important  of  the  domestic  relations  is 
that  of  husband  and  wife. 

The  law  of  England  and  the  United  States,  on  this  topic,  has 
undergone  a  remarkable  change,  which  is  reflected  in  this  work. 
The  old  common-law  theory  of  marriage,  that  of  unity  of  person 
and  property  in  the  husband,  is  so  repugnant  to  modern  ideas  that 
it  has  been  almost  entirely  swept  away,  but  a  clear  idea  of  the  com- 
mon-law system  is  necessary  for  an  understanding  of  modern 
statutes  and  decisions.  There  was  in  this  country  and  England, 
during  the  latter  part  of  the  nineteenth  century,  a  remarkable 
movement  for  giving  the  wife  equal  rights  in  all  respects  with  the 
husband,  which  has  been  so  far  successful  that  it  can  almost  be 
said  now  that  the  modem  wife  has  a  legal  right  which,  fortunately 
for  all  of  us,  she  does  not  exercise,  to  leave  home  in  the  morning 
and  go  to  work,  collect  and  keep  her  own  wages  and  leave  her 
husband  to  do  the  housework  and  take  care  of  the  babies.  The 
modern  idea  is  that  the  husband  and  wife  are  quasi-partners  in 
the  business  of  rearing  a  family,  that  her  work  in  bearing  and 
caring  for  children  should  be  considered  as  much  as  is  his  labor  as 
a  wage-earner.  The  statutes  and  decisions  which  reflect  this  great 
reform  show  clearly  that  the  influence  of  the  feudal  system,  which 
regarded  only  the  rights  of  the  man  who  could  carry  arms,  has 
almost  disappeared.  The  only  vestige  of  the  rights  of  the  husband 
is  the  right  still  allowed  him  of  choosing  the  family  domicile,  but 
even  this  last  remnant  of  his  autocratic  power  is  only  begrudingly 
bestowed,  as  he  must  now,  forsooth,  exercise  reason  in  his  choice 
or  the  wife  is  not  bound  to  abide  by  his  decision. 

The  relations  of  husband  and  wife  in  this  country  have  been 
governed  by  three  separate  systems,  the  common-law  scheme,  the 
civil-law  scheme,  and  the  communitv  scheme.  Let  us  examine 
these  various  schemes  separately. 


§    6  INTEODUCTION.  6 

§  5,  Common-Law  Property  Scheme. 

(Ij  The  common-law  scheme  makes  unity  in  the  marriage  rela- 
tion its  cardinal  point.  But  to  secure  this  unity  the  law  starts 
with  the  assumption  that  the  wife's  legal  existence  becomes  sus~ 
pended  or  extinguished  during  the  marriage  state ;  it  sacrifices  her 
property  interests,  and  places  her  almost  absolutely  within  her 
husband's  keeping,  so  far  as  her  civil  rights  are  concerned.  Her 
fortunes  pass  by  marriage  into  her  husband's  hands,  for  temporary 
or  permanent  enjoyment,  as  the  case  may  be;  she  cannot  earn  for 
herself,  nor,  in  general,  contract,  sue,  or  be  sued  in  her  own  right ; 
and  this,  because  she  is  not,  in  legal  contemplation,  a  person.  The 
husband  loses  little  or  nothing  of  his  own  independence  by  mar- 
riage ;  but  in  order  to  distribute  the  matrimonial  burdens  with 
some  approach  to  equality,  the  law  compels  him  to  pay  debts  on  his 
wife's  account,  which  he  never  in  fact  contracted,  not  only  where 
she  is  held  to  be  his  agent  by  legal  implication,  but  whenever  it 
happens  that  she  has  brought  him  by  marriage  outstanding  debts 
without  the  corresponding  means  of  paying  them.  Husband  and 
wife  take  certain  interests  in  one  another's  lands,  such  as  curtesy 
and  dower,  which  become  consummate  upon  survivorship.  In 
general,  their  property  rights  are  summarily  adjusted  by  the  law 
with  reference  rather  to  precision  than  principle.  On  the  whole, 
however,  the  advantages  are  with  the  husband;  and  he  is  permitted 
to  lord  it  over  the  wife  with  a  somewhat  despotic  sway ;  as  the  old 
title  of  this  subject  —  haron  and  feme  —  plainly  indicates.  The 
witty  observation  is  not  wholly  inappropriate,  that,  in  the  eye  of 
the  common  law,  husband  and  wife  are  one  person,  and  that  one  is 
the  husband.^ 

§  6.  Civil-Law  Property  Scheme. 

(2)  The  civil-law  scheme  pays  little  regard  to  the  theoretic 
unity  of  a  married  pair.  It  looks  rather  to  the  personal  independ- 
ence of  both  husband  and  wife.  Each  is  to  be  protected  in  the 
enjoyment  of  property  rights.  In  the  most  polished  ages  of  Honian 
jurisprudence  we  find,  therefore,  that  husband  and  wife  were 
regarded  as  distinct  persons,  with  separate  riglits,  and  capable  of 
holding  distinct  and  separate  estate-.  The  wife  was  comparatively 
free  from  all  civil  disabilities.  Slie  was  alone  responsible  for  her 
own  debts ;    she  was  competent  to  sue  and  be  sued  on  her  own 

3.  Bee  post.  Part  II,  as  to  coverture  doctrine. 


Y  INTRODUCTION.  §    6 

contracts;    nor  could  the  husband  subject  her  or  her  property  to 
any  liability  for  his  debts  or  engagements.* 

The  more  minute  details  of  the  common-law  scheme  of  husband 
and  wife  belong  to  the  main  portion  of  this  volume,  and  need  not 
here  be  anticipated.     Xot  so,  however,  with  the  civil-law  scheme; 
and  we  proceed  to  elaborate  it  somewhat  further.     In  the  earlier 
period  of  Roman  law  the  marital  power  of  the  husband  was  as 
absolute  as  the  patrm  potestas.    But  before  the  time  of  the  Emperor 
Justinian  it  had  assumed  the  aspect  already  noticed;    in  which  it 
is   to   be    distinguished    from    all   other   codes.     The    communio 
bonorum,  which  is  to  be  found  in  so  many  modern  systems  of  juris- 
prudence whose  basis  is  the  Roman  law,  treats  the  wife's  separate 
property  and  separate  rights  as  exceptional.     The  peculiarities  of 
the  civil  law  in  this  respect  may,  perhaps,  be  referred  to  the  disuse 
into  which  formal  rites  of  marriage  had  fallen.     Formal  marriage 
gave  to  husband  and  wife  a  community  of  interest  in  each  other's 
property.     But  marriage  per  usum,  or  by  cohabitation  as  man  and 
wife,  which  became  universally  prevalent  in  later  times,  did  not 
alter  the  status  of  the  female;    she  still  remained  subject  to  her 
father's  power.     Hence  parties  united  in  a  marriage  per  usum 
acquired  no  general  interest  in  one  another's  property,  but  only  an 
incidental  interest  in  certain  parts  of  it.     The  wife  brought  her 
dos;  the  husband  his  anti-dos;  in  all  other  property  each  retained 
the  rights  of  owners  unaffected  by  their  relation  of  husband  and 
wife.     The  dos  and  anti-dos  were  somewhat  in  the  nature  of  mutual 
gifts  in  consideration  of  marriage.      Every  species  of  property 
which  might  be  subsequently  acquired,  as  well  as  that  owned  at  the 
time  of  marriage,  could  be  the  subject  of  dotal  gift.     The  father, 
or  other  paternal  ancestor  of  the  bride,  was  bound  to  furnish  the 
dos,  and  the  husband  could  compel  them  afterwards,  if  they  failed 
to  do  so;    the  amount  or  value  being  regulated  according  to  the 
means  of  the  ancestor  and  the  dignity  of  the  husband.     This  pecu- 
niary consideration  appears  to  have  influenced  the  later  marriages 
to  a  verv  considerable  extent.     And  while  the  husband  had  no  con- 
cern  with  the  wife's  extra-dotal  property, —  since  this  she  oould 
manage  and  alienate  free  from  all  control  or  interference, —  over 
her  dotal  property  he  acquired  a  dominion  which  was  determinable 
on  the  dissolution  of  the  marriage,  unless  he  had  become  the  pur- 

4.  1  Burge,  Col.  &  For.  Laws,  203,  263. 


§    7  INTBODUCTION.  8 

chaser  at  an  estimated  value.  As  incidental  to  this  dominion  he 
had  the  usufruct  to  himself,  he  might  sue  his  wife  or  any  one  else 
who  obstructed  his  free  enjoyment,  and  he  could  alienate  the  per- 
sonal property  at  pleasure.  But  he  could  not  charge  the  real 
estate  unless  a  purchaser;  and  upon  his  death  the  wife's  dotal 
property  belonged  to  her,  or,  if  she  had  not  been  emancipated,  to 
her  father;  and  to  secure  its  restitution  after  the  dissolution  of 
marriage,  the  wife  had  a  tacit  lien  upon  her  husband's  property. 
Of  the  anti-dos,  or  donatio  propter  nuptias,  not  so  much  is  known ; 
but  this  appears  to  have  generally  corresponded  with  the  dos;  it 
was  restored  by  the  wife  upon  the  dissolution  of  marriage,  and  was 
regarded  as  her  usufructuary  property  in  like  manner.  It  was  not 
necessarily  of  the  same  value  or  amount  with  the  wife's  dos.  Over 
his  general  property  the  husband  retained  the  sole  and  absolute 
power  of  alienation,  and  his  wife  had  no  interest  in  it,  nor  could 
she  interfere  with  his  right  of  management." 

But  the  civil  law  allowed  agreements  to  be  made  by  which  these 
rights  might  be  regulated  and  varied  at  pleasure.  And  by  their 
stipulations  the  married  parties  might  so  enlarge  their  respective 
interests  as  to  provide  for  rights  to  the  survivor.'  These  agree- 
ments were  not  unlike  the  antenuptial  settlements  so  well  known 
to  our  modem  equity  courts,  which  we  shall  consider  in  due  course 
hereafter. 

§  7.  Community  Property  Scheme. 

(3)  The  communio  honorum,  or  community  system,  relates  to 
marital  property,  in  which  respect  it  occupies  an  intermediate 
position  between  the  civil  and  common-law  schemes.  The  corti- 
munio  honorum  may  have  been  part  of  the  Roman  law  at  an  earlier 
period  of  its  history,  but  it  had  ceased  to  exist  long  before  the  com- 
pilation of  the  Digest;  though  parties  might  by  their  nuptial 
agreement  adopt  it.^  This  constitutes  so  prominent  a  feature  of 
the  codes  of  France,  Spain,  and  other  countries  of  modern  Europe, 
whence  it  has  likewise  found  its  way  to  Louisiana,  Florida,  Texas, 
California,  and  other  adjacent  States,  once  subject  to  French  and 
Spanish  dominion,  and  erected,  in  fact,  out  of  territory  acquired 
during  the  present  centiiry  upon  the  Mississipfii,  the  Gulf  of 
Mexico,  and  the  Pacific  Ocean,  that  it  deserves  a  brief  notice. 

5.  1  RurRP,  Cnl.  !c  For.  Laws,  202;  7.  1  Burce,  Col.  k  For.  Laws,  202; 

Ih.  263   et  xeq.  lb.  263  et  seq. 

f.  1  Burge,  Col.  &  For.  Laws,  273. 


9  INTEODUCTION.  §    7 

The  relation  of  tusband  and  wife  is  regarded  by  these  codes  as 
a  species  of  partnership,  the  property  of  which,  like  that  of  any 
other  partnership,  is  primarily  liable  for  the  payment  of  debts. 
This  partnership  or  community  applies  to  all  property  acquired 
during  marriage;  and  it  is  the  well-settled  rule  that  the  debts  of 
the  partnership  have  priority  of  claim  to  satisfaction  out  of  the 
community  estate.  Sometimes  the  community  is  universal,  com- 
prising not  only  property  acquired  during  coverture,  but  all  which 
belonged  to  the  husband  and  wife  before  or  at  their  marriage.* 
It  is  evident,  therefore,  that  the  provisions  of  such  codes  may 
differ  widely  in  different  States  or  countries.  The  principle  which 
distinguishes  the  community  from  both  the  civil  and  common-law 
schemes  is,  however,  clear ;  namely,  that  husband  and  wife  should 
have  no  property  apart  from  one  another. 

Under  modem  European  codes  this  law  of  community  embraces 
profits,  income,  earnings,  and  all  property  which,  from  its  nature 
and  the  interest  of  the  owner,  is  the  subject  of  his  uncontrolled  and 
absolute  alienation ;  but  certain  gifts  made  between  husband  and 
wife  in  contemplation  of  marriage  are  of  course  properly  excluded.' 
Whether  antenuptial  debts  are  to  be  paid  from  the  common  prop- 
erty, as  well  as  debts  contracted  while  the  relation  of  husband  and 
wife  continues,  would  seem  to  depend  upon  the  extent  of  the  com- 
munio  bcmorum,  as  including  property  brought  by  each  as  capital 
stock  to  the  marriage,  or  only  such  property  as  they  acquire  after- 
wards.^" The  codes  of  modern  Europe  recognize  no  general  capac- 
ity of  the  wife  to  contract,  sue,  and  be  sued,  as  at  the  later  civil  law. 
On  the  contrary,  the  husband  becomes,  by  his  marriage,  the  curator 
of  his  wife.  He  has,  therefore,  the  sole  administration  and  man- 
agement of  her  property,  and  that  of  the  cormnunity ;  and  she  is 
entirely  excluded  in  every  case  in  which  her  acts  cannot  be  referred 
to  an  authority,  express  or  implied,  from  her  husband.^^  Hence, 
too,  all  debts  and  charges  are  incurred  by  the  husband.  The  com- 
munity ceases  on  the  termination  of  marriage  by  mutual  separation 
or  the  death  of  either  spouse.^^  And  the  various  codes  provide 
for  the  rights  of  the  survivor  on  the  legal  dissolution  of  the 
community  by  death. 

8.  1  Burge,  Col.  &  For.  Laws,  277  both  real  and  personal  estate.    Child- 
et  seq.  ress  v.  Cutter,  16  Mo.  24. 

9.  1  Burge,  Col.  &  For.  Laws,  281,  10.  1  Burge,  294. 
282.     By  the  French  law  only  the  per-           11.  lb.  296,  301. 
sonal  estate  entered  into  the  commu-          12.  lb.  303,  305. 
nity;    but   the   Spanish  law  included 


§    7  INTEODUCTION.  10 

The  reader  may  readily  trace  tlie  influence  of  the  community 
system  upon  the  jurisprudence  of  Louisiana  and  the  other  States 
to  which  we  have  referred,  whose  annexation  was  subsequent  to  the 
adoption  of  our  Federal  Constitution,  by  examining  their  judicial 
reports.  The  Civil  Code  of  Louisiana,  as  amended  and  promul- 
gated in  1824,  pronounced  that  the  partnership  or  community  of 
acquets  or  gains  arising  during  coverture  should  exist  in  every 
marriage  where  there  was  no  stipulation  to  the  contrary.  This  was 
a  legal  consequence  of  marriage  under  the  Spanish  law.^^  The 
statutes  of  Texas,  Florida,  Missouri,  California,  and  other  neigh- 
boring States,  are  characterized  by  similar  features.  But  all  of 
these  laws  have  been  modified  by  settlers  bringing  with  them  the 
principles  of  the  common  law.  So,  too,  the  doctrines  of  separate 
estate,  revived  in  modern  jurisprudence,  are  introduced  into  the 
legislation  of  these  as  other  American  States.^*  The  American 
community  doctrine,  as  we  may  term  it,  is  that  all  property  pur- 
chased or  acquired  during  marriage,  by  or  in  the  name  of  either 
husband  or  wife,  or  both,  including  the  produce  of  reciprical  in- 
dustry and  labor,  shall  be  deemed  to  belong  prima  facie  to  the 
community,  and  be  held  liable  for  the  community  marriage  debts 
accordingly.^^  But  it  will  be  perceived  that,  in  our  American  codes, 
community,  as  an  incident  to  marriage  property,  is  only  a  presump- 
tion, which  may  be  overcome  in  any  instance  by  proof  that  the  prop- 
erty was  acquired  as  the  separate  estate  of  either  the  husband  or 
wife.  This  community  rule,  moreover,  as  it  is  evident,  does  not  ap- 
ply to  the  property  whicb  either  husband  or  wife  brought  into  the 
marriage ;  such  property,  by  the  codes,  being  distinctly  kept  to  each 

13.  Art.  2312,  2369,  2370;  2  Kent,  Cal.  428';  Eslingcr  v.  Eslinger,  47 
Com.  183,  71.  Cal.  62.     The  wife's  earnings,  unless 

14.  Texas  Digest,  Paschal,  * '  Mari-  given  her  by  the  husband,  and  likewise 
tal  Rights;"  Cal.  Civil  Code,  "  IIus-  property  bought  with  such  earnings, 
band  and  Wife;"  Parker's  Cal.  Dig.,  must  belong  to  the  community.  John- 
"  Husband  and  Wife;"  Walker  v.  son  v.  Rurford,  39  Tex.  242 ;  Ford  v. 
Howard,  34  Tex.  478;  Caulk  V.  Picou,  Brooks,  35  La.  Ann.  157.  But  see 
23  La.  Ann.  277.  And  see  Forbes  v.  Fisk  v.  Flores,  43  Tex.  340.  The  hus- 
Moorc    32  Tex.  195.  band,  as  head  and  master  of  the  com- 

15.  Loui.Viana  Civil  Code,  §§  2369-  munity,  has  the  right  to  dispose  of  its 
2372;  Successicm  of  Planchct,  29  La.  movable  effects.  Cotton  v.  Cotton,  34 
Ann.  520;  Tally  v.  HefFner,  29  La.  La.  Ann.  858.  The  community  doc- 
Ann.  5R3.  L.I  11(1  (iwiied  by  a  spouso  trine  ia  more  fully  discussed,  post, 
at  the  time  of  marriage  does  not  fall  eh.  XXIX. 

into  the  community.    Tiuke  v.  Lake,  52 


11 


INTRODUCTION. 


8 


spouse  apart  as  his  or  her  separate  property.^®  And,  besides,  it  is 
now  usually  provided  by  legislation  tbat  property  acquired  during 
marriage,  "  by  gift,  bequest,  devise,  or  descent,"  with  the  rents,  is- 
sues and  profits  thereof,  shall  be  separate,  not  common  property. 
The  tendency,  then,  in  our  States  where  the  law  of  community  still 
exists  —  though  all  have  not  proceeded  in  legislation  to  the  same 
length  —  is  to  limit  rather  than  extend  its  application.  The  wife 
has  a  tacit  mortgage  for  her  separate  property,  so  far  as  the  law 
may  have  placed  it  in  her  husband's  control;  also  upon  the  com- 
munity property  from  the  time  it  went  into  his  hands ;  and,  more- 
over, she  may,  on  surv^iving  her  husband,  renounce  the  partnership 
or  community,  in  which  case  she  takes  back  all  her  effects,  whether 
dotal,  extra-dotal,  hereditary,  or  proper.^^ 

On  the  whole,  there  is  in  the  doctrine  of  community  much  that 
is  fair  and  reasonable ;  but  in  the  practical  workings  of  this  system 
it  is  found  rather  complicated  and  perplexing,  and  hence  unsatis- 
factory ;  while  in  no  part  of  the  United  States  can  it  be  said  to 
exist  at  this  day  in  full  force,  since  husband  and  wife  are  left 
pretty  free  to  contract  for  the  separate  enjoyment  of  property,  and 
so  exclude  the  legal  presumption  of  community  altogether ;  ^^  and, 
moreover,  the  constant  tendency  of  our  Southwestern  States  is  to 
remodel  their  institutions  upon  the  Anglo-American  basis,  common 
to  the  original  States  and  those  of  the  Ohio  valley. 

§  8.  The  Recent  Married  Women's  Acts. 

What  are  familiarly  known  as  the  "  married  women's  acts,"  the 
product  for  the  most  part  of  our  American  legislation  since  1848, 
and  more  recently  engrafted  upon  the  code  of  Great  Britain,  aim 


16.  La.  Code,  §§  2316,  2369,  2371 
Pinard's  Succession,  30  La.  Ann,  167 
McAfee   v.   Kobertson,   43    Tex.    591 
Hanrick   v.   Patrick,    119   TJ.   S.   156 
Myrick  's  Prob.  93  ;  Schmeltz  v.  Garey, 
49  Tex.  49.     But  the  wife  should  not 
mingle  her  separate  funds  with  those 
of  the  community  in  makiug  a  pur- 
chase, as  of  her  separate  estate.    Eeid 
V.    Eochereau,    2    Woods,    151.      See 
post,  %  579  et  seq. 

17.  And  see  post,  §  579  et  seq,  as  to 
the  wife's  separate  property  under 
these  codes;  viz.,  dotal  and  extra-dotal 
or  paraphernal.  The  status  of  a  mar- 
ried woman  under  the  Louisiana  Code, 


with  reference  to  the  husband's  lia- 
bility for  her  paraphernal  property,  is 
discussed  by  Mr.  Justice  Gray  in 
Fleitas  v.  Eichardson,  147  U.  S.  550. 

18.  See  Packard  v,  Arellanes,  17 
Cal.  525;  Waul  v.  Kirkman,  25  Miss. 
609;  Succession  of  McLean,  12  La. 
Ann.  222;  Jones  v.  Jones,  15  Tex. 
143 ;  Ex  Parte  Melbourn,  L.  E.  6  Ch. 
64;  La.  Civil  Code,  §§  2369-2405;  1 
Burge,  Col.  &  For.  Laws,  277  et  seq., 
where  the  law  of  community  as  it  was 
about  half  a  century  ago  is  fully  set 
forth;  and  the  learned  note  to  2  Kent, 
Com.  183. 


§    9  IXTEODUCTIOX.  12 

to  secure  to  the  wife  the  independent  control  of  her  own  property, 
and  the  right  to  contract,  sue,  and  be  sued,  without  her  husband, 
under  reasonable  limitations.  These  acts,  therefore,  substitute 
in  a  great  measure  the  civil  for  the  common  law.  It  may  be  laid 
down,  that  the  common  law,  in  denying  to  the  wife  the  rights  of 
o"RTiership  in  property  acquired  by  gift,  purchase,  bequest,  or  other- 
wise, did  her  injustice,  and  that  a  radical  change  became  neces- 
sary ;  and  this  is  sho\vn,  not  only  in  the  legislation  of  our  States, 
but  by  the  fact  that  the  equity  tribunals  gi-adually  moulded  the 
unwritten  law  of  England  so  as  to  secure  like  results. 

All  this  separate  property  legislation,  as  well  as  the  equity 
doctrines  pertaining  to  the  subject  in  England  and  the  several 
United  States,  will  be  duly  set  forth  in  these  pages  hereafter.^® 
And  the  modification  of  the  respective  property  rights  of  a  married 
pair  by  marriage  contracts  or  settlements  will  also  be  considered.'" 

§  9.  Marriage  and  Marital  Influence. 

In  the  connubial  joys  to  which  every  age  and  nation  bear  witness, 
the  vast  majority  of  this  globe's  inhabitants  must  have  participated 
from  one  era  to  another,  with  a  certain  voluntary  adjustment  of  the 
reciprocal  burdens,  such  as  relieved  both  husband  and  wife  of  a 
sense  of  bondage  to  one  another.  And  thus  have  the  inequalities, 
the  hardships  of  marriage  codes,  proved  less  in  practice  than  in 
literal  expression.  For  whatever  the  apparent  severity  of  the  law, 
human  nature  or  love's  divine  instinct  works  in  one  uniform  direc- 
tion,—  namely,  towards  uniting  the  souls  once  brought  into  the 
arcana  of  married  life  in  an  equally  honorable  companionship. 
Woman's  weakness  has  been  her  strongest  weapon ;  where  her  influ- 
ence could  not  overflow,  it  permeated;  and  if  her  life  has  been, 
legally  speaking,  at  her  husband's  mercy,  her  constant  study  to 
please  has  kept  him  generally  merciful.  She  has  not  been  superior 
to  her  race  and  epoch,  but  on  the  whole  as  well  protected,  as  well 
advanced,  in  her  day,  as  those  of  the  other  sex.  Except  for  this, 
the  wife's  lot  must  have  been  miserable  indeed,  even  under  the 
most  civilized  institutions  ever  established.  Codes  and  the  experi- 
ence of  nations  in  this  respect  show  strange  inconsistencies:  laws 
at  one  time  degrading  to  woman,  and  yot  marital  happiness;   laws 

19.  Ree  coverture  doctrine,  modified  20.  Marriage  Settlements,  post,  ch. 

by    rqiiity    and    modem    statutes,   ch.       XXIII. 
X,  et  seq.  pott. 


13 


INTRODUCTIO^r. 


§  10 


at  another  elevating  her  independence  to  the  utmost,  and  yet  marital 
infelicities,  lust,  and  bestiality.^ 


21 


§  10.  General  Conclusions  as  to  the  Law  of  Husband  and  Wife. 

The  conclusions  to  which  this  writer's  investigation  upon  the 
general  subject  of  husband  and  wife  conducts  him,  are  these. 
Marriage  is  a  relation  divinely  instituted  for  the  mutual  comfort, 
well-being,  and  happiness  of  both  man  and  woman,  for  the  proper 
nurture  and  maintenance  of  offspring,  and  for  the  education  in 
turn  of  the  whole  human  race.  Its  application  to  society  being 
universal,  the  fundamental  rights  and  duties  involved  in  this  rela- 
tion are  recognized  by  something  akin  to  instinct,  and  often  desig- 
nated by  that  name,  so  as  to  require  by  no  means  an  intellectual 
insight;  intellect,  in  fact,  impairing  often  that  devotedness  of 
aifection  which  is  the  essential  ingredient  and  charm  of  the  relation. 
Indeed,  the  rudest  savages  understand  how  to  bear  and  bring  up 
healthy  offspring.  Legal  and  political  systems  are  accretions  based 
upon  marriage  and  property;  but  in  the  family  rather  than  indi- 
vidualism we  find  the  incentive  to  accumulation,  and  in  the  home 
the  primary  school  of  the  virtues,  private  and  public.  At  the  same 
time  marriage  affords  necessarily  a  discipline  to  both  sexes ;  sexual 
indulgence  is  mutually  permitted  under  healthy  restraints; 
woman's  condition  becomes  necessarily  one  of  comparative  subjec- 
tion ;  man  is  tamed  by  her  gentleness  and  the  helplessness  of  tender 
offspring,  and  for  their  sake  he  puts  a  check  upon  his  baser  appe- 
tites, and  concentrates  his  affection  upon  the  home  he  has  founded. 
Such  is  the  conjugal  union  in  what  we  may  term  a  state  of  nature. 
And  now,  while  man  frames  the  laws  of  that  union,  as  he  always 
does  in  primitive  society,  he  regards  himself  as  the  rightful  head 


21.  Whether,  in  setting  at  naught 
that  identity  of  interests  which  is  es- 
sential to  domestic  happiness,  the 
later  Eoman  scheme  was  fatally  de- 
fective, or  the  conjugal  decay  which 
ensued  was  due  to  causes  more  latent, 
need  not  here  be  discussed.  Certain 
it  is,  however,  that  widespread  in- 
cestuous intercourse,  licentiousness 
most  loathsome  and  unnatural,  fol- 
lowed in  the  wake  of  marital  inde- 
pendence, and  as  the  interests  of  hus- 
band and  wife  began  to  diverge,  the 
bonds  of  family  affection  became 
weakened.      When   the   Empire    sank 


into  utter  dissolution  woman  possessed 
a  large  share  of  cultivation  and  per- 
sonal freedom;  yet  she  had  touched 
the  lowest  depths  of  social  degrada- 
tion. 

This  degradation  it  became  the  mis- 
sion of  the  Christian  Church  to  cor- 
rect during  the  lapse  of  the  dark  ages 
by  restoring  the  dignity  of  marriage — 
exalting  it,  in  fact,  to  a  sacrament, 
and  almost  utterly  prohibiting  its  dis- 
solution. From  so  strict  a  view  of 
marriage,  however,  Protestant  coun- 
tries in  modern  times  dissent. 


§    10  IXTKODUCTION.  14 

of  the  family  and  lord  of  bis  spouse ;  and,  somewhat  indulgent  of 
his  own  errant  passions,  he  makes  the  chastity  of  his  wife  the  one 
indispensable  condition  of  their  joint  companionship.  She,  on  her 
part,  more  easily  chaste  than  himself,  views  with  pain  whatever 
embraces  he  may  bestow  upon  others  of  her  sex.  Her  personal 
influence  over  him,  always  strong,  enlarges  its  scope  as  the  State 
advances  in  arts  and  refinement,  until  at  length  woman,  as  the 
maiden,  the  wife,  and  the  matron,  becomes  intellectually  cultivated, 
a  recognized  social  power  in  the  community.  Yearning  now  for 
a  wider  influence  and  equal  conditions,  her  attention,  strongly  con- 
centrated upon  the  marriage  relation,  seeks  to  make  the  marriage 
terms  more  equal ;  first,  she  desires  her  property  secured  to  her 
own  use,  whether  married  or  single,  and,  indignant  at  the  inade- 
quate remedies  afforded  under  the  law  for  wifely  wrongs,  demands 
the  right  of  dismissing  an  unworthy  husband  at  pleasure;  more- 
over, as  a  mother,  she  claims  that  the  children  shall  be  hers  hardly 
less  than  the  father's.  These  first  inroads  are  easily  made;  for 
what  she  demands  is  theoretically  just.  But  just  at  this  point  the 
peril  of  female  influence  is  developed.  Woman  rarely  compre- 
hends the  violence  of  man's  unbridled  appetite,  or  perceives  clearly 
that,  after  all,  in  the  moral  purity  and  sweetness  of  her  own  sex, 
such  as  excites  man's  devotion  and  makes  home  attractive,  is  the 
fundamental  safeguard  of  life  and  her  owti  most  powerful  lever  in 
society,  besides  the  surest  means  of  keeping  men  themselves  con- 
tinent. She  forgets,  too,  that,  to  protect  that  purity  and  maintain 
her  moral  elevation,  a  certain  seclusion  is  needful ;  which  seclusion 
is  highly  favorable  to  those  domestic  duties  which  nature  assigns 
her  as  her  own.  More  is  granted  woman.  The  bond  of  marriage 
being  loosened,  posterity  degenerates,  society  goes  headlong;  and 
the  flood-gates  of  licentiousness  once  fully  opened,  the  hand  must 
be  strong  that  can  close  them  again. 

Happiness,  we  may  admit,  differs  with  the  capacity,  like  the 
great  and  small  glass  equally  full  which  Dr.  Johnson  mentions. 
Yet  marriage  is  suited  to  all  capacities;  and  men  and  women  are 
the  complement  of  one  another  in  all  ages,  neither  being  greatly 
the  intellectual  superior  of  the  other  at  any  epoch,  but  the  man 
always  having  necessarily  the  advantage  in  physical  strength  and 
the  power  to  rule.  The  best-ordered  marriage  union  for  any  com- 
munit}'  is  that  in  which  each  sex  accepts  its  natural  place,  where 
woman  is  neither  the  slave  nor  the  rival  of  man,  but  his  intelligent 
helpmate;    where  a  sound  progeny  is  brought  up  under  healthy 


15  INTRODUCTION.  §    11 

ibome  influences.  The  worst  is  that  where  conjugal  and  parental 
affection  fail,  and  all  is  discord  and  unrest,  a  sea  without  a  safe 
harbor.  To  the  household,  stability  may  prove  more  essential  than 
freedom,  and  woman's  status  more  dignified  or  more  degraded,  as 
the  case  may  be,  than  the  law  assumes  to  fix  it.  Under  all  circum- 
stances, moreover,  the  physical  superiority  of  the  male  companion, 
and  his  propensity  to  self-indulgence,  are  forces  which  woman  will 
always  have  to  reckon  with. 

§11.  Remaining  Topics  of  the   Domestic   Relations;   Modem 
Changes. 

Of  the  remaining  topics  to  be  discussed  in  the  present  treatise, 
little  need  be  said  by  way  of  general  preface.  These  have  felt  the 
softening  influences  of  modem  civilization.  The  common-law  doc- 
trine of  Parent  and  Child  finds  its  most  important  modifications  in 
the  gradual  admission  of  the  mother  to  something  like  an  equal 
share  of  parental  authority;  in  the  growth  of  popular  systems  of 
education  for  the  young ;  in  the  enlarged  opportunities  of  earning 
a  livelihood  afforded  to  the  children  of  idle  and  dissolute  parents; 
and  in  the  lessened  misfortunes  of  bastard  offspring.  Guardian 
and  Ward,  a  relation  of  little  importance  up  to  Blackstone's  day, 
has  rapidly  developed  since  into  a  permanent  and  well-regulated 
system  under  the  supervision  of  the  chancery  courts,  and,  in  this 
country,  of  the  tribunals  also  with  probate  jurisdiction ;  and  much 
of  the  old  learning  on  this  branch  of  the  law  has  become  rubbish 
for  the  antiquary.  The  law  of  Infancy  remains  comparatively 
unchanged. 

We  are  now  to  investigate  in  detail  the  law  of  these  several 
topics.  But  first  the  reader  is  reminded  that  the  office  of  the  text- 
writer  is  to  inform  rather  than  invent ;  to  be  accurate  rather  than 
original;  to  chronicle  the  decisions  of  others,  not  his  owoi  desires; 
to  illumine  paths  already  trodden  ;  to  criticise,  if  need  be,  yet 
always  fairly  and  in  furtherance  of  the  ends  of  justice  ;  to  analyze, 
classify,  and  arrange;  from  a  mass  of  discordant  material  to 
extract  all  that  is  useful,  separating  the  good  from  the  bad,  reject- 
ing whatever  is  obsolete,  searching  at  all  times  for  guiding  princi- 
ples ;  and,  in  fine,  to  emblazon  that  long  list  of  judicial  precedents 
through  which  our  Anglo-Saxon  freedom  "  broadens  slowly  down." 


PART  II. 

HUSBAND  AND  WIFE. 


CHAPTER  I. 

MARRIAGE. 

Section  12.  Definition  of  Marriage. 

13.  Marriage  more  than  a  Civil  Contract. 

14.  Marriages  Void  and  Voidable. 

15.  Essentials  of  Marriage. 

16.  Disqualification  of  Blood;  Consanguinity  and  Affinity. 

17.  Disqualification  of  Civil  Condition;    Eace,  Color,   Social  Bank, 

Eeligion. 

18.  Mental  Capacity  of  Parties  to  a  Marriage. 

13.     Physical  Capacity  of  Parties  to  Marriage;  Impotence,  etc. 

20.  Disqualification  of  Infancy. 

21.  Disqualification    of    Prior    Marriage    Undissolved;     Polygamy; 

Bigamy. 

22.  Same  Subject;  Impediments  following  Divorce. 

23.  Force,  Fraud,  and  Error,  in  Marriage. 

24.  Force,  Fraud,  and  Error,  Subject  continued. 

25.  Essential  of  Marriage  Celebration. 
2'6.     Same  Subject;  Informal  Celebration. 

27.  Same  Subject;  Informal  Celebration. 

28.  Same  Subject;  Formal  Celebration. 

29.  Same  Subject;   Formal  Celebration. 

30.  Consent  of  Parents  and  Guardians. 

31.  Legalizing  Defective  Marriages;  Legislative  Marriage. 

32.  Eestraints  upon  Marriage. 

33.  Marriage  in  another  State  or  Country. 

§  12.  Definition  of  Marriage. 

The  word  "  marriage  "  signifies,  in  tlie  first  instance,  that  act 
by  whicli  a  man  and  woman  unite  for  life,  with  the  intent  to  dis- 
charge towards  society  and  one  another  those  duties  which  result 
from  the  relation  of  husband  and  wife.  The  act  of  union  having 
been  once  accomplished,  the  word  comes  afterwards  to  denote  the 
relation  itself. 

Marriage  as  understood  in  England  means  the  voluntary  union 
of  a  man  and  woman  for  life  to  the  exclusion  of  all  others  and  there- 
fore the  courts  will  not  recognize  a  union  by  polygamists  as  a  valid 
marriage.^^* 

aia.  Bethel  v.  Hildyard,  38  Ch.  D.  220. 

16 


17  MAREIAGE.  §    13 

§  13.  Marriage  more  than  a  Civil  Contract. 

It  has  been  frequently  said  in  the  courts  of  this  country  that 
marriage  is  nothing  more  than  a  civil  contract.^^  That  it  is  a 
contract  is  doubtless  true  to  a  certain  extent,  since  the  law  alwavs 
presumes  two  parties  of  competent  understanding  who  enter  into 
a  mutual  agreement,  which  becomes  executed,  as  it  were,  by  the  act 
of  marriage.  But  this  agreement  differs  essentially  from  all  others. 
This  contract  of  the  parties  is  simply  to  enter  into  a  certain  status 
or  relation.  The  rights  and  obligations  of  that  status  are  fixed  by 
society  in  accordance  with  principles  of  natural  law,  and  are  beyond 
and  above  the  parties  themselves.  They  may  make  settlements  and 
regulate  the  property  rights  of  each  other;  but  they  cannot  modify 
the  terms  upon  which  they  are  to  live  together,  nor  superadd  to  the 
relation  a  single  condition.  Being  once  bound,  they  are  bound 
forever.  Mutual  consent,  as  in  all  contracts,  brings  them  together; 
but  mutual  consent  cannot  part  them.  Death  alone  dissolves  the 
tie, —  unless  the  legislature,  in  the  exercise  of  a  rightful  authority, 
interposes  by  general  or  special  ordinance  to  pronounce  a  solemn 
divorce ;  and  this  it  should  do  only  when  the  grossly  immoral  con- 
duct of  one  contracting  party  brings  unmerited  shame  upon  the 
other,  disgraces  an  innocent  offspring,  and  inflicts  a  wound  upon 
the  community.^^  So  in  other  respects  the  law  of  marriage  differs 
from  that  of  ordinary  contracts.  For,  as  concerns  the  parties  them- 
selves, mental  capacity  is  not  the  only  test  of  fitness,  but  physical 
capacity  likewise, —  a  new  element  for  consideration,  no  less 
important  than  the  other.  Again,  the  encumbrance  of  an  existing 
union  operates  here  as  a  special  disqualification.  Blood  relation- 
ship is  another.  So,  too,  an  infant's  capacity  is  treated  on  peculiar 
principles,  as  far  as  the  marriage  contract  is  conecmed ;  for  he  can 
marry  young  and  be  bound  by  his  marriage.  Third  parties  cannot 
attack  a  marriage  and  have  it  nullified  because  of  its  injury  to  their 
own  interests.  International  law  relaxes  its  usual  requirements  in 
favor  of  marriage.  And  finally  the  formal  celebration  now  com- 
monly prevalent,  both  in  England  and  America,  is  something  pecu- 
liar to  the  marriage  contract ;  and  in  its  performance  we  see  but 
the  faintest  analogy  to  the  execution  and  delivery  of  a  sealed 
instrument. 

22.  See  Stimson,  Am.  Stat.  Law,  §  23.  Wiley   v.   Wiley,  —   Ind.   App. 

6100;    Gatto  v.   Gatto,   —  N.   H.   — ,      — ,  123  N.  E.  252.     Mutual  consent  is 
106  A.  493.  the  basis  of  marriage. 


§    13  HUSBAND    AND    WIFE.  18 

The  earnestness  with  which  so  many  of  our  American  progenitors 
insisted  upon  the  contract  view  of  marriage  may  be  ascribed  in  part 
to  their  hatred  of  the  Papacy  and  ritualism,  and  their  determina- 
tion to  escape  the  Roman  Catholic  conclusion  that  marriage  was 
a  sacrament.  By  no  people  have  the  marriage  vows  been  more 
sacredly  performed  than  by  ours  down  to  a  period,  at  all  events, 
comparatively  recent.  That  a  state  legislature  is  not  precluded 
from  regulating  the  marriage  institution  under  any  constitutional 
interdiction  of  acts  impairing  the  obligation  of  contracts,  or  inter- 
fering with  private  rights  and  immunities,  has  frequently  been 
asserted."*  And  as  to  the  private  regulation  of  their  property 
rights,  by  the  contract  of  parties  to  a  marriage,  that,  of  course,  is 
to  be  distinguished  from  their  marriage,  which  may  take  place 
without  any  property  regulation  whatever.^^ 

We  are,  then,  to  consider  marriage,  not  as  a  contract  in  the  ordi- 
nary acceptation  of  the  term,  but  as  a  contract  sui  generis,  if  indeed 
it  be  a  contract  at  all, —  as  an  agreement  to  enter  into  a  solemn 
relation  which  imposes  its  own  terms.  On  the  one  hand  discarding 
the  unwarranted  dogmas  of  the  Church  of  Eome,  by  which  marriage 
is  elevated  to  the  character  of  a  sacrament,  on  the  other  we  repudi- 
ate that  dry  definition  with  which  the  lawgiver  or  jurist  sometimes 
seeks  to  impose  upon  the  natural  instincts  of-  mankind.  We  adopt 
such  views  as  the  distinguished  Lord  Robertson  held.'®  And  Judge 
Story  observes  of  marriage :  "  It  appears  to  me  something  more 
than  a  mere  contract.  It  is  rather  to  be  deemed  an  institution  of 
society  founded  upon  the  consent  and  contract  of  the  parties ;  and 
in  this  view  it  has  some  peculiarities  in  its  nature,  character, 
operation,  and  extent  of  obligation,  different  from  what  belongs  to 
ordinary  contracts."  ^^  So  Eraser,  while  defining  marriage  as  a 
contract,  adds  in  forcible  language :  "  Unlike  other  contracts,  it  is 
one  instituted  by  God  himself,  and  has  its  foundation  in  the  law 
of  nature.  It  is  the  parent,  not  the  child,  of  civil  society."  "^  And 
we  may  add  that  an  American  text-writer,  of  high  repute  upon 
the  subject,  not  only  pronounces  for  this  doctrine,  after  a  careful 

24.  Maguire    v.   Maguire,    7   Dana,  25.  Lord     Stowell,     in     Lindo     v. 

181;    Green    v.    State,    58    Ala.    190;  Belisario,  1  Hag.  Con.  216;   1  Bishop, 

Frasher  v.   State,  3    Tex.  App.   263;  Mar.  &  Div.,  5th  ed.,  §  14. 

Eugh    V.    Ottenheimer,    6    Oreg.    231;  26.  Duntze  v.  Levett,  Ferg.  68,  385, 

Adams  v.  Palmer,  51  Me.  480;  Wiley  397;  3  Eng.  Ee.  360,  495,  502. 

V.   Wiley,  —   Ind.   App.  — ,    123   N,  27.  Story,  Confl.  Laws,  §  108,  n. 

E.    252;    Kitzman    v.    Kitzman,    167  28.  1  Eraser,  Dom.  Eel.   87. 
Wis.  308,  166  N.  W.  789.     Marriage 
of  epileptic  forbidden. 


19  MAKEIAGE.  §14 

examination  of  all  the  authorities,  but  ascribes  the  chief  embarrass- 
ment of  American  tribunals,  in  questions  arising  under  the  con- 
flict of  marriage  and  divorce  laws,  to  the  custom  of  applying  the 
rules  of  ordinary  contracts  to  the  marriage  relation.'* 

§  14.  Marriages  Void  and  Voidable. 

A  distinction  is  made  at  law  between  void  and  voidable  mar- 
riages. This  distinction,  which  appears  to  have  originated  in  a 
conflict  between  the  English  ecclesiastical  and  common-law  courts, 
was  first  announced  in  a  statute  passed  during  the  reign  of  Henry 
VIII. ;  and  it  is  also  to  be  found  in  succeeding  marriage  and 
divorce  acts  down  to  the  present  day.  The  distinction  of  void  and 
voidable  applies,  not  to  the  legal  consequences  of  an  imperfect  mar- 
riage, once  formally  dissolved,  but  to  the  status  of  the  parties  and 
their  offspring  before  such  dissolution.  A  void  marriage  is  a  mere 
nullity,  and  its  validity  may  be  impeached  in  any  court,  whether 
the  question  arise  directly  or  collaterally,  and  whether  the  parties 
be  living  or  dead.  But  a  voidable  marriage  is  valid  for  all  civil 
purposes  until  a  competent  tribunal  has  pronounced  the  sentence  of 
ntillity,  upon  direct  proceedings  instituted  for  the  purpose  of  set- 
ting the  marriage  aside.  When  once  set  aside,  the  marriage  is 
treated  as  void  ah  initio;  but  unless  the  suit  for  ntillity  reaches  its 
conclusion  during  the  lifetime  of  both  parties,  all  proceedings  fall 
to  the  ground,  and  both  survivor  and  offspring  stand  as  well  as 
though  the  union  had  been  lawful  from  its  inception.^*'  Hence  we 
see  that  while  a  void  marriage  makes  cohabitation  at  all  times 
unlawful,  and  bastardizes  the  issue,  a  voidable  marriage  protects 
intercourse  between  the  parties  for  the  time  being,  furnishes  the 
usual  incidents  of  suiwivorship,  such  as  curtesy  and  dower,  and 
encourages  the  propagation  of  children.  But  the  moment  the  sen- 
tence of  nullity  is  pronounced,  the  shield  of  the  law  falls,  the  inci- 
dents vanish,  and  innocent  offspring  are  exposed  to  the  world  as 
bastards ;  and  herein  is  the  greatest  hardship  of  a  voidable  mar- 
riage. One  feattire  in  much  of  our  modem  marital  legislation  is 
the  increasing  favor  shown  to  innocent  parties  who  were  misled : 
where  the  man  or  the  woman  or  both  of  them  acted  in  good  faith, 
civil  as  well  as  criminal  consequences  are  guarded  against ;    and 

29.   1  Bishop.  Mar.  &  Div.,  5th  ed.,  30.  1    St.    32    Hen.    VIII,    ch.    28. 

§  18.     And  see  Dickson  v.  Dickson,  1  See   1   Bishop,  Mar.  &  Div.,  5th  ed., 

Yerff.   110,  per  Catron,  J.;   Ditson  v.  §  108  et  seq. 
Ditson,  4  R.  I.  87,  per  Ames,  C.  J. 


§  15 


HUSBAND    AND    WIFE. 


20 


children  innocentlj  begotten  before  the  disability  was  discovered 
in  fact,  are  treated  as  legitimate  offspring.^^ 

The  old  rule  is  that  civil  disabilities,  such  as  idiocy  and  fraud, 
render  a  marriage  void ;  while  the  canonical  impediments,  such  as 
consanguinity  and  impotence,  made  it  voidable  only.  This  test 
was  never  a  clear  one,  and  it  has  become  of  little  practical  conse- 
quence at  the  present  day.  Statutes  both  in  England  and  America 
have  greatly  modified  the  ancient  law  of  valid  marriages,  and  it  can 
only  be  affirmed  in  general  terms  that  the  legislative  tendency  is  to 
make  marriages  voidable  rather  than  void,  wherever  the  impediment 
is  such  as  might  not  have  been  readily  known  to  both  parties  before 
marriage;  and  where  public  policy  does  not  rise  superior  to  all 
considerations  of  private  utility.  Modern  civilization  strongly  con- 
demns the  harsh  doctrine  of  ah  initio  sentences  of  nullity ;  and  such 
sentences  have  now  in  general  a  prospective  force  only,  in  order  that 
rights  already  vested  may  remain  unimpaired,  and,  still  more,  that 
children  may  not  suffer  for  the  follies  of  their  parents.^^  As  for 
availing  one's  self  of  a  voidable  marriage  as  well  as  in  divorce,  it 
may  be  asserted  as  a  general  maxim  that  the  party  should  be  prompt 
to  act  when  he  has  his  right  and  knows  it,  and  that  he  should  also 
seek  to  enforce  his  rights  with  good  faith  and  honor  on  his  own 
part.^^  Whenever  or  wherever  an  innocent  party  finds  one's  self 
entrapped  into  a  void  or  voidable  marriage,  cohabitation  should 
cease  and  the  separation  should  be  instant  and  absolute. 


§  15.  Essentials  of  Marriage. 

We  shall  consider  in  this  chapter  that  act  by  which  parties  unite 
in  matrimony, —  for  to  this  the  term  "  marriage  "  is  most  fre- 
quently applied.  It  may  be  stated  generally  that,  in  order  to 
constitute  a  perfect  union,  the  contracting  parties  should  be  two 
persons  of  the  opposite  sexes,  without  disqualification  of  blood  or 


31.  See  e.  g.  the  "Enoch  Arden. "      marriage  of  a  negro  and  white  per- 


Statutes  cited  in  Stimson's  Am.  Stat. 
Law,  §  6116. 

32.  Shelf.  Mar.  &  Div.  154;  7b. 
479-484;  1  Bl.  Com.  434;  1  Bishop. 
Mar.  &  Div.,  5th  ed.,  §§  105-120.  See 
Stat.  5  &  6  Will.  IV,  ch.  54 ;  2  N.  T. 
Eev.  Stats.  139,  §  6;  Mass.  Gen.  Stats., 
ch.  106,  §  4;  Harrison  v.  State,  23 
Md.  468;  Bowers,  10  Rich.  Eq.  551; 
Pingree  v.  Goodrich,  41  Vt.  47 ;  Di- 
vorce, post.      Held  contra  as  to   the 


son.  Carter  v.  Montgomery,  2  Tenn. 
Ch.  216.  And  see  post  as  to  impotence 
or  physical  incapacity. 

The  local  statutes  are  collated  on 
this  point  in  Stimson  's  Am.  Stat.  Law, 
§§  6116-6116. 

33.  Affirmance,  condonation,  conni- 
vance, are  excuses  suggested  to  the 
defending  party;  and  recrimination  is 
common  in  divorce  libels.  See  vol- 
ume II.,  post. 


21  MARRIAGE.  §    10 

condition,  both  mentally  competent  and  physically  fit  to  disdharge 
the  duties  of  the  relation,  neither  of  them  being  bound  by  a  pre- 
vious nuptial  tie,  neither  of  them  withholding  a  free  assent ;  ^*  and 
the  expression  of  their  mutual  assent  should  be  substantially  in 
accordance  with  the  prescribed  forms  of  law.  These  are  the  essen- 
tials of  marriage.  Hence  we  are  to  treat  of  the  following  topics  in 
connection  with  the  essentials  of  a  valid  marriage:  first,  the  dis- 
qualification of  blood;  second,  the  disqualification  of  civil  con- 
dition; third,  mental  capacity;  fourth,  physical  capacity;  fifth, 
the  disqualification  of  infancy,  which  in  reality  is  based  upon 
united  considerations  of  mental  and  physical  unfitness  ;  sixth,  prior 
marriage  undissolved;  seventh,  force,  fraud,  and  error;  eighth, 
the  formal  celebration  of  a  marriage,  under  which  last  head  may 
be  also  included  the  consent  of  parents  or  guardians,  not  to  be 
deemed  as  essential,  except  in  conformity  with  the  requirements  of 
the  marriage  celebration  acts.  These  essentials  all  have  reference 
solely  to  the  time,  place,  and  circumstances  of  entering  into  the 
marriage  relation,  and  not  to  any  subsequent  incapacity  of  either 
party. 

§16.  Disqualification  of  Blood;  Consanguinity  and  Affinity. 
And,  first,  as  to  the  disqualification  of  blood.  On  no  point  have 
writers  of  all  ages  and  countries  been  more  united  than  in  the 
conviction  that  nature  abhors,  as  vile  and  unclean,  all  sexual 
intercourse  between  persons  of  near  relationship.  But  on  few 
subjects  have  they  differed  more  widely  than  in  the  application  of 
this  conviction.  Among  Eastern  nations,  since  the  days  of  the 
patriarchs,  practices  have  prevailed  which  to  Christian  nations  and 
in  days  of  civilized  refinement  seem  shocking  and  strange.  The 
difficulty  then  is,  not  in  discovering  that  there  is  some  prohibition 
by  Grod's  law,  but  in  ascertaining  how  far  that  prohibition  extends. 
This  difficulty  is  manifested  in  our  language  by  the  use  of  two 
terms, —  "  consanguinity  "  and  "  affinity ;"  one  of  which  covers  the 
terra  firma  of  incestuous  marriages,  the  other  offers  debatable 
ground.  The  disqualification  of  consanguinity  applies  to  marriages 
between  blood  relations  in  the  lineal,  or  ascending  and  descending 
lines.  There  can  be  but  one  opinion  concerning  the  union  of  rela- 
tions as  near  as  brother  and  sister.    The  limit  of  prohibition  among 

34.    Smith    v.    People,    1    Col.    121,       Okl.  — ,  171  P.  855. 
170    P.    959;    Thomas    v.    James,    — 


16 


HUSBAND   AND    WIFE. 


22 


remote  collateral  kindred  has,  however,  been  differently  assigned  in 
different  countries.  The  English  canonical  rule  is  that  of  the  Jew- 
ish law  which  protested  against  the  promiscuous  practices  of  other 
primitive  peoples.  The  Greeks  and  Romans  recognized  like  prin- 
ciples, though  with  various  modifications  and  alterations  of 
opinion.  But  the  Church  of  the  Middle  Ages  found  in  the  insti- 
tution of  marriage,  once  placed  among  the  sacraments,  a  most 
powerful  lever  of  social  influence.  The  English  ecclesiastical  courts 
made  use  of  this  disqualification,  extending  it  to  the  seventh  degree 
of  canonical  reckonino-  in  some  cases,  and  bevond  all  reasonable 
bounds.^^  So  intolerable  became  this  oppression  that  a  statute 
passed  in  the  time  of  Henry  VIII.  forbade  these  courts  thenceforth 
to  draw  in  question  marriages  without  the  Levitical  degree,  "  not 
prohibited  by  God's  law."^®  Under  this  statute,  which  is  still  es- 
sentially in  force  in  England,  the  impediment  has  been  treated  as 
applicable  to  the  whole  ascending  and  descending  line,  and  further, 
as  extending  to  the  third  degree  of  the  civil  reckoning  inclusive; 
or  in  other  words,  so  as  to  prohibit  all  marriages  nearer  than  first 
cousins.  Archbishop  Parker's  table  of  degrees,  which  recognizes 
these  limits,  has  been,  since  1563,  the  standard  adopted  in  the 
English  ecclesiastical  courts.^^  The  statute  prohibition  includes 
legitimate  as  well  as  illegitimate  children,  and  half-blood  kindred 


35.  In  some  Roman  Catholic  coun- 
tries—  e.  g.,  Portugal  —  the  marriage 
of  first  cousins  is  still  pronounced  in- 
cestuous. See  Sottomayor  v.  De  Bar- 
ro3,  L.  E.  2  P.  D.  81 ;  L.  E.  3  P.  D,  1. 

36.  Stat.  32  Hen.  VITI,  ch.  38.  See 
1  Bishop,  Mar.  &  Div.,  5th  ed.,  §§  106, 
107;  2  Kent,  Com.  82,  83;  Shelf.  Mar. 
&  Div.  163  et  seq. ;  "Wing  v.  Taylor,  2 
Swab.  &  T.  278,  295. 

37.  1  Bishop,  Mar.  &  Div.,  5th  ed., 
§  318 ;  Butler  v.  Gastrill,  Gilb.  ch.  156. 
According  to  this  table, — 

A  man  may  not  marry  his 

1.  Grandmother. 

2.  Grandfather's  vnfe. 

3.  Wife's  grandmother. 

4.  Father's  sister. 

5.  Mother's  sister. 

6.  Father's  brother's  wife. 

7.  Mother's  brother's  wife. 

8.  Wife's  father's  sister. 


9.  Wife's   mother's   sister. 

10.  Mother. 

11.  Stepmother. 

12.  Wife's  mother. 

13.  Daughter. 

14.  Wife's  daughter. 

A  icoman  may  not  marry  her 

1.  Grandfather. 

2.  Grandmother's  husband. 

3.  Husband's  grandfather. 

4.  Father's  brother. 

5.  Mother's  brother. 

6.  Father's  sister's  husband. 

7.  Mother 's  sister 's  husband. 

8.  Husband's  father's  brother. 

9.  Husband's  mother's  brother. 

10.  Father. 

11.  Step-father. 

12.  Husband's  father. 

13.  Son. 

14.  Husband 's  son. 


23  MARRIAGE.  §    16 

equally  with  those  of  the  whole  blood.^^  Its  principles  have  been 
recognized  in  the  United  States.'" 

But  the  English  law  goes  even  further,  and  places  affinity  on  the 
same  footing  as  consanguinity  as  an  impediment.  Affinity  is  the 
relationship  which  arises  from  marriage  between  a  husband  and 
his  wife's  kindred,  and  vice  versa.  It  is  shown  that  while  the  mar- 
riage of  persons  allied  by  blood  produces  offspring  feeble  in  body 
and  tending  to  insanity,  that  of  persons  connected  by  affinity  leads 
to  no  such  result ;  and  further,  that  consanguinity  has  been  every- 
where recognized  as  an  impediment,  but  not  affinity.  The  worst 
that  can  probably  be  said  of  the  latter  is,  that  it  leads  to  a  confu- 
sion of  domestic  rights  and  duties.  No  question  has  been  discussed 
with  more  earnestness  in  both  England  and  America,  with  less 
positive  result,  than  one  which  turns  upon  this  very  distinction  in 
a  collateral  application;  namely,  whether  a  man  may  marry  his 
deceased  wife's  sister.  This  question  has  received  a  favorable 
response  in  Vermont.*"  Such  marriages  were  in  England,  how- 
ever, deemed  incestuous  until  recently,*^  but  were  made  valid  even 
there  in  1907,*^  and  a  marriage  with  a  deceased  husband's  brother 
has  been  sustained  there. ''^  Cases  of  affinity  as  applied  in  a  lineal 
direction,  however,  are  more  repugnant  to  sound  policy,  and  indeed 
seem  almost  to  come  within  the  rule  of  consanguinity.** 

Marriages  within  the  forbidden  degrees  of  consanguinity  were 
formerly  only  voidable  in  English  law;    but  by  modern  statutes 

38.  1  Bishop,  Mar.  &  Div.,  5th  ed.,  affinity  ceases  with  the  disaolution  of 
§§  315,  317 ;  Keg.  v.  Brighton,  1  B.  &  the  marriage  which  produced  it. 
g.  447.  Therefore,  though  a  man  is,  by  affin- 

39.  Marriage  between  an  uncle  and  ity,  brother  to  his  wife's  sister,  yet, 
niece  of  full  blood,  or  between  an  aunt  upon  the  death  of  his  wife,  he  may 
and  nephew,  has  been  treated  as  in-  lawfully  marry  her  sister. ' ' 
cestuous  in  various  jurisdictions.  41.  Hill  v.  Good,  Vaugh.  302 ;  Har- 
Harrison  v.  State,  22  Md.  468 ;  Bow-  ris  v.  Hicks,  2  Salk.  548 ;  Shelf.  Mar.  & 
ers  V.  Bowers,  10  Rich.  Eq.  551.  And  Div,,  pp.  172,  178;  2  Kent,  Com,  84,  n., 
there  are  a  few  States  which  forbid  and  authorities  cited;  Reg.  v.  Chad- 
the  marriage  of  persons  more  nearly  wick,  12  Jur.  1T4,  11  Q.  B.  173;  Paw- 
related  than  second  cousins.  SeeStim-  son  v.  Brown,  41  L.  T.  (N.  S.)  339; 
son  Am.  Stat.  Law,  §  6111.  Ex  parte  Naden,  L.  R.  9  Ch.  670.   And 

40.  Blodget  v.  Brinsmaid,  9  Vt.  27 ;  see  Commonwealth  v.  Pcrrympn,  2 
and  see  1  Bishop,  Mar.  &  Div.,  5th  cd.,  Leigh,  717,  as  to  the  Virginia  statute 
§  314;  Paddock  v.  Wells,  2  Barb.  Ch.  on  this  point. 

331.    Collamer,  J.,  in  Blodget  v.  Brins-  42.  7  Edw.  7,  ch.  47. 

maid,    makes    this    ingenious    distinc-  43.  In    re    Bozzelli    (1902),    1    Ch. 

tion:    "  The   relationship   by   consan-  751. 

guinity  is,  in  its  nature,  incapable  of  44.  Cf.    Table    of   Degrees,   supra; 

dissolution;    but   the   relationship   by  and  Stimson,  §  6111. 


§  17 


HUSBAND   AND    WIFE. 


24 


they  have  been  made  null  and  void.  In  this  country  they  are 
generally  pronounced  by  statute  void  (in  some  cases  void  from  the 
time  the  sentence  is  pronounced),*''  and  the  offending  parties  are 
liable  to  imprisonment  if  aware  of  the  relationship.  But  with 
regard  to  marriages  among  relatives  by  affinity,  the  rule  is  not  so 
stringent  as  in  England,*®  although  marriages  between  first 
cousins  are  void  in  some  States.*^ 

§  17.  Disqualification  of   Civil   Condition;   Race,   Color,   Social 
Rank,  Religion. 

Second,  as  to  the  disqualification  of  civil  condition.  Eace,  color, 
and  social  rank  do  not  appear  to  constitute  an  impediment  to  mar- 
riage at  the  common  law,  nor  is  any  such  impediment  now  recog- 
nized in  England.**  But  by  local  statutes  in  some  of  the  United 
States,  inter-marriage  has  long  been  discouraged  between  persons 
of  the  negro,  Indian,  and  white  races.*®  With  the  recent  extinction 
of  slavery,  many  of  these  laws  have  passed  into  oblivion,  together 
with  such  as  refused  to  allow  to  persons  held  in  bondage,  and 
negroes  generally,  the  rights  of  husband  and  wife.  The  thirteenth 
article  of  amendment  to  the  Constitution  gives  Congress  power  to 
enforce  the  abolition  of  slavery  "  by  appropriate  legislation."  As 
to  persons  formerly  slaves,  there  are  now  acts  of  Congress  which 
legitimate  their  past  cohabitation,  and  enables  them  to  drop  the 
fetters  of  concubinage.     And  the  manifest  tendency  of  the  day  is 


45  That  is  to  say,  not  void  ab 
i/nito.  See  supra,  §  14 ;  Harrison  v. 
State,  22  Md.  468.  And  see  Bowers  v. 
Bowers,  10  Rich.  Eq.  551;  Parker's 
Appeal,  8  Wright,  309,  where  an  in- 
cestuous marriage  is  treated  as  simply 
voidable. 

46.  2  Kent,  Com.  83,  84,  and  notes ; 
1  Bishop,  Mar.  &  Div.,  5th  ed.,  §§  312- 
320;  Eegina  V.  Chadwick,  12^  Jur.  174; 
Sutton  V.  Warren,  10  Met.  451;  Bon- 
ham  V.  Badgley,  2  Gilm.  622;  Wight- 
man  V.  Wightman,  4  Johns.  Ch.  343; 
Butler  V.  Gastrill,  Gilb.  Ch.  156;  Bur- 
gess V.  Burgess,  1  Hag.  Con.  384; 
Blackmore  v.  Brider,  2  Phillim.  359. 
Some  marriages  of  aflfinity  are  pro- 
hibited by  a  local  statute,  and  yet  not 
made  void.  Boylan  v.  Deinzer,  45 
N.  J.  Eq.  485. 

47.  Arado  v.  Arado,  205  111.  App. 
261,    117    N.    E.    816.      No    estoppel 


against  annulment  of  incestuous  mar- 
riage. 

48.  1  Bishop,  Mar.  &  Div.,  5th  ed., 
§§  308-311;  1  Burge,  Col.  &  For. 
Laws,  138. 

49.  See  Bailey  v.  Fiske,  34  Me.  77 ; 
State  V.  Hooper,  5  Ire.  201 ;  State  v. 
Brady,  9  Humph.  74;  Barkshire  v. 
State,  7  Ind.  389;  1  Bishop,  Mar.  & 
Div.,  5th  ed.,  §§  154-163;  Schouler, 
Hus.  &  Wife,  §  16.  One  drop  less 
than  one -fourth  negro  blood  saves 
from  the  taint  in  Virginia.  McPher- 
son  v.  Commonwealth,  28  Gratt.  939. 
The  Missouri  statute  declaring  mar- 
riages between  white  persons  and 
negroes  a  felony  is  constitutional, 
even  though  it  permits  the  jury  to  de- 
termine from  appearances  the  propor- 
tion of  negro  blood.  State  v.  Jackson, 
80  Mo.  175. 


25  MABKIAGE.  §    18 

towards  removing  all  legal  impediments  of  rank  and  condition, 
leaving  individual  tastes  and  social  manners  to  impose  the  only 
restrictions  of  this  nature.^"  But  the  race  barrier  has  a  strong 
foundation  in  human  nature,  wherever  marriage  companionship  is 
concerned.^^ 

§  18.  Mental  Capacity  of  Parties  to  a  Marriage. 

Third,  as  to  mental  capacity.  No  one  can  contract  a  valid  mar- 
riage unless  capable,  at  the  time,  of  giving  an  intelligent  consent. 
Hence  the  marriages  of  idiots,  lunatics,  and  all  others  who  have  not 
the  use  of  their  understanding  at  the  time  of  the  union  are  now 
treated  as  null ;  though  the  rule  was  formerly  otherwise,  from  per- 
haps too  great  regard  to  the  sanctity  of  the  institution  in  the 
English  ecclesiastical  courts.^^  What  degree  of  insanity  will 
amount  to  disqualification  is  not  easily  determined ;  so  varied  are 
the  manifestations  of  mental  disorder  at  the  present  day,  and  so 
gradually  does  mere  feebleness  of  intellect  shade  off  into  hopeless 
idiocy.  Certain  is  it  that  a  person  may  enter  into  a  valid  marriage, 
notwithstanding  he  has  a  mental  delusion  on  certain  subjects,  is 
eccentric  in  his  habits,  or  is  possessed  of  a  morbid  temperament, 
provided  he  displays  soundness  in  other  respects  and  can  manage  his 
own  affairs  with  ordinary  prudence  and  skill,^^  and  the  mere  fact 
that  a  girl  is  inexperienced  and  unlearned  does  not  show  her  inca- 
pacity.^*    Every  case  stands  on  its  own  merits ;  but  the  usual  test 

50.  Aet  July  25,  1866,  ch,  240;  Act  worth  observing, 

June  6,  1866,  ch.  106,  §  14.    And  see  51.  Marriage   between  negroes    (or 

15th  Amendment  U.  S.  Const.;  Stew-  Indians)  and  whites  is  still  forbidden 

art   V.   Munchandler,   2   Bush    (Ky.),  in  many  of  the  United  States,  those 

278 ;  State  v.  Harris,  63  N.  C.  1.    For  in    particular    where    negroes    chiefly 

Southern  statutes  which  now  legalize  dwell ;  while  in  Oregon  and  some  other 

the  marriages  of  former  slaves,  etc.,  Pacific  States  similar  prohibitions  of 


see  Schouler,  Hus.  and  Wife,  §   16 
also    Smith    v.    Perry,    80    Va.    563 
Willians  v.   The   State,   67   Ga.   260 
Washington   v.   Washington,    69    Ala 
281;   Long  v.  Barnes,  87  N.  C.  329 


white     and     Chinese     marriages     are 
found.    Stimaon,  §  6112. 

52.  See  Lord  Stowell  in  Turner  v. 
Meyers,  1  Hag.  Con.  414;  1  Bishop, 
Mar.  &  Div.,  5th  ed.,  §  125;  Stimson 


Downs  V.  Allen,  10  Lea,  652.  Am.    Stat.    Law,    §    6112;    Wiley    v. 

As  to  statutes  formerly  forbidding  Wiley,  —  Ind.   App.  — ,   123   N.   E. 

marriage  between  a  Eoman  Catholic  252. 

and  Protestant,  see  Commonwealth  v.  53.  2  Kent,  Com.  76;   Browning  v. 

Kenney,  120  Mass.  387;  Philadelphia  Eeane,  2  Phillim.  69;   1  Bishop,  Mar. 

v.    Williamson,    10    Phila.    176.      The  &  Div.,  5th  ed.,  §§  124-142 ;  Turner  v. 

statute  19  Geo.  II.,  ch.  13,  to  this  ef-  Meyers,  1  Hag.  Con.  414,  4  Eng.  Ec. 

feet,  has  partial  reference  to  the  sol-  440,  1  Bl.  Com.  438,  439. 

enmization  of  marriage  by  a  Popish  54.  Green  v.  Green,  —  Fla.  — ,  80 

priest.    These  are  disabilities  imposed  So.  739. 
by    a    Protestant    parliament,    it    is 


§  18 


HUSBAND    AND    WIFE. 


26 


applied  in  the  courts  is  that  of  fitness  for  the  general  transactions 
of  life ;  for,  it  is  argued,  if  a  man  is  incapable  of  entering  into  other 
contracts,  neither  can  he  contract  marriage.^^  This  test  is  suffi- 
ciently precise  for  most  purposes.  Yet  we  apprehend  the  real  issue 
is  whether  the  man  is  capable  of  entering  understandinglv  into  the 
relation  of  marriage.  There  are  two  questions,  however :  first, 
whether  the  party  understands  the  marriage  contract ;  second, 
whether  he  is  fit  to  perform  understand ingly  the  momentous  obliga- 
tions which  that  contract  imposes ;  and  both  elements  might  well 
enter  into  the  consideration  of  each  case.  "  If  any  contract  more 
than  another,"  observes  Lord  Penzance  in  a  recent  English  case, 
"  is  capable  of  being  invalidated  on  the  ground  of  the  insanity  of 
either  of  the  contracting  parties,  it  should  be  the  contract  of  mar- 
riage,—  an  act  by  which  the  parties  bind  their  property  and  their 
persons  for  the  rest  of  their  lives."  ^°  Marriage  contracted  during 
a  lucid  interval  is  at  law  deemed  valid ;  ^^  but  the  English  statute 
provides  that  such  marriages  are  void  when  a  commission  of  lunacy 
has  once  been  taken  out  and  remains  unrevoked.^*  Similar  pro- 
visions are  to  be  found  in  some  of  our  States.  On  the  other  hand, 
marriage  contracted  by  a  person  habitually  sane,  during  temporary 
insanity,  is  unquestionably  void/®  as  of  course  would  be  any  mar- 
riage contracted  by  one  at  the  time  permanently  insane.* 


60 


65.  Mudway  v.  Croft,  3  Curt.  Ec. 
671;  Anon.  4  Pick.  32;  Cole  v.  Cole, 
5  Sneed,  57 ;  Atkinson  v.  Medford,  46 
Me.  510;  Ward  v.  Dulaney,  23  Miss. 
410;  Elzey  v.  Elzey,  1  Houst.  308; 
McElroy's  Case,  6  W.  &  S.  451.  See 
1  Bishop,  ]Mar.  &  Div.,  §  128;  Ex 
parte  Glen,  4  Des,  546;  Kitzman  v. 
Kitzman,  167  Wis.  308,  166  N.  W. 
789  (marriage  of  epileptic  annulled)  ; 
In  re  Jansa's  Estate,  169  Wis.  220, 
171  N.  W.  947. 

56.  Hancock  v.  Peaty,  L.  E.  1  P.  & 
D.  335,  341.  The  question  is  whether 
the  person  had  sufficient  mental 
capacity  to  make  the  contract  of  mar- 
riage. Evidence  of  his  mental  condi- 
tion before  and  after  the  marriage  is 
admissible.  St.  George  v.  Biddeford, 
76  Me.  593;  Durham  v.  Durham,  10 
P.  D.  80. 

57.  Shelf.  Mar.  &  DIt.  197 ;  1  Bishop, 


Mar.  &  Div.,  §  130 ;  Banker  v.  Banker, 
63  N.  Y.  409;  Parker  v,  Parker,  6 
Eng.  Ec.  165;  Smith  v.  Smith,  47 
Miss.  211. 

58.  Stat.  15  Geo.  IL,  ch.  30  (1742), 
not  part  of  the  common  law  in  this 
country. 

59.  Legeyt  v.  O'Brien,  Milward, 
325;  Parker  v.  Parker,  6  Eng.  Ec. 
165. 

60.  See  Lord  Penzance  in  Hancock 
V.  Peaty,  L.  R.  1  P  &  D.  335;  Banker 
V.  Banker,  63  N.  Y.  409;  McAdam  v. 
Walker,  1  Dow,  148;  1  Bishop,  Mar. 
&  Div.,  §  130;  Smith  v.  Smith,  47 
Miss.  211.  Cf.  Waymire  v.  Jetmore, 
22  Ohio  St.  271. 

And  as  to  development  of  the 
malady  about  the  time  of  the  cere- 
mony, see  Schouler,  Hus.  &  Wife,  §  19. 
See  Reed  v.  Reed,  175  N.  Y.  S.  264. 


27  MABEIAGE.  §    18 

Upon  the  principle  of  temporary  insanity,  drunkenness  incapaci- 
tates, if  carried  to  the  excess  of  delirium  tremens;  though  not,  it 
would  appear,  if  the  party  intoxicated  retains  sufficient  reason  to 
know  what  he  is  doing.®^  Drunkenness  was  formerly  held  a  bad 
plea,  for  the  common  law  permitted  no  one  to  stultify  himself; 
but  the  modem  rule  is  more  reasonable.^"  Some  cases  require  that 
fraud  or  unfair  advantage  should  be  shown ;  yet  the  better  opinion 
is  that  even  this  is  unnecessary.*'^  Deaf  and  dumb  persons  were 
formerly  classed  as  idiots;  this  notion,  however,  is  exploded. 
They  may  now  contract  marriage  by  signs.®*  Total  blindness  or 
mere  deafness,  of  course,  constitutes  no  incapacity.  In  general,  we 
may  add  that  the  disqualification  of  insanity  is  often  considered  in 
connection  with  fraud  or  undue  influence  exercised  by  or  on  behalf 
of  the  other  contracting  party,  over  a  weak  intellect,  for  the  sake 
of  a  fortime,  a  title,  or  some  other  worldly  advantage.*^ 

Suits  of  nullity,  brought  to  ascertain  the  facts  of  insanity,  are 
favored  by  law  both  in  England  and  America ;  and  modern  legis- 
lation discountenances  all  collateral  disputes  involving  questions  so 
painful  and  perplexing.  "  Though  marriage  with  an  idiot  or 
lunatic  be  absolutely  void,  and  no  sentence  of  avoidance  be  abso- 
lutely  necessary,"  says  Chancellor  Kent,  "  yet,  as  well  for  the  sake 
of  the  good  order  of  society  as  for  the  peace  of  mind  of  all  persona 
concerned,  it  is  expedient  that  the  nullity  of  the  marriage  should  be 
ascertained  and  declared  by  the  decree  of  a  court  of  competent 
jurisdiction."  **  In  many  States  this  is  now  the  only  course  to 
be  pursued,  such  marriages  being  treated  as  voidable  and  not  void; 
and  the  insane  spouse  dying  before  proceedings  to  dissolve  the  mar- 
riage are  begun,  the  survivor  takes  all  the  benefits  of  a  valid 

61.  Clement  v.  Mattison,  3  Rich,  cited;  Elzey  v.  Elzey,  1  Houst.  308; 
93 ;  1  Bishop,  Mar.  &  Div.,  5th  ed.,  Steuart  v.  Robertson,  2  H.  L.  Sc.  494. 
§  131;  Gore  v.  Gibson,  13  M.  &  W.  64.  1  Bishop,  Mar.  &  Div.,  5th  ed., 
623,  2  Kent,  Com.  451,  and  authorities  §  133,  and  cases  cited;  1  Fraser,  Dom. 
cited;  Lord  Ellenborough,  in  Pitt  v.  Rel.  48;  Dickenson  v.  Blisset,  1  Dick- 
Smith,  3  Camp.  33;  Scott  v.  Paquet,  ens,  268;  Harrod  v.  Harrod,  1  Kay 
L.  R.  1  P.  C.  552.  &  Johns.  4. 

62.  See  Gillett  v.  Gillett,  78  Mich.  65.  Fraud  a.s  an  element  of  dis- 
184.  qualification  will  be  considered  Tposi, 

63.  See  1  Bishop,  Mar.  &  Div.,  5th  123. 

ed.,  §§  131,  132,  and  conflicting  cases  66.  2  Kent,  Com.  76. 


§  19 


HUSBAND    AND    WIFE. 


2& 


marriage  accordingly.^'     The  issue  in  all  such  cases  is,  mental 
condition  at  the  very  time  of  the  marriage.®^ 

§  19.  Physical  Capacity  of  Parties  to  Marriage ;  Impotence,  &c. 

Fourth.  The  question  of  physical  capacity  involves  an  investi- 
gation of  facts  even  more  painful  and  humiliating  than  that  of 
mental  capacity.  Yet  as  mai-riage  is  instituted,  in  part  at  least, 
for  the  indulgence  of  natural  cravings  and  with  a  view  to  propagate 
the  human  family,  sound  morality  demands  that  the  proper  means 
shall  not  be  wanting.  Our  law  demands  that,  at  all  events,  the 
sexual  desire  may  be  fully  gratified.  Where  impotence  exists, 
therefore,  there  can  be  no  valid  marriage.  By  this  is  meant  simply 
that  the  sexual  organization  of  both  parties  shall  be  complete.  But 
mere  barrenness  or  incapacity  of  conception  constitutes  no  legal 
incapacity  in  England  and  the  United  States,  nor  can  a  physical 
defect  which  does  not  interfere  with  copulation;  nor  indeed  any 
disability  which  is  curable,  even  though  not  actually  cured,  unless 
the  party  disabled  unreasonably  refuses  to  submit  to  the  proper 
remedies.*^  Such  refusal,  however,  puts  the  disabled  spouse  clearly 
in  the  wrong. '^°  The  refusal  of  carnal  intercourse  by  a  healthy 
spouse  is  quite  a  different  matter,  and  gives  rise  to  other  inquiries 
under  the  head  of  divorce ;  ^^  nor  certainly  can  physical  incapacity 
arising  from  some  cause  subsequent  to  marriage  be  referred  to  the 
present  subject,  the  question  being  as  to  incapacity  at  the  date  of 
marriage.'^ 

The  reader  will  find  Dr.  Lushington's  opinion  in  the  leading 
case  of  Deane  v.  Aveling  ^^  sufficiently  suggestive  as  to  the  extent 


67.  1  Bishop,  Mar.  &  Div.,  5th  ed., 
§§  136-142;  Goshen  v.  Eichmond,  4 
Allen,  458 ;  Hamaker  v.  Hamaker,  18 
111.  137;  "Williamson  v.  Williams,  3 
Jones,  Eq.  446;  Wiser  v.  Lockwood, 
42  Vt.  720;  Brown  v.  Westbrook,  27 
Ga.  102;  31  N.  Y.  Supr.  461;  Setzer 
V.  Setzer,  97  N.  C.  252.  As  to  bring- 
ing such  suits,  see,  further,  1  Bishop, 
Mar.  &  DiT.,  §§  139-142;  Schouler, 
Hus.  and  Wife,  §  21.  In  Maine  such 
a  marriage  may  be  impeached  col- 
laterally, 76  Me.  419. 

68.  Xonnemacher  v.  Nonnemacher, 
159  Penn.  St.  634. 

69.  1  Bishop,  Mar.  &  Div.,  §§  321- 
340,  and  cases  cited;  1  Fraser,  Dom. 


Eel.  53;  B.  v.  B.,  28  E.  L.  &  Eq.  95; 
1  Bl.  Com.  440,  n.,  by  Chitty  and 
others;  Ayl.  Parer,  227;  Devanbagh 
V.  Devanbagh,  5  Paige,  554 ;  Essex  v. 
Essex,  2  Howell,  St.  Tr.  786;  Briggs 
v.  Morgan,  3  Phillim.  325.  For  a  case 
where  the  disability  was  possibly 
curable,  see  G.  v.  G.,  L.  R.  2  P.  &  D. 
287. 

70.  H.  V.  P.,  L.  E.  3  P.  &  D.  126. 

71.  See,  further,  Cowles  v.  Cowles, 
112  Mass.  298. 

72.  See  Morrell  v.  Morrell,  24  N.  T. 
Supr.  324. 

73.  1  Eobertson,  279,  298.  And  see 
modem  case  of  U.  v.  J.,  L.  R.  1  P. 
&  D.  460;  Stimson,  §  6113. 


29 


MAKE  I  AGE. 


§  20 


of  malformation  which  invalidates  a  marriage  on  the  ground  of 
physical  incapacity.  It  will  be  observed  that  this  case  establishes 
a  principle  which  later  cases  do  not  undermine;  namely,  that  it  is 
capacity  for  fulfilling  the  conditions  of  copulation,  and  not  of  pro- 
creation, that  our  own  law  regards.  We  may  add  that,  with  the 
rapid  progress  of  medical  science  during  the  present  century,  cases 
of  absolute  and  incurable  impotence  are  happily  diminishing  in 
number.  It  is  reasonable  that  suit  should  be  required  to  terminate 
a  marriage  on  this  ground.' 


74 


§  20.  Disqualification  of  Infancy. 

Fifth.  Infancy  may  be  an  impediment  to  marriage ;  but  only 
so  far,  on  principle,  as  the  marrying  party,  by  reason  of  imperfect 
mental  and  physical  development,  may  be  brought  within  the  reason 
of  the  last  two  rules.  Hence  we  find  that  infancy  is  not  a  bar  to 
marriage  to  the  same  extent  as  in  ordinary  contracts ;  since  minors 
cannot  repudiate  their  choice  of  husband  or  wife  on  reaching  major- 
ity. Xot  that  marriage  calls  for  less  discrimination,  for  it  carries 
with  it  consequences  far  beyond  all  other  contracts,  involving  prop- 
erty rights  of  the  gravest  import;  but  because  public  policy  must 
protect  the  marriage  institution  against  the  reckless  imprudence  of 
individuals.  A  certain  period  is  established,  called  the  age  of  con- 
sent, which  in  England  is  fixed  at  fourteen  for  males  and  twelve 
for  females, —  a  rule  adopted  from  the  Eoman  law,  but  which,  in 
this  country,  varies  all  the  way  from  fourteen  to  eighteen  for  males 
and  twelve  to  sixteen  for  females,  according  to  local  statutes ;  dif- 
ferences of  climate  and  physical  temperament  contributing,  doubt- 
less, to  make  the  rule  of  nature,  in  this  respect,  a  fluctuating  one.'' 


74.  See  for  instances:  T.  v.  M.,  L. 
E.  1  P.  &  D.  31;  T.  V.  D.,  L.  R.  1 
P.  &  D.  127;  Carll  v.  Prince,  L.  R. 
1  Ex.  246.  With  modern  facilities,  in- 
cluding the  right  of  parties  to  testify 
in  their  own  suits,  such  cases  appear 
to  be  on  the  increase  in  the  courts 
of  Great  Britain.  See  1  Bishop,  § 
331;  Schouler,  Hus.  &  "Wife,  §  23,  as 
to  sentences  of  nullity  such  cases.  The 
latest  English  eases  interpose  no  bar- 
rier for  a  mere  del^y  in  seeking  a 
decree  of  nullity  for  impotence.  10 
P.  D.  75;  10  App.  Cas.  171;  Martin  v. 
Otis,  —  Mass.  — ,  124  N.  E.  294  (im- 


potency  renders  a  marriage  voidable 
and  not  void). 

75.  See  2  Kent,  Com.  79,  notes, 
showing  the  periods  fixed  in  different 
States  as  the  age  of  consent.  In  the 
old  States  the  common-law  rule  gen- 
erally prevails.  In  Ohio,  Indiana,  and 
various  other  western  States,  the  age 
of  consent  is  raised  by  various  stand- 
ards to  eighteen  or  even  twenty-one 
for  males,  and  fourteen  or  even 
eighteen  for  females.  See  Stimson,  § 
6110;  Green  v.  Green,  —  Fla.  — ,  80 
So.  739  (common -law  rule  adopted). 


§  20 


HUSBAND    AND    WIFE. 


30 


The  common-law  rule  is  usually  altered  by  statute  in  this  country/® 
Marriages  without  the  age  of  consent  are  as  binding  as  those  of 
adults ;  marriages  within  such  age  may  be  avoided  by  either  party 
on  reaching  the  period  fixed  by  law.  And  even  though  one  of  the 
parties  was  of  suitable  age  and  the  other  too  young,  at  the  time  of 
marriage,  yet  the  former,  it  appears,  may  disaffirm  as  well  as  the 
latter.'''^  Herein  is  obser\^ed  a  departure  from  that  principle  of 
law,  that  an  infant  may  avoid  his  contract  while  the  adult  remains 
bound ;  it  is  a  concession  which  the  law  makes  in  favor  of  mutuality 
in  the  marriage  compacts.  Marriages  celebrated  before  both  par- 
ties have  reached  the  age  of  consent  may  be  disaffirmed  in  season, 
either  with  or  without  a  judicial  sentence.'^^  When  the  age  of 
consent  is  reached,  no  new  ceremony  is  requisite  to  complete  the 
marriage  at  the  common  law;  but  election  to  affirm  will  then  be 
inferred  from  circumstances,  such  as  continued  intercourse,  and 
even  slight  acts  may  suffice  to  show  the  intention  of  the  parties.  If 
they  then  choose  to  remain  husband  and  wife,  they  are  bound  for- 
ever. Disaffirmance,  on  the  other  hand,  may  be  either  with  or 
without  a  judicial  sentence. '^^  Marriage  within  the  age  of  consent 
seems  therefore  to  be  neither  strictly  void  nor  strictly  voidable,  but 
rather  inchoate  and  imperfect ;  *°  with,  however,  a  reservation  by 
the  ecclesiastical  law  as  to  marriage  with  an  infant  below  seven 
years,  which  is  treated  as  altogether  null.^^ 


76.  Johnson  v.  Alexander,  —  Cal. 
App.  — ,  178  P.  297;  Morgan  v.  Mor- 
gan, 148  Ga.  625,  97  S.  E.  675  (seven- 
teen years  of  age) ;  "Wiley  v.  Wiley, 
—  Ind.  App.  — ,  123  N.  E.  252. 

77.  Co.  Litt.  79,  and  Harg.  n.  45; 
1  East,  P.  C.  468;  1  Bishop,  Mar.  & 
Div.,  5th.  ed.,  §  149.  But  it  is  not 
certain  that  a  party  of  competent  age 
may  disaf&rm  equally  with  the  party 
incompetent.  People  v.  Slack,  15 
Mich.  193. 

78.  The  complaint  should  be  in  the 
name  of  the  infant,  and  not  of  his 
guardian.  Pense  v.  Aughe,  101  Ind. 
317.  See  Holtz  v.  Dick,  42  Ohio 
St.  23.  Fraudulent  representation  by 
the  infant  as  to  his  age  does  not  estop 
him  from  annulling.  Eliot  v.  Eliot, 
81  Wis.  295,  an  extreme  case. 

79.  1  Bishop,  Mar.  &  Div.,  §  150. 

80.  Co.  Litt.  33a;  2  Kent,  Com.  78, 
79;  1  Bishop,  Mar.  &  Div,,  5th  ed.,  §§ 


143-153,  and  cases  cited;  1  Bl.  Com. 
436;  1  Fraser,  Dom.  Eel.  42;  Parton 
V.  Hervey,  1  Gray,  119;  Fitzpatrick 
V.  Fitzpatrick,  6  Nev.  63.  See  Shafher 
v.  State,  20  Ohio,  1,  86  Wis.  498,  65 
Vt.  663 ;  contra,  Goodwin  v.  Thomp- 
son, 2  Iowa,  329;  Aymar  v.  Koff,  3 
Johns.  Ch.  49,  as  to  the  invalidity  of 
such  marriage,  unless  confirmed  by 
cohabitation  after  reaching  the  statu- 
tory age.  Local  statutes  affect  this 
whole  subject.  Owen  v.  Coffey,  201 
Ala.  531,  78  So.  885  (voidable  at  elec- 
tion of  infant)  ;  People  v.  Ham,  206 
111.  App.  543  (voidable  and  not  void) ; 
Magee  v.  Nealon,  177  N.  Y.  S,  517 
(marriage  of  one  under  age  is  not 
void  ab  initio,  but  is  voidable  only  on 
judicial  decree)  ;  Allerton  v.  Allerton, 
172  N.  Y.  S.  152. 

81.  2  Burn,  Ec,  Law,  434;  1  Bishop, 
Mar.  &  Div.,  §  147. 


31 


MAEEIAGE. 


§  21 


Only  one  of  the  parties  to  a  marriage  of  one  within  the  age  of 
consent  may  object  to  its  legality,  and  action  for  annulment  cannot 
be  brought  by  a  parent  of  the  infant  against  his  wishes.* 


82 


§  21.  Disqualification  of  Prior  Marriage  Undissolved ;  Polygamy ; 
Bigamy. 

Sixth,  as  to  the  impediment  of  prior  marriage  undissolved.  It 
is  a  well-established  rule  in  civilized  countries  that  marriage  be- 
tween parties,  one  of  whom  is  bound  by  an  existing  marriage  tie,  is 
not  only  void,  but  subjects  the  offenders  to  criminal  prosecution.** 
Polygamy,  or  bigamy  as  it  is  often  termed, —  since  the  common 
law  of  England  could  scarcely  conceive  of  such  conjunctions  carried 
beyond  a  double  marriage, —  is  discarded  by  all  Christian  com- 
munities. It  was  tolerated,  but  never  sanctioned,  in  certain  terri- 
tory of  the  United  States.  The  fundamental  doctrine  of  Christian 
marriage  is  that  no  length  of  separation  can  dissolve  the  union,  so 
long  as  both  parties  are  actaully  living,  even  though  lapse  of  time 
should  raise  a  reasonable  supposition  of  death.  But  to  render  the 
second  marriage  void  at  law,  the  first  should  have  been  valid  in  all 
respects.**  Some  of  the  harsher  features  of  the  old  law  have  been 
softened  in  our  own  legislation;  and  statutes  are  not  uncommon 
which  possibly  extend  facilities  for  divorce  from  the  old  relation, 
and  in  any  event  protect  the  offspring  of  a  new  marriage  contracted 
erroneously,  but  in  good  faith,  by  parties  who  had  reason  to  believe 
a  former  spouse  dead.*^  But  such  re-marriage  in  bad  faith  and 
without  due  inquiry  finds  no  favor.*®  So,  too,  polygamy  in  fact  is 
relieved  of  its  penal  consequences  as  concerns  parties  not  guilty  of 
polygamy  in  intention ;  but  a  certain  period  must  elapse  —  usually 


82.  Arado  v.  Arado,  205  111.  App. 
261,  117  N,  E.  816;  Marone  v.  Marone, 

174  N.  Y.  S.  151;  Magee  v.  Nealon, 
177  N.  Y.  S.  517;  contra,  Melcher  v. 
Melcher,  102  Neb.  790,  169  N.  W.  720 
(by  statute  non-consenting  parent 
may  petition  for  annulment). 

83.  Cro.  Eliz.  858;  1  Salk.  121;  2 
Kent,  Com.  79,  and  ontes;  1  Bishop, 
Mar.  and  Div.,  §§  236-303,  and  au- 
thorities cited;  Shelf.,  Mar.  and  Div. 
224;  Hyde  v.  Hyde,  L.  E.  1  P.  &  D. 
130;  Klee  v.  Klee,  171  N.  Y.  S.  632, 

175  N.  Y.  S.  90S;  Succession  of 
Thomas,  144  La.  25,  SO  So.  186  Cun- 
ningham V.  Cunningham,  —  Tex.  Civ. 


App.  — ,  210  S.  W.  242  (although  first 
marriage  was  a  common -law  marriage 
and  second  marriage  was  ceremonial, 
entered  into  in  good  faith)  ;  McCaig 
V.  State,  —  Ala.  App.  — ,  80  So.  155; 
Yigno  V.  Vigno,  —  N.  H.  — .  106  A. 
285. 

84.  Bruce  v.  Burke,  2  Add.  Ee.  471; 
2  Eng.  Ec.  381;  Reg.  v.  Chadwick,  12 
Jur.  174 ;  Patterson  v.  Gaines,  6  How. 
(U.  S.)  550. 

85.  See  2  N.  Y.  Ecv.  Stat.,  p. 
139,  §§  6,  7;  Mass.  Rev.  Laws,  ch. 
151,  §  14;  Stimson,  Am.  Stat.  Law, 
§  6116. 

86.  Gall  V.  Gall,  114  N.  Y.  1»9. 


§  21 


HUSBAND   AND    WIFE. 


32 


seven  years  —  before  death  can  be  presumed  from  one's  mere  con- 
tinuous absence  without  being  heard  from.  Such  was  one  of  the 
provisions  in  the  English  statute  passed  to  make  bigamy  a  civil 
offence,  in  the  reign  of  James  I.,*^  which  also  exempted  from  pun- 
ishment for  bigamy  persons  remarried,  during  the  lifetime  of  the 
former  spouse,  after  a  divorce,  sentence  of  nullity,  or  disaffirmance 
on  reaching  age  of  consent.  Similar  statutes  for  the  punishment  of 
bigamy,  with  similar  reservations,  are  enacted  in  this  country ;  but 
in  England  and  the  United  States  some  defects  of  the  original 
legislation  are  now  cured,  and  divorce  from  bed  and  board  would 
not  exempt  an  offender  from  prosecution.*®  Polygamy,  with  such 
exceptions,  remains  an  indictable  offence.  One  of  its  less  obvious 
evils  —  though  not  the  least  important  when  polygamy  is  regarded 
as  a  legalized  institution  in  a  free  country  —  is  that  the  patriarchal 
principle  which  it  introduces  is  thoroughly  hostile  to  free  institu- 
tions ;  and  this  fact  was  pointed  out  many  years  ago  by  one  of  our 
best  writers  on  political  ethics.*^ 

Nor  is  a  new  marriage  entered  into  by  one  spouse  in  good  faith, 
and  in  full  but  erroneous  belief  that  the  other  spouse  is  dead,  valid 
even  after  the  lapse  of  the  statutory  absence ;  such  parties  are  not 
free  to  marry  again,  but  only  relieved  of  the  worst  consequences.** 


87.  Stat  1  Jac.  I,  ch.  11,  1604.  See 
Queen  v.  Lumley,  L.  K.  1  C.  C.  196; 
Queen  v.  Curgerwen,  L.  R.  1  C.  C.  1. 

88.  In  New  York  the  period  of  ab- 
sence is  five  years;  in  Ohio,  three 
years;  in  Massachusetts,  seven  years, 
but  with  a  special  relaxation  of  the 
penalty.  Still  further,  see  2  Kent, 
Com.  79,  and  notes.  See  also  Stats.  9 
Geo,  IV.,  ch.  31;  24  and  25  Vict.,  ch. 
100;  1  Bishop,  §  297;  Stimson,  §  6112. 
Legitimating  statutes  are  to  be  found 
in  numerous  States  on  behalf  of  the 
offspring  of  innocent  marriages  of 
this  kind.  1  Bishop,  §  301;  cases 
infra. 

89.  2  Lieber,  Pol.  Ethics,  9,  cited  in 
note  to  2  Kent,  Com.  81. 

As  to  prosecutions  for  bigamy,  see 
Kopke  V.  People,  43  Mich.  41;  Reeves 
V.  Reeves,  54  111.  332 ;  Queen  v.  Allen, 
L.  R.  1  C.  C.  367,  and  other  cases 
cited;  Schouler,  Hus.  and  Wife,  §  25; 
also  * '  Bigamy ' '  in  Bishop  or  Wharton 
on  Criminal  Law. 


90.  Glass  V.  Glass,  114  Mass.  563, 
and  cases  cited;  WUliamson  v. 
Parisien,  1  Johns.  Ch.  389;  Miles  v. 
Chilton,  1  Robertson,  684;  Spicer  v. 
Spicer,  16  Abb.  Pr.  (N.  S.)  112;  1 
Bishop,  Mar.  &  Div.,  §  299;  Webster 
V.  Webster,  58  N.  H.  3,  124  Penn.  St. 
646.  Such  marriage,  under  Massachu 
setts  statutes,  may  be  annulled  by  a 
sentence  containing  (in  order  to  make 
children  begotten  before  the  com- 
mencement of  the  suit  legitimate)  the 
statement  that  it  was  contracted  in 
good  faith  and  with  the  full  belief  of 
the  parties  that  the  absent  spouse  was 
dead.  Glass  v.  Glass,  supra,  Randlett 
V.  Rice,  141  Mass.  385,  presented 
curious  facts.  Lawful  competence  to 
marry  again  results,  however,  under 
some  local  statutes,  from  such  absence. 
Strode  v.  Strode,  3  Bush,  227.  Where 
proceedings  for  annulling  are  discon- 
tinued upon  the  death  of  such  former 
spouse,  the  parties  may  marry  again. 
Sneathen  v.  Sneathen,  104  Mo.  201. 


33 


MAEEIAGE. 


§  22 


One  who  innocently  marries  another  having  an  undivorced  spouse 
may  have  the  colorable  marriage  declared  void  independently  of  all 
divorce  legislation.®^  It  is  often  held  that  there  is  a  presumption 
of  the  validity  of  the  second  marriage  and  that  the  first  marriage 
has  been  terminated,®"  but  this  presumption  does  not  hold  where 
there  is  evidence  to  the  contrary."^ 

§  22.  Same  Subject;  Impediments  following  Divorce. 

Under  this  same  head  may  be  considered  a  disqualification  intro- 
duced into  some  parts  of  this  country  by  legislative  enactments; 
namely,  the  impediment  which  follows  divorce.®*  A  divorce  a 
vinculo  should  on  general  principles  leave  both  parties  free  to  marry 
again.  But  such  is  not  always  the  case.  Thus,  in  Kentucky,  the 
person  injured  might  not  marry  again  before  the  expiration  of  two 
years  from  the  decree  of  dissolution.®^  And  in  several  States  the 
guilty  party  is  prohibited  from  marrying  again  during  the  lifetime 
of  the  innocent  spouse  divorced, —  a  provision  of  law  seemingly 
more  judicious  to  apply  in  terrorem  by  way  of  prevention  than  as 
a  suitable  method  of  punishment.®®  In  Scotland  there  is  a  peculiar 
but  not  unreasonable  law,  which  forbids  the  guilty  party  after 
divorce  from  marrying  the  particeps  criminis;  this  was  framed 
evidently  to  defeat  collusive  practices  between  persons  desiring  to 
put  away  an  outstanding  obstacle  to  their  own  union.®^  A  divorce 
nisi  is  of  course  only  partial;    and  a  marriage  solemnized  before 


91.  Fuller  v.  Fuller,  33  Kan.  582. 
See  succession  of  Thomas,  144  La.  25, 
80  So.  186  (good  faith  not  presumed 
where  a  maturo  woman  marries  a  man 
whom  she  knows  to  be  already  mar- 
ried depending  on  his  mere  assertion 
that  he  had  obtained  a  divorce). 

92.  In  re  Salvin's  Will,  173  N.  Y.  S. 
897.  In  re  Hilton 's  Estate,  —  Pa.  — , 
106  A.  69;  Tanton  v.  Tanton,  — 
Tex.    Civ.  App.  — ,  209  S.  W.  429. 

93.  Succession  of  Thomas,  144  La. 
25,  80  So.   186. 

94.  1  Bishop,  Mar.  &  Div.,  5th  ed., 
§§  304-307;   Stimson,  §  6241. 

95.  Cox  V.  Combs,  8  B.  Monr.  231. 
Mason  v.  Mason,  101  Ind.  25,  treats 
a  marriage  in  violation  of  such  in- 
hibition as  voidable  only,  so  that  one 
party   may  be  estopped  to   deny  the 

3 


validity     in     collateral     proceedings. 
And  see  152  Mass.  533. 

96.  See  Parke  v.  Barron,  20  Ga. 
702 ;  Clark  v.  Cassidy,  62  Ga.  407,  53 
Barb.  454.  Such  prohibitions  are 
sometimes  evaded  by  going  into  an- 
other neighboring  State,  and  there 
contracting  what  by  local  law  is  a 
valid  marriage.  Thorp  v.  Thorp,  90 
N.  Y.  602,  92  N.  Y.  521,  86  N.  Y.  18. 
Notwithstanding  a  New  York  prohi- 
bition, parties  went  into  New  Jersey 
or  Connecticut  for  such  purpose.  lb. 
See  Hahn  v.  Hahn,  —  "Wash.  — ,  176 
P.  3. 

97.  1  Fraser,  Dom.  Eel.  82.  In  a 
few  of  the  United  States,  legislation 
is  found  to  the  same  effect.  Stimaon, 
Am.  Stat.  Law,  §  6241. 


I  23 


HUSBAND    AND    WIFE. 


34 


the  absolute  decree  can  takef  effect  is  void,^*  but  where  the  parties 
live  together  after  the  divorce  becomes  valid  the  second  marriage 
becomes  also  valid.®® 

§  23.  Force,  Fraud,  and  Error,  in  Marriage. 

Seventh.  All  marriages  procured  by  force  or  fraud,  or  involv- 
ing palpable  error,  are  void;  for  here  the  element  of  mutual  con- 
sent is  wanting,  so  essential  to  every  contract,^  and  fraud  of  a  vital 
character  going  to  the  essence  of  the  transaction  will  be  ground  for 
avoiding  a  marriage.^  The  law  treats  a  matrimonial  union  of  this 
kind  as  absolutely  void  ah  initio,  and  permits  its  validity  to  be 
questioned  in  any  court;  at  the  option,  however,  of  the  injured 
party,  who  may  elect  to  abide  by  the  consequences  when  left  free 
to  give  or  withhold  assent.  Force  implies  a  physical  constraint 
of  the  will ;  fraud,  some  deception  practised,  whereby  an  unnatural 
state  of  the  will  is  brought  about.^  Cases  of  palpable  error,  which 
are  very  rare,  usually  contain  one  or  both  of  these  ingredients. 

What  amount  of  force  is  sufficient  to  invalidate  a  marriage  is  a 
question  of  circumstances.  Evidently  the  same  test  could  not 
apply  to  the  mature  and  the  immature,  to  the  strong  and  the  weak, 
to  man  and  to  woman.  The  general  rule  is  that  such  amount  of 
force  as  might  naturally  serve  to  overcome  one's  free  volition  and 


98.  Cook  V.  Cook,  144  Mass.  163. 
Such  a  marriage  may  be  annulled  ac- 
cordingly. Wilson  V.  Wilson,  172  N. 
Y.  S.  673. 

99.  Kinney  v.  Tri-State  Telephone 
Co.,  —  Tex.  Civ.  App.  — ,  201  S.  W. 
1180;  McLaughlin  v.  Laughlin,  201 
Ala.  482,  78  So.  388. 

1.  2  Kent,  Com.  76,  77;  1  Bishop, 
Mar.  &  Div.,  5th  ed.,  §§  164-215;  Har- 
ford V.  Morris,  2  Hag.  Con.  423;  4 
Eng.  Ec.  575;  Countess  of  Portsmouth 
V.  Earl  of  Portsmouth,  1  Hag.  Ec 
355;  3  Eng.  Ec.  154;  Scott  v.  Shu 
feldt,  5  Paige,  43;  Dalrymple  v.  Dal 
rymple,  2  Hag.  Con.  54,  104;  4  Eng. 
Ec.  485;  Keyes  v.  Keyes,  2  Fost.  553 

2.  Davis  V.  Davis,  90  N.  J.  Ch.  158 
106  A.  644  (concealment  of  tubercu 
losis) ;  Bolmer  v.  Edsall,  90  N.  J.  Ch 
299,  106  A.  646  (concealed  determi 
nation  to  deny  sexual  intercourse) 
Thompson  v.  Thompson,  —  Tex.  Civ, 


App.  — ,  202  S.  W.  175,  203  S.  W. 
939;  Keed  v.  Reed,  175  N.  Y.  S.  264 
(statutory  method  of  annulment  must 
be  followed)  ;  Weill  v.  Weill,  172  N. 
Y.  S.  589  (concealment  of  prior  mar- 
riage and  annulment)  ;  Koehler  v. 
Koehler,  137  Ark.  302,  209  S.  W.  283 ; 
Gatto  V.  Gatto,  —  N.  H.  — ,  106  A. 
493  (misrepresentation  by  woman  as 
to  her  chastity).  See  Price  v.  Tomp- 
kins, 177  N.  Y.  S.  548  (concealment 
by  woman  of  prior  marriage  to  one 
since  died  is  not  fraud).  Where 
the  marriage  would  not  have  talcen 
place  in  the  ahsence  of  the  fraud  this 
is  a  ground  for  annulment,  but  if  the 
marriage  would  have  taken  place  any- 
way, this  fraud  is  not  a  ground  for 
annulment.  Weill  v.  Weill,  172  N.  Y. 
S.  589;  Allerton  v.  Allerton,  172  N. 
Y.  S.  152. 

3.  1  Fraser,  Dom.  Eel.  234 


35 


MAKEIAGE. 


§  23 


inspire  terror  "will  render  the  marriage  null/  And  where  the 
party  emplo^TUg  force  sustains  a  superior  relation  of  influence,  or 
a  post  of  confidence  affording  him  special  opportunities  which  he 
chooses  to  abuse,  this  circumstance  carries  great  weight.  Thus  in 
Harford  v.  Morris,  where  one  of  the  guardians  of  a  young  and 
timid  school-girl,  having  great  influence  and  authority  over  her, 
took  her  to  a  foreign  country,  hurried  her  from  place  to  place  and 
then  married  her  without  her  free  consent,  the  marriage  was  set 
aside ;  ^  and  similar  consequences  attended  more  recently  the  mar- 
riage of  a  young  school-girl  to  her  father's  coachman,  who  pursued 
his  scheme  while  taking  her  out  to  ride/  So,  too,  where  a  man 
forced  a  woman  who  was  in  pecuniary  distress  to  marry  him  by 
operating  on  her  fears  of  exposure  and  ruin/ 

A  marriage  by  compulsion  is  procured  when  an  adult  under 
illegal  arrest  is  forced  to  marry;  and  so,  probably,  though  the 
arrest  were  legal,  if  malicious  circumstances  are  manifest/  But 
if  a  single  man  under  legal  arrest  marries,  by  advice  of  the  officer 
or  magistrate,  the  woman  whom  he  has  seduced  or  got  with  bastard 
offspring,  in  order  to  escape  a  just  prosecution,  meaning  a  prosecu- 
tion for  probable  cause  and  not  a  malicious  one,  the  law  disinclines 
to  annul  such  a  marriage  for  duress  in  case  of  an  adult,  but  will 
favor  a  presumption  of  honest  repentance  on  his  part,  and  hold 
him  bound  f  substantial  justice  being  thereby  done  to  the  utmost, 


4.  Shelf.,  Mar.  &  Div.  213;  1 
Bishop,  Mar.  &  Div.,  5th  ed.,  §  211. 

5.  2  Hag.  Con.  423;  4  Eng.  Ec.  575, 

6.  Lyndon  r.  Lyndon,  69  111.  43. 

7.  Scott  V.   Sebright,   12   P.   D.   21. 

8.  Reg.  V.  Orgill,  9  Car.  &  P.  80; 
Soule  V.  Bonney,  37  Me.  128 ;  Collins 
V.  Collins,  2  Brews.  (Pa.)  515;  Barton 
V.  Morris,  15  Oliio,  408 ;  Benton  v. 
Benton,  1  Day,  111;  1  Bishop,  Mar. 
&  Div.,  5th  ed.  212. 

A  man  is  sometimes  forced  into  a 
marriage  which  ought  to  be  annulled. 
See  Bassett  v.  Bassett,  9  Bush,  69'6. 
In  Willard  v.  Willard,  6  Baxter,  297, 
before  testimony  was  taken,  an  alle- 
gation of  duress  was  sustained  against 
demurrer.  Here  the  man  claimed  that 
the  woman's  brother  seized  him  on 
the  highway,  and  forced  him  to  marry 
her,  and  that  as  soon   as  the  duress 


was  over  he  escaped;  also  that  the 
woman  had  a  child  three  months  after- 
wards. Duress  was  claimed  by  the 
husband  in  Yroom  v.  Marsh,  29  X.  J. 
Eq.  15;  but  the  court  allowed  alimony 
-pendente  lite  to  the  wife,  she  denying 
the  charge. 

9.  Jackson  v.  Winne,  7  "Wend.  47; 
Sickles  V.  Carson,  26  N.  J.  Eq.  440; 
Honnett  v.  Honnett,  33  Ark.  156; 
State  V.  Davis,  79  N.  C.  603 ;  Johns  v. 
Johns,  44  Tex.  40;  "Williams  v.  State, 
44  Ala.  24;  Rutgers  v.  New  Bruns- 
wick, 42  N.  J.  Eq.  55;  Marvin  v. 
Marvin,  52  Ark.  425.  In  Smith  v. 
Smith,  51  Mich.  607,  the  marriage 
was  annulled  where  the  party  was  a 
"boy  of  eighteen  and  the  woman 
much  older. ' '  See  Beckcrmeister  v. 
Beckermeister,  170  N.  Y.  S.  22. 


.§  23 


HUSBAND    AND    WIFE. 


36 


and  the  lesser  scandal  to  society  permitted  in  order  to  avert  the 
greater. 

As  to  fraud,  in  order  to  vitiate  a  marriage,  it  should  go  to  the 
very  essence  of  the  contract.  But  what  constitutes  this  essence? 
The  marriage  relation  is  not  to  be  disturhed  for  trifles,  nor  can  the 
cumbrous  machinery  of  the  courts  be  brought  to  bear  upon  impal- 
pable things.  The  law,  it  has  been  well  observed,  makes  no  pro- 
vision for  the  relief  of  a  blind  credulity,  however  it  may  have  been 
produced.^*'  Fraudulent  misrepresentations  of  one  party  as  to 
birth,  social  position,  fortune,  good  health,  and  temperament,  can- 
not therefore  vitiate  the  contract.  Caveat  emptor  is  the  harsh  but 
necessary  maxim  of  the  law.  Love,  however  indispensable  in  an 
aesthetic  sense,  is  by  no  means  a  legal  essential  to  marriage ;  simply 
because  it  cannot  be  weighed  in  the  scales  of  justice.  So,  too,  all 
such  matters  are  peculiarly  within  the  knowledge  of  the  parties 
themselves,  and  they  are  put  upon  reasonable  inquiry.^^ 

Not  even  does  the  concealment  of  previous  unchaste  and  immoral 
behavior  in  general  vitiate  a  marriage ;  for  although  this  seems  to 
sitrike  into  the  essence  of  the  contract,  yet  public  policy  pronounces 
otherwise,  and  opens  marriage  as  the  gateway  to  repentance  and 
virtue.^^  If  the  profligate  continue  a  profligate  after  marriage, 
the  divorce  laws  afford  a  means  of  escape  to  the  deluded  victim. 
Still,  as  this  doctrine  seems  to  bear  hard  upon  innocent  persons 
marrying  in  good  faith  and  with  misplaced  confidence,  it  is  applied 
not  without  some  limitations.  Thus  it  is  held  that  where  a  woman, 
pregnant  by  another  man  at  the  time  of  the  nuptials,  bears  a  child 
soon  after  to  an  innocent  husband,  the  marriage  may  be  avoided 
by  him  ;  for  she  has  thereby  not  only  inflicted  upon  him,  by  decep- 
tion, the  grossest  possible  moral  injury,  but  subjected  them  both  to 
scandal  and  ill-repute.^^     The  courts,  however,  have  taken  heed 


10.  Lord    Stowell,    in   Wakefield    v.      362,  363  ;  Swinb.  Spousals,  2d  ed.,  152; 


Mackay,  1  Phillim.  137 ;  2  Kent,  Com. 
77;  1  Bishop,  Mar.  &  Div.,  5th  ed., 
§§  166-168;  Libman  v.  Libman,  169 
N.  Y.  S.  900,  102  Misc.  Eep.  143, 

11.  Concealment  by  the  woman  that 
she  was  a  kleptomaniac  —  by  this  not 
meaning  insanity  —  was  held  no  fraud 
as  to  essentials,  in  Lewis  v.  Lewia,  44 
Minn.  124. 

12.  Bishop,  Mar.  &  Div.,  §§  170, 
179;  Eogers,  Ec.  Law,  2d  ed.,  644;  1 
Fraser,   Dom.    Eel.   231;    Ayl,   Barer, 


Best  V.  Best,  1  Add.  Ec.  411;  2  Eng. 
Ec.  158;  Leavitt  v.  Leavitt,  13  Mich. 
452;  Wier  v.  Still,  31  Iowa,  107. 

13.  Eeynolds  v.  Eeynolds,  3  Allen, 
605.  See  also  Baker  v.  Baker,  13  Cal. 
87;  Montgomery  v.  Montgomery,  3 
Barb.  Ch.  132;  Wright,  630;  Allen's 
Appeal,  99  Penn.  St.  196;  Gard  v. 
Card,  204  Mich.  255,  169  N.  W.  908. 
See  Cogswell  v.  Cogswell,  —  D.  C.  — , 
258  F.  287. 


37  MAKKIAGE.  §    23 

not  to  press  this  exception  far,  refusing  to  allow  one  to  shake  off 
the  obligations  he  has  contracted  with  a  woman  whom  he  knew 
before  marriage  to  be  with  child,  and  in  fact  had  himself  debauched, 
notwithstanding  he  married  upon  the  faith  of  her  previous  assur- 
ances that  her  pregnancy  was  by  him,  and  was  undeceived  by  the 
time  the  child  came  into  the  world.^*  Furthermore,  if  a  man 
marries  any  woman  whom  he  knows  to  be  unchaste  and  pregnant, 
it  is  his  own  folly  if  he  places  implicit  confidence  in  any  of  her 
statements ;  ^^  and  if  he  was  unchaste  with  her  himself,  he  debars 
himself  from  complaining  that  he  found  her  pregnant  by  another/' 
But  whenever  an  innocent  man  marries  a  woman,  supposing  her, 
with  reason,  to  be  virtuous,  and  she  concels  her  pregnancy  from 
him,  the  subsequent  production  of  another  man's  child  so  unpleas- 
antly complicates  the  marriage  relation  that  he  ought  to  be  allowed 
his  exit  if  he  so  desires,  both  in  justice  to  himself  and  because  the 
woman  knew  the  risk  she  ran  of  bringing  the  parental  relation  to 
shame  by  marrying,  and  chose  to  incur  it.  In  short,  while  mar- 
riage may  be  accepted  by  any  one  whose  past  life  has  been  disso- 
lute, as  the  portal  to  a  new  and  honest  career,  for  which  reason  con- 
cealment of  the  past  cannot  legally  be  predicated  of  either  party  as 
an  essential  fraud,  we  apprehend  that  the  woman  who  brings  sur- 
reptitiously to  the  marriage  bed  the  incumbrance  of  some  outside 
illicit  connection  introduces  a  disqualification  to  the  union  as  real 
as  the  physical  impotence  of  a  man  would  be,  resulting  from  his 
own  lasciviousness. 

As  'to  error,  it  may  be  said,  as  in  fraud,  that  the  error  should 
reach  the  essentials ;  and  Chancellor  Kent  justly  observes  that  it 
would  be  difficult  to  find  a  case  where  simple  error,  without  some 
other  element,  would  be  permitted  to  vacate  a  marriage.^'^  There 
is  an  English  case  in  point,  where  a  man  courted  and  afterwards 
married  a  young  lady,  believing  her  to  be  a  certain  rich  widow, 
whom  he  had  known  only  by  reputation.  She  and  her  friends  had 
countenanced  the  deception.     It  was  held,  nevertheless,  that  the 

14.  Foss  V.  Foss,  12  Allen,  26.  It  16.  Seilheimer  v.  Seilheimer,  40 
was  here  suggested  by  the  court  that  jST.  J.  Eq.  412 ;  Foss  v.  Foss,  12  Allen, 
the  man  might  have  taken  medical  or       26. 

other  advice  before  marriage,  instead  17.  2    Kent,    Com.    77.     See    Lord 

of   relying   upon   the   woman's   word.  Campbell,  in  Reg.  v.  Millis,  10  CI.  & 

15.  Crehore  v.  Crehore,  97  Mass.  F.  534,  785;  1  Bishop,  Mar.  &  Div., 
330.  5th   ed.,   §   207;    Clowes   v.   Clowes,   3 

Curt.  Ec.   185,   191. 


§    24  HUSBAND    AND    WIFE.  38 

marriage  must  stand/*  But  the  palpable  substitution  of  some 
other  individual  for  the  person  actually  accepted  and  intended  for 
marriage  may  properly  be  repudiated  by  the  victim  to  the  fraud/* 
And  some  cases  have  gone  even  farther,  as  where  a  scoundrel  palms 
himself  off  as  a  certain  individual  of  good  repute ;  "°  though,  gen- 
erally speaking,  deception  as  to  name  is  not  regarded  as  more  fatal 
than  deception  concerning  character  or  fortune. 

The  element  of  imperfect  consent  is  readily  associated  with 
cases  of  the  present  class.  Thus,  if  a  person  is  unwittingly  en- 
trapped into  a  marriage  ceremony,  not  meaning  nor  affording 
reason  for  the  other  party  to  believe  that  it  should  be  binding,  this 
marriage  may  be  repudiated.^^  And  in  general  a  mock  marriage 
in  jest  is  no  marriage,  though  a  dangerous  sport." 

The  fraud  may  be  waived  and  the  party  estopped  to  rely  on  it 
by  cohabitation  after  knowledge  of  the  f raud.^^ 

§  24.  Force,  Fraud,  and  Error :  Subject  continued. 

In  most  of  the  reported  cases  of  force,  fraud,  and  error,  two  or 
more  of  these  elements  are  united ;  and  frequently  another  distinct 
impediment  appears,  such  as  tender  years  on  the  part  of  the  injured 
party ;  or,  with  regard  to  the  offender,  the  suppression  of  material 
facts  relative  to  some  former  marriage,  or  to  his  own  mental  or 
physical  incapacity;  or  some  other  cause  of  nullity  is  shown  by 
the  evidence.  In  the  reported  cases,  where  the  complainant  was 
successful,  some  unprincipled  man  has  generally  sought  to  gain 
undue  advantage  from  the  person  and  fortunes  of  one  whose  feebler 
will  or  overstrained  fears  rendered  her  an  easy  prey ;  it  rarely,  if 
ever,  appears  that  such  force  or  fraud  has  led  to  a  reasonable  and 
well-assorted  match.  Such  imequal  alliances  need  find  favor  from 
no  tribunal.^* 

All  marriages  of  this  sort  are  binding  without  further  ceremony, 
provided  the  injured  party  sees  fit  to  affirm  it  after  all  constraint 

18.  Feilding's  Case,  cited  in  Burke '3  23.  Koehler  v.  Koehler,  137  Ark. 
Celebrated    Trials,   63,   78,   and   in    1       302,  209  S,  W.  283. 

Bishop,  Mar.  &  Div.,  5th  ed.,  §  204.  24.  See  Heffer  v.  Heffer,  3  M.  &  S. 

19.  Fiction  supplies  such  instances,  260;  Rex.  v.  Burton,  3  M.  &  S.  537; 
as  in  Scott's  novels,  St.  Ronan's  Swift  v.  Kelly,  3  Knapp,  257;  Nace 
Well.  And  see  2  Kent,  Com.  77;  1  v.  Boyer,  6  Casey,  OT;  Robertson  v. 
Bishop,  §  207.  Cole,   12   Tex.   356;   Cameron  v.   Mal- 

20.  Rex.  V.  Burton,  3  M.  &  S.  537.  colm,   Mor.   12586,  cited   1   Bishop,   § 

21.  Clark  v.  Field,  13  Vt.  460.  199;   Lyndon  v.   Lyndon,   69   111.   43; 

22.  McClurg  v.  Terry,  24  N.  J.  Eq.  Powell  v.  Cobb,  3  Jones,  Eq.  456; 
225.     See  post,  §  22.  Scott  v.  Sebright,  12  P.  D.  21. 


39 


MARRIAGE. 


§  25 


is  removed,  or,  in  other  words,  to  perfect  the  consent ;  but  no  such 
freedom  of  choice  seems  to  be  left  to  the  offending  party.  Hence 
this  sort  of  marriage  seems  neither  void  nor  voidable  in  the  legal 
acceptation ;  but  rather  inchoate  or  incomplete  until  ratified, 
though  void  if  the  injured  choose  so  to  treat  it.  Where  consum- 
mation never  follov^^ed  the  nuptials,  the  courts  are  the  more  readily 
disposed  to  set  aside  the  match ;  ^^  but  in  any  event  copulation, 
with  knowledge  of  the  fraud,  and  after  removal  of  all  constraint, 
is  an  effectual  bar  to  relief.^^  Here,  as  in  all  analogous  instances, 
the  complainant  should  appear  not  to  have  yielded  knowingly  and 
willingly  to  the  situation.^'^ 

The  issue,  we  may  add,  is  between  the  offender  and  the  injured 
party,  and  thifd  persons  have  no  right  to  interfere,  even  though 
it  be  alleged  that  there  was  intent  to  defraud  them  in  their  own 
property  interests.^®  In  fact,  marriage  stands  or  falls  by  public 
permission  with  reference  only  to  the  marriage  parties ;  and  wher- 
ever they  have  legally  assumed  the  relation  as  one  agreeable  to 
themselves,  outsiders  cannot  meddle  with  the  status  from  outside 
considerations.  Where,  too,  a  marriage  has  been  affected  through 
the  fraudulent  conspiracy  of  third  persons,  the  rule  is  that,  unless 
one  of  the  contracting  parties  is  cognizant  of  the  fraud,  tlie  mar- 
riage is  perfect ;  but,  if  cognizant,  it  is  to  be  deemed  the  fraud  of 
such  party  and  treated  accordingly.^ 


29 


§  25.  Essential  of  Marriage  Celebration. 

Eighth.  We  are  now  brought  to  the  important  subject  of  the 
formal  marriage  celebration.  Here  there  is  a  wide  difference 
noticeable  between  general  principles  and  established  practice. 
We  are  to  consider  this  topic,  then,  in  two  separate  aspects :    (1)  as 


25.  Lyndon  v.  Lyndon,  69  111.  43; 
Kobertson  v.  Cole,  12  Tex.  356;  Cam- 
eron V.  Malcolm,  supra. 

26.  1  Bishop,  Mar.  &  Div.,  5th  ed., 
§§  214,  215;  1  Burge,  Col.  &  For. 
Laws,  137;  1  Eraser,  Dom.  Bel.  229; 
Scott  V.  Shueldt,  5  Paige,  43 ;  Leavitt 
V.  Leavitt,  13  Mich.  452;  Hampstead 
V.  Plaistow,  49  N.  H.  84. 

27.  A  weak,  hysterical  woman  was 
wooed  by  a  younger  cousin  who 
wanted  her  or  her  money,  and  who 
took  her  into  a  church  and  threatened 
to  blow  his  own  brains  out  if  she  did 


not  marry  him  then  and  there.  The 
fact  that  she  went  through  the  cere- 
mony without  any  signs  of  unwilling- 
ness was  taken  strongly  against  her, 
though  the  marriage  was  never  con- 
summated. Cooper  V.  Crane  (1891), 
P.  369. 

28.  McKinney  v.  Clarke,  2  Swan, 
321. 

29.  Sullivan  v.  Sullivan,  2  Hag.  Con. 
238,  246;  Eex  v.  Minshull,  1  Nev.  & 
M.  277;  1  Bishop,  Mar.  &  Div.,  §  173 
et  seq.;  Barnes  v.  Wyethe,  28  Vt.  41; 
Bassett  v.  Bassett,  9  Bush,  696. 


§    26  HUSBAND    AND    WIFE.  40 

to  marriage  observance  in  tlie  absence  of  civil  requirements;  (2) 
as  to  marriage  observance  under  the  statutes  now  in  force  in 
England  and  America. 

It  is  to  be  premised,  however,  by  way  of  enlarging  upon  the  idea 
of  perfect  and  imperfect  consent  suggested  under  the  last  head,  that 
some  form  of  marriage  promise,  some  ceremony,  however  slight, 
has  always  been  deemed  essential  to  the  validity  of  marriage.  The 
common  language  of  the  books  is  that,  in  the  absence  of  civil  regu- 
lations to  the  contrary,  marriage  is  a  contract,  and  nothing  but 
mutual  consent  is  required.  And  the  old  maxim  of  the  Roman  law 
is  quoted  to  support  this  view:  Nuptias  non  concuhitus,  sed  con- 
sensus, facit.^^  But  is  there  not  an  ambiguity  in  the  use  of  such 
language  ?  For  it  is  material  to  ask  whether  consenstis,  or  consent, 
is  used  in  the  sense  of  simple  volition  or  an  expression  of  volition. 
We  maintain  that  the  latter  is  the  correct  legal  view;  and  that  it 
should  be  said  that  the  law  requires  in  such  cases  a,  simple  expres- 
sion of  mutiuil  consent,  and  no  more.  For  the  very  definition  of 
marriage  implies  that  there  should  be  not  only  the  consenting  mind, 
but  an  expression  of  the  consenting  mind,  by  words  or  signs,  which 
expression  in  proper  form  constitutes  in  fact  the  marriage  agree- 
ment. It  is  in  this  sense  that  we  shall  apply  the  terms  formal  and 
informal  to  marriage  in  the  following  sections. 

Here,  however,  we  mean  to  distinguish  between  the  promise  of 
marriage  in  the  future,  such  as  involves  a  mere  engagement  to 
marry  and  renders  one  liable  in  breach  of  promise  suits;  and  such 
promises  as  justify  the  inference  that  there  is  a  marriage. 

§  26.  Same  Subject ;  Informal  Celebration. 

(1)  To  constitute  a  marriage,  then,  where  there  are  no  civil 
requirements,  or,  in  other  words,  to  constitute  an  informal  mar- 
riage,—  words  clearly  expressing  mutual  consent  are  sufficient 
without  other  solemnities.  Two  forms  of  consent  are  mentioned 
in  the  books:  the  one,  consent  per  verba  de  prcesenti,  with  or  with- 
out consummation ;  the  other  consent  per  verba  de  futuro,  followed 
by  consummation.^^     Some  writers  have  added  a  third  form  of 

30.  See  2  Kent,  Com.  86,  87;  Co.  Lord  Cottenham,  in  Stewart  v.  Men- 
Litt.  33a;  1  Bishop,  Mar.  &  Div.,  §§  zies,  2  Eob.  App.  Cas.  547;  1  Bishop, 
218-267 ;  Gatto  v.  Gatto,  —  N.  H.  Mar.  &  Div.,  5th  ed.,  §  227 ;  Green  v. 
— ,  106  A,  493  (consummation  does  Green,  —  Fla.  — ,  80  So.  739;  Love 
not  establish  the  validity  of  a  mar-  v.  Love,  —  la.  — ,  171  N.  W.  257; 
riage  to  which  there  was  no  consent).  Edmondson   v.  Johnson,  —  Tex.   Civ. 

31.  Swinb.   Spousals,   2d   ed.,   8 ;    2  App,  — ,  207  S.  W.  586. 
Burn,    Ec.    Law,    Phillim.    ed.,    455e; 


41 


MAKBIAGE. 


§  26 


consent, —  by  habit  and  repute ;  but  this  is,  very  clearly,  nothing 
more  than  evidence  of  consummated  marriage  amounting  to  a  pre- 
sumption conclusive  enough  for  the  purpose  at  hand,^'  So,  too, 
there  is  reason  to  suppose  that  the  marriage  per  verba  de  futuro 
is  of  the  same  sort  as  the  former ;  marriage  per  verba  de  prcesenti 
constituting  the  only  real  marriage  promise,  while  consummation 
following  de  futuro  words  of  promise  raises  simply  a  legal  pre- 
sumption, not  probably  conclusive,  that  words  de  prcesenti  after- 
wards passed  between  the  parties.  The  copula  is  no  part  of  the 
marriage ;  it  only  serves  to  some  extent  as  evidence  of  marriage,^' 
Consensus,  non  concubitus,  is  the  maxim  of  the  civil,  ecclesiastical, 
and  common  law  alike.^* 

Informal  celebration  constitutes  marriage  as  known  to  natural 
and  public  law.  The  English  canon  law,  as  it  stood  previous  to 
the  Council  of  Trent,  the  law  of  Scotland,  and  in  various  European 
countries,  the  law  of  some  of  the  United  States,  and  perhaps  the 
common  law  of  England,  all  dispense  with  the  ceremonial  observ- 
ances of  formal  marriage.^^     Informal  marriage  is  to  be  sustained 


32.  Lord  Selbourne,  in  the  case  of 
De  Thoren  v.  Attorney-General,  1  H.  L. 
App.  686,  confirms  this  view.  See  also 
Breadalbane  's  Case,  L.  E.  1  H.  L.  Sc. 
182 ;  Wilson  v.  Burnett,  172  N.  Y.  S. 
673. 

33.  Port  V.  Port,  70  111.  484;  1 
Bishop,  Mar.  &  Div.,  5th  ed.,  §§  228, 
254;  Jackson  v.  Winne,  7  Wend.  47; 
Dumaresly  v.  Fishly,  3  A.  K.  Marsh. 
368,  372;  Peck  v.  Peck,  12  E.  I.  485; 
Walton  V.  Walton,  —  Tex.  Civ.  App. 
— ,  203  S.  W.  133. 

34.  Dalrymple  v.  Dalrymple,  2  Hag. 
Con.  54;  4  Eng.  Ec.  485,  489;  Shelf., 
Mar.  &  Div.  5-7.  But  the  California 
Civil  Code  now  provides  that  consent 
alone  will  not  constitute  marriage;  it 
must  be  followed  by  a  solemnization, 
or  by  a  mutual  assumption  of  marital 
rights,  duties,  and  obligations. 
Sharan  v.  Sharon,  79  Cal.  663. 

35.  Informal  marriage  has  been 
recognized  to  a  greater  or  less  extent 
in  the  United  States.  Dickerson  v. 
Brown,  49  Miss.  357;  Hutchins  v. 
Kimmell,  31  Mich.  126;  Port  v.  Port, 
70  lU.  484;   Lewis  v.  Ames,  44  Tex. 


319;  Dyer  v.  Brannock,  66  Mo.  391; 
Campbell  v.  Gullat,  43  Ala.  57 ;  Askew 
V.  Dupree,  30  Ga.  173 ;  Hynes  v.  Mc- 
Dermott,  91  N.  Y.  451;  White 
V.  White,  82  Cal.  427.  But  Mary- 
land repudiates  the  doctrine  of  in- 
formal marriages.  Denison  v.  Deni- 
son,  35  Md.  361;  as  by  force  of 
statute  or  otherwise,  do  certain 
other  States.  See  1  Bishop,  § 
279;  Estill  v.  Sogers,  1  Bush,  62; 
Holmes  v.  Holmes,  1  Abb.  (TJ.  S.) 
525;  Eobertson  v.  State,  42  Ala.  509; 
State  V.  Miller,  23  Minn.  352;  Com- 
monwealth V.  Munson,  127  Mass.  459; 
State  V.  Hodgskins,  19  Me.  155; 
Schouler,  Hus.  &  Wife,  §§  31-34; 
Tholey's  Appeal,  93  Penn.  St.  36; 
Stimson,  §  6101;  Beneficial  Associa- 
tion V.  Carpenter,  17  E.  I.  720 ;  §  28, 
posi.  And  see  Dysart  Peerage  Case, 
6  App.  Cas.  489  (ISSl).  "  By  the 
common  law,  if  the  contract  be  made 
per  verba  de  presenti,  it  is  sufficient 
evidence  of  marriage;  or  if  made  pf^ 
veria  de  futuro  cum  copula,  the 
copula  would  be  presumed  to  have 
been  allowed  on  the  faith  of  the  mar- 


§    26  HUSBAND    AND    WIFE.  42 

on  the  theory  that  an  institution  of  such  fundamental  importance 
to  our  race  ought  to  be  good  independently  of,  and  prior  to,  the 
formal  requirements  which  human  government  imposes  at  an 
advanced  stage  of  society.  But,  as  we  shall  see,  the  marriage  acts 
now  in  force  in  England  and  many  of  the  United  States  render 
certain  solemnities,  religious  or  secular,  indispensable.  Most  of 
the  continuous  decisions  relating  to  informal  marriages  (prior  to 
1870  at  least)  are  therefore  to  be  found  in  the  Scotch  reports, 
where  the  general  doctrine  has  been  pretty  fully  discussed.  And 
the  great,  the  almost  insuperable,  difficulty  which  presents  itself  at 
the  outset  in  such  cases  is  thus  clearly  indicated  by  Lord  Stowell  in 
Lindo  V.  Belisario:  "A  marriage  is  not  every  carnal  commerce; 
nor  would  it  be  so  even  in  the  law  of  nature.  A  mere  carnal  com- 
merce, without  the  intention  of  cohabitation  and  bringing  up  of 
children,  would  not  constitute  marriage  under  any  supposition. 
But  when  two  persons  agree  to  have  that  commerce  for  the  pro- 
creation and  bringing  up  of  children,  and  for  such  lasting  cohabita- 
tion,—  that,  in  a  state  of  nature,  would  be  a  marriage ;  and,  in  the 
absence  of  all  civil  and  religious  institutions,  might  safely  be  pre- 
sumed to  be,  as  it  is  properly  called,  a  marriage  in  the  sight  of 
God."^^  Did  parties  therefore  coming  thus  together  mean  forni- 
cation, or  did  they  mean  marriage  ? 

Here  it  is  seen  that  there  should  not  only  be  words  of  promise, 
but  that  they  should  be  uttered  with  matrimonial  intent.  Xot  even 
is  a  solemn  companionship  assumed  on  other  fundamental  con- 
ditions than  those  which  public  policy  assigns  to  the  institution  a 
marriage  of  this  character.^^     To  ascertain  the  purpose  of  the 

riage  promise,  so  that  at  the  time  of  673;  Love  v.  Love,  —  la.  — ,  171 
the  copula  the  parties  accepted  each  N,  W.  257;  Great  Northern  Ry.  Co. 
each  other  as  husband  and  wife.  On  v.  Johnson  (Minn,  and  Mo.),  254  F. 
this  subject  the  maxim  of  the  law  is  683;  In  re  Sheedy 's  Estate,  175  N.  Y. 
inexorable,  that  it  is  the  consent  of  S.  891;  Hamlin  v.  Grogan,  U.  S. 
parties,  and  not  their  concubinage,  C.  C.  A.  Mo.,  257  F.  S?. 
that  constitutes  valid  marriage.  The  36.  1  Hag.  Con.  216;  4  Eng.  Ec. 
well-being  of  society  demands  a  strict  367,  374.  See  1  Bishop,  Mar.  &  Div., 
adherence  to  this  principle."  Heb-  5th  ed.,  §§  216-267,  and  cases  cited; 
blethwaite  v.  Hepworth,  98  111.  126,  2  Kent,  Com.  86  and  n.;  1  Fraser, 
132.  And  see  Mathewson  v.  Phoenix  Dom.  Rel.  149,  184,  187,  212. 
Iron  Foundry,  20  Fed.  Rep.  281,  which  37.  As  where  a  man  and  woman 
sustains  the  common-law  validity  of  made  in  presence  of  witnesses  a  "co- 
informal  marriage.  Hughes  v.  Kano,  partnership ' '  contract  in  writing  to 
—  Okla.  — ,  173  P.  447;  Coleman  v.  live  together  "  so  long  as  mutual  af- 
James,  —  Okla.  — ,  169  P.  1064;  fection  shall  exist."  Peck  v.  Peck, 
McDaniels  v.  McDaniels,  5  Alaska,  155  Mass.  479. 
107;  Wilson  v.  Burnett,  172  N.  Y.  S, 


43 


MABEIAGE. 


§  26 


parties  in  each  case,  the  courts  will  look  at  all  the  circumstances, 
and  even  admit  parol  evidence  to  contradict  the  terms  of  a  written 
contract, —  in  this  respect  modifying  the  ordinary  rules  of  evidence. 
For  writings  of  matrimonial  acknowledgment  may  have  been  inter- 
changed as  a  blind  or  cover  for  some  scheme  well  understood 
between  the  parties.^*  Or  again  by  way  of  jest.^®  But,  in  cases 
of  doubt,  the  rule  is  to  sustain  the  marriage  as  lawful  and  binding, 
as  every  presumption  is  to  be  taken  in  favor  of  the  validity  of  a 
marriage.*"  If  there  has  been  continued  intercourse  between  the 
parties,  this  presumption  becomes  of  course  still  stronger.*^  And 
if  promises  were  exchanged  while  one  acted  in  good  faith  and  in 
earnest,  the  other  is  not  permitted  to  plead  a  mental  reservation.*' 
Hence  we  may  observe,  generally,  that  a  betrothal  followed  by 
copulation  does  not  make  this  informal  marriage  a  legal  one,  when 
the  parties  looked  forward  to  a  formal  marriage  ceremony,  and  did 
not  agree  to  become  husband  and  wife  without  it.*^  If,  too,  a 
woman,  in  surrendering  her  person  to  a  man,  is  conscious  that  she 
is  committing  an  act  of  fornication  instead  of  consummating  such 
a  marriage,  the  copula  cannot,  for  her  sake,  be  connected  with  any 
previous  words  of  promise  so  as  to  constitute  a  marriage.**  And 
a  union  once  originating  between  man  and  woman,  purely  illicit  in 
its  character,  and  voluntarily  so,  there  must  appear  some  formal 
and  explicit  agreement  between  the  parties  thereto,  or  a  marriage 
ceremony,  or  some  open  and  visible  change  in  their  habits  and 


38.  Dalrymple  v.  Dalrymple,  2  Hag. 
Con.  54,  105;  4  Eng.  Ee.  485,  508, 
509,  cited  in  1  Bishop,  Mar.  &  Div., 
5th  ed.,  §§  239-241. 

39.  II).;  supra,  %  14;  McClurg  v. 
Terry,  21  N.  J.  Eq.  2-25;  Clark  v. 
Field,  13  Vt.  460. 

40.  Appeal  of  Eva,  —  Conn.  — ,  104 
A.  238;  Price  v.  Tompkins,  177  N.  T. 
S.  548;  Marone  v.  Marone,  174  N.  Y. 
S.  151;  In  re  Hilton's  Estate,  —  Pa. 
— ,  106  A.  69;  Price  v.  Tompkins,  177 
N.  Y.  S.  548;  Kinney  v.  Tri-State 
Telephone  Co.,  —  Tex.  C^v.  App.  — , 
201  S.  W.  1180;  Copeland  v.  Copeland, 
—  Okla.  — ,  175  P.  764;  Price  v. 
Tompkins,  171  N.  Y.  S.  844,  172  N.  Y. 
S.  915  (although  prior  marriage  of 
one  of  the  parties  is  claimed) ;  In  re 
Simms'  Estate,  172  N.  Y.  S.  670; 
Copeland  v.  Copeland,  —  Okla.  — ,  175 


P.  764;  Hamlin  v.  Grogan,  U.  S.  C.  C. 
A.  Mo.,  257  F.  59. 

41.  Wilson  V.  Burnett,  172  N.  Y.  S. 
673;  Love  v.  Love,  —  Iowa  — ,  171 
N.  W.  257;  Smith  v.  People,  —  Colo. 
— ,  170  P.  959;  Jackson  v.  Claypool, 
179  Ky.  662,  201  S.  W.  2;  Coleman  v. 
James,  —  Okla.  — ,  169  P.  1064;  Lin- 
sey  V.  Jefferson,  —  Okla.  — ,  172  P. 
641;  Wells  v.  Allen,  —  Cal.  App.  — , 
177  P.  180;  Reynolds  v.  Adams,  — 
Ya.  — ,  99  S.  E.  695. 

42.  76.  And  see  1  Eraser,  Dom.  Rel. 
213;  Lockyer  v.  Sinclair,  8  Scotch 
Sess.  Cas.  N.  s.  582. 

43.  Peck  V.  Peck,  12  R.  L  485; 
Beverson's  Estate,  47  Cal.  621;  Nel- 
son V.  State,  —  Tex.  Cr.  App,  — ,  206 
S.  W.  361. 

41.  Port  V.  Port,  70  111.  484. 


§    26  HUSBAND   AND    WIFE.  44 

relations,  pointing  to  honest  intentions,  before  their  alliance  can  be 
regarded  as  converted  into  either  a  formal  or  an  informal  mar- 
riage ;*^  but  the  mere  fact  that  the  relationship  was  meretricious  in 
the  beginning  will  not  prevent  the  establishment  of  a  common-law 
marriage/® 

Nor  is  the  issue  between  informal  marriage  and  illicit  intercourse 
to  be  concluded  by  the  conduct  of  the  pair  towards  society.  They 
may,  for  convenience  or  decency's  sake,  hold  themselves  out  to  third 
persons  as  man  and  wife,  while  yet  sustaining  at  law,  and  inten- 
tionally, a  purely  meretricious  relation.*'^ 

And  yet  a  proper  regard  for  the  real  intention  of  the  cohabiting 
pair  encourages  often  the  presumption  of  innocence  and  good  faith, 
even  where  the  relation  assumed  was  an  illegal  one.  Supposing 
two  persons  to  have  made  an  informal  marriage,  in  the  mistaken 
belief  that  the  former  spouse  of  one  of  them  was  already  dead,  or 
that  some  sentence  of  divorce  left  them,  in  like  manner,  free  to 
unite.  This  case  should  be  distinguished  from  that  of  some  orig- 
inal understanding  for  a  mere  carnal  commerce.  And  if  the  im- 
pediment becomes  removed  in  the  course  of  their  cohabitation 
under  such  circumstances,  and  the  pair  live  continuously  together 
as  man  and  wife,  no  new  ceremony,  agreement,  or  visible  change 
in  their  relation  would  probably  be  deemed  requisite  to  establish 
matrimonial  consent  subsequent  to  the  removal  of  the  impediment ; 
for  here  the  original  intention  continues,  but  in  the  case  of  carnal 
commerce  necessarily  changes,  in  order  that  an  honest  relation  may 
be  presumed.** 

Disbelief   in  ceremonials,   or  conscientious   scruples,   may   be 

45.  See  Floyd  v.  Calvert,  53  Miss.  82  So.  1;  Gorden  v.  Gorden,  283  111. 

37;    Duncan  v.   Duncan,   10   Ohio   St.  182;   119  N.  E.  312;   Wilson  v.  Bur- 

181;    Hunt's    Appeal,    86    Penn.    St.  nett,  172  N.  Y.  S.  673. 

294 ;    Williams   v.   Williams,   46   Wis.  46.  Knecht  v.  Knecht,  —  Pa.  St.  — , 

464;  Barnum  v.  Barnum,  42  Md.  251.  104  A.  676;  Schaffer  v.  Krestovnikow, 

Cohabitation  and  reputation  afford  no  —  N.  J.  — ;  105  A.  239,  103  A.  913, 

presumption   of  marriage  under  such  102>  A.  246. 

circumstances.  Appeal  of  Eeading  Fire  47.  Howe 's  Estate,  Myriek  Probate, 

Ins.  &  Trust  Co.,  113  Penn.  St.  204.  Per-  100. 

haps  the  Scotch  law  is  less  emphatic  48.  See  De  Thoren  v.  Attorney-Gen- 

on  this  point.    It  is  stated  in  Breadal-  oral,  1  H.  L.  App.  686,  where  the  im- 

bane's  Case,  L.  R.  1  H.  L.  Sc.  182,  pediment  followed  divorce;  here  it  was 

that  a  connection  beginning  as  adult-  held,  in  conformity  with  the  rule  above 

erous  may,  on  ceasing  to  be  so,  become  stated,  that  matrimonial  consent  after 

matrimonial  by  consent,  and  evidenced  the  marriage  impediment  was  removed 

by  habit  and  repute,  without  a  public  might  be  presumed, 
act.    Thompson  v.  Clay,  120  Miss.  190, 


45 


MABEIAGE. 


§  27 


alleged  in  support  of  an  informal  marriage,  by  way  of  preference, 
where  such  latter  marriage  is  held  lawful,  and  the  parties  mutually 
contracted  with  the  view  of  a  lawful  union.^® 


§  27.  Same  Subject ;  Informal  Celebration. 

Words  of  present  promise,  in  order  to  constitute  an  informal 
marriage,  must  contemplate  a  present,  not  a  future,  assumption  of 
the  status.  And  herein  lies  a  difficulty :  that  of  discriminating 
between  actual  marriage  and  what  we  now  commonly  term  an 
engagement.  If  the  agreement  be  by  words  of  present  promise, — 
as  if  the  parties  should  say,  "  We  agree  to  be  henceforth  man  and 


49.  See  Bissell  v.  Bissell,  55  Barb. 
325.  Aliter,  where  statutes  positively 
require  a  ceremonial  marriage.  See 
post,  §  28. 

An  interesting  Scotch  case  illus- 
trates the  painful  uncertainty  which 
hangs  about  these  informal  marriages. 
A  baronet  of  forty,  and  a  bachelor, 
whose  dissolute  habits  were  notorious, 
had  somewhat  intimate  relations  with 
the  family  of  a  man  who  made  fish- 
tackles.  Entertained  at  the  latter 's 
house  on  a  birthday  occasion,  with  a 
champagne  supper,  after  which  allu- 
sion was  made  by  the  host  to  the  bad 
name  he  was  getting  with  having  the 
baronet  so  much  among  his  daughters, 
the  titled  guest  offered  to  shut  people 's 
mouths;  he  was  poor  and  could  not 
marry  now,  he  said,  but  would  marry 
after  Scotch  fashion.  Then,  kneeling 
before  one  of  the  daughters,  a  damsel 
of  sixteen,  he  took  a  ring  from  his 
pocket,  placed  it  upon  her  third  finger, 
and  said  to  her,  ' '  Maggie,  you  are  my 
wife  before  Heaven,  so  help  me,  O 
God !  ' '  and  the  two  kissed  each  other. 
The  daughter  said, ' '  Oh,  Major ! ' '  and 
put  her  arms  around  his  neck.  The 
baronet  and  the  daughter  were  then 
"bedded"  according  to  the  old  Scotch 
fashion.  They  lived  together  for  some 
weeks  after  this  celebration,  and  met 
at  various  times,  but  there  appears  to 
have  been  no  continuous  habitation. 
In  about  thirteen  months  Maggie  had 
a  boy,  whom  she  registered  as  illegiti- 
mate; and  some  eighteen  months  later 


still,  the  baronet  died.  The  parties  to 
this  hasty  and  apparently  unpremedi- 
tated union  had  not  meantime  repre- 
ented  themselves  as  husband  and  wife ; 
and  as  for  the  baronet,  he  denied  to 
others  that  such  relation  existed,  imtil, 
when  lying  at  the  point  of  death  in 
lelirium  tremens,  he  seemed  doubtfully 
to  admit  it.  Now,  here  was  an  infor- 
mal marriage,  with  words  of  suitable 
im,port,  solemn  and  precise,  followed 
by  consummation.  Supposing  this 
ceremony  to  have  been  with  marriage 
intention,  there  was  no  reason  for  dis- 
puting its  validity;  nor,  indeed  on  the 
girl's  behalf,  provided  she  took  all  in 
seriousness,  even  though  the  baronet 
himself  jested.  To  be  sure,  he  might 
have  been  maudlin  at  the  moment; 
on  which  point,  however,  the  case  did 
not  turn.  The  British  House  of  Lords 
reversed  the  decision  of  the  Scotch 
Court  of  Sessions,  mainly  upon  circum- 
stantial proof  that  both  parties  by  be- 
havior subsequent  to  the  ceremony 
repudiated  its  force,  and  that  neither, 
in  fact,  had  been  in  earnest.  The  pres- 
ent issue  involved  the  inheritance  of 
the  baronet 's  estate  at  some  lapse  from 
his  death.  Both  parents  of  the  girl 
were  now  dead;  the  baronet  had  be- 
gotten illegitimate  offspring  during  his 
life  elsewhere ;  and  instead  of  asserting 
upon  his  death,  as  she  might,  that  this 
boy  was  his  lawful  child,  Maggie  had 
at  first  claimed  only  a  bastard's  sup- 
port for  him.  Steuart  v.  Robertson, 
L.  R.  2  H.  L.  Sc.  49-4. 


§  27 


HUSBAND    AND    WIFE. 


46 


wife,"  —  the  marriage  is  perfect.  The  form  of  expression  is  not 
material.^"  And  Swinburne  sajs  that  though  the  words  should 
not  of  themselves  conclude  matrimony,  jet  the  marriage  would  be 
good  if  it  appeared  that  such  was  the  intent.^^  The  proposal  of  one 
must  be  actually  accepted  by  the  other;  yet  such  acceptance  may 
be  indicated  by  acts,  such  as  a  nod  or  courtesy.  The  mutual  con- 
sent may  be  expressed  orally  or  in  writing.^"  Written  promises 
are  of  course  unnecessary;  though  the  reported  cases  show  fre- 
quently letters  or  other  writings  interchanged,  from  which  the 
intent  was  gathered.  And  in  the  celebrated  Scotch  case  of  Dal- 
rymple  v.  Dalrymple,  a  marriage  promise  was  established  from 
the  successive  united  acknowledgments  of  the  parties  as  man  and 
wife,  the  writings  having  been  preserved  by  the  lady  and  produced 
by  her  at  the  trial.  In  this  case  the  principle  was  sustained,  that 
words  importing  secrecy  or  alluding  to  some  future  act  or  public 
acknowledgment,  when  superadded  to  words  of  present  promise,  do 
not  invalidate  the  agreement.^^  More  uncertainty  arises  in  matri- 
monial contracts  where  a  condition  inconsistent  with  marriage  is 
superadded ;  as  if  parties  should  agree  to  live  together  as  man  and 
wife  for  ten  years ;  but  bona  fide  intent  may  be  fairly  presumed 
where  there  are  no  special  circimistances  to  throw  light  upon  the 
conduct  of  the  parties.^* 

Marriage  by  words  of  future  promise  is  consummated  when  two 
persons  agree  to  marry  at  some  future  period  and  afterwards 
actually  do  cohabit.  The  foundation  of  this  doctrine  is  the  pre- 
sumption that  the  parties  meant  right  rather  than  wrong,  and  hence 
that  copulation  was  permitted  on  the  faith  of  the  marriage  promise. 
But  in  this  class  of  cases  it  is  requisite  that  the  promise  de  futuro 
should  be  absolute  and  mutual  and  in  good  faith.     Mere  courtship 


50.  Bishop,  Mar.  &  Div.,  5th  ed.,  §§ 
2.27,  229;  1  Fraser,  Dom.  Eel.  145-149. 

51.  Swinb.  Spousals,  2d  ed.,  87. 

52.  See  Sapp  v.  ISTewsom,  27  Tex. 
537,  where  marriage  by  means  of  mu- 
tually executing  a  bond  or  contract  is 
sustained  under  the  old  law,  which 
■was  of  Spanish  origin.  But  cf.  State 
V,  Miller,  23  Minn.  352. 

53.  Dalrymple  v.  Dalrymple,  2  Hag. 
Con.  54;  4  Eng.  Ec.  485;  Mclnnes  v. 
More,   Ferg.    Consist.    Law   Kep.    33 ; 


Hoggan   V.   Craigie,   McLean  &  Eob. 
942. 

54.  See  1  Bishop,  Mar.  and  Div.,  5th 
ed.,  §§  245-250;  Currie  v.  Turnbull, 
Hume,  373;  1  Fraser,  Dom.  Eel.  154. 
See  Hamilton  v.  Hamilton,  9  CI.  &  F. 
327;  Hantz  v.  Sealy,  6  Binn.  405; 
Eobertson  v.  Cowdry,  2  West.  Law 
Jour.  191;  Peck  v.  Peck,  155  Mass. 
479.  Bissell  v.  Bissell,  55  Barb.  325, 
shows  an  interesting  state  of  facts, 
upon  which  it  was  decided  that  the 
marriage  was  valid. 


47  MABKIAGE.  §    27 

does  not  suffice,  though  followed  by  carnal  intercourse.^'  Xor  in 
general  do  words  of  promise  with  immoral  conditions  annexed.  It 
is  admitted  that  no  familiarities  short  of  the  copula  will  convert 
such  loose  espousals  into  matrimony.^*  It  is  not  clear  whether 
cohabitation  after  verba  de  futuro  ever  raises  a  conclusive  presump- 
tion of  marriage  at  law  or  not ;  unquestionably  the  more  reasonable 
doctrine,  however,  is  that  it  does  not,  and  that  the  intent  of  the 
parties  may  be  shown  as  in  other  cases. ^^  But  innocence  will  be 
inferred,  if  possible,  rather  than  guilt.^*  So  it  has  been  said  that 
where  a  legal  impediment  exists  to  a  marriage  between  persons 
living  in  licentious  intercourse,  as  the  impediment  sinks  the  status 
rises.''^  It  is  the  promise  to  marry  hereafter  on  which  breach  of 
promise  suits  are  founded,  often  with  accompanying  proof  that 
sexual  intercourse  was  permitted  on  the  faith  of  the  promise;  here 
there  was  no  marriage,  but  an  engagement  to  marry.®*^  In  New 
York  this  doctrine  of  marriage  by  words  de  futuro  is  utterly  repu- 
diated ;  and  in  other  States  it  is  maintained  quite  broadly  that  all 
informal  marriages  were  unknown  to  the  English  common  law.®^ 
This  last  has  been  long  a  mooted  point  in  the  courts,  and  will  ever 
remain  so ;  but  whatever  may  have  been  the  historical  fact,  certain 
it  is  that  the  necessity  of  a  more  formal  observance  of  marriage  has 

55.  Eeid  v.  Laing,  1  Shaw,  App.  Cas.       Robertson  v.  State,  42  Ala.  503. 

440;    Morrison    v.    Dobson,    8    Scotch  59.  1  Bishop,  Mar.  &  Div.,  5th  ed., 

Sess.  347,  cited  1  Bishop,  §  253  ;  Bread-  §  248  ;  De  Thoren  v.  Attorney -General, 

albane's  Case,  L.  R.  1  H.  L.  Sc.  182;  l  H.  L.  App.  686. 

Stewart  v,  Menzies,  2    Rob.  App.  Cas.  60.  Schouler,  Hus.  &  "Wife,  §§  40-51, 

547,  591 ;  1  Fraser,  Dom.  Rel.  188;  Reg.  61.  Cheney  v.  Arnold,  15  N.  Y.  345. 

V.  Millis,  10  CI.  &  F.  534,  780;  Peck  v.  But  see  Bishop,  §§  255-258;  Bissell  v. 

Peck,  12  R.  I.  485;  Beverson's  Estate,  Bissell,  55  Barb.  325.     And  see  Deni- 

47  Cal.   621;   Dumaresly  v.  Fishly,  3  son  v.  Denison,  35  Md.  361 ;  Holmes  v. 

A.  K.  Marsh.  368;   1  Bishop,  Mar.  &  Holmes,  1  Abb.  (U.  S.)   525;  Duncan 

Div.,   5th   ed.,   §§   253-265,   and   other  v.  Duncan,   10  Ohio  St.  181;   Port  v. 

cases  cited;  Port  v.  Port,  70  111.  484.  Port,  70  111.  484.    The  opinion  of  Lord 

56.  1  Bishop,  §  253.  Stowell,  in  the  case  of  Dalrymple  v. 

57.  See  Volume  II,  as  to  breach  of  Dalrymple,  to  which  we  have  alluded, 
promise.  Seduction  under  breach  of  is  an  admirable  exposition  of  the  law 
promise  does  not  constitute  a  marriage.  of  informal  marriages.  It  is  a  master- 
See,  too,  Morrison  v.  Dobson,  8  Scotch  piece  of  judicial  eloquence  and  care- 
Sess.  347.  ful  research.    Continuous  cohabitation 

58.  See  Cheney  v.  Arnold,  15  N.  Y.  within  Scotland  establishes  marriage 
345;  Duncan  v.  Duncan,  10  Ohio  St.  in  Scotch  law,  but  cohabitation  outside 
181;  and  comments  of  Mr.  Bishop,  Scotland  will  not  constitute  marriage. 
§§  255-258;  Reg.  v.  Millis,  10  CI.  &  F.  Dysart  Peerage  Case,  6  App.  Cas.  489. 
534 ;  Swinb.  Spousals,  2d  ed.,  225,  226 ; 


§  28 


httsbajstd  and  wife. 


48 


been  almost  universally  recognized ;  and  the  very  words, ''  marriage 
in  the  sight  of  God,"  so  familiar  to  the  readers  of  the  Scotch  matri- 
monial law,  not  only  import  the  peculiar  embarrassments  which 
attend  the  justification  of  such  loosely  contracted  alliances  before 
the  world,  but  attest  the  solemn  character  of  tJiis  institution.'^ 

§  28.  Same  Subject ;  Formal  Celebration. 

(2)  All  the  learning  of  informal  marriages,  if  there  was  ever 
much  of  it,  was  swept  out  of  the  English  courts  when  formal 
religious  celebration  was  prescribed  by  positive  statute.  Ceremo- 
nials had  long  been  required  by  those  canons  upon  which  the 
ecclesiastical  law  was  based.  Lord  Hardwicke's  Act,  passed  in  the 
reign  of  George  11.^^  This  act  required  all  marriages  to  be  solemn- 
ized in  due  form  in  a  parish  church  or  public  chapel,  with  previous 
publication  of  the  banns;  and  marriages  not  so  solemnized  were 
pronounced  void,  unless  dispensation  should  be  granted  by  special 
license.  Some  harsh  provisions  of  this  act  were  relaxed  in  the 
reign  of  George  IV.,  but  soon  re-enacted.^*  More  recent  legislation 
permits  of  a  civil  ceremonial  before  a  register,  to  satisfy  such  as 
may  have  conscientious  scruples  against  marriage  in  church,®^  and 
has  legalized  marriage  in  Nonconformist  chapels.^**  Such,  too,  is 
the  general  tenor  of  legislation  in  this  country;  the  law  justly 
regarding  civil  observances  and  public  registration  sufficient  for 
its  own  purposes,  while  human  nature  clings  to  the  religious 
ceremonial.®^ 

Either  celebration  before  a  clergyman  or  with  the  participation 
of  some  one  of  such  civil  oflBcers  as  the  statute  may  designate  is 
therefore  at  the  option  of  parties  choosing  at  the  present  day  to 
marry.  This  is  the  law  of  England  and  America.  And  the  only 
controversies  ever  likely  to  occur  in  our  courts  would  be  where  the 
language  of  the  statutes  in  some  particular  State  left  it  doubtful 
whether  marriages  celebrated  informally  were  to  be  considered  abso- 


62.  For  a  case  arising  on  an  indict- 
ment against  a  man  for  cohabiting 
with  a  woman  without  formal  mar- 
riage, but  under  a  special  contract  for 
a  life-union  and  joint  accumulation  of 
property  and  care  of  children,  see 
State  V.  Miller,  23  Minn.  352.  And 
see  Commonwealth  v.  Munson,  127 
Mass.  459. 

63.  26  Geo.  II.,  ch.  33   (1753). 

64.  3  Geo.  IV. ;  4  Geo.  IV.,  ch.  76. 


65.  See  6  &  7  Will.  IV.,  ch.  85  &  ch. 
88;  7  Will.  IV.,  and  1  Vict.,  ch.  22, 
and  3  &  4  Vict,,  ch.  92. 

66.  The  Marriage  Act,  1898  (61  & 
62  Viet.,  ch.  58)  ;  62  &  63  Vict.,  ch. 
27;  1  Edw.  VII.,  ch.  23;  3  Edw.  VII., 
ch.  26. 

67.  See  2  Kent,  Com.  88-90;  1 
Bishop,  Mar.  &  Div.,  5th  ed.,  §  279'; 
Stimson's  Am.  Stat.  Law,  §  6120. 


49  MAERIAGE.  §    28 

lutely  null.  It  is  to  be  borne  in  mind  that  Lord  Hardwicke's  Act 
is  of  too  recent  a  date  to  be  considered  as  part  of  our  common  law. 
Was,  then,  marriage  in  facie  ecclesicB  essential  in  England  before 
the  passage  of  this  act  ?  It  is  admitted  that  the  religious  marriage 
celebration  was  customary  previous  to  the  Reformation.  It  is  fur- 
ther allow^ed  that  the  church,  centuries  ago,  created  an  impediment, 
now  obsolete,  called  "  precontract,"  the  effect  of  which  was  that 
parties  engaged  to  be  married  were  bound  by  an  indissoluble  tie,  so 
that  either  one  could  compel  the  other  to  submit  at  any  time  to  the 
ceremonial  marriage.  But  whether  precontract  rendered  children 
legitimate,  and  carried  dower,  curtesy,  and  the  other  incidents  of 
a  valid  marriage,  is  not  clear.  In  1844  the  question,  whether  at 
the  common  law  a  marriage  without  religious  ceremony  was  valid, 
went  to  the  English  House  of  Lords,  and  resulted  in  an  equal 
division.^*  And,  curiously  enough,  such  was  the  fate  of  a  similar 
case  in  this  country  before  the  highest  tribunal  in  the  land.*®  So 
that  we  may  fairly  consider  the  law  on  this  point  as  doubly 
unsettled."^" 

Among  most  nations  and  in  all  ages  has  the  celebration  of  mar- 
riage been  attended  with  peculiar  forms  and  ceremonies,  which 
have  partaken  more  or  less  of  the  religious  character.  Even  the 
most  barbarous  tribes  so  treat  it  where  they  hold  to  the  institution 
at  all.  The  Greeks  offered  up  a  solemn  sacrifice,  and  the  bride  was 
led  in  great  pomp  to  her  new  home.  In  Rome,  similar  customs 
prevailed  dowm  to  the  time  of  Tiberius.  Marriage,  it  is  true, 
degenerated  afterwards  into  a  mere  civil  contract  "of  the  loosest 
description,  parties  being  permitted  to  cohabit  and  separate  with 

68.  Reg.  V.  Millis,  10  CI.  &  F.  534.  an  American  doctrine ;  as  for  instance, 

69.  Jewell  v.  Jewell,  1  How.  (U.  S.)  that  in  these  colonies  the  attendance 
219.  of  one  in  holy  orders,  and  more  espe- 

70.  See  full  discussion  of  this  ques-  cially  of  an  ordained  clergyman  of  the 
tion,  with  authorities,  in  note  to  2  established  church,  could  not  always 
Kent,  Com.  87 ;  also  in  1  Bishop,  Mar.  be  readily  procured.  See  1  Bishop, 
&  Div.,  §§  269-282 ;  Cheney  v.  Arnold,  Mar.  &  Div.,  5th  ed.,  §§  279-282,  and 
15  N.  Y.  345,  The  American  doctrine  decisions  collated;  2  Kent,  Com.  87; 
is,  that  the  intervention  of  one  in  holy  'Reeve,  Dom.  Eel.  195  et  seq.;  2  Greenl. 
orders  was  not  essential  at   common  Ev.,  §  460. 

law.     This  is  the  view  of  Chancellor  But  in  several  States  the  contrary 

Kent,    Judge    Eeeve,    and    Professor  is    declared    to    be   the    common    law. 

Greenleaf,   as   expressed   in   their    re-  1  Bishop,  ih.    And  statutory  forms  are 

epective   text-books,   also   the   general  declared  requisite,  and  the  doctrines  of 

current   of   American   decisions.     iMr.  informal  marriage  denied  more  or  less 

Bishop      confirms     these     conclusions  emphatically,  as  the  foregoing  pages 

while  suggesting  new  reasons  for  such  have   shown.     Supra,   §   26,  note   49. 

4 


§  29 


HUSBAN'D    AXD    WIFE. 


50 


almost  equal  freedom.''^^  The  early  Christians,  there  is  reason  to 
suppose,  treated  marriage  as  a  civil  contract,  yielding,  perhaps,  to 
the  prevailing  Roman  law.  Yet  the  teachings  of  the  New  Testa- 
ment and  church  discipline  gave  peculiar  solemnity  to  the  relation. 
And  religious  observances  must  have  prevailed  at  an  early  date, 
for  in  process  of  time  marriage  became  a  sacrament.  In  England, 
centuries  later,  it  needed  only  Lord  Hardwicke's  Act  to  apply 
statute  law  to  a  universal  practice;  for  although,  in  the  time  of 
Cromwell,  justices  of  the  peace  were  permitted  to  perform  the  cere- 
mony, popular  usage  by  no  means  sanctioned  the  change.  Informal 
marriages  are  uncommon  even  in  Scotland,  where  the  civil  law  pre- 
vails. In  our  own  country  it  is  not  surprising  that  local  juris- 
prudence should  have  exhibited  some  signs  of  reaction  against 
ancient  canon  and  kingly  ordinance.  Yet,  even  with  us,  the  almost 
universal  custom  repudiates  informal  and  civil  observances;  and, 
secured  in  the  privilege  of  choosing  prosaic  and  business-like 
methods  of  procedure,  Christian  America  yields  its  testimony  in 
favor  of  marriage  in  facie  ecclesioeP'^ 

A  marriage  once  proven  to  exist  is  presumed  to  continue  until 
the  contrary  is  proved.^^ 

§  29.  Same  Subject ;  Formal  Celebration. 

But,  out  of  consideration  for  what  may  be  termed  the  public,  or 
natural  and  theoretical  law  of  marriage,  many  American  courts 
have,  to  a  very  liberal  extent  and  beyond  all  stress  of  necessity, 
upheld  the  informal  marriage  against  even  legislative  provisions 
for  a  formal  celebration.  Marriage  being  a  matter  of  common 
right,  it  is  lately  held  by  the  highest  tribunal  for  harmonizing  the 
rule  of  States,  that,  unless  the  local  statute  which  prescribes  regu- 


71.  Smith's  Diet.  Antiq.,  "Mar- 
riage. ' ' 

72.  See  2  Kent,  Com.  89,  and  au- 
thorities cited. 

We  do  not  mean  to  imply  that  mar- 
riage is  a  sacrament,  or  that  religious 
ceremonies  are  essential  to  its  due  ob- 
servance. We  are  speaking  only  of 
the  universal  testimony  as  to  the  fit- 
ness of  peculiar  and  in  general  religi- 
ous observances.  Judge  Reeve,  exhib- 
iting his  contem,'pt  for  "Popish" 
practices,  says,  "There  is  nothing  in 
the    nature    of    a    marriage    contract 


that  is  more  sacred  than  that  of  other 
contracts,  that  requires  the  interposi- 
tion of  a  person  in  holy  orders  or 
that  it  should  be  solemnized  in 
church."  Reeve,  Dom.  Rel.  196.  At 
the  time  he  vrrote,  was  not  the  prac- 
tice prevailing  in  New  England  con- 
trary to  his  theory,  as  it  was  before 
and  as  it  remains  still?  And  who  has 
ever  proposed  in  modern  times  to  per- 
form a  business  contract  in  church? 

73.  Jn  re  Caltabellotta 's  Will,  171 
N.  Y.  S.  82,  183  App.  Div.  753. 


51 


MARRIAGE. 


§  29 


lations  for  the  formal  marriage  ceremony  positively  directs  that 
marriages  not  complying  with  its  provisions  shall  be  deemed  void, 
the  informal  marriage  by  words  of  present  promise  must  be  pro- 
nounced valid,  notwithstanding  statutory  directions  have  been 
disregarded.^* 

Whether  we  must  absolutely  accept  this  doctrine  or  not,  in  its 
full  pernicious  extent,  and  thus  put  legislators  to  the  use  of  express 
words  of  nullity  in  statutes  which  might  otherwise  as  well  have 
been  omitted,  the  main  purpose  of  enforcing  upon  civilized  and 
populous  communities  marriage  rites  appropriate  to  so  solemn  an 
institution  being  surely  desirable,  it  will  be  readily  conceded  that 
English  and  American  tribunals  tend,  in  construing  the  marriage 
acts,  to  uphold  every  marriage,  if  possible,  notwithstanding  a  non- 
compliance with  the  literal  forms.  And  this  is  right;  for  while 
formal  celebration  is  a  shield  to  honest  spouses  and  their  jx)sterity, 
rigor  in  the  details  of  form,  especially  in  inconvenient  or  trivial 
details,  or  those  Avhich  it  is  incumbent  rather  upon  third  persons  to 
respect,  exposes  them  to  new  dangers.  Thus  is  it  as  concerns 
place ;  "^^  and  as  to  the  due  proclamation  of  banns,  collateral  points 
concerning  ecclesiastical  authority  are  inappropriate.^*^  Presump- 
tions cannot  be  indulged  against  the  continuance  of  a  bona  fide 
marriage  relation. '^^  A  consistent  reputation  of  being  married  car- 
ries its  full  weight  as  to  cohabiting  parties,  who  appear  to 
have  lived  together  as  husband  and  wife,^^  but  this  presumption 


74.  Meister  v.  Moore,  96  U.  S.  76, 
citing  this  as  the  rule  in  Michigan ; 
Hutchins  v.  Kimmell,  31  Mich,  128; 
88  Mich.  279 ;  Londonderry  v.  Ches- 
ter, 2  N.  H.  268;  Hebblethwaite  v. 
HepworthjffB  111.  126;  Kitzman  v.Kitz- 
man,  167  Wis.  308,  166  N,  W.  789 
(marriage  of  epileptic  voidable  only)  ; 
Thompson  v.  Thompson,  —  Tex.  Civ. 
App.  — ,  202  S.  W.  175,  203  S.  W. 
939  ;  Melcher  v,  Melcher,  102  Neb.  790, 
169  N.  W.  720 ;  see  Meagher  v.  Harjo, 
—  Okla.  — ,  17?  P.  757  (Indian  cus- 
tom). 

75.  Queen  v.  Cresswell,  1  Q.  B.  D. 
446.  And  see  Stallwood  v.  Tredger,  2 
Phillim.  287. 

76.  See  Hutton  v.  Harper,  1  H.  L. 
App.  464 ;  Sichel  v.  Lambert,  15  C.  B. 
N.  s.  781;  Prowse  v.  Spurway,  26  W. 
R.   116;   Cannon  v.  Alsbury,  1  A.  K. 


Marsh.  76;  Askew  v.  Dupree,  30  Ga. 
173;  Blackburn  v.  Crawfords,  3  Wall. 
175;  Holmes  v.  Holmes,  6  La.  463; 
Stevenson  v.  Gray,  17  B.  Monr.   193. 

77.  Wiseman  v.  Wiseman,  89  Ind. 
479. 

78.  Lauderdale  Peerage,  10  App. 
Cas.  692 ;  Hynes  v.  McDermott,  91  N. 
N.  451.  See  Bartlett  v.  Muslincr,  28 
Hun,  235;  Northrop  v.  Knowles, 
53  Conn.  522.  The  presumption 
of  marriage  arising  from  matri- 
monial cohabitation,  declaration  of  the 
parties,  and  reputation,  is  not  rebutted 
by  proof  of  a  subsequent  actual  mar- 
riage. Betsinger  v.  Chapman,  88  N. 
Y.   487. 

Marriage  certificates  and  copies  of 
marriage  records  are  treated  with  es- 
pecial favor  as  proof.  Homans  v.  Cor- 
ning, 60  N.  H.  413 ;  State  v.  Gerrish, 


§  30 


HUSBAND    AND    WIFE. 


52 


will  not  arise  unless  tlie  reputation  is  public  and  general,  and  not 
where  knowTi  only  to  a  few  people.'''  And  though,  the  parties  may 
have  failed  to  observe  certain  formalities  of  license  or  registry,  their 
marriage  will  generally  be  held  good  in  both  England  and  this 
country,  even  though  the  magistrate  or  clergyman  be  subject  him- 
self to  a  penalty  for  the  irregularity.®"  On  the  other  hand,  our 
ceremonial  statutes  of  marriage,  which  require  fulfillment  at  all, 
must,  in  fundamental  respects  at  all  events,  be  complied  with. 
Thus,  the  essence  of  formal  marriage  seems  to  consist  in  the  per- 
formance of  the  ceremony  by  or  in  the  presence  of  some  responsible 
third  person.  And  hence,  unless  parties  can  take  refuge  in  natural 
law  and  an  informal  marriage,  they  are  not  permitted  to  tie  their 
own  knot.®^ 

Where  a  proper  formal  marriage  takes  place  the  marriage  is 
legal  although  there  was  no  coition.* 


82 


§  30.  Consent  of  Parents  and  Guardians. 

The  consent  of  parents  and  guardians  is  one  of  those  formalities 
which  marriage  celebration  acts  now  cormnonly  prescribe  in  the 


78  Me.  20.  The  testimony  of  the  per- 
son who  performed  the  ceremony  or  of 
some  witness  present  is  otherwise  de- 
sirable. The  presumptions  are  in 
favor  of  hona  fide  marriage,  while 
reputation  alone  will  not  establish  that 
no  marriage  existed.  See  In  re 
Meade's  Estate,  —  W.  Va.  — ,  97  S. 
E.  127  (presumption  rebutted) ;  see 
Winston  v.  Morrisette,  —  Ala.  — ,  82 
So.  135;  Bolmer  v.  Edsall,  —  N.  J. 
Ch.  — ,  106  A.  646;  Beekermeister  v. 
Beckermeister,  170  N.  Y.  S.  22;  Eey- 
nolds  V.  Adams,  —  Va.  — ,  93  S.  E. 
695. 

79.  In  re  Hilton's  Estate,  —  Pa. 
— ,  106  A.  69. 

80.  Upon  this  point,  see,  further, 
Vol.  II,  Marriage;  1  Bishop,  Mar.  & 
Div.,  §§  283,  287.  There  are  various 
local  statutes  to  the  effect  that  where 
parties  consummate  a  marriage  in  good 
faith  before  a  justice  of  the  peace  or 
minister,  &c.  the  marriage  shall  not  be 
deemed  void  on  account  of  the  want  of 
authority  of  such  person.  Stimson, 
Am.  Stat.  Law,  §  6137.  And  a  marriage 
among  the  Friends  or  the  Jews  is  also 
allowed  to  be  solemnized  after  their 


peculiar  customs.  li.,  §  6135;  Mar- 
tin V.  Otis,  —  Mass.  — ,  124  N.  E. 
294;  Julian  v.  Daniel,  175  N.  C.  549, 
95  S.  E.  9-07. 

81.  Commonwealth  v.  Munson,  127 
Mass.  459.  And  see  Milford  v.  Wor- 
cester, 7  Mass.  48;  Tholey's  Appeal, 
93  Penn.  St.  36 ;  Norcross  v.  Noreross, 
155  Mass.  425.  But  in  Beamish  v. 
Beamish,  1  Jur.,  N.  s.,  Part  II.  455,  it 
was  held  in  Ireland  that  a  clergyman 
might  marry  himself.  See  1  Bishop, 
§  289.  A  verbal  reservation  just 
previous  to  a  marriage  ceremony  by 
one  of  the  parties  is  not  readily  sup- 
posed to  invalidate  the  marriage. 
Brooke  v.  Brooke,  60  Md.  524.  See 
Johnson  v.  Dunlap,  —  Okla.  — ,  173  P. 
359  (marriage  of  Indians  by  Indian 
customs  sustained).  7?i  re  Meade's 
Estate,  —  W.  Va.  — ,  97  S.  E.  127 
(marriage  void  unless  solemnized  as 
required  by  statute)  ;  Meton  v.  State 
Industrial  Insurance  Department,  — 
Wash.  —  ,  177  P.  696. 

82.  Thompson  v.  Thopmson,  —  Tex. 
Civ,  App.— ,  202  S.  W.  175,  203  S.  W. 
9'39  (immediate  separation)  ;  Martin 
V.  Otis,  —  :?.ra?s.  — ,  124  N.  E.  294. 


53  MARRIAGE.  §    30 

interest  of  society,  as  they  do  banns  or  the  procurement  of  a  license 
generally  for  better  publicity.  Such  consent  was  not  necessary  to 
perfect  a  marriage  at  the  common  law.  But  Lord  Hardwicke's 
Act  made  the  marriage  of  minors  void  without  consent  of  parents 
or  guardians  first  obtained.^^  This  proved  intolerable.  A  bona 
fide  and  apparently  regular  marriage  was  in  one  instance  set  aside, 
after  important  rights  had  intervened,  for  no  other  cause  than  that 
an  absent  father,  supposed  to  be  dead,  but  turning  up  unexpectedly, 
had  failed  to  bestow  his  permission,  and  the  mother  had  acted  in 
his  stead.**  Gretna  Green  marriages,  on  Scotch  soil,  became  the 
usual  recourse  for  children  with  unwilling  protectors.*"  Hence 
the  law  was  afterwards  modified,  so  that,  without  the  requisite  con- 
sent, marriages,  although  forbidden,  might  remain  valid ;  *®  and 
these  features  are  found  to  characterize  most  marriage  acts  in  the 
different  States  of  this  country.*^  Clandestine  marriages  are  doubt- 
less to  be  discouraged,  and  the  law  will  willingly  inflict  penalties 
upon  clergymen,  magistrates,  and  all  others  who  aid  the  parties  in 
their  unwise  conduct,  the  penalty  serving  in  a  measure  as  indemni- 
fication to  the  parent  or  guardian ;  but  experience  shows  that  legis- 
lation cannot  safely  interpose  much  further.** 

Under  such  statutes  (which,  however,  vary  in  language  and 
scope  in  different  States),  it  has  been  held  that  if  a  minor  has  both 
parent  and  guardian,  the  guardian  should  consent  in  preference; 
though  it  might  appear  more  proper  to  consider  which  has  the 

83.  26  Geo.  II.,  ch.  33.  See  2  Kent,  Halst.  138;  Bollin  v.  Shiner,  2  Jones 
Com.  85;  Rex  v.  Hodnett,  1  T.  R.  96;  (Pa),  205.  And  see  Wood  v.  Adams, 
1  Bishop,  Mar.  &  Div.,  5th  ed.,  §§  293-  35  N.  H.  32;  Kent  v.  State,  8  Blackf. 
295,  and  cases  cited.  163;    Askew  v.   Dupree,  30   Ga.   173; 

84.  Hayes  v.  Watts,  2  Phillim.  43.  Fitzpatrick  v.  Fitzpatrick,  6  Nev.  63 ; 

85.  Stat.  19  &  20  Vict.,  ch.  96,  to  stop  Adams  v.  Cutright,  53  111.  361 ;  State 
these  runaway  matches,  enacts  that  no  v.  Dole,  20  La.  Ann.  378.  The  language 
irregular  marriage  contracted  in  Scot-  of  some  statutes  leaves  the  point  in 
land  shall  be  valid  unless  one  of  the  doubt  as  to  whether  marriage  without 
parties  had  his  or  her  usual  residence  the  consent  of  parents  renders  the 
in  Scotland,  or  lived  there  for  21  days  marriage  void,  or  only  subjects  offend- 
preceding  the  marriage.  Lawford  v.  ing  parties,  including  the  person  who 
Davies,  39  L.  T.  N.  s.  111.  performs  the  ceremony,  to  a  penalty. 

86.  Rex  V.  Birmingham,  8  B.  &  C.  But  the  latter  is,  of  course,  to  be  pre- 
29;  Shelf.  Mar.  &  Div.  309-322;  Stat.  sumed  rather  than  the  former.  People 
4  Geo.  IV.,  ch.  76.  v.  Ham,  206  111,  App.  543 ;  Bays  v. 

87.  1  Bishop,  Mar.  &  Div,,  §§  341-  Bays,  174  N,  Y.  S.  212, 

347,  and  cases  cited;  Smyth  v.  State  88.  See  further,  Vol.  II,  Marriage. 

13    Ark.   696;    Wyckoff    v.    Boggs,    2 


§  31 


HUSBAND    AND    WIFE. 


54 


actual  care  and  government  of  the  minor.  One  who  has  relin- 
quished the  parental  control  cannot  sue  for  the  penalty;  but  a 
father's  unfitness  is  not  pertinent  to  the  issue  of  uniting  his  minor 
child  in  marriage  without  his  leave,  nor  ground  for  accepting  the 
mother's  sole  consent  instead.  In  this  class  of  statutes  the  minister 
or  magistrate  who  has  made  himself  amenable  to  the  law  cannot  in. 
general  defend  on  the  plea  that  he  acted  in  good  faith.  The  ex- 
pression of  consent  is  in  some  States  made  a  prerequisite  to  granting 
the  marriage  license.^* 

§  31.  Legalizing  Defective  Marriages;  Legislative  Marriage. 

Defective  marriages,  we  may  further  observe,  have  in  some  in- 
stances been  legalized  by  statute;  as  where  parties  within  the 
prohibited  degrees  of  consanguinity  or  affinity  have  united.  So 
with  marriages  before  a  person  professing  to  be  a  clergyman  or 
justice  of  the  peace,  but  without  actual  authority.  On  principle, 
in  fact,  there  seems  no  reason  to  doubt  that  any  government, 
through  its  legislative  branch,  may  unite  a  willing  pair  in  matri- 
mony, as  well  as  pass  general  laws  for  that  purpose ;  ^^  unless,  as 
is  sometimes  found,  the  State  constitution  prohibits  such  enact- 
ments. But  though  legislative  divorces  are  not  unfrequent,  a  legis- 
lative marriage  is  something  unknown,  not  to  say  uncalled  for. 
And  in  this  country,  peculiar  questions  of  fundamental  constraint 
under  a  written  constitution  might  arise,  even  where  the  cure  only 
of  a  defective  marriage  was  sought  by  the  legislature ;  inasmuch 
as  the  intervening  rights  of  third  persons  might  thereby  be 
prejudiced.*^ 

Parties  by  their  course  of  conduct  may  be  estopped  to  claim  the 
illegality  of  a  marriage  and  to  lay  claim  to  property  based  on  such 
illegality.®^ 


89.  See  Volume  II,  Marriage.  The 
effort  of  the  legislature  is  to  exercise 
a  salutary  supervision  by  requiring  a 
license  to  be  taken  out. 

90.  Brunswick  v.  Litchfield,  2  Greenl. 
28;  Moore  v.  Whittaker,  2  Harring. 
50;  Goshen  v.  Richmond,  4  Allen,  458; 
1  Bishop,  Mar.  &  Div.,  5th  ed.,  §§  657- 
659.  As  to  the  effect  of  a  Texas  stat- 
ute, which  relaxed  old  requirements  in 
legalizing  an  irregular  marriage,  see 
Rice  V.  Rice,  31  Tex.  174.  See  47  &  48 
Vict.,  ch.  20,  which  legalizes  the  mar- 
riages of  certain  members  of  the  Greek 


church;  Carney  v.  Chapman,  247  U.  S. 
102,  38  S.  Ct.  449,  158  P.  1125;  Gard- 
ner V.  Gardner,  —  Mass.  — ,  122  N.  E, 
308  ("in  good  faith"  defined). 

91.  As  to  the  proof  of  a  marriage 
and  legal  presumptions,  see  1  Bishop, 
Mar.  &  Div.,  5th  ed.,  §  432  et  seq.; 
Schouler,  Hus.  &  Wife,  §§  38,  39; 
supra,   §   29. 

See  also  promises  to  marry.  Vol. 
II. 

92.  Shrader  v.  Shrader,  —  Miss.  — , 
81  So.  227;  In  re  Hilton's  Estate,  — 
Pa.,    106  A.   69. 


55  MARRIAGE.  §    32 

§  32.  Restraints  upon  Marriage. 

The  policy  of  restraining  marriage  is  treated  with  disfavor  by 
our  law,  which  on  the  contrary  seems  disposed  to  encourage  the 
institution,  though  not  to  the  extent  practised  by  some  countries 
of  openly  promoting  its  observance,  or  forcing  private  inclination 
in  the  conjugal  direction.  iSTumerous  cases,  those  particularly 
which  construe  the  provisions  of  testamentary  trusts,  have  laid  it 
down  that  the  general  restraint  of  marriage  is  to  be  discouraged. 
Accordingly  a  condition  subsequent,  annexed  by  way  of  forfeiture 
to  a  gift,  legacy,  or  bequest,  in  case  the  donee  or  legatee  should 
marry,  will  be  held  void  and  inoperative,  as  a  restraint  upon  mar- 
riage, and  so  as  to  both  income  and  capital.®^  But  marriage  and 
remarriage  are  differently  viewed  in  this  respect;  and  it  is  well 
settled  that  forfeiture  by  condition  subsequent  in  case  a  widow 
shall  marry  again  must  be  upheld  as  valid,  whether  that  widow  be 
the  beneficiary  through  her  husband  or  some  other  person.  Does 
the  latter  rule  apply  equally  to  widow  and  widower,  woman  and 
man  ?  Upon  full  consideration  the  English  chancery  held  a  few 
years  ago,  on  appeal  (reversing  the  decision  of  the  lower  tribunal), 
that  it  does.®* 

The  latest  English  decisions,  on  the  whole,  do  not  strenuously 
resist  these  restraints  upon  marriage  in  testamentary  trusts.®^  And 
it  is  doubtful  whether  the  rule  discouraging  restraint  of  marriage 
can  extend  to  devises  of  land;    though  on  principle  there  should 

93.  See  Bellairs  v,  Bellairs,  L.  R.  18  subject  more  from  the  aspect  of  equal 
Eq.  510,  and  cases  cited.  rights,  as  between  the   sexes,  in   the 

94.  Allen  v.  Jackson,  1  Ch.  D.  39^,  disposal  of  property.  No  act  of  parlia- 
reversing  s.  c.  L.  E,  19  Eq.  631.  See  ment  or  decision  of  a  court,  he  ob- 
opinion  of  James,  L.  J.,  and  author-  served,  established  any  distinction  here 
ities  cited, — this  interesting  point  between  the  second  marriage  of  man 
being  thus  raised  for  the  first  time.  or  woman,  and  he  knew  of  no  reason 

Rights    are    equal    as   to    marrying  for  making  it. 

again,  so  far  as  widow  and  widower  95.  It  is  held  that  a  gift  to  one's 

are  concerned,  as  all  will  readily  ad-  widow  on  condition  that  she  retire  im- 

mit.   The  lower  court  was  probably  in-  mediately   into   a   convent   is   upon   a 

fluenced  by  considerations  which  medi-  good  condition  precedent.     Duddy  v. 

cal  men  adduce,  showing  that  marriage  Grcsham,  39  L.  T.  N.  s.  48.    Also,  that 

is  more  essential  to  a  man 's  continuous  it  is  a  good  condition  subsequent  which 

well-being  than  a  woman 's,  and  that  a  forfeits  a  gift  to  one  's  brother  in  case 

widow,  on  the  whole,  is  less  likely  to  he  marries  "a  domestic  servant,"  or 

have    sufficient    reason    for    marrying  one   of   lower    degree,    degrading    his 

again  than  a  man.   But  this  argument,  own    family.      Jenner    v.    Turner,    29 

if  sound,  is  perhaps  far-fetched,  and  W.  R.  99. 
James,  L.  J.,  on  appeal,  treated  the 


§  33 


HUSBAND    AND    WIFE. 


56 


be  no  distinction  between  devises  and  gifts  or  bequests  in  this 
respect.^® 

* 

§  33.  Marriage  in  another  State  or  Country. 

Both  in  England  and  the  United  States,  the  general  rule  of  law 
is,  that  marriage  contracted  elsewhere,  if  valid  where  it  is  con- 
tracted, is  locally  valid.  And  so  strongly  is  the  marriage  institu- 
tion upheld  the  civilized  world  over,  that  even  though  the  marrying 
parties  thereby  evade  the  local  law,  this  rule  is  locally  upheld  in 
both  countries ;  unless,  at  all  events,  the  local  statute  asserts  local 
public  policy  to  the  extent  of  declaring  such  marriages  void,  or  the 
marriage  is  one  deemed  "  contrary  to  the  law  of  nature  as  generally 
recognized  in  Christian  countries."  ^^ 

So  it  is  the  general  rule  that  the  les  loci  contractus  governs  the 
capacity  of  the  parties  and  the  form  of  the  marriage,®*  while  the 
remedy  affecting  marriages  and  their  annulment  is  governed  by 
the  law  of  the  forum.®® 

There  is  authority  that  a  marriage  may  be  contracted  by  mail, 
and  where  a  man  sends  a  woman  in  another  State  a  written  offer  of 
marriage,  which  the  woman  accepts,  the  marriage  was  contracted, 
and  will  be  governed  by  the  laws  of  the  State  where  the  woman 
lived.^ 


96.  Jones  v.  Jones,  1  Q.  B.  D.  279. 

And  see  Hogan  v.  Curtin,  88  N.  Y. 
162;  Schouler,  Wills,  §  603. 

97.  Warrender  v.  Warrender,  2  CI. 
&  Fin.  488 ;  Sutton  v.  Warren,  10  Met. 
451;  Commonwealth  v.  Graham, 
157  Mas3.  75,  per  Field,  C.  J.  As 
where,  for  instance,  parties  go  to 
another  State  to  evade  restrictions  as 
to  an  infant's  marrying  age,  or  re- 
strictions following  divorce.  Under 
the  English  "legitimacy  declaration 
act"  (21  &  22  Vict.,  eh.  93)  the  mar- 
riage of  a  retired  British  officer  to  a 
Japanese  woman  in  1886,  was  held 
valid  in  Brinkley  v.  Attorney-General, 
15  P.  D.  76,  as  sufficiently  a  "Chris- 
tian marriage,"  upon  proof  that  in 
Japan  marriage  is  monogamous,  and 
excludes  all  other  spouses.  As  to 
recognizing  Indian  tribal  marriages, 
see  Kobogum  v.  Jackson  Iron  Co.,  76 
Mich.  498;  La  Kiviere  v.  La  Eiviere, 
97  Mo.  80.     Cf.  as  to  informal  mar- 


riages, Norcross  v.  Norcross,  155  Mass. 
425;  Meister  v.  Moore,  96  U.  S.  76; 
supra,  §  29. 

98.  Hastings  v.  Douglass,  U.  S.  D. 
C.  W.  Va.,  249,  F.  378;  Powell  v. 
Powell,  207  111.  App.  292,  118  N.  E. 
786;  Kitzman  v.  Kitzman,  167  Wis. 
308,  166  N.  W.  789 ;  Petras  v.  Petras, 
—  Del.  Super.  — ,  105  A.  835.  Where 
residents  of  New  York  went  to  Penn- 
sylvania where  they  were  married  and 
immediately  returned  to  New  York 
where  they  consummated  the  marriage 
it  is  governed  by  the  law  of  New 
York.  Bays  v.  Bays,  174  N.  Y.  S. 
212;  Bolmer  v.  Edsall,  —  N.  J. 
Ch.  — ,  106  A.  646;  Ogden  v.  Ogden, 
1908  P.  46. 

99.  Thompson  v.  Thompson,  —  Tex. 
Civ.  App.  — ,  202  S.  W.  175,  203  S. 
W.  939. 

1.  Great  Northern  Ry.  Co.  v.  John- 
son, U.  S.  C.  C.  A.,  N,  D.,  254  F.  683. 


67  PERSON  OF  THE  SPOUSE.  §  34 


CHAPTEK  II. 

EFFECT  OF  MARRIAGE  ;     PERSON  OF  THE  SPOUSE. 

Sbction  34.     Law  of  Husband  and  Wife;  Order  of  Examination. 

35.  Person  of  the  Spouse;  Common-law  Principle  of  Coverture;  Baron 

and  Feme. 

36.  Husband    Head    of   the    Family    at   Common    Law;    Reciprocal 

Eights  and  Duties  of  the  Union. 

37.  Duty  of  Spouses  to  adhere  or  live  together. 

38.  Breach  of  this  Obligation;   Desertion. 

39.  Duty  of  making  Cohabitation  Tolerable. 

40.  The  Matrimonial  Domicile. 

41.  Same  Subject;  Husband  establishes  the  Domicile. 

42.  Same  Subject;  Modifications  in  Wife's  Favor;  Eecent  Instances. 

43.  Domicile  relative  to  Alien  and  Citizen. 

44.  Woman 's  Name  changed  by  Marriage. 

45.  Husband's  Duty  to  render  Support. 

46.  Criminal  Liability  for  failure  to  Support. 

47.  Wife's  Duty  to  render  Services. 

48.  Eight  of  Chastisement  and  Correction. 

49.  Husband's  Eight  of  Gentle  Eestraint. 

50.  Wife  Eight  to  Submit  to  Surgical  Operation. 

51.  Eight  of  Action  for  Death. 

52.  Eegulation  of  Household,  Visitors,  etc. 

53.  Custody  of  Children. 

54.  Remedies  of  Spouses  against  one  another  for  Breach  of  Matri- 

monial Obligations. 

§  34.  Law  of  Husband  and  Wife ;  Order  of  Examination. 

When  the  parties  to  a  lawful  marriage  have  once  completed  the 
ceremony,  or,  as  it  is  said,  have  executed  the  contract  of  marriage, 
they  are  admitted  into  the  marriage  relation,  and  their  mutual 
rights  and  obligations  become  at  once  bounded,  protected,  and  en- 
forced by  the  general  law  of  husband  and  wife.  What  that  law  is 
will  constitute  the  topic  of  discussion  in  this  and  most  succeeding 
parts  of  the  work. 

Our  subject  will  be  most  conveniently  treated  by  taking  up  the 
common-law  doctrine  first,  and  thoroughly  examining  its  princi- 
ples ;  then  passing  to  the  modem  or  civil-law  doctrine  for  discussion 
in  like  manner.  First,  then,  the  rights  and  disabilities  of  marriage 
on  the  coverture  scheme;  secondly,  the  rights  and  disabilities  of 
marriage  on  the  separate  existence  scheme. 

But  since  these  rights  and  disabilities  have  varied  little,  except 
as  to  the  wife's  property,  we  may  here  investigate  those  general 


§    36  HUSBAND    AND    WIFE.  58 

principles  of  the  common  law  which,  concern  the  person  of  the 
spouse  once  and  for  all. 

§  35.  Person  of  the  Spouse;  Common-law  Principle  of  Cover- 
ture ;  Baron  and  Feme. 

The  general  principle  of  coverture,  as  defined  by  Blackstone  and 
other  writers,  is  this:  that  by  marriage  the  husband  and  wife 
become  one  person  in  law;  that  is  to  say,  the  very  being  or  legal 
existence  of  the  woman  is  suspended  during  the  marriage,  or,  at 
least,  is  incorporated  and  consolidated  into  that  of  the  husband, 
under  whose  wing,  protection,  and  cover  she  performs  everything ; 
and  is  therefore  called  in  the  law-French  a  feme  covert,  foemina  viro 
co-operta;  is  said  to  be  covert-haron,  or  under  the  protection  and 
influence  of  her  baron  or  lord ;  and  her  condition  during  her  mar- 
riage is  called  her  coverture.^  For  this  reason  the  term  applied  to 
the  relation  of  husband  and  wife  in  the  old  books  is  haron  and 
feme.  Upon  this  fundamental  principle  depend,  at  the  common 
law,  the  general  rights,  duties,  and  disabilities  of  marriage.  But 
this  very  definition  shows  inaccuracy,  to  say  nothing  of  unfairness 
of  application.  Here  are  two  conflicting  notions:  one  that  the 
existence  of  the  wife  is  actually  lost  or  suspended ;  the  other  that 
there  is  still  an  existence,  which  is  held  in  subordination  to  the  will 
of  her  lord  and  master,  which  last  the  word  coverture  fitly  ex- 
presses. It  will  appear  in  fact  that  while  some  of  the  wife's  dis- 
abilities seem  based  upon  the  one  notion,  others  are  based  upon  the 
latter,  and  probably  more  correct  one.  The  wife's  disabilities  are 
deemed  by  Blackstone  "  for  the  most  part  intended  for  her  protec- 
tion and  benefit."  And  he  adds,  by  way  of  rhetorical  period,  "  so 
great  a  favorite  is  the  female  sex  of  the  laws  of  England !"  a 
proposition  which  his  commentators  have  gravely  proceeded  to 
dispute  and  dissect,  and,  it  must  be  added,  not  without  good 
success.^ 

§  36.  Husband  Head  of  the  Family  at  Common  Law ;  Reciprocal 
Rights  and  Duties  of  the  Union. 

The  husband's  right  of  dominion  is  therefore  fully  recognized 
at  the  common  law.     And  never  was  the  English  doctrine,  despite 

2.  1  Bl.  Com.  442 ;   Co.  Litt.  112 ;  probable  that  Blackstone  used  this  ex- 
2  Kent,  Com.  129.  pression   in   a   strain   of  playful   gal- 

3.  1  Bl.  Com.  445,  notes  by  Chris-  lantry,  not  uncommon  with  lecturers, 
tian,    Hargrave,    and    others.      It    is  Even  Chancellor  Kent's  observations 


69  PEKSON  OF  THE  SPOUSE.  §  37 

its  failings,  set  forth  in  more  terse  and  forcible  language  than  in 
the  words  of  Sir  Thomas  Smith :  "  The  naturalest  and  first  con- 
junction of  two  towards  the  making  a  further  society  of  continu- 
ance is  of  the  husband  and  wife,  each  having  care  of  the  family : 
the  man  to  get,  to  travel  abroad,  and  to  defend ;  the  wife  to  save, 
to  stay  at  home,  and  to  distribute  that  which  is  gotten  for  the  nur- 
ture of  the  children  and  family ;  which  to  maintain  God  has  given 
the  man  gTeater  wit,  better  strength,  better  courage,  to  compel  the 
woman  to  obey  by  reason  or  force ;  and  to  the  woman  beauty,  fair 
countenance,  and  sweet  words,  to  make  the  man  obey  her  again  for 
love.  Thus  each  obeyeth  and  commandeth  the  other;  and  they 
two  together  rule  the  house  so  long  as  they  remain  in  one."  * 

In  accordance  with  these  principles,  and  perhaps,  too,  the  laws 
of  nature  and  divine  revelation,  the  husband  is  the  head  of  the 
family,  and  dignior  persona.  As  to  the  more  strictly  personal  con- 
sequences of  the  marriage  union,  his  rights  and  duties  have  suffered 
no  violent  change  at  our  modem  law.  It  is  for  the  wife  to  love, 
honor,  and  obey :  it  is  for  the  husband  to  love,  cherish,  and  protect. 
The  husiband  is  bound  to  furnish  his  wife  with  a  suitable  home ;  to 
provide,  according  to  his  means  and  condition  of  life,  for  her  main- 
tenance and  support ;  to  defend  her  from  personal  insult  and 
wrong ;  to  be  kind  to  her ;  to  see  that  the  offspring  of  their  union 
are  brought  up  with  tenderness  and  care ;  and  generally  to  conduct 
himself,  not  according  to  the  strict  letter  of  the  matrimonial  con- 
tract, but  in  its  spirit.  So  long  as  he  does  this,  his  authority  is 
acknowledged  at  the  common  law;  and  if  the  wife's  wishes  and 
interests  clash  with  his  own,  she  must  yield. ^ 

§  37.  Duty  of  Spouses  to  adhere  or  live  together. 

Marriage  necessarily  supposes  a  home  and  mutual  cohabitation. 
Each  party  has  therefore  a  right  to  the  society  of  the  other.  They 
married  to  secure  such  society.  And  the  obligation  rests  upon  both 
to  live  together  —  or,  as  the  expression  sometimes  goes,  to  adhere. 
This  is  the  universal  law.*  Its  observance  is  essential  to  the  mutual 
comfort  of  husband  and  wife,  and  the  well-being,  if  not  the  exist- 

are  not  free   from  suspicion.     See  2  a  certain  degree  of  care  and  protec- 

Kent,   Com.    182,   closing   sentence   at  tion,  but  also  ' '  with  authority  over  his 

foot  of  the  page.  wife.    He  is  to  practise  tenderness  and 

4.  Commonwealth  of  England,  Book  affection,  and  obedience  to  her  duty." 
1,  ch.  2,  quoted  in  Bing.  Inf.  &  Cov.,  Oliver  v.  Oliver,  1  Hag.  Con.  S61;  4 
p.  184.  Eng.  Ec.   429. 

5.  Lord   Stowell    observes   that   the  6.  1  Fras.  Dom.  Rel.  447,  452. 
law  entrusts  the  husband  not  only  with 


§    38  HUSBAND    AND    WIFE.  60 

ence,  of  tlieir  children.  But  to  this  rule  there  are  obvious  excep- 
tions. The  wife  is  not  bound  to  live  with  her  husband  where  he  is 
imprisoned,  or  has  otherwise  ceased  to  be  a  voluntary  agent  and  to 
perform  the  duties  of  a  husband.  Nor  if  he  is  banished.  For 
marriage  does  not  force  the  parties  to  share  the  punishment  of  one 
another's  crimes.  This  was  the  rule  of  the  civil  as  it  is  that  of  the 
common  law.'  And  in  general  such  causes  as  would  justify  divorce 
in  any  State  justify  the  innocent  party  in  breaking  off  matrimonial 
cohabitation  likewise.  But  partial  and  temporary  separation  for 
purposes  connected  with  the  husband's  profession  or  trade  —  as, 
for  instance,  where  he  is  an  army  officer  —  constitutes  no  breach  of 
the  marriage  relation  unless  continued  beyond  necessary  and  rea- 
sonable bounds,  or  accompanied  by  negligence  to  provide,  while 
absent,  for  the  maintenance  of  wife  and  family.  And  under  some 
other  circumstances  cohabitation  may  be  properly  allowed  to  cease 
for  a  time  without  involving  the  breach  of  marital  obligation's.* 

§  38.  Breach  of  this  Obligation;  Desertion. 

This  subject  is  most  commonly  considered  where  redress  is 
sought  because  one  or  the  other  party  deserts;  such,  desertion 
formerly  calling  for  the  restitution  of  conjugal  rights,  but  in  these 
days  furnishing  rather  a  cause  of  divorce  to  the  injured  spouse, 
not  to  speak  of  the  enlargement  of  an  abandoned  wife's  rights  and 
responsibilities,  despite  the  rules  of  coverture.  These  matters,  and 
particularly  divorce  for  desertion,  will  be  duly  considered  in  place 
hereafter,  and  the  duty  of  matrimonial  adherence  more  fully  devel- 
oped.^ We  observe  here  that,  in  conformity  to  the  world's  customs 
and  general  principle,  it  is  the  wife's  actual  withdrawal  from  home 
which  admits  the  less  readily  of  a  justifying  explanation,  and  ex- 
poses the  pair  to  scandal.^"  But  the  husband  may  be  at  fault  by 
making  the  home  unfit  for  an  honest  wife  to  occupy  with  dignity, 
or  by  turning  his  wife  out,  or  even  by  encouraging  her  to  leave  it 
when  it  was  right  that  she  should  remain.^^  It  happens  often  that 
the  husband  instead  forsakes  the  home,  leaving  the  wife  in  it,  such 

7.  Co.  Litt.   133;    1  Bl.  Com.   443;       Vol.  II.,  1  Bish.  Mar.  &  Div.,  §§  771- 
1  Fras.  Dom.  Eel.  448;  2  Kent,  Com.       810. 

154.  10.  Ih.;  Starkey  v.  Starkey,  21  N. 

8.  See  2  Kent,  Com.  181;    1   Fras.      J.  Eq.   135;   Nunn  v.  Nunn,  —  Ore. 
Dom.  Eel.  240  et  seq.;  11.  447;  Chre-       — ,  178  Pac.  986. 

tien  V.  Husband,  17  Martin  (La),  60.  11.  Sutermeister  v.  Sutermeister,  — 

9.  See    Separation,    Divorce,   post;      Mo.  App.  — ,  209  S.  W.  955;  McCor- 

mick  V.  MeCormick,  19  "Wis.  172. 


61  PEESON  OF  THE  SPOUSE.  §  39 

withdrawal  being  rightful  or  wrongful  according  to  the  circum- 
stances.^^ 

§  39.  Duty  of  making  Cohabitation  Tolerable. 

Mere  frailty  of  temper  on  a  wife's  part,  not  shown  in  marked 
and  intolerable  excesses,  would  hardly  justify  a  husband  in  with- 
drawing the  protection  of  his  home  and  society.^^  But  it  is  held 
that  the  wife's  violent  and  outrageous  behavior  justifies  a  husband 
in  seeking  divorce  from  bed  and  board,  and,  seemingly,  in  leaving 
her.^*  The  moral  duty  of  living  together  involves,  doubtless,  the 
reciprocal  obligation  of  making  that  life  agreeable,  according  to 
the  true  status  of  the  married  parties ;  but  the  extent  of  the  legal 
duty  is  not  so  easily  definable.  Upon  the  point  of  redress,  in  fact, 
codes  widely  differ ;  the  practical  difficulty  being,  under  our  laws, 
that  married  spouses  have  little  remedy  until  it  comes  to  the  last 
extremity  of  divorce.^^  Manifestations  of  bad  temper  on  one  side 
must  necessarily  weaken  the  duty  of  adherence  on  the  other;  ex- 
treme cruelty,  or  cruel  and  abusive  treatment,  is  now  frequently 
made  a  legal  cause  of  divorce;  yet,  at  the  same  time,  mutual  for- 
bearance and  self-sacrifice  are  essential  to  the  well-being  of  every 
household ;  marriage,  when  rightly  considered,  working  a  harmony 
of  character  by  the  constant  attrition  to  which  the  two  natures  are 
exposed. 

Under  this  head  we  may  add  that  the  duty  of  cohabitation  or  ad- 
herence is  not  fulfilled  by  literal  or  partial  compliance.  Thus  the 
refusal  of  sexual  intercourse  and  the  nuptial  bed,  without  good 
excuse,  is  a  serious  wrong  which  husbands,  at  all  events,  are  dis- 
posed to  construe  into  justifying  ground  for  divorce.^*  Living  in 
the  same  house,  but  wilfully  declining  matrimonial  intimacy  and 
eompanionship,  is  per  se  a  breach  of  duty,  tending  to  subvert  the 
true  ends  of  marriage.  So,  too,  a  husband  who  unreasonably  with- 
draws cohabitation  from  his  wife  may  be  deemed  guilty  of  legal 
desertion,  even  though  he  continue  to  support  her.^^    But  sexual 

12.  GoUehon  v.  GoUehon,  —  Va.  — ,  15.    See   Divorce    for   Cruelty,    &c., 
9&  S.  E.  769;   McClurg's  Appeal,  66       post,  Vol.  II. 

Penn.  St.  366.     See  Divorce  for  De-  16.   See    Divorce,    post,    Vol.    II; 

sertion,  post.  Southwick    v.    Southwick,    97    Mass. 

13.  Yeatman  V.  Yeatman,  L.  R.  1  P.  327;    1    Bish.   Mar.   &    Div.,    5th   ed., 
&   D.   489;    McNabb   v.   McNabb,  —  §   778. 

Tex.  Civ.  App.  — ,  207  S.  W.  129.  17.  Yeatman  v.  Yeatman,  L.  R.  1  P. 

14.  Lynch  v.  Lynch,  33  Md.  328 ;  see       &  D.  489. 

Holmes   v.   Holmes,   44   Mich.    555,   7  Where  the  husband  is  old  and  feehle 

N.  W.  228.  the  refusal  of  conjugal  intercourse  is 


§    40  HUSBA]!JD    AND    WIFE.  62^ 

intercourse,  the  use  of  the  same  chamber,  or  the  occupation  of  the 
same  bed,  should  be  mutually  regulated  with  considerations  of 
health  as  well  as  kindly  forbearance ;  and  a  husband  who  wantonly 
abuses  his  wife  so  as  to  inflict  needless  pain  and  injury  upon  her, 
and  disregards  her  health  and  delicate  organization,  is  guilty  of 
legal  cruelty/* 

§  40.  The  Matrimonial  Domicile. 

As  there  must  be  a  home,  so  there  is  also  a  matrimonial  domicile 
of  the  parties  recognized  by  universal  law.  And  the  husband,  as 
dignior  persona,  has  the  right  to  fix  it  where  he  pleases.  The  wife's 
domicile  merges  in  that  of  her  husband.  Grotius  says:  "  De  domi- 
cilio  constituere  jus  est  marito."^^  But  this  applies  only  to  the 
real  domicile  of  the  husband ;  not  to  a  fictitious  place  of  residence 
which  he  may  take  up  for  a  special  purpose,  or  as  an  involuntary 
agent.  In  a  genuine  sense  the  domicile  of  the  husband  becomes 
that  of  the  wife,  and  wherever  he  goes  she  is  bound  to  go  likewise; 
not,  however,  unless  his  intent  be  bona  fide  and  without  fraud  upon 
her  person  or  property  rights.^" 

What  is  this  domicile  of  the  husband,  we  may  ask  ?  Every  one 
has  his  domicile  at  the  law.  And  between  domicile  and  residence 
there  is  a  marked  distinction,  the  former  being  in  law  more  generic 
and  determining  one's  municipal  forum.  Residence,  to  be  sure, 
is  a  fixed  place  of  abode,  as  distinguished  from  one's  mere  local 
situation  for  temporary  purposes ;  but  domicile  is  more  than  this, 
it  is  a  residence  which  is  fixed,  whether  absent  or  present,  with  the 
idea  of  a  permanent  establishment  of  one's  legal  status.  Domicile 
and  change  of  domicile  depend  on  the  choice  of  the  party.  And 
so  free  is  this  choice  that  one  may  change  his  domicile  while  absent 
in  the  military  service  or  traveling  from  place  to  place,  provided 
the  intent  appear.^^  Circumstances  and  facts  evincing  this  intent 
and  corroborative  of,  apart  from  or  even  contradicting,  one's  own 
statement,  are  conclusive  on  this  point;  so  that  in  determining  a 
man's  actual  domicile,  it  is  always  material  to  consider  where  his 

not  conduct  justifying  divorce.     Var-  Conn.  IS?;  criticised  in  1  Bish.  760, 

ner  v.  Varner,  35  Tex.  Civ.  App.  381,  19.  2  Kent,  Com.  181;  1  Fras.  Dom, 

80  S.  W.  386.  Rel.  240  et  seq. ;  Ih.  447. 

18.  Ridley  v.  Ridley,  —  Iowa  — ,  100  20.   1  Fras.  Dom.  BeL  447,  448  ;    1 

N.  W.  1122;  Gardner  v.  Gardner,  104  Burge  Col.  &  For.  Laws,  260;  Whar- 

Tenn.  410,  58  S.  W.  342,  78  Am.  St.  ton  Confl.  Laws,  §§  43-47. 

Rep.  924;  Moores  v.  Moores,  1  C.  E.  21.  Mooar  v.  Harvey,  128  Mass.  21?. 
Green,   275.     See   Shaw  v.   Shaw,   17 


63 


PEKSON    OF    THE    SPOUSE. 


41 


wife  and  children  live  permanently,  and  where  his  establishment  is 
kept  up.^^  The  facilities  of  modern  travel  from  country  to  country 
give  rise  to  greater  uncertainties  of  fact  than  formerly.  It  is  said 
that  a  man  having  acquired  a  domicile  of  choice  may  abandon  it 
veithout  its  being  incumbent  on  him  to  acquire  a  new  domicile  of 
choice  ;^^  and  doubtless  many  persons  desiring  to  travel  make  them- 
selves citizens  of  the  world  after  this  manner,  escaping  taxation 
and  disregarding  the  purposes  of  domicile.  Here,  however,  our 
law  will  find  a  domicile,  when  the  question  arises  (as,  for  instance, 
upon  the  settlement  of  the  person's  estate  after  decease),  either 
by  refusing  to  consider  the  abandonment  of  the  old  domicile  com- 
plete before  a  new  one  was  acquired,  or  by  holding  that  the  older 
domicile,  the  domicile  of  origin,  reverts  upon  such  abandonment; 
in  short,  by  excluding  as  far  as  possible  the  inference  of  expatria- 
tion, utter  and  absolute,  from  dubious  circumstances.^*  Every  one 
has,  by  birth,  a  domicile  of  origin,  and  this  domicile  of  origin  is 
presumed  to  continue  until  abandoned  for  another.^ 


25 


§  41.  Same  Subject;  Husband  establishes  the  Domicile. 

We  have  said  that  in  the  hoia  fide  domicile  of  the  husband  that 
of  the  wife  merges.  In  certain  cases  the  wife  may  perhaps  be 
said  to  acquire  a  domicile  or  legal  forum  for  divorce  and  similar 
purposes.^®  But  the  exception,  if  it  exist,  is  limited  by  the  neces- 
sity. To  a  wife  living  apart  from  her  husband,  no  separate  domicile 
is  conceded  for  testamentary  purposes.^^.  Xor  does  a  change  of  the 
wife's  abode  change  the  husband's  or  the  matrimonial  domicile."® 

Any  contract,  therefore,  which  the  husband  may  make  with  his 
wife  or  her  friends,  before  marriage,  not  to  take  her  away  from  the 
neighborhood  of  her  parents,  is  void.     Public  policy  repudiates  all 


22.  McHenry  v.  State,  119  Miss.  289 ; 
80  So.  763 ;  Piatt  v.  New  South  Wales, 
L.  E.  3  App.  336;  Stevenson  v.  Mas- 
son,  L.  E.  17  Eq.  78 ;  Hayes  v.  Hayes, 
74  HI.  312;  Hindman's  Appeal,  85 
Penn.  St.  466;  Long  v.  Eyan,  30 
Gratt.  718. 

23.  Jessel,  M.  E.,  in  King  v.  Fox- 
well,  3  Ch.  D.  518,  citing  Udny  v. 
Udny,  L.  E.  1  H,  L.  Sc.  518.  But  cf. 
Kellogg  V.  "Winnebago,  42  Wis.  97. 

24.  See  Von  Hoffman  v.  Ward,  4 
Eedf.  Surr.  244;   King  v.  Foxwell. 


Ch.  D.   518;    Gardner  v.  Gardner,  — 
Mass.  — ,  122  N.  E.  308. 

25.  7b.  And  see  elementary  works 
on  Domicile. 

26.  Merritt  v.  Merritt,  41  Xev.  243, 
164  P.  644,  160  P.  22;  Wacker  v. 
Wacker,  139  N.  Y.  S.  78,  154  App. 
Div.  495.     See  Divorce,  post. 

27.  Paulding's  Will,  1  Tuck.  (N. 
Y.)   47. 

28.  Porterfield  v.  Augusta,  67  Me. 
556;  Scholes  v.  Murray  Iron  Works 
Co.,  44  la.  190;  Johnson  v.  Johnson, 
12  Bush,  485. 


42 


HUSBAND    AND    WIFE. 


64 


contracts  in  restraint  of  sucli  marital  riglits.  There  might  be  cir- 
cumstances  under  which  such  a  promise  would  be  reasonable,  but 
at  best  it  can  create  a  moral  obligation  only.  The  husband  has 
the  right  to  establish  his  domicile  at  any  time,  wherever  he  pleases, 
and  the  wife  must  follow  him  through  the  world."'*  If  she  refuses 
to  go  with  him,  his  own  conduct  being  upright  and  honorable  in 
the  premises,  she  places  herself  in  the  wrong,  and  while  she  per- 
sists he  is  not  bound  to  support  and  maintain  her.^°  The  husband 
has  the  exclusive  right  to  fix  the  matrimonial  domicile,  to  which 
the  wife  must  follow  him,  if  he  acts  in  good  f aith.^^  If  he  changes 
it  she  must  follow  and  live  with  him  in  the  new  domicile.^^  But 
where  she  is  abandoned  or  leaves  him  for  cause,  she  may  acquire  a 
separate  domicile.  In  California  the  rule  is  established  by 
statute.^^ 


§  42.  Same    Subject;    Modifications   in   Wife's   Favor;    Recent 
Instances. 

But  the  courts  of  our  day  hesitate  to  apply  a  rule  so  apparently 
harsh  as  that  announced  in  the  last  sentence.  With  the  increasing 
regard  for  female  privileges  has  grown  up  a  strong  disposition  to 
reduco  the  husband's  right  over  the  matrimonial  domicile  to  a  sort 
of  divisum  imperium.  The  question  is  not  new,  whether  reasonable 
exceptions  to  this  rule  may  not  exist;  as,  for  instance,  where  the 
husband  proposed  to  take  the  wife  into  an  enemy's  country  while 
war  was  waging,  or  on  a  journey  perilous  to  her  life.^*  Such  ex- 
ceptions may  be  justified,  it  is  generally  admitted,  on  the  ground 
that  the  wife  would  be  thereby  exposed  to  bodily  harm.     But, 


29.  Hair  v.  Hair,  10  Kich.  Eq.  163 ; 
McAfee  v.  Kentucky  University,  7 
Bush,  135, 

30.  Babbitt  v.  Babbitt,  69  111.  277. 

31.  Bailey  v.  People,  54  Col.  337, 
130  P.  832 ;  Donaghy  v.  State,  6  Del. 
Boyce's,  467,  100  A.  696,  9^  A.  720; 
Hunt  V.  Hunt,  61  Fla.  630,  54  So. 
390;  State  v.  Beslin,  19  Ida.  185,  112 
P.  1053;  Birmingham  v.  O'Neil,  116 
La.  1085,  41  So.  323;  Birmingham  v. 
O'Neil,  116  La.  1085,  41  So.  323; 
Ware  v.  Flory,  199  Mo.  App.  60,  201 
S.  W.  593;  Price  v.  Price,  75  Neb. 
552,  106  N.  W,  657;  Purncll  v.  Pur- 
nell  (N.  J.  1908),  70  A.  187;  Mona- 
han  V.  Auman,  39  Pa.  Super.  Ct.  150; 


Bennett  v.  Bennett,  —  Vt.  — ,  99 
A.  254;  Buchholz  v,  Buchholz,  63 
Wash.  213,  115  P.  88. 

32.  Isaacs  v.  Isaacs,  71  Neb.  537, 
99  N.  W.  268.  It  is  not  the  policy 
of  the  law  to  encourage  the  living 
apart  of  husband  and  wife  while  the 
marital  relation  exists  in  force.  Cun- 
ningham V.  Cunningham,  48  Pa.  Super. 
442 ;  But  where  she  is  abandoned  or 
leaves  him  for  cause,  she  may  acquire 
a  separate  domicile. 

33.  Kessler  v.  Kessler,  2  Cal.  App. 
509,     83  P.  257. 

34.  Boyce  v.  Boyce,  23  N.  J.  Eq. 
337. 


65 


PEKSON    OF    THE    SPOUSE. 


§  42 


whether  the  apprehension  be  that  of  personal  violence,  or  ill  health 
from  the  fatigue  of  a  journey  or  the  change  of  climate,  little  favor 
seems  to  have  been  shown  to  the  wife  either  at  the  English  or 
Scotch  law,  unless  the  circumstances  rendered  a  change  of  domicile 
on  her  part  equivalent  to  a  moral  suicide.^"'  At  the  present  day,  a 
rule  less  stringent  would  doubtless  be  applied.  A  husband  would 
not  be  permitted  to  remove  his  wife  to  some  remote  and  undesirable 
place  for  the  sake  of  punishing  or  tormenting  her,  or  so  as  to  com- 
pel her  to  stay  alone  where  he  did  not  mean  to  reside  himself ;  for 
this  would  not  be  fixing  the  matrimonial  domicile  with  honest  in- 
tent.^® His  choice  must  be  without  unnecessary  parsimony  or  stub- 
borness^'^  and  must  not  imperil  her  health  and  safety.^^  ^ay,  more, 
there  are  several  recent  decisions  in  this  country  which  point  to  an 
obligation  on  the  husband's  part  to  show  reasonable  cause  why  his 
wife  should  follow  him  when  he  changes  his  abode.^^ 

This  later  uncertainty  in  the  law  is  unfortunate.  Where  a  pair 
-disagree  in  the  choice  of  a  home,  either  the  right  of  decision  must 
belong  to  one  of  them,  or  the  court  should  sit  as  umpire.  N"o  one 
has  suggested  that  the  wife  should  choose  the  domicile,  nor  can 
judicial  interference  be  well  called  in,  except  to  divorce  the  parties. 
Yet,  without  a  home  in  common,  of  what  avail  is  matrimony? 
We  cannot  but  regret  that  any  of  our  courts  should  seem  to  legalize 
domestic  discord;  that  there  should  be  good  American  authority 
to  sanction  the  wife's  refusal  to  accompany  her  husband  on  any 
such  trivial  pretext  as  "  the  dislike  to  be  near  his  relatives."*"  How- 
ever, although  the  husband  has  the  right  to  fix  the  family  domicile, 
still  this  must  be  done  fairly  and  with  due  regard  for  the  comfort 
and  happiness  of  the  wife,  and  the  husband  may  be  refused  a  di- 
vorce on  account  of  the  wife's  refusal  to  live  in  a  house  with  his 
relative  with  whom  she  had  quarreled*^  or  in  proximity  with  his 
relatives.*"    One  seeking  a  divorce  cannot  obtain  the  benefit  of  his 


35.  See  1  Fras.  Dom.  Eel.  448. 

36.  Clark  v.  Clark,  19  Kans.  522. 

37.  Spafford  v.  Spafford,  199  Ala. 
300,  74  So.  354,  L.  E.  A.  1917D,  773; 
Klein  v.  Klein,  29  Ky.  Law  Eep.  1042, 
96  S.  W.  848.  A  husband  cannot  cre- 
ate a  domicile  for  his  wife  in  a  for- 
eign State  by  deserting  her  and  re- 
siding there.  Commissioner  of  Public 
Charities  v.  Patterson,  169  N.  Y.  S. 
316. 


38.  Winkles  v.  Powell,  173  Ala.  46, 
55  So.  536. 

39.  Bishop  V.  Bishop,  30  Penn.  St. 
412 ;  Gleason  v.  Gleason,  4  Wis.  64 ; 
Powell  V.  Powell,  29  Vt.  148.  See 
Moffatt  V.  ]\roffatt,  5  Cal.  280;  Cutler 
V.  Cutler,  2  Brews.  (Pa.)   511. 

40.  Powell  V.  Powell,  29  Vt.  148. 

41.  Hall  V.  Hall,  69  W.  Va.  175,71 
S.  E.  103,  34  L.  E.  A.  (N.  S.)  758, 
citing  text,  Husband   and  Wife,   460. 

42.  Powell  V.  Powell,  29  Vt.  148. 


§    44  HUSBAND    AND    WIFE.  66 

own  wrong  and  the  courts  will  not  allow  their  use  to  obtain  a  benefit 
founded  directly  upon  a  breach  of  duty  to  provide  the  wife  with  a 
suitable  home. 

The  English  rule  as  to  the  wife's  duty  of  adherence  still  con- 
tinues strict.  A  wife  petitioned  for  divorce  on  the  ground  of  her 
husband's  desertion.  The  facts  showed  that  shortly  after  her  mar- 
riage she  went  with  her  husband  to  Jamaica,  where  he  held  an 
appointment  from  which  he  derived  not  more  than  £100  a  year, 
and  in  consequence  of  his  slender  income  she  had  to  put  up  with 
some  hardship.  Her  health  suffered,  and  in  less  than  a  year, 
namely,  in  1846,  she  returned  to  England.  Her  husband  continued 
abroad,  during  the  greater  part  of  the  time  at  Jamaica,  where  he 
succeeded  in  getting  a  more  lucrative  appointment.  When  she 
left  him  for  England  he  acted  kindly  to  her,  promised  to  allow  her 
£30  a  year,  but  made  no  arrangement  for  a  permanent  separation. 
Their  correspondence  continued  until  1851,  when  the  husband 
asked  her  to  return,  and  provided  funds  for  her  passage,  but  she 
wrote  that  her  health  would  not  permit  her  to  do  so.  Here  all 
correspondence  and  intercourse  ceased  until  1856,  when  an  allow- 
ance was  again  effected  through  the  intervention  of  a  relative ;  this 
the  husband  continued  until  1860,  and  then  stopped  it.  He  ap- 
pears to  have  led  a  loose  life  after  the  wife's  refusal  to  return. 
The  court  held  that  these  circumstances  did  not  constitute  desertion 
on  the  husband'^  part,  nor  entitle  her  to  divorce.*^ 

§  43.  Domicile  relative  to  Alien  and  Citizen. 

As  corollary  of  the  general  proposition  already  announced,  it  is 
held  that  an  alien  woman  marrying  with  a  citizen  of  the  United 
States  becomes,  by  virtue  of  such  marriage,  a  citizen  also,  with  the 
usual  capacity  as  to  purchase,  descent,  and  inheritance  f*  and  that 
of  aliens  intermarried,  if  the  husband  becomes  a  naturalized  citizen, 
the  wife  in  like  manner  is  naturalized,  even  though  she  has  not  yet 
migrated  from  her  native  country.^ 


45 


§  44.  Woman's  Name  changed  by  Marriage. 

Marriage  at  our  law  does  not  change  the  man's  name,  but  it 
confers  his  surname  upon  the  woman.     Until  a  decree  of  divorce, 

43.  Keech  v.  Keech,  L.  E.  1  P.  &  D.  44.  Luhrs  v.  Eimer,  80  N.  Y.  171; 

641    (1868).     Adultery  being  proved,  Kelly  v.  Owen,  7  Wall.  496. 

however,  divorce  was  granted  on  that  45.  Kelly    v.    Owen,    7    Wall.    496; 

ground.  Headman  v.  Eose,  63  Ga.  458. 


67  PERSOX    OF    TlIK    SPOUSE.  §    45 

giving  a  married  woman  leave  to  resume  her  maiden  name,  goes 
into  full  effect,  or  widowhood  is  succeeded  by  a  new  marriage  and 
another  husband,  she  goes  by  her  former  husband's  surname.  This 
is  Euglish  and  American  usage.  And  with  this  actual  marriage 
name,  it  would  appear  that  a  vtdfe  can  only  obtain  another  name 
by  reputation.*®  But  in  consideration  of  the  rule  that  a  person  has 
the  right  to  be  known  by  any  name  he  or  she  chooses,  proceedings 
under  the  assumed  name  of  a  married  woman  have  been  upheld 
after  j  udgment.*'' 

§  45.  Husband's  Duty  to  render  Support. 

This  subject  will  be  considered  later  in  treating  of  the  wife's 
necessaries,  when  it  will  also  appear  that  our  married  women's 
acts  tend  to  certain  changes,  not  so  much  of  principle  as  application, 
by  extending  the  liability  for  family  supplies  to  property  such  as 
wives  now  hold  to  their  separate  use.  The  general  rule  of  law  is 
that  the  husband,  the  spouse  w^ho  holds  and  fills  the  purse,  is 
bound  to  provide  the  family  support  and  means  of  living.  The 
style  of  support  requisite  —  of  lodging,  food,  clothing,  and  the 
like  —  is  such  as  befits  his  means  and  condition  of  life.  A  wife 
is  not  usually  justified  in  leaving  her  husband  and  the  common 
home  so  long  as  the  husband  treats  her  kindly,  and  provides  to 
the  extent  of  his  ability,  even  though  retrenchment  in  the  style 
of  living  may  be  needful  from  one  cause  or  another.*^  ]Sro  reducing 
the  wife's  comforts  needlessly,  and  from  sinister  motives,  she  may 
justly  complain  of.*^ 

The  common-law  duty  to  support  a  wife  cannot  be  extended  ex- 
cept by  express  statute,  plainly  so  intended,^"  and  the  wife  cannot 
bind  herself  by  a  release  of  her  right  to  support.^^ 

A  husband  must  furnish  his  wife  with  reasonable  support 
whether  she  is  able  to  support  herself  or  not^^  if  he  is  able  to  do 

46.  Fendall  v.  Goldsmied,  2  P.  D.  Wis.  66,  103  X.  W.  261,  69  L.  R.  A. 
263;  Carroll  v.  State,  53  Neb.  431,  73       829. 

N.   W.    939;    Eatcliffe    v.    McDonald,  51.  In   re  Eyan's  Estate,  134  Wis. 

123  Va.  97,  97  S.  E.  307.  431,  114  N.  W.  820 ;  7?i  re  Simonson 's 

47.  Clark  v.  Clark,  19  Kan.  522.  Estate,  164  Wis.  590,  160  N.  W.  1040. 

48.  See  Skean  v.  Skean,  33  N.  J.  52.  The  duty  of  the  husband  to  pro- 
Eq.  148.  vide    for    the    wife    is    a    public    and 

49.  Boyce  v.  Boyee,  23  N.  J.  Eq.  moral  duty,  as  well  as  a  duty  by  con- 
337.  And  see  Necessaries,  posi ;  also  tract.  Clisby  v.  Clisby,  160  Ala.  572, 
Divorce  for  Desertion,  Cruelty,  etc.  49    So.    445;    Ortman   v.    Ortman,   — 

50.  Richardson     v.     Stuesser,     125       Ala.  — ,  82   So.  417;   McKee  v.  Cun- 

ningham, 2  Cal.  App.  6S4,  84  P.  260. 


45 


HUSBAND   AND    WIFE. 


68 


53 


SO.""  His  lack  of  means  may  excuse  him  temporarily.^*  The  fact 
that  she  was  unchaste  before  marriage  does  not  affect  the  duty." 
iSTor  is  he  relieved  by  the  fact  that  she  is  quarrelsome  after  mar- 
riage.^^     He  must  do  the  same  for  the  rest  of  his  family." 

The  nature  of  the  support  must  be  in  keeping  with  his  station 
and  circumstances^*  and  is  usually  to  be  furnished  at  the  matri- 
monial domicile  selected  by  him.^"  He  may  be  obliged  to  support 
his  wife  at  some  other  place  where  he  refuses  to  do  so  at  the  domi- 
cile, or  where  they  live  apart  by  his  consent^"  or  where  she  leaves 
him  because  of  his  cruel ty^^  or  for  other  justifiable  cause.*'"     The 


Kessler  v.  Kessler,  2  Cal.  App.  509, 
83  P.  257.  A  wife's  right  of  main- 
tenance is  within  the  protection  of 
Civ.  Code,  §  3439',  making  transfers  to 
delay  or  defraud  creditors  void  as 
against  them.  Title  Ins.  &  Trust  Co. 
V.  Ingersoll,  158  Cal.  474,  111  P.  360; 
Poole  V.  People,  24  Col.  510,  52  P. 
1025,  65  Am.  St.  Rep.  245;  Pa- 
quin.  Limited,  v.  Westervelt,  — 
Conn.  — ,  106  A.  766;  American 
Mill.  Co.  V,  Industrial  Board  of 
Illinois,  279  111.  560,  117  N.  E.  147; 
H.  G.  Goelitz  Co.  v.  Industrial  Board 
of  Illinois,  278  111.  164,  115  N.  E. 
855;  Brown  v.  Moudy,  199  111.  App. 
85 ;  In  re  Carroll,  —  Ind.  App.  — , 
116  N.  E.  844;  Kemp  v.  Kemp,  — 
La.  — ,  81  So.  221;  Boehm  v.  Boehm, 
—  N.  J.  Ch.  — ,  101  A.  423;  Feiner 
v,  Boynton,  73  N.  J.  Law,  136,  62 
A.  420;  Ball  v.  Lovett,  98  N.  Y.  S. 
815;  Jones  v.  Bernstein,  177  N.  Y.  S. 
155;  Stevens  v.  Hush,  176  N.  Y.  S. 
602;  Finkelstein  y.  Finkelstein,  161 
N.  Y.  S.  166,  174  App.  Div.  416; 
Taylor  v.  Taylor,  54  Ore.  560,  103 
P.  524 ;  Knecht  v.  Knecht,  —  Pa.  — , 
104  A.  676;  In  re  Kvist's  Estate,  256 
Pa.  30,  100  A.  523:  Merriam  v.  Mer- 
riam,  75  Wash.  389,  134  P.  1058. 
Where  there  is  no  relation  that  legally 
imposes  the  duty  of  the  wife's  main- 
tenance on  the  husband,  the  law  gives 
no  power  to  make  him  maintain  her. 
Chapman  v.  Parsons,  66  W.  Va.  307, 
66  S.  E.  461;  Clifton  v.  Clifton,  — 
W.  Va.  — ,  98  S.  E.  72. 


53.  McCaddin  v,  McCaddin,  116  Md. 
567,  82  A.  554, 

54.  Furth  v.  Furth  (N.  J.),  39  A. 
128. 

55.  Slate  v.  Hill,  161  la.  279,  142 
N.  W.  231. 

56.  IrAvin  v.  Irwin,  —  N,  J.  — , 
103  A.  1052,  102  A.  440, 

57.  Carey  v.  Carey,  8  App.  D,  C. 
528. 

58.  De  Brauwere  v.  De  Brauwere, 
203  X.  Y.  460,  96  N.  E.  722,  af- 
firming order  129  N.  Y.  S.  587,  144 
App.  Div.  521,  which  affirms  judg- 
ment (1910),  126  N.  Y.  S.  221,  69 
Misc.  Eep.  472;  State  v.  McPherson, 
72    Wash.    371,    130    P.    481. 

59.  In  re  Baurens,  117  La.  136,  41 
So.  442 ;   State  v.  Baurens,  Id. 

60.  McKee  v.  Cunningham,  2  Cal. 
App.  684,  84  P.  260.  By  express  stat- 
ute in  California  a  husband  is  not 
liable  for  the  support  of  his  wife 
when  she  is  living  separate  from  him 
by  agreement.  Barefoot  v.  Barefoot, 
83  N.  J.  Eq.  685,  93  A.  19^;  Clothier 
v.  Sigle,  73  N",  J.  Law,  419,  63  A. 
865;  W.  &  J.  Sloane  v.  Boyer,  95  N. 
Y.  S.  531 ;  Eichardson  v.  Steusser, 
125  Wis.  66,  103  N.  W.  261. 

61.  State  V.  Baurens,  117  La.  136, 
41  So.  442;  Randall  v.  Randall,  37 
Mich.  563. 

62.  Kientz  v.  Kientz,  104  Ark.  381, 
149  S.  W.  86;  Baker  v.  Oughton,  130 
la.  35,  106  N.  W.  272;  Appeal  of 
Brookland  Bank,  —  S.  C.  — ,  100 
S.  E.  156. 


69  PERSON  OF  THE  SPOUSE.  §  40 

facts  raising  such  a  duty  must,  however,  appear  affinnativelj.®' 
To  relieve  him  of  the  duty  of  supporting  the  wife  while  living 
apart  from  him,  his  notice  that  he  will  not  be  responsible  for  her 
debts  must  appear  to  have  been  actually  known  to  the  person  fur- 
nishing the  support.** 

The  duty  is  not  conditioned  on  her  living  with  and  making  a 
home  for  him,®^  and  where  a  husband  is  first  guilty  of  adultry,  her 
subsequent  adultery  will  not  relieve  him  of  the  duty.*®  Where  she 
leaves  him  without  justifiable  cause,  he  is  relieved  of  the  duty.*' 
By  statute  in  California  a  husband  need  not  support  a  wife  who 
leaves  him  without  justifiable  cause.*^  Statutes  sometimes  make 
the  wife  liable  to  third  persons  for  family  necessaries.** 

A  statute  which  renders  void  an  assignment  of  future  wages  as 
security  for  a  small  loan  unless  recorded  and  assented  to  by  the 
wife  interferes  with  the  rights  of  the  parties  but  is  constitutional 
as  an  exercise  of  the  police  power  to  protect  the  wife  in  her  right 
of  support. 


70 


§  46.  Criminal  Liability  for  failure  to  Support. 

It  is  now  universally  provided  by  statute  that  a  husband  who 
fails  in  his  duty  to  support  his  wife  and  family  is  criminally 
liable  and  criminal  prosecution  with  recognizance  is  found  to  aid 
the  common  law  in  compelling  a  competent  husband  to  support 
his  f amily.'^^ 

It  has  been  held,  where  a  husband  was  prosecuted  on  his  recog- 
nizance, that  if  he  offered  to  support  his  wife  and  children  in  his 
father's  house,  having  no  other  house,  and  no  means  of  his  own, 
and  she  refused  to  go  there  on  the  ground  that  the  father  was  in- 

63.  Hass  V.  Brady,  96  N.  Y,  S.  449,  v.  Pearson,  176  N,  Y.  S.  626 ;  Pearson 
49  Misc.  Eep.  235;  Hass  v.  Brady,  v.  Pearson,  173  N.  Y.  S.  563;  Wirth 
96  N.  Y.  S.  449,  49  Misc.  Rep.  235.  v.  Wirth,  172  N.  Y.  S.  309. 

64.  W.  &  J.  Sloane  v.  Boyer,  95  68.  Kessler  v.  Kessler,  2  Cal.  App. 
N.  Y.  S.  531.                                                        509,  83  P.  257. 

65.  Sturm  v.  Sturm,  141  N.  Y.  S.  61,  69.  Perkins  v.  Morgan,  36  Col.  360, 
80  Misc.  Rep.  277.                                         85  P.  640;  Taylor  v.  Taylor,  54  Ore. 

66.  People  v.  Shrady,   58  N.  Y.  S.       560,  103  P.  524. 

143,  40  App.  Div.  460,  14  N.  Cr.  R.  70.  Mutual  Loan  Co.  v.  Martell,  200 

149.  Mass.  482,  86  X.  E.  916,  43  L.  R.  A. 

67.  State  v.  Newman,  91  Conn.  6,       (N.  S.)  746. 

98    A.    346;    State    v.    Hill,    161    la.  71.  See  Commonwealth  v.  Jones,  90 

279,  142  N.  W.  231;  Isaacs  v.  Isaacs,      Penn.  St.  431;  People  v.  Bartholf,  31 
71  Neb.  537,  99  N.  W.  268;  Pearson      N.  Y.  Supr.  272. 


§    4G  HUSBAND    AND    WIFE.  70 

temperate  and  abusive,  he  could  not  be  Held  liable  for  neglecting  to 
support  herJ- 

Modem  criminal  statutes  punishing  a  husband  for  failure  to 
support  his  wife  have  been  commonlj  upheld  and  it  is  held  for 
example  that  the  obligation  of  the  husband  to  support  the  wife  is 
not  a  debt  within  a  constitutional  provision  forbidding  imprison- 
ment for  debt.  Society  as  a  whole  is  interested  that  families  be 
supported  and  the  penalty  is  for  the  husband^s  failure  to  obey 
society's  law,  made  for  society's  subsistence,  and'^  hard  labor  in 
the  penitentiary  is  not  such  cruel  or  unusual  punishment  as  to 
render  a  statute  unconstitutional  which  provides  it  as  a  penalty  for 
failure  to  support  the  wife.^*  But  a  statute  is  void  as  ex  post  facto 
which  makes  desertion  and  abandonment  of  the  wife  without  pro- 
vision for  support  a  felony,  when  applied  to  a  case  where  the 
abandonment  occurred  before  the  enactment  of  the  statute  although 
the  failure  to  support  continued  till  the  time  of  bringing  the 
action  since  the  statute  required  both  abandonment  and  nonsupport 
and  was  ex  post  facto  as  to  the  abandonment  which  occurred  before 
the  statute  was  enacted.^^ 

Application  for  support  of  a  wife  under  a  statute  providing  that 
support  shall  be  given  when  the  wife  is  "  in  necessitous  circum- 
stances "  means  that  support  shall  be  given  when  the  wife  is  lack- 
ing in  those  things  proper  to  her  condition  in  life.  It  is  not  limited 
to  the  bare  necessities  of  food,  clothing  and  shelter,  as  in  a  poor 
statute,  but  includes  such  articles  of  food,  wearing  apparel  and  use, 
such  medicines,  means  for  education  of  children  and  such  social 
protection  and  opportunity  as  comport  with  the  health,  comfort 
and  well-being  of  human  beings  according  to  present  standards  of 
civilization  considering  the  husband's  own  means,  earning  capacity 
and  station  in  life.'^" 

Where  a  husband  leaves  his  wife  and  family  to  find  a  home  for 
them  in  another  State  which  he  does  and  they  join  him  there  and 
live  together  until  a  quarrel,  when  the  wife  returns  to  the  former 
State  with  the  family  he  cannot  be  extradited  from  the  State  of 
his  present  residence  to  answer  a  charge  of  non-support  in  the 

72.  People  v.  Pettit,  74  N,  Y.  320.  75.    People   v,   Albright,   161   Mich. 

73.  State   v.   English  —   S.   C.   — ,       400,  126  N.  W.  432. 

85  S.  E.  72.1,  L.  R.  A.  1915  F.  977.  76.  State   v.   Waller,   90   Kan.    829, 

74.  State  v.  Gillmore,  88  Kan.  835,       136   Pae.   215,   49   L.   R.   A.    (N.   S.) 
129   Pae.   1123,  47  L.  R.  A.    (N".  S.)       588, 

217 


71  PERSON    OF    THE    SPOUSE.  §    47 

other  State,  where  his  wife  now  resides."'^  He  committed  no  crime 
whatever  in  that  State  and  it  is  now  settled  that  no  extradition 
will  be  allowed  unless  guilt  was  incurred  in  the  State  which  ask* 
for  extradition/*  but  where  the  husband  deserts  the  wife  and  re- 
moves his  domicile  to  another  Stato  and  returns  to  the  first  State 
to  be  a  witness  he  may  be  there  arrested  on  a  warrant  charging 
non-support  in  the  first  State  under  a  statute  passed  since  he  left 
it.  He  can  be  tried  for  failure  to  support  her  in  the  place  where 
he  deserted  her  following  the  general  rale  that  the  husband  is 
properly  tried  in  the  jurisdiction  where  the  wife  becomes  de- 
pendent, regardless  of  his  non-residence,  for  that  is  the  place  where 
the  duty  of  support  should  be  discharged,  and  consequently  the 
the  proceeds  of  a  beneficiary  insurance  policy  as  a  dependent.*" 

A  woman  who  marries  a  man  knowing  that  he  has  a  wife  living 
cannot  claim  to  be  dependent  on  him  for  support  as  he  is  under  no 
legal  duty  to  support  her  and  so  she  cannot  claim  to  be  entitled  to 
the  proceeds  of  a  beneficiary  insurance  policy  as  a  dependent.*** 

A  conviction  for  abandonment  of  the  wife  constitutes  a  bar  to  a 
later  conviction  for  the  same  offense,  but  where  the  offense  de- 
scribed in  the  statute  is  failure  to  maintain  the  wife  a  prior  con- 
viction and  sentence  is  no  bar  to  another  conviction  for  later  fail- 
ing to  maintain  her.  The  later  neglect  and  refusal  after  he  had 
served  his  former  sentence  constitutes  a  new,  separate  and  distinct 
violation  of  the  statute.*^ 

§  47.  Wife's  Duty  to  render  Services. 

The  wife's  obligation  to  render  family  services  is  at  least  co- 
extensive with  that  of  the  husband  to  support  her  in  the  family, 
these  services  and  the  comfort  of  her  society  being  in  fact  the 
legal  equivalent  of  such  support.*^  Hence,  as  it  is  held,  the  wife 
of  an  insane  man  cannot  claim  special  compensation  out  of  his 
estate  for  taking  care  of  him,  even  though  such  were  the  express 
contract  between  herself  and  the  guardian.*^     Doubtless  it  would 

77.  Taft  V.  Lord,  92  Conn.  539,  108  E.  A.,  263  111.  475,  104  N.  E.  801,  51 
Atl.  644,  L.  E,  A.  1918  E.  545,  L.  E.  A.  (N.  S.)  726. 

78.  Stratssheim  v.  Daily,  221  U.  S.  81.  State    v.    Morgan,    —    la.    — , 
280,  31  Sup.  Ct.  Eep.  558.  136  N.  W.  521,  40  L.  E.  A.    (N.  S.) 

79.  State  v.  Gillmore,  88  Kan.  835,  615. 

129  Pac.   1123,  47  L.  E.  A.    (N.  S.)  82.  Eandall    v.    Eandall,    37    Mich, 

217,  563,  per  Cooley,  J.;   Grant  v.  Green, 

80.  Duenser  v.  Supreme  Council  of      41  la.  88. 

83.  Grant  v.  Green,  41  la.  88. 


§  48 


HUSBAND   AND    WIFE. 


be  bad  policy  to  permit  marital  services  on  either  side,  however 
meritorious,  to  become  a  matter  for  money  recompense,  and  to 
strike  a  just  balance  is  impossible. 

Services  rendered  by  a  wife  in  the  home  of  her  husband  to  a 
lodger  residing  with  them,  even  though  they  consist  largely  of  the 
personal  attendance  of  the  wife,  and  include  the  nursing  of  the 
lodger  when  sick,  are  within  the  range  of  her  domestic  duties  and 
without  an  express  contract  or  promise  made  by  the  lodger  to  the 
wife,  the  latter  cannot  maintain  an  action  against  him  for  the  re- 
covery of  compensation  for  such  services.  The  implied  contract 
which  the  law  raises  in  such  a  case  is  that  the  person  to  whom 
such  services  are  rendered  will  make  reasonable  compensation 
therefor  to  the  husband  and  not  to  the  wife.** 


§  48.  Right  of  Chastisement  and  Correction. 

Though  either  spouse  may  be  the  more  dangerous  companion, 
because  of  greater  physique,  daring,  recklessness,  or  depravity, 
nature  gives  the  husband  the  usual  advantage.  In  a  ruder  state 
of  society  the  husband  frequently  maintained  his  authority  by 
force.  The  old  common  law  recognized  the  right  of  moderate  cor- 
rection, which,  according  to  Blackstone,  was  deemed  a  privilege  by 
the  lower  orders  in  his  day.^^  The  civil  law  went  still  further,  per- 
mitting, in  certain  gross  misdemeanors,  violent  flogging  with  whips 
and  rods.*®  But  since  the  time  of  Charles  II.  the  wife  has  been 
regarded  more  as  the  companion  of  her  husband ;  and  this  right  of 
chastisement  may  be  regarded  as  exceedingly  questionable  at  the 
present  day.  The  rule  of  persuasion  has  superseded  the  rule  of 
force.  Few  cases  of  importance  are  to  be  found  on  this  subject. 
In  England,  where  a  wife  sought  divorce  from  bed  and  board  for 
cruelty,  it  was  shown  that  the  husband  had  spit  upon  her,  pushed 
and  dragged  her  about  the  room,  and  once  slapped  her  face;  and 
upon  this  proof  the  divorce  was  granted.*^     The  right  to  inflict 


84.  Stevenson  v.  Akarman,  83  N.  J. 
L.  458,  85  Atl.  166,  46  L.  K.  A. 
(N.  S.)  238. 

85.  1  Bl.  Com.  444,  445.  In  Adams 
V.  Adams,  100  Mass.  365,  Chapman, 
C.  J.,  states  the  old  form  of  the  writ 
of  supplicavit  for  protection  of  the 
wife  against  her  husband;  viz.,  that 
the  husband  should  not  do  other  dam- 
age to  her  person  "than  what  reason- 


ably belongs  to  her  husband  for  the 
purpose  of  the  government  and  chas- 
tisement of  his  wife  lawfully." 

86.  FlagelUs  et  fustibus  acriter 
verberare  uxortm.  See  1  Bl.  Com. 
445. 

87.  Saunders  v.  Saunders,  1  Bob. 
Ec.  549.  And  see  Divorce  for  Cruelty, 
etc.,  post,  Vol.  II. 


73  PERSON  OF  THE  SPOUSE.  §  49 

corporal  punishment  upon  the  wife  has  never  been  favored  in  this 
country,  and  its  exercise  would  now  generally  justify  proceedings 
for  a  divorce.  Indeed,  our  decisions  emphatically  deny  that  the 
right  longer  exists  either  in  England  or  this  country.**  It  may  be 
added  that  the  wife  should  not  chastise  her  husband ;  nor  provoke 
harsh  treatment  by  her  own  violence,  foul  abuse,  and  misconduct.*^ 
But  either  spouse  may  use  force  in  self-defense.  And  the  hus- 
band may  restrain  his  wife  from  acts  of  v'iolence  against  others  as 
well  as  himself  in  person  or  property, —  most  certainly  wherever 
the  law  makes  him  answerable  in  damages  for  her  misbehavior,®" 
and  may  prevent  her  unwarrantable  interference  with  the  due  ex- 
ercise of  his  parental  authority. 


91 


§  49.  Husband's  Right  of  Gentle  Restraint. 

The  right  of  gentle  restraint  over  the  wife's  person  rests  upon 
better  authority  than  that  of  chastisement.  This  right,  however, 
depends  upon  the  proposition  that  the  husband  is  dignior  persona. 
And  its  exercise  is  often  to  be  justified  in  the  courts  on  the  same 
grounds ;  namely,  that  the  husband  must  answer  to  others  for  his 
wife's  conduct.  Blackstone  says  that  in  case  of  any  gross  misbe- 
havior the  husband  can  restrain  his  wife  of  her  liberty.    The  later 

88.  Johnson  v.  Johnson,  201  Ala.  Pearman,  1  Swab.  &  T.  601.  It  is  a 
41,  77  So.  335;  Lawson  v.  State,  115  criminal  offence  to  imprison  or  beat 
Ga.  578,  41  S.  E.  993;  Carpenter  v.  her  (Brown  v.  Brown,  88  Conn.  42, 
Commonwealth,  92  Ky.  452,  18  S.  W.  89  A.  889),  but  he  cannot  be  com- 
9,  13  Ky.  Law  Eep,  (abstract)  998;  pelled  to  give  bond  not  to  illtreat  her, 
McKay  v.  McKay  (Mo.),  182  S.  W.  except  under  statute.  Bread's  Case, 
184  (helpless  if  her  husband  keeps  2  Bland  (Md.)  562,  n. 
her  in  a  place  where  he  has  withdrawn  89.  Knight  v.  Knight,  31  la.  451, 
all  care  and  protection  from  her  and  and  cases  supra;  Prichard  v.  Prichard 
allows  her  to  suffer  gross  indignities) ;  3  Swab.  &  T.  523;  Trowbridge  v.  Car- 
Jones  V.  Jones,  173  N.  C.  279,  91  S.  E.  lin,  12  La.  Ann.  882. 
960;  Gholston  v.  Gholston,  31  Geo.  90.  2  Kent,  Com.  181;  People  v. 
625;  Pillar  v.  Pillar,  22  Wis.  658;  Winters,  2  Parker  (N.  Y.  Cr.),  10; 
Edmonds'  Appeal,  57  Penn.  St.  232;  1  Bl.  Com.  445;  Eichards  v.  Richards, 
Fulgham  V.  State,  46  Ala.  143;  Owen  1  Grant,  389. 

V.   State,  7   Tex.  App.  329 ;    Gorman  91.  A  husiand  has  the  right  to  use 

V.   State,   42   Tex.   221.      In   State   v.  physical  force   to  put  his  wife   from 

Rhodes,  1  Phill.  (N.  C.)  453,  the  right  the    room,    when    she    interferes   with 

of   moderate   correction   was   claimed.  his  training  of  their  child,  the  right 

But  the  opposite  rule  is  announced  in  of  gentle  restraint  where  she  clings  to 

the  later  case   of  State  v.  Oliver,  70  him    and    screams    and    the    right   of 

N.  C.   60.      Corporal  chastisement  is  using  force  necessary  for  self-defence, 

not    justified,    though    the     wife    be  Barber  v.  Barber,  153  N.  Y.  S.  256, 

drunk  or  insolent.     Commonwealth  v.  168  App.  Div.  212. 
McAfee,  108  Mass.  458 ;   Pearman  v. 


§    49  HUSBAl^D    AND    WIFE. 


74 


)>92 


expression  of  Kent  is  that  he  may  resort  to  "  gentle  restraint." 
Strong  instances  for  the  exercise  of  this  right  occur  where  the 
wife  has  eloped  with  a  libertine,  and  the  husband  wishes  to  bring 
her  home;  or  where  she  purposes  an  elopement,  and  he  seeks  to 
prevent  it ;  or,  perhaps,  where  she  goes  recklessly  into  lewd  com- 
pany.®^    Restraint  may  also  be  justified  where  the  wife  becomes 
insane,  threatens  the  husband  with  danger,  or  wantonly  destroys 
the  property.®*    So,  too,  the  husband,  by  virtue  of  his  marital  au- 
thority over  his  own  household,  might  be  allowed,  if  not  by  physical 
force,  at  least  by  moral  coercion,  to  regulate  her  movements  so  as 
to  prevent  her  from  going  to  places,  associating  with  people,  or 
engaging  in  pursuits,  disapproved  by  himself  on  rational  grounds, 
This  doctrine  has  been  asserted   in  England;    and  Mr.   Fraser 
carries  it  to  the  extent  of  forbidding  her  relatives  to  visit  her; 
"  for,"  he  observes,  "  though  the  wife  may  be  very  amiable,  her 
connections  may  not  be  so."'^     But  this  rule  is  to  be  laid  down 
with  great  caution,  and  it  may  be  considered  especially  unpopular 
in  America.     Mr.  Justice  Coleridge,  in  an  English  case,  observes 
that  the  husband's  right  must  not  be  exercised  unnecessarily  or  with 
undue  severity;  and  that  the  moment  the  wife,  by  her  return  to 
conjugal  duties,  makes  the  restraint  of  her  person  unnecessary, 
such  restraint  becomes  unlawful.®' 

Our  modern  doctrine  is  that  force,  whether  physical  or  moral, 
systematically  exerted  to  compel  the  submission  of  a  wife  in  such 
a  manner,  and  to  such  a  degree,  and  during  such  a  length  of  time, 
as  to  injure  her  health  and  threaten  disease  is  legal  cruelty.®' 

A  husband  has  no  right  over  the  protest  of  the  occupant  to  enter 
the  house  of  another  for  the  purpose  of  talking  with  his  wife  who 
has  taken  refuge  there  and  of  persuading  her  to  return  to  him. 
Any  person  has  a  right  to  defend  his  home  against  intrusion  even 
to  homicide,  if  necessary,  to  accomplish  the  purpose  of  defence. 

92    2  Kent,  Com.  181,  1  Bl.  Com.  6  Ire.  164.    And  see  1  Bish.,  Mar.  & 

445."  '  Div,  §756. 

93.  So  etrongly  does  the  common  95.  1  Fras.  Dom.  Eel.  459.  This  ob- 
law  detest  conjugal  unfaithfulness,  servation  was  made  by  Lord  Stowell 
that  the  husband  who  kills  his  wife  or  in  Waring  v.  Waring,  2  Hag.  Con. 
her  paramour  in  the  act  of  adultery  153;  1  Eng.  Ec.  210. 

is  only  guilty  of  manslaughter.     See  96.  Cochrane,  in  re,  8  Dowl.  P.  C. 

Regina  v.  Kelly,  2  Car.  &  K.  814.  631. 

94.  Mr.  Lifter's  Cafe,  8  Mod.  22;  97.  Kelly  v.  Kelly,  L.  R.  2  P.  &  D. 
Pitt  V.  Coney,  1  Stra.  477;  Price,  in  31;  Bailey  v.  Bailey,  97  Mass.  373. 
re,  2  Fost.  &  F.  263 ;  State  v.  Craton,  See  Divorce  for  Cruelty,  post,  Vol.  II. 


75  PEESON  OF  THE  SPOUSE.  §  51 

The  person  of  the  wife  is  as  sacred  now  as  the  husband's  and 
the  hushand  has  no  right  against  her  will  to  control  her  move- 
ments.''* 

§  50.  Wife's  Right  to  Submit  to  Surgical  Operation. 

A  wife  in  full  possession  of  her  faculties  is  as  much  entitled, 
both  morally  and  legally,  to  determine  whether  she  shall  submit 
herself  to  an  operation  as  is  the  husband  in  respect  to  an  operation 
on  himself,  and  where  she  consents  to  an  operation  which  is  skill- 
fully performed,  the  surgeon  is  not  liable  to  the  husband  in  dam- 
ages. The  husband  has  no  power  to  withhold  from  the  wife  the 
medical  assistance  that  the  case  may  require.  The  consent  of  the 
wife  and  not  of  the  husband  is  necessary.^® 

§  51.  Right  of  Action  for  Death. 

Statutes  giving  a  right  of  action  for  death  being  in  derogation  of 
the  common  law  should  be  strictly  construed  and  will  not  be  held  to 
apply  to  the  surviving  spouse  unless  expressly  named.^ 

A  statute  giving  a  right  of  action  for  death  should  be  strictly 
construed  as  to  the  class  of  persons  covered  by  it  and  a  statute  re- 
ferring to  men,  their  widows  or  children  and  then  amended  by 
other  provisions  in  general  terms  referring  to  persons  does  not 
give  a  right  of  action  to  the  children  of  a  woman  for  her  death,^ 

Damages  may  be  assessed  against  one  who  has  negligently  caused 
the  death  of  a  husband  and  father  althoug*h  the  wife  and  child  did 
not  know  where  he  was  at  the  time  of  his  death  and  he  had  de- 
serted them  and  had  never  supported  them.  The  jury  should  be 
allowed  to  assess  the  loss  of  support  and  it  cannot  be  presumed  that 
the  wife  would  never  find  the  husband  and  force  him  to  support 
her.  The  question  will  be,  what  if  any  sum  might  the  widow  and 
child  be  expected  reasonably  to  receive  from  the  deceased  and  this 
question  should  be  submitted  to  the  jury.^ 

98.  Bailey  v.  People,  —  Col.  — ,  130  — ,  163  Pac.  193,  L.  E.  A.  1917D  1084. 
Pac.  832,  45  L.  K.  A.   (N.  S.)   145.  A    husband  of  a   woman   who    left 

99.  Burroughs  v.  Crichton,  48  D.  C.  children  hy  a  former  Viarriagc  may  re- 
App.  596,  67  Wash.  Law  Eep.  283,  4  cover  for  her  death.  Crown  William- 
A.  L.  E.  152?^.  ette  Paper  Co.  v.  Newport,  260  Fed. 

1.  Flash   V.    Louisana   Western    E.       110. 

Co.,  137  La. '352,  68  So.  636,  L.  E.  A.  3.  Ingersoll  v.  Detroit  &  Mackinac 

1916E  112.  E.  Co.,  163  Mich.  268,  128  N.  W.  227, 

2.  Whittlesey  v.  Seattle,  —  Wash.      32  L.  E.  A.  (N.  S.)  362. 


§    52  HUSBAND    AND    WIFE.  76 

§  52.  Regulation  of  Household,  Visitors,  &c. 

From  the  common-law  relation  of  husband  and  wife  it  follows, 
as  our  last  section  indicates,  that  the  general  regulation  of  a  house- 
hold is  the  privilege  of  the  husband,  who  is  its  lawful  head.  The 
wife  in  this  respect  is  to  be  viewed  as  his  representative  or  execu- 
tive officer,  properly  entrusted  with  domestic  details,  and  particu- 
larly with  the  supervision  of  female  menials  and  their  work.  Hus- 
bands are  sometimes  blameworthy  in  the  course  of  such  regulation 
for  pettiness,  meanness,  and  inconsiderateness  towards  their  wives. 
And  yet  households  differ,  and  legal  cruelty  cannot  readily  be  predi- 
cated of  such  conduct  further  than  that  in  divorce  suits  misbehavior 
of  this  kind  is  frequently  alleged  in  aggravation  of  actual  cruelty 
otherwise  practised,  and  so  as  to  give  body  to  the  latter  charge.  It 
cannot  be  called  cruelty  or  a  breach  of  marital  duty  justifying  legal 
interference,  for  a  married  householder,  however  large  his  es- 
tablishment, to  take  the  settlement  of  the  little  bills  upon  himself,* 
or  the  hiring  and  discharging  of  the  servants. 

As  to  the  question  how  far  the  wife  is  bound  to  observe  the  hus- 
band's directions  in  entertainment,  the  choice  of  visitors,  the  ar- 
rangement of  the  rooms,  and  so  on,  the  English  rule  is  still  strict ; 
or,  rather,  permissive  of  the  husband's  sway.  The  wife  is  expected 
to  conform  to  her  husband's  habits  and  tastes,  even  to  his  eccen- 
tricities, provided  her  health  be  not  seriously  endangered  by  so  do- 
ing. And  though  he  should  restrict  the  calling  list  to  a  certain  set 
agreeable  to  himself  alone,  or  interdict  intercourse  with  her 
family,  or  prevent  her  from  paying  a  visit  to  his  own  relatives,  all 
of  which  we  may  well  presume  to  be  unkind  and  unreasonable,  yet 
this  alone  is  not  sufficient  ground  for  divorce.^  iSTor,  as  it  has  been 
held  in  this  country,  would  divorce  be  granted  simply  because  he 
had  forbade  her  to  attend  a  particular  church  of  which  she  was  a 
member.^  Modern  American  precedent,  however,  on  all  these 
points  is  quite  scanty.  And  whether  the  husband  can  allege  mis- 
conduct against  his  wife,  or  obtain  redress  on  his  part  if  she  rebels 
against  oppressive  discipline  of  this  kind,  is  extremely  doubtful. 
Whims  and  caprices  of  the  husband,  submission  to  which  endangers 
the  wife's  health,  need  not  be  followed,  and  may  even  be  relieved 

4.  Evans  v.  Evans,  1  Hag.  Con.  35,  153 ;  Shaw  v.  Shaw,  17  Conn.  189 ;  Ful- 
115.  ton  V.  Fulton,  36  Miss.  517. 

5.  Neeld  v.  Neeld,  4  Hag.  Ec.  263;  6.  Lawrence  v.  Lawrence,  3  Paige, 
D'Aguilar  v.  D'Aguilar,  1  Hag.  Ec.  267. 

773;  Waring  v.  Waring,  2  Hag.  Con. 


77  PERSON  OF  THE  SPOUSE.  §  54 

against  as  legal  cruelty;'  and  perhaps  the  former  should  be  said 
of  constraint  upon  religious  worship  as  the  worshipper's  con- 
science dictates ;  for  the  husband's  right  to  manage  his  house  and 
wife  must  doubtless  be  understood  to  have  rational  limits. 

§  53.  Custody  of  Children. 

The  custody  of  children  belonged  at  common  law  to  the  father. 
Blackstone  observes :  "A  mother,  as  such,  is  entitled  to  no  power, 
but  only  to  reverence  and  respect."  But  by  an  English  statute, 
passed  in  1839,  the  court  of  chancery  is  permitted  to  interfere  and 
award  the  custody  of  children  to  such  parents  as  may  be  deemed 
most  suitable.  Its  special  object  was  to  enable  married  women 
who  should  be  ill-treated  by  their  husbands  to  assert  their  rights 
without  fear  of  being  separated  from  their  offspring.^  In  this 
country  the  tendency  of  legislation  is  to  place  the  wife  upon  an 
equal  footing  with  her  husband  in  this  respect,  so  that  husband 
and  wife  together  shall  have  in  their  children  a  joint  interest  and 
control,  which  the  courts  are  to  regard  as  distinct  only  when  the 
welfare  of  these  tender  beings  makes  judicial  intervention  neces- 
sary.* 

§  54.  Remedies  of  Spouses  against  one  another  for  Breach  of 
Matrimonial  Obligations. 

As  no  legal  process  can  safely  be  enforced  to  compel  husband  and 
wife  to  live  together,  against  the  will  of  either,  so  the  peace  of  so- 
ciety forbids  that  they  should  sue  one  another  for  damages  for 
breach  of  the  marital  obligations.  Here  again  is  marriage  sai 
generis,  and  not  like  other  contracts.  But  the  failure  of  the  one 
to  perform  recognized  duties  may  sometimes  absolve  the  other 
from  certain  corresponding  obligations.  Thus,  if  the  wife  leaves 
her  home  without  justifiable  cause,  the  husband  may  refuse  to  sup- 
port her.^'*  If  the  husband  is  cruel,  or  makes  his  home  unfit  for  a 
chaste  woman  to  live  in  (which  is  a  species  of  cruelty),  the  wife 
may  leave  and  compel  him  to  support  her  elsewhere.^^  This  is 
well-recognized  law.    In  general,  however,  such  violation  of  marital 

7.  Kelly  v.  Kelly,  L.  R.  2  P.  &  D.  9.  See  Divorce,  post.  Vol.  IT. 

31;  1  Bish.,  §  758.  10.  Kent,  Com.  147;  Manby  v.  Scott, 

8.  2    &    3   Viet.    c.    54;    Warde   v.  1  Mod.  124;  1  Bl.  Com.  443. 
Warde,     2  Ph.  786.    See  post,  Parent  11.  Houliston  v.  Smyth,  3  Bing.  127. 
and  Child,  §  740  et  seq.  And  see  post,  as  to  wife's  necessaries. 


§  54 


HUSBAND    A2s"D    WIFE. 


78 


obligations  is  effectually  punisheable,  not  by  enforcing  them,  as 
in  the  old  English  suit  for  restitution  of  conjugal  rights,  which  is 
not  recognized  in  the  United  States,  but  by  putting  an  end  to  the 
relation  altogether.^^  And  it  is  in  the  modern  proceedings  for 
divorce  that  we  now  find  the  subject  of  marital  obligations  most  fre- 
quently discussed,  with,  however,  a  bias  towards  the  construction 
of  the  divorce  statutes  themselves. 

Husband  and  wife  may  be  indicted  for  assault  and  battery  upon 
each  other.^^  This  is  a  means  of  redress  not  unfrequently  sought 
against  cruel  husbands,  especially  among  those  of  low  surround- 
ings, where  drunkenness  is  common,  and  religion  treats  divorce  for 
crueltv  with  disfavor:  and  a  husband  who  beats  his  wife  inex- 
cusably  may  be  convicted  of  this  offence/*  So,  too,  the  offending 
spouse  may  be  bound  to  keep  the  peace.  For  unreasonable  and 
improper  checks  upon  her  liberties,  the  wife  may  have  relief  on 
habeas  corpus.  But  the  writ  is  not  available  for  the  husband  to 
secure  the  person  of  his  wife,  voluntarily  absenting  herself  from  his 
house.  ^\ 


12.  See  1  Bish.  Mar.  &  Div.,  §  771; 
1  Fras.  Dom.  Eel.  452;  Adams  v. 
Adams,  100  Mass.  365;  Briggs  v. 
Briggs,  20  Mich.  34;  Divorce,  post. 

13.  Bradley  v.  State,  Walker,  156; 
State  V.  ilabrey,  64  X.  C.  592 ;  Whipp 
V,  State,  34  Ohio  St.  87, 

14.  In  North  Carolina,  where  the 
right  to  moderately  chastise  has  been 
so  reluctantly  yielded,  it  is  admitted 
that  if  the  circumstances  involve 
malice,  cruelty,  or  the  infliction  of  per- 
manent injury  upon  the  wife,  the  hus- 
band may  properly  be  convicted  of  as- 


sault and  battery.  State  v.  Oliver,  70 
N.  C.  60.  But  in  the  State  trivial 
complaints  are  not  favored.  And  a 
sentence  to  imprisonment  for  five 
years  in  an  aggravated  case  was  lately 
considered  a  "cruel  and  unusual" 
punishment.  State  v.  Driver,  78  N.  C. 
423. 

15.  Sandiland,  Ex  parte,  12  E.  L.  & 
Eq.  463.  See  Adams  v.  Adams,  100 
Mass.  365,  as  to  the  old  writ  of  sup- 
plicavit  formerly  issued  for  protection 
of  the  wife  against  her  husband. 


Y9  SPOUSE    AS    CRIMINAL.  §    56 


CHAPTER  III. 

THE  SPOUSE  AS  A  CRIMINAL. 

Section  55.  Coverture  affecting  Private  Wrongs  and  Public  Wrongs. 

56.  Presumption  of  Husband's  Coercion  and  Wife's  Innocence. 

57.  Presumption  of  Wife's  Innocence  Applied. 

58.  Coercion  may  extend  to  a  Series  of  Crimes. 

59.  Offences  against  the  Property  of  either  Spouse. 

60.  Adultery. 

61.  Separate  Penalties  for  Women. 

§  55.  Coverture  Affecting  Private  Wrongs  and  Public  Wrongs. 

We  shall  find  the  doctrine  of  coverture  affecting  the  liability  of 
a  married  woman  for  her  fraud  or  injury,  so  that  her  husband  must 
respond  to  others  in  damages  for  her.^®  But  here  the  private 
wrong  and  the  public  wrong  stand  contrasted.  The  immunity  of 
the  wife  does  not  extend  to  criminal  prosecutions.  For,  as  Black- 
stone  observes,  the  union  is  only  a  civil  union.^^  Or,  to  come  more 
to  the  point,  it  would  be  cruel  and  unjust  to  punish  one  person 
for  the  crime  of  another,  or  even  to  compel  the  two  to  bear  the 
penalty  together ;  while  it  would  be  impolitic,  as  well  as  unjust, 
to  allow  any  relation  which  human  beings,  morally  responsible, 
might  sustain  with  one  another  to  absolve  either  from  public  ac- 
countability. Here  coverture  as  a  theory  contradicts  itself,  by 
leaving  the  wife  answerable  alone  for  her  crimes,  just  as  a  single 
woman.  The  utmost  the  law  can  do  is  to  furnish  a  presumption 
of  innocence  in  her  favor  in  cases  where  the  coercion  of  her 
husband  may  be  reasonably  inferred. 

§  56.  Presumption  of  Husband's  Coercion  and  Wife's  Innocence. 

This  indulgence  of  presumed  innocence,  it  is  said,  is  carried  so 
far  as  to  excuse  the  wife  from  punishment  for  theft,  burglary,  or 
other  civil  offences  "  against  the  laws  of  society,"  when  committed 
in  the  presence  or  by  the  command  of  her  husband ;  but  not  so  as 
to  exculpate  the  wife  for  moral  offences.  For  mala  proliihita  she 
is  not  punished,  for  mala  in  se  she  is.  Such  a  distinction  is  vari- 
able and  somewhat  shadowy;    the  line  seems  to  be  drawn  more 

16.  See  §  122,  et  s^q.,  post.  17.  1  Bl.  Com.  443. 


§  57 


HUSBAND    AND    WIFE. 


80 


wisely,  if  at  all,  between  such  heinous  crimes  as  murder  and  man- 
slaughter, and  the  lighter  offences.^^ 

At  common  law  a  wife  was  not  guilty  of  crimes  committed  in  her 
husband's  presence,  except  treason  or  murder,  but  was  guilty  of 
those  committed  in  his  absence,^®  as  a  crime  committed  by  a  wife 
in  the  husband's  presence  was  prima  facie  presumed  to  be  the 
result  of  his  coercion.^"  The  presumption  was  weak,  and  slight 
evidence  rebutted  it.^^ 

The  modern  married  women's  acts,  however,  tend  to  give  married 
women  a  separate  entity  for  criminal  as  well  as  other  purposes, 
and  under  such  statutes  a  wife  may  be  convicted  of  being  an  idle 
or  disorderly  person  though  supported  by  her  husband  or  some 
other  person,^^  or  may  be  guilty  of  maintaining  a  house  of  ill-fame 
though  she  lives  in  the  house  with  her  husband.^^  A  wife  cannot 
be  guilty  of  violating  the  North  Carolina  statute  prohibiting  aban- 
donment of  crops  on  rented  land  before  paying  for  advances  made 
by  the  landlord,  since  the  contract  was  void.^* 

But  the  mere  presence  of  the  wife  when  her  paramour  killed  her 
husband  when  he  interrupted  them  at  a  lover's  meeting  is  not  that 
aiding  or  abetting  which  is  required  to  constitute  guilt. 


25 


§  57.  Presumption  of  Wife's  Innocence  Applied. 

The  presumption,  therefore,  that  in  the  less  heinous  crimes  com- 
mitted by  the  wife  in  her  husband's  presence,  the  wife  acts  under 
the  husband's  coercion,  may  in  any  case  be  repelled  by  suitable 
proof;    and  when  it  is,  the  wife,  as  one  acting  sui  juris,  must  be 


18.  2  Kent,  Com.,  11th  ed.,  150;  4 
Bl.  Com.  28,  2?,  and  Christian's  notes; 
1  Hawk.  P.  C.  b.  1,  ch.  1,  §  9 ;  1  Kuss. 
Crimes,  18-24. 

19.  Nays  v.  Taylor,  12  S.  D.  488,  81 
N.  W,  901 ;  Morton  v.  State,  —  Tenn. 
— ,  209  S.  W.  644. 

20.  Braxton  v.  State,  —  Ala.  App. 
— ,  82  So.  657;Trometer  v.  District  of 
Columbia,  24  App.  D.  C.  242;  State  v. 
Harvey,  130  la.  394,  106  N.  W.  938; 
Commonwealth  v.  Gannon,  97  Mass. 
547;  State  v.  Miller,  162  Mo.  253,  62 
S.  W.  692,  85  Am.  St.  Eep.  498 ;  State 
V.  Martini,  —  N.  J.  — ,  78  A.  12; 
State  V.  Noell,  156  N.  C.  648,  72  S.  E. 

21.  Commonwealth  v.  Adams,  186 
590. 


Mass.  101,  71  N.  E.  78;  People  v.  Ey- 
land,  2  N.  Y.  Cr.  R.  441;  Morton  v. 
State,  —  Tenn  — ,  209  S.  W.  644;  2 
Kent,  Com.,  11th  ed.,  150;  State  v. 
Parkerson,  1  Strobh.  169;  1  Buss. 
Crimes,  22;  Rex  v.  Martha  Hughes, 
coram  Thomson,  B.,  2  Lew.  C.  C.  229 ; 
Uhl  V.  Commonwealth,  6  Gratt.  706; 
Wagener  v.  Bill,  19  Barb.  321;  1 
Greenl.  Ev.,  10th  ed.,  §  28. 

22.  Commonwealth  v.  Tay,  170  Mass. 
192,  48  N.  E.  1085. 

23.  Hudson   v.    Jennings,   134    Ga. 
373,  67  S.  E.  1037. 

24.  State  v.  Robinson,  143  N.  C.  620, 
56  S.  E.  918. 

25.  State  v.  Larkin,   250  Mo.   218, 
157  S.  W.  600,  46  L.  R.  A.  (N.  S.)  13. 


81  SPOUSE    AS    CRIMINAL.  §    57 

held  responsible  for  the  wrong  done  by  her  in  her  husband's  com- 
pany. This  is  the  true  rule.  Husband  and  wife  may,  therefore, 
both  be  indicted  and  convicted  of  a  crime  where  it  appears  that  both 
were  guilty  of  the  offence  and  the  wife  was  not  coerced.^*^  In  most 
of  the  latest  cases  where  the  wife  is  indicted,  the  presumption  of 
coercion  has  been  regarded  as  something  to  be  easily  rebutted,*^ 
especially  in  that  numerous  class  of  cases  which  relates  to  the 
illegal  sale  of  liquors,  a  business  in  which  married  women  fre- 
quently engage  understandingly.  And  it  has  been  held  that  an 
instruction  giving  the  wife  the  benefit  of  the  presumption  in  liquor 
prosecutions  was  properly  refused.^^  And  where  the  crime  is 
heinous,  and  the  presence  and  command  of  the  husband  da  not 
concur,  a  jury  may  readily  find  the  wife  indei)endently  guilty.^** 

A  wife  who  committed  larceny  by  her  husband's  bare  command, 
when  he  was  not  present,  has  been  held  liable  therefor  ;^°  and 
our  present  tendency  is  to  refuse  exculpation  to  the  wife  unless 
the  husband  commanded  and  was  near  enough  besides  to  exert  his 
marital  influence  upon  her  participation  in  accomplishing  the 
particular  crime.^^ 

For  an  indictaWe  offence,  not  heinous,  committed  by  his  wife  in 
his  presence,  and  with  his  knowledge,  the  husband  may  presumably 
be  found  guilty.^"  But  not,  we  may  well  conceive,  where  it  is 
shown  that  he  tried  to  prevent  his  wife  from  committing  the  crime. 
'Not  is  he  liable  where  the  act  was  done  in  his  absence  and  apart 
from  his  marital  influence;  still  less  where  it  was  done  while  he 
was  away  and  contrary  to  his  express  instructions.^^  And  the 
husband  is  not  liable  criminally  for  her  crimes  unless  he  aids, 

26.  Goldstein  v.  People,  Sa  N.  Y.  Wis.  384.  In  People  v.  Wright,  38 
231;  Mulvey  v.  State,  43  Ala.  316;  Mich.  744, -where  a -nife,  participating 
State  V.  Potter,  42  Yt.  49'5;  People  v.  -n-ith  her  husband  in  a  robbery,  throt- 
Wright,  38  Mich.  744 ;  State  v.  Camp,  tied  the  viotim  and  told  him  to  keep 
41.  N.  J.  L.  306;  Barker  v.  State,  64  still,  while  her  husband  and  a  con- 
Tex.  Cr.  106,  141  S.  W.  529.  federate  rifled  his  pockets,  a  verdict  of 

27.  See  State  v.  Cleaves,  59  Me.  298 ;  independent  guilt  against  her  was  sus- 
Commonwealth    v.    Tryon,    99    Mass.       tained. 

442;     Commonwealth    v.    Pratt,    126  30.  Seller  v.  People,  77  N.  T.  411. 

Mass.  462.  31.  State  v.  Camp,  41  N.  J.  L.  306; 

28.  State  v.  Scahorn,  166  X.  C.  373,  State  v.  Potter,  42  Vt.  495;  Common- 
81  S.  E.  687;  Commonwealth  V.  Hand,  wealth  v.  Lewis,  1  Met.  151;  Com- 
59  Pa.  Super.  Ct.  a86.  monwealth  v.  Feeney,  12  Allen,  560; 

29.  Presumption    of    coercion    re-  Commonwealth  v  .Munsey,  112  Mass. 
butted  in  a  murder  case,  where  wife  287 ;  Edwards  v.  State,  27  Ark.  493. 
had   conspired   with   her   husband    to  32.  Hensly  v.  State,  52  Ala.  10. 
commit  robbery.     Miller  v.  State,  25           33.  State  v.  Baker,  71  Mo.  475. 

6 


§  59 


HUSBAND    AND    WIFE. 


82 


procures  or  acquiesces  in  tliem.^*  But  if  the  husband  is  so  near 
his  wife,  when  she  commits  the  crime,  that  she  is  under  his  imme- 
diate influence  for  that  offence,  his  coercion  and  guilt  will  be  pre- 
sumed, though  he  is  not  actually  present.^^ 

The  presumption  did  not  apply  where  a  house  of  ill-fame  is  kept 
in  a  house  used  and  occupied  by  spouses  jointly,  in  which  case  both 
are  guilty.^^  And  a  wife  maj^  be  guilty  of  perjury  while  testify- 
ing in  the  presence  of  her  husband. 


37 


§  58.  Coercion  may  extend  to  a  Series  of  Crimes. 

In  independent  crimes  so  closely  connected  as  stealing  and  re- 
ceiving stolen  goods,  our  law  does  not  readily  prosecute  the  husband 
for  the  one  offence  and  the  wife  for  the  other,  since  this  would  not 
consist  with  applying  the  rule  of  coercion.  Thus,  it  is  held  that 
a  wife  cannot  be  convicted  of  feloniously  receiving  stolen  goods 
from  her  husband.^^  Yet  in  a  proper  case  both  husband  and  wife 
might  be  prosecuted,  whether  this  were  for  receiving  stolen  goods 
or  for  stealing.'®  The  husband's  coercion  may  extend,  therefore, 
to  a  series  of  crimes  perpetrated  by  means  of  his  wife's  agency  in 
pursuance  of  his  o^vn  criminal  design. 

Since  at  common  law  spouses  were  one  pei^n,  they  would  not 
be  guilty  of  conspiracy ;  ^°  but  the  rule  will  not  avail  the  wife  as 
a  defence  to  a  prosecution  for  acts  in  execution  of  a  conspiracy 
which  are  in  themselves  criminal.'*^ 

§  59.  Offences  against  the  Property  of  either  Spouse. 

Public  policy  forbids  that  either  spouse  should  molest  the  person 
of  the  other  with  impunity.*^  But  as  to  the  property  of  a  spouse 
our  law  pursues  a  distinction.  Accordingly,  it  is  well  established 
that  the  wife  cannot  be  found  guilty  of  stealing  the  goods  of  her 
husband,  inasmuch  as  she  resides  with  him  and  has  possession  of 


34.  Lumpkin  v.  City  of  Atlanta,  9 
Ga.  App.  470,  71  S.  E.  755. 

35.  Commonwealth  v.  Munsey,  112 
Mass.  287. 

86.  State  v.  Gill,  150  la.  210,  129 
N.  W.  821;  Barker  v.  State,  64  Tex. 
Cr.  106,  141  S.  W.  529;  State  v. 
Jones,  53  W.  Va.  613,  45  S.  E,  916. 

37.  Smith  v.  Meyers,  54  Neb.  1,  74 
N.  W.  277. 

38.  Regina  v.  Brooks,  14  E.  L.  & 
Eq.  580.    And  see  Regina  v.  Robinson, 


L.  R.  1  C.  C.  80.  As  to  stolen  goods 
concealed  in  a  house  occupied  by  both 
husband  and  wife,  see  Perkins  v.  State, 
32  Tex.  lOff. 

39.  Goldstein  v.  People,  82  N.  T. 
231. 

40.  Merrill  v.  Marshall,  113  111.  App. 
447. 

41.  Jones  v.  Monson,  137  Wis.  478, 
119  N.  W.  179. 

42.  See,  e.  g.,  as  to  remedies  for  as- 
sault and  battery,  supra,  §  54. 


SZ  SPOUSE    AS    CRIMINAL.  §    60 

the  goods  by  virtue  of  the  marriage  relation.**  And  as  to  the  hus- 
band, whose  legal  possession  and  control  of  his  wife's  property 
during  wedlock  is  far  stronger,  it  is  held  that,  not  even  upon  the 
ground  that  a  certain  building  was  his  wife's  separate  property, 
can  he  be  convicted  of  arson  for  setting  it  on  fire.*^ 

There  is  much  conflict  as  to  the  effect  of  modern  statutes  grant- 
ing women  separate  property,  and  it  is  sometimes  held  that  such 
statutes  make  the  husband  liable  to  larceny  of  his  wife's  personal 
property.  In  a  recent  case,  however,  the  wife  was  held  not  liable 
to  prosecution  for  larceny  under  statutes  defining  the  separate 
property  of  husband  and  wife.  The  court  remarks  that  statutes 
abrogating  the  common  law  must  be  strictly  construed,  and  that  in 
the  married  women's  acts  no  such  intent  to  consider  this  question 
appears.'*^ 

§  60.  Adultery. 

The  wife's  immunity  from  prosecution  for  larceny  from  her 
husband  applies  whether  she  has  been  guilty  of  adultery  or  not.*^ 
Therefore,  it  is  held  that  the  adulterer  who  receives  from  the  wife 
her  husband's  goods  is  not  guilty  of  receiving  stolen  goods.*^  But 
where  the  actual  or  intended  adulterer,  or,  as  we  may  suppose,  any 
person  with  a  guilty  purpose,  aids  the  wife  in  carrying  away  her 
husband's  goods,  or  removes  them  himself,  he  may  be  indicted  for 
the  larceny.*®  ISTot  even  an  adulterer  is  to  be  deemed  guilty  of 
larceny  for  merely  assisting  the  adulteress  in  carrying  away  her 
necessary  wearing  apparel  *^  or  separate  property. 

A  spouse  who  starts  a  prosecution  for  adultery  of  the  other  spouse 
has  no  absolute  right  to  discontinue  it,  as  this  would  open  wide 
the  door  to  blackmail,  and  such  a  prosecution  once  begun  becomes 
a  public  concern,  even  under  a  statute  providing  that  only  the 
spouse  can  institute  such  a  prosecution.^" 

Illicit  cohabitation  by  a  man  and  woman  not  married  to  each 

43.  Queen  v.  Kenny,  2  Q.  B.  D.  307 ;  46.  Queen  v.  Kenny,  2  Q.  B.  D.  307, 
Lamphier  v.  State,  70  Ind.  317.  and  cases  cited. 

44.  Snyder  v.  People,  26  Mich.  106.  47.  lb.    Compare  State  v.  Banks,  43 

45.  Hunt  V.  State,  72  Ark.  241,  79  Ind.  197. 

S.  W.  7G8,  65  L.  E.  A.  71 ;  Beasley  v.  48.  Queen  v.  Kenny,  2  Q.  B.  D.  307. 

State,  138  Ind.  552,  38  N.  E.  35,  46  49.  State  v.  Banks,  48  Ind.  197,  per 

Am.  St.  Eep.  418;   contra,  Snyder  v.  Buskirk,  C.  J. 

People,   26   Mich.    106,   12    Am.   Rep.  50.  State  v.  Astin,  —  Wash.  — ,  180 

302;  State  v.  Phillips,  85  Ohio  St.  317,  Pac.  394,  4  A.  L.  R.  1335.     See,  how- 

97  N.  E.  976,  40  L.  R.  A.  (N.  S.)  142.  ever.   People   v.    Dalrymple,   55  Mich. 

519,  22  N.  W.  20. 


§    61  HUSBAND    AND    WIFE.  84 

other,  but  witli  no  public  acts  of  indecency,  was  not  a  crime  at 
common  law,"  but  is  commonly  made  so  by  statute  in  this  country. 
Under  such  a  statute  an  indictment  for  unlawful  cohabitation  need 
not  contain  the  charge  that  the  acts  were  "  openly,  notoriously  and 
scandalously "  committed,  where  it  does  set  out  that  they  were 
done  within  the  common  knowledge  of  the  neighbors  and  of  persons 
passing  and  repassing  in  the  street.  Under  such  circumstances 
tJiey  must  have  been  done  "  openly  and  notoriously." 


52 


§  61.  Separate  Penalties  for  Women. 

The  modern  humane  tendency  towards  studying  the  needs  of  the 
criminal,  and  trying  to  reform  rather  than  punish  him,  has  found 
expression  in  statutes  in  many  States  providing  separate  and  dis- 
tinct punishments  and  places  of  incarceration  for  men  and  women. 
In  a  recent  case  it  was  held  that  it  is  not  a  denial  of  the  equal 
protection  of  the  laws  guaranteed  by  the  constitution  to  send  a 
woman  to  a  Farm  for  Women  instead  of  to  the  State  penitentiary. 
The  legislature,  as  well  as  the  executive  and  judicial  branches,  has 
a  right  to  individualize  among  criminals. 


53 


51.  Com.  V.  Isaacs,  5  Band.   (Va.)  171  S.  W.  1006,  L.  E.  A.  1916C  651. 
634;  State  v.  Moore,  1  Swan  (Tenn.)  53.  State  v.  Heitman,  105  Kan.  139, 
136.  181  Pae.  630.     See  33  Harvard  Law 

52.  Adams  v.  Comm.,  16S  Ky.  76,  Review,  449. 


85  AS   WITNESSES.  §    62 


CHAPTER  IV. 

DISQUALIFICATIOXS  AS  WITNESSES. 

Section  62.  Mutual  Disqualifications  as  Witnesses. 

63.  Eule  restricted  to  Bona  Fide  Spouses. 

64.  Common-law   Exceptions. 

65.  Crimes  or  Injuries  Inflicted  by  one  on  the  other. 

66.  Adultery. 

67.  Joint  Defendants. 

68.  Ees  Gestae  or  Agency. 

69.  Before  or  After  Termination  of  the  Relation. 

70.  Confidential  Communications. 

71.  Interest  of  Witness. 

§  62.  Mutual  Disqualification  as  Witnesses. 

One  of  the  most  important  of  the  mutual  disabilities  of  the  mar- 
riage state  is  the  disqualification  of  husband  and  wife  to  testify  as 
witnesses  in  the  courts  for  or  against  one  another.  Blackstone 
places  this  prohibition  on  a  technical  ground, —  unity  of  the  per- 
son; for,  he  says,  if  they  testify  in  behalf  of  one  another,  they 
contradict  the  maxim,  "  Xemo  propria  causa  testis  esse  debet;" 
and,  if  against  one  another,  that  other  maxim,  "  Nemo  tenetur  se 
ipsum  accusareJ"  ^*  He  also  suggests  interest  as  another  ground 
for  the  rule,  and  this  doubtless  is  a  good  one.  But  a  more  solid 
reason  than  either  is  that  of  public  policy.  "  The  happiness  of  the 
married  state,"  says  Mr.  Greenleaf,  "  requires  that  there  should  be 
the  most  unlimited  confidence  between  husband  and  wife ;  and  this 
confidence  the  law  secures,  by  providing  that  it  shall  be  kept  forever 
inviolable ;  that  nothing  shall  be  extracted  from  the  bosom  of  the 
wife  which  was  confided  there  by  the  husband."  ^^ 

So  unyielding  is  this  rule,  that  mutual  consent  will  not  authorize 
the  breach  of  it.^*  Whether  the  suit  be  civil  or  criminal,  in  law  or 
at  equity,  it  matters  not.  Form  yields  to  substance  in  procedure, 
for  the  sake  of  excluding  such  testimony.     And  after  coverture  has 

54.  1  Bl.  Com.  443.  56.  1  Greenl.  Evid.,  §  340,  and  cases 

55.  1  Greenl.  Evid.,  §  254.  See  also  cited;  Lord  Hardwicke,  in  Barker  v. 
3  Kent,  Com.  17S-180,  to  the  same  ef-  Dixie,  Cas.  temp.  Hardw.  264;  Davis 
feet.  But  apparently  Chapman,  J.,  in  v.  Dinwoody,  4  T.  R.  679,  per  Lord 
Peaelee  v.  McLoon,  16  Gray,  4S8,  pre-  Kenyon ;  contra,  Pedley  v.  Wellesley, 
fers  to  consider  that  interest,  more  3  Car.  &  P.  558;  2  Kent,  Com.  179. 
than  policy  determined  the  question  at 

common  law. 


§  63 


HUSBAXD    AND    WIFE. 


86 


terminated  hy  death  or  divorce,  still  the  prohibition  lasts  as  to  all 
which  took  place  while  the  relation  existed.^^  The  disability  of 
the  husband  is  in  this  respect  as  great  as  that  of  the  wife.^*  So  far, 
indeed,  has  the  prohibition  been  carried,  that  in  one  case,  where 
the  defendant  married  a  witness  after  she  had  been  summoned  into 
court,  she  was  forbidden  to  testify/^  The  rule  applies  alike  to 
evidence  of  declarations  made  by  husband  and  wife  for  or  against 
one  another  and  to  their  testimony  in  person.^"  Xor  is  a  wife  a 
competent  attesting  witness  to  a  will  which  contains  a  devise  to 
her  husband ;  ®^  nor  one  claiming,  as  widow,  the  right  to  admin- 
ister, competent  to  establish  her  marriage.®^  K"or  are  the  spouses 
at  common  law  competent  witnesses  for  or  against  one  another  in 
a  suit  for  divorce  on  the  ground  of  adultery,  nor  in  proceedings 
for  bigamy  against  one  of  them.^^  x\nd  it  is  said  that  the  law 
guards  the  marital  confidence  of  silence  as  well  as  that  of  com- 
munication.®* 


§  63.  Rule  Restricted  to  Bona  Fide  Spouses. 

This  rule  of  exclusion  applies  only  to  persons  occupying  the  bona 
fide  relation  of  husband  and  wife ;  not,  of  course,  to  a  mistress,  or 
parties  in  immoral  cohabitation.  But  at  the  same  time  the  courts 
lean  kindly  towards  prima  facie  marriages,  and  make  no  rigid 
investigation.®^     The  policy  of  the  rule  is  evidently  to  treat  as 


57.  Monroe  v.  Twistletou,  cited  in 
Averson  v.  Lord  Kinnaird,  6  East, 
192;  Doker  v.  Hasler,  Ey.  &  M,  198; 
Stein  V.  Bowman,  13  Pet.  223;  1 
Greenl.  Evid.,  §  337.  See  also  Terry 
V.  Belcher,  1  Bailey,  568;  State  v. 
Jolly,  3  Dev.  &  Bat.  110 ;  Crose  v.  Eut- 
ledge,  81  111.  266;  Wood  v.  Shurtleff, 
46  Vt.  525;  Barnes  v.  Camac,  1  Barb. 
392.  But  see  Dickerman  v.  Graves,  6 
Cush.  308. 

58.  See  cases  cited  in  1  Greenl.  Evid., 
§  334.  And  see  Turner  v.  Cook,  36 
Ind.  129;  Eichards  v.  Burden,  31 
la.  305;  Rea  v.  Tucker,  51  111.  110; 
Succession  of  Wade,  21  La.  Ann.  343. 
The  wife  is  not  competent  to  prove  an 
alibi  for  her  husband  in  a  criminal 
prosecution.  Miller  v.  State,  45  Ala. 
24. 

59.  Pedley  v.  Wellesley,  3  Car.  &  P. 
558,  The  authority  of  this  case  seems, 
however,  questionable. 


GO.  1  Greenl.  Evid.,  §  341;  Alban  v. 
Pritchett,  6  T.  E.  680;  Denn  v.  White, 
7  T.  E.  112;  Kelly  v.  Small,  2  Esp. 
716;  Brown  v.  Wood,  121  Mass.  137. 
See  Cook  v.  Burton,  5  Bush,  64,  as  to 
proof  by  strangers. 

61.  Sullivan  v.  Sullivan,  106  Mass. 
474.  The  Massachusetts  rule  is  con- 
trary to  that  of  New  York  and  Maine. 
See  authorities  cited  in  this  case. 

62.  Eedgrave  v.  Eedgrave,  38  Md. 
93. 

63.  Marsh  v.  Marsh,  29  X.  J.  Eq. 
396 ;  Finn  v.  Finn,  lO'  X.  Y.  Supr.  339 ; 
People  V.  Houghton,  31  N.  Y,  Supr. 
oOl.  But  see  State  v.  Bennett,  31 
la.  24. 

64.  Goodrum  v.  State,  60  Ga.  509. 

65.  1  Greenl.  Evid.,  §  339,  and  cases 
cited;  2  Stark.  Evid.  400;  Bull  N.  P. 
287;  Campbell  v.  Twemlow,  1  Price, 
81.  So  as  to  the  wife  of  a  freedman. 
Hampton  v.  State,  45  Ala.  82.     The 


87  AS    WITNESSES.  §    65 

privileged  communications  all  that  passes  between  persons  suppos- 
ing themselves  lawfully  married,  and  at  all  events  not  to  prejudice 
the  rights  of  the  innocent  party  to  an  invalid  marriage;  but  the 
rule  has  not  always  been  carried  to  such  an  extent. 

§  64.  Common-lavi^  Exceptions. 

Some  exceptions  exist  to  the  rule,  founded  mainly  on  consider- 
ations of  public  policy.  Thus  the  wife  may  testify  as  to  her 
forcible  abduction  and  marriage;  but  in  such  cases  she  is  hardly 
to  be  considered  the  wife.*®  High  treason  also  was  formerly  held 
an  exception  to  the  rule;  for  the  allegiance  due  to  the  crown  was 
said  to  be  paramount  to  all  private  considerations ;  but  this  is  not 
probably  good  law  at  the  present  day.®'  The  wife's  testimony  has 
been  admitted  as  to  some  peculiar  secret  facts.®*  Dying  declara- 
tions of  one  are  admissible  to  charge  the  other  with  murder.®^ 

§  65.  Crimes  or  Injuries  Inflicted  by  one  on  the  other. 

In  general,  husband  and  wife  can  make  criminal  complaints  and 
testify  against  one  another  as  to  personal  injuries,  upon  a  prosecu- 
tion ;  for  this  the  rule  of  self-preservation  requires.'"  It  is  gen- 
erally conceded  that  a  prosecution  for  personal  violence  committed 
by  the  husband  upon  the  wife  is  a  prosecution  for  a  crime  against 
tbe  wife/^  and  that  a  conspiracy  to  have  a  wife  declared  insane 
involves  a  crime  against  the  wife  ^^  such  as  to  make  her  a  competent 

rule  of  exclusion  ddfes  not  extend  to  a  70.  See  Lord  Mansfield,  in  Bentley 
mistress  or  the  husband  of  one 's  para-  v.  Cook,  3  Doug.  422 ;  1  East  P.  C. 
mour.  Dennis  v.  Crittenden,  42  N.  Y.  455.  But  see  Lord  Thurlow,  in  Sedg- 
542 ;  Mann  v.  State,  44  Tex.  642 ;  Hill  wick  v.  Walkins,  1  Ves.  49.  In  a  pro- 
V.  State,  41  Ga.  484;  Rickerstriker  v.  secution  against  a  wife  and  her  par- 
State,  31  Ark.  207;  State  v.  Brown,  28  amour  for  adultery,  the  husband  may 
La.  Ann.  279.  testify  against  the  wife.    State  v.  Ben- 

66.  2Russ.  on  Crimes,  605,  606;  IBI.  nett,  31  Iowa  24.  Wife  allowed  to 
Com.  443 ;  1  Greenl.  Evid.,  §  343,  and  testify  against  husband  for  using  in- 
cases cited  in  note.  strument   with   intent  to   procure   her 

67.  1  Greenl.  Evid.,  §  345,  and  au-  miscarriage.  State  v.  Dyer,  59  Me. 
thorities  cited;  contra,  4  Bl.  Com.  29.  303.    See  also,  as  to  assault,  &c.,  Mat- 

68.  Rex  V.  Reading,  Cas.  temp.  thews  v.  State,  32  Tex.  117;  Goodrum 
Hardw.  79,  82  ;  Rateliff  v.  Wales,  1  v.  State,  60  Ga.  509 ;  Whipp  v.  State, 
Hill,  63;  1  Greenl.  Evid.,  §  344.  Hus-  34  Ohio  St.  87;  State  v.  Parrott,  79 
band  or  wife  shall  not  prove  the  fact  N.  C.  615. 

of    access    or   non-access.      Boykin    v.  71.  Dill  v.  People,  19  Colo.  469,  36 

Boykin,  70  N.  C.  262.  Pac.  229. 

69.  State  v.  Belcher,  13  S.  C.  459.  72.  Comm.  v.  Spink,  137  Pa.  255,  20 
And  see  State  v.  Ryan,  30  La.  Ann.  Atl.  680. 

1176. 


§    05  HUSBAND    AND    WIPE.  S8 

witness  against  the  husband.  The  Iowa  court  has  gone  further 
than  some  others  in  holding  that  the  crime  of  incest  committed  by 
the  husband  is  a  crime  against  the  wife,''^  and  so  of  a  prosecution 
for  adultery  or  bigamy.'^* 

There  seems  to  have  been  a  gradual  change  in  the  attitude  of 
the  courts  on  the  question  as  to  when  a  wife  can  testify  against  the 
husband,  and  the  rule  is  certainly  tightening  against  the  criminal. 
At  common  law  a  wife  could  testify  only  in  cases  of  violence  upon 
her  person,  and  our  Supreme  Court  has  said  that  "  Polygamy  and 
adultery  may  be  crimes  which  involve  disloyalty  to  the  marital 
relation,  but  they  are  rather  crimes  against  such  relation  than 
against  the  wife."  ^^  It  has  been  recently  held,  however,  that  the 
wife  can  testify  in  a  case  of  bigamy,^®  and  a  recent  decision  ^^  has 
gone  so  far  as  to  hold  that  the  wife  might  testify  against  her  hus- 
band in  a  prosecution  against  the  husband  under  the  Mann  Act  for 
transporting  her  from  place  to  place  for  purposes  of  prostitution. 
The  decision  is  based  on  the  general  principle  that  a  man  ought 
not  to  avoid  criminal  liability  by  marrying  his  victim.  The  court 
remarks  that  "  It  cannot  be  that  the  common  law  would  protect  the 
wife  against  a  single  act  of  violence  and  not  against  a  system  of 
assaults;  against  an  act  that  brought  merely  mortification  and 
shame,  and  not  against  a  series  of  acts  which  brought  degradation 
and  destruction  of  body  and  soul ;  against  a  single  essay  at  crime, 
and  not  against  a  continuing  effort  at  pre-eminence  in  infamy." 

Statutes  commonly  provide  that  in  a  criminal  ease  the  husband 
and  wife  shall  not  be  witnesses  against  each  other  except  in  a 
prosecution  for  a  crime  committed  by  one  against  the  other,  and 
there  is  some  confusion  in  the  cases  as  to  just  what  is  a  crime 
hj  one  against  the  other.  Under  such  a  statute  a  first  wife  may 
testify  against  the  husband  in  a  prosecution  against  him  for  big- 
amy, as  this  is  a  crime  against  her,  as  she  is  the  individual  particu- 
larly and  directly  injured  or  affected  by  the  crime  for  which  he  is 
prosecuted ;  '*    or  the  wife  to  testify  in  a  prosecution  of  the  hus- 

73.  State   v.   Chambers,   87    la.    1,  States,  137  U.  S.  496,  11  Sup.  Ct.  165, 
53  N.  W.  1090,  43  Am.  St.  Rep.  349.  34  L.  Ed.  762. 

74.  State  v.  Bennett,  31  Iowa  24;  76.  Schell  v.  People,  —  Colo.  — ,  173 
State   Sloan,    55   Iowa  217,  7   N.   W.  Pac.  1141,  L.  R.  A.  1918F  9'54. 

516;  contra,  Bassett  v.  United  States,  77.  Denning  v.  United  States,  247 

137  U.  S.  496,  11  Sup.  Ct.  Eep.  165,  Fed.  463,  L.  R.  A.  1918E  487. 

34  L.  Ed.  762.  78.  Schell  v.  People,  —  Colo.  — ,  173 

75.  Brewer,  J.,  in  Bassett  v.  United  Pae.  1141,  L.  R.  A.  1918F.  954. 


89 


AS    WITNESSES. 


§  67 


band  for  non-support  of  their  child,  as  this  is  a  crime  against  the 
domestic  relation  in  which  she  is  interested/^ 

Under  such  a  statute  the  wife  cannot  testify  where  the  husband 
has  forged  the  wife's  name.  This  is  not  a  crime  against  the  wifcj 
as  it  would  not  render  her  liable  on  the  instrument,  but  is  a  crime 
and  an  attempt  to  defraud  some  third  person,*"  but  a  wife  is  a 
competent  witness  against  the  husband  in  a  prosecution  for  his 
perjury  in  obtaining  a  divorce  against  her.  The  decree  of  divorce 
causes  ignominy  to  fall  on  the  wife,  and  changes  her  property  rights 
as  well  as  her  personal  status,  and  the  crime  committed  was  pecu- 
liarly injurious  to  the  wife.  It  is  immaterial  that  the  divorce  was 
not  obtained  through  this  perjury,  but  that  it  was  discovered.®^ 

§  66.  Adultery. 

In  a  prosecution  of  a  woman  for  adultery  the  testimony  of  her 
husband  as  to  his  marriage  with  her  is  competent  evidence. 


82 


§  67.  Joint  Defendants. 

Where  several  are  held  together  for  a  joint  offence,  the  wife  of 
one  is  not  a  good  witness  against  the  others,  so  long  as  her  testi- 
mony might  affect  her  husband's  case;  *^  but  if  he  has  already  been 
convicted  or  acquitted,  or  is  not  indicted  at  all,  or  the  indictment 
against  him  is  dismissed,  or  the  grounds  of  defence  for  each  are 
entirely  distinct,  the  rule  is  otherwise.®* 

Where  a  wife  is  not  a  competent  witness  in  behalf  of  her  husband 
in  a  criminal  case,  still,  where  he  is  one  of  two  joint  defendants, 
she  may  be  allowed  to  testify  in  behalf  of  the  other  defendant  with 


79.  Hunter  v.  State,  Okla.  Crim. 
Rep.  — ,  134  Pae.  1134,  L.  E.  A.  1915A 
564. 

80.  Molyneux  v.  Willcockson,  — 
Iowa  — ,  137  N.  W.  1016,  41  L.  R.  A. 
(N.  S.)  1213. 

81.  Dill  V.  People,  19  Colo.  46?  41 
Am.  St.  Rep.  254,  36  Pac.  229;  West 
V.  State,  —  Okla.  Crim.  Rep.  — ,  164 
Pac.  327,  L.  R,  A.  1917E  1129. 

82.  State  v.  Shaw,  73  Vt.  149,  94 
Atl.  434,  L.  R.  A.  1915F  1987. 

83.  Hall,  P.  C.  301;  Dalt.  Just.  c. 
Ill;  1  Greenl.  Evid.,  §  335,  and  notes; 
1  Phil.  Evid.,  75  n.;  Regina  v.  Wil- 
liams, 3  Car.  &  P.  558;  Rex.  v.  Lock- 
er, 5  Esp.  107 ;  Blake  v.  Lord,  16  Gray, 


387;  State  v.  Mooney,  64  N.  C.  54; 
Fincher  v.  State,  58  Ala.  215;  Powell 
V.  State,  58  Ala.  362 ;  Ray  v.  Common- 
wealth, 12  Bush,  397.  As  to  the  wife 
of  an  accomplice  who  testifies  against 
accused,  see  Blackburn  v.  Common- 
wealth, 12  Bush,  181;  State  v.  Lud- 
wick,  Phill.   (X.  C.)  401. 

84.  As  to  civil  suits,  where  two  or 
more  defendants  must  rely  upon  the 
same  defence,  so  that  proof  of  a  good 
defence  as  to  one  establishes  a  defence 
as  to  the  other,  the  wife  of  one  can- 
not usually  be  heard  in  behalf  of  the 
other.  Stewart  v.  Stewart,  41  Wis. 
624;  Mercer  v.  Patterson,  41  Ind. 
440. 


§    68  HUSBAND    AND    WIFE.  90 

a  caution  to  the  jury  that  her  evidence  is  not  to  affect  the  case 
against  her  husband.*" 

Where  there  is  evidence  that  the  husband  and  wife  were  con- 
spirators, the  acts  and  declarations  of  the  wife  just  before  the 
crime  are  admissible  on  the  ground  of  agency  as  against  the 
husband.** 

§  68.  Res  Gestae  or  Agency. 

The  wife's  declarations  may  he  given  in  evidence  for  or  against 
her  husband,  where  material,  as  part  of  the  res  gestae;  as  in  a  suit 
regarding  an  insurance  policy  where  she  is  the  party  insured ;  in 
an  action  against  the  husband  for  her  board,  he  having  turned  her 
out  of  doors ;  and,  in  general,  within  the  scope  of  the  agency, 
wherever  she  acts  purely  as  his  agent.*^  So  one  who  sells  bonds 
as  agent  for  his  wife  is  a  competent  witness  in  an  action  to  enforce 
the  contract  of  sale  on  the  ground  of  agency.**  Under  a  statute 
prohibiting  a  husband  and  wife  from  testifying  for  or  against  each 
other,  except  as  to  matters  where  one  is  acting  as  agent  for  the 
other,  where  a  wife  sends  her  husband  to  find  a  witness  he  is  not 
her  agent  in  talking  to  the  witness  after  he  has  found  him,  and 
cannot  testify  to  the  conversation.** 

In  collateral  proceedings,  only  remotely  affecting  their  mutual 
interests,  their  evidence  is  admissible  though  it  may  tend  to  crim- 
inate or  contradict  or  subject  the  other  to  a  legal  demand;  as  in  a 
suit  relating  to  a  pauper  settlement,  where  the  wife's  testimony 
tends  to  convict  her  husband  of  bigamy.®"  Or,  in  collateral  pro- 
ceedings, to  prove  the  fact  that  they  were  husiband  and  wife  at  a 
certain  time.*'' 

85.  Lawson  v.  Comm.,  160  Ky.  180,  150  S.  W.  56,  42  L.  E.  A.  (N.  S.) 
169  S.  W.  587,  L.  E.  A.  1915D  972.  660. 

86.  Thompson  v.  State,  —  Tex.  — ,  89.  Muskogee  Electric  Traction  Co.  v. 
178  S.  W.  1192.  See  note  in  29  Har-  Mclntyre,  37  Okla.  684,  133  Pac.  213, 
varrl  Law  Eeview,  332.  L.  E.  A.  1916C  351. 

87.  Averson  v.  Lord  Kinnaird,  6  90.  1  Greenl.  Evid.,  §  342;  Fitch  v. 
East,  188;  Walton  v.  Green,  1  Car.  &  Hill,  11  Mass.  286;  GrifOn  v.  Brown,  2 
P.  621;  Thomas  v.  Hargrave,  Wright,  Pick.  308;  2  Stark.  Evid.  401;  Wood 
595,  and  other  cases  cited  in  note  to  1  v.  Bibbins,  58  Ind.  392;  Higbee  v.  Mc- 
Greenl.  Evid.,  §  342;  Fisher  v.  Conway,  Mullan,  18  Kan.  133;  Fraim  v.  Fred- 
21  Kan.  18 ;  Chunot  v.  Larson,  43  Wis.  erick,  32  Tex.  294. 

536;    Trepp   v.   Barker,   78   111.    146;  91.  Leaphart  v.  Leaphart,  1  S.  C. 

Sumner  v.  Cooke,  51  Ala.  521;  Hale  v.  (X.  S.)   199;  Leighton  v.  Sheldon,  16 

Danforth    40  Wis.  382.  Minn.  243;  Denison  v.  Denison,  35  Md. 

88.  Eose  v.  Monarch,  150  Ky.  129,  361. 


91 


AS    WITNESSES. 


§  69 


§  69.  Before  or  After  Termination  of  the  Relation. 

Both  husband  and  wife  may  testify,  after  the  relation  has 
terminated,  as  to  facts  which  came  to  each  other's  knowledge  by 
means  equally  accessible  to  any  person  not  standing  in  that  rela- 
tion ;  for  here  the  same  principle  applies  as  in  the  case  of  privileged 
communications  between  attorney  and  client.®^  Thus  a  divorced 
wife  may  testify  as  to  her  relations  with  the  defendant  in  an  action 
for  the  alienation  of  her  affections  if  it  does  not  concern  any  com- 
munication betM'een  herself  and  husband  during  marriage,  or  which 
she  obtained  by  virtue  of  the  marital  relation,  notwithstanding  a 
statute  providing  that  husband  or  wife  shall  not  testify  against 
each  other  or  concerning  any  communication  between  them  during 
marriage.®^  Communications  between  a  divorced  couple  may  be 
heard  in  evidence  although  the  divorce  was  obtained  by  the  fraud 
of  one  of  them  and  was  subsequently  set  aside,  where  they  never 
afterwards  recognized  each  other  as  man  and  wife.**  And  the 
divorced  wife  may  testify  against  the  husband  even  in  a  prosecu- 
tion against  him  for  perjury  in  obtaining  the  divorce.*^ 

Where  the  statute  forbids  the  wdfe  from  testifying  for  or  against 
the  husband,  this  includes  transactions  occurring  before  marriage 
of  the  parties.  The  statute  is  based  on  public  policy,  and  to  avoid 
lack  of  harmony  in  the  marital  relation,  and  on  account  of  identity 
of  interest  and  on  account  of  the  influence  commonly  exercised  over 
the  wife  by  the  husband  and  her  competency  must  depend  upon 
the  relationship  at  the  time  of  the  trial  when  she  is  offered  as  a 
witness.®®  So  where  the  defendant  has  carnal  knowledge  of  a 
female  under  the  age  of  consent,  and  subsequently  marries  her,  she 
cannot  be  a  witness  against  him  in  a  prosecution  for  such  carnal 


92.  1  Greenl.  Evid.,  §  338;  Coffin  v. 
Jones,  13  Pick.  445;  Williams  v.  Bald- 
win, 7  Vt.  506;  Cornell  v.  Vanartsda- 
len,  4  Barr,  364;  English  v.  Cropper, 
8  Bush,  292  ;  Elswick  v.  Commonwealth, 
13  Bush,  155 ;  Spivey  v.  Platon,  29  Ark. 
603.  So  as  to  communications  not  con- 
fidential, but  evidently  designed  to  be 
made  public.  Crook  v.  Henry,  25  Wis. 
569.  As  to  the  wife  of  a  divorced 
spouse  testifying  to  facts  which  oc- 
curred before  or  after  the  divorce,  see 
Crose  V.  Kutledge,  81  111.  266.  Hus- 
band of  plaintiff  disqualified  even  as 
to  matters  occurring  before  marriage, 


where  suit  is  for  breach  of  promise  of 
marriage.  Collins  v.  Mack,  31  Ark. 
684. 

93.  Merritt  v.  Cravens,  168  Ky.  155, 
181  S.  W.  970,  L.  R.  A.  1917F  935. 

94.  Spearman  v.  Texas,  —  Tex. 
Crim.  Eep.  — ,  152  S.  W.  915,  44 
L.  R.  A.  (N.  S.)  243. 

95.  Laird  v.  State,  —  Tex.  — ,  184 
S.  W.  810.  See  note  30  Harvard  Law 
Review,  87. 

96.  Sands  v.  Bradley  &  Co.,  —  Okla. 
— ,  129  Pac.  732,  45  L.  R.  A.  (N.  S.) 
396. 


"0 


HUSBA^fD    AND    WIFE. 


92 


knowledge,  although  he  married  her  solely  to  defend  himself  against 
prosecution  and  had  never  lived  with  her  or  supported  her  since 
the  marriage.  The  case  is  governed  by  the  common-law  rule  that 
one  spouse  cannot  testify  against  the  other  over  the  objection  of  the 
latter.  There  is  an  exception  where  the  evidence  of  the  wife  is 
necessary  to  prove  personal  injuries  while  the  relationship  of  hus- 
band and  wife  is  in  existence  between  them,  but  this  does  not 
include  cases  occurring  before  marriage.  As  here  she  became  a 
wife  by  her  own  consent  and  because  she  wanted  to  marry  the 
defendant,  the  wrong  to  her  was  wholly  unconnected  with  her  con- 
sent to  the  marriage,  and  can  in  no  sense  be  said  to  have  caused 
her  consent,  and  by  the  marriage  she  became  a  wife  de  jure.^ 


97 


§  70.  Confidential  Communications. 

The  English  Evidence  Act  of  1853,  16  &  17  Vict.  c.  83  (which 
has  been  substantially  enacted  in  some  parts  of  this  country), 
renders  husbands  and  their  wives  competent  and  compellable  wit- 
nesses for  each  other,  except  in  criminal  cases  and  in  cases  of 
adultery ;  but  neither  shall  be  compelled  to  disclose  communications 
made  during  marriage 


98 


97.  Norman  v.  State,  —  Tenn.  — , 
155  S.  W.  135,  45  L.  K.  A.  (N.  S.) 
399. 

98.  See  Ed.  note  to  10th  ed.,  2  Kent 
Com.  181;  Stapleton  v.  Croft,  10  E.  L. 
&  Eq.  455;  Barbat  v.  Allen,  ii.  596; 
Alcock  V.  Alcoek,  12  i6.  354;  State  v. 
Wilson,  30  N.  J.  77;  Farrell  v.  Led- 
well,  21  Wis.  182 ;  Peaslee  v.  McLoon, 
16  Gray,  488 ;  Metier  v.  Metier,  3  C.  E. 
Green,  270.  Some  of  the  later  Ameri- 
can cases  turning  largely  upon  the  con- 
struction of  statutes  are  Parsons  v. 
People,  21  Mich.  509;  State  v.  Straw, 
50  N.  H.  460;  Stanley  v.  Stanton,  36 
Ind.  445;  Noble  v.  Withers,  36  Ind. 
19^;  Craig  v.  Brendel,  69  Penn.  St. 
153;  Newhouse  v.  Miller,  35  Ind.  463; 
Eeeves  v.  Herr,  59  El.  81;  Green  v. 
Taylor,  3  Hughes,  400;  Haerle  v. 
Kreihn,  65  Mo.  202;  State  v.  Brown, 
67  N.  C.  470.  In  an  action  against 
both  for  the  wife's  slanderous  words, 
the  wife  is  competent  in  her  own  be- 
half, and  the  husband  for  himself. 
Mousler  v.  Harding,  33  Ind.  176.   Not- 


withstanding our  statutes  as  common- 
ly worded,  a  prisoner's  wife  is  not  a 
competent  witness  for  or  against  him 
upon  the  trial  of  an  indictment. 
People  V.  Efiagle,  60  Barb.  527; 
Wilke  V.  People,  53  N.  Y.  525;  Steen 
V.  State,  20  Ohio  St.  333.  Husband 
permitted  to  testify,  when  a  substantial 
party  to  the  suit,  though  claiming  in 
right  of  his  wife.  Fugate  v.  Pierce, 
49  Mo.  441;  Cooper  v.  Ord,  60  Mo. 
420.  As  to  the  competency  of  a  wife 
now  to  testify,  if  agent  for  an  absent 
hiisband,  see  Magness  v.  Walker,  26 
Ark.  470;  Morony  v.  O'Laughlin,  102 
Mass.  184 ;  Eobertson  v.  Brost,  83  El. 
116.  As  to  competency  under  statute 
in  case  of  tort,  see  Bunker  v.  Bennett, 
103  ^lass.  516;  Anderson  v.  Friend, 
71  111,  475.  Wife  of  an  heir  held  in- 
competent, notwithstanding  statute,  in 
a  suit  contesting  the  validity  of  a  will. 
Carpenter  v.  Moore,  43  Vt.  392.  Wife 
not  protected  under  statute  from  mak- 
ing discovery,  though  it  be  against 
herself.      ^Metier   v.    Metier,    3   C.   E. 


93 


AS    WITNESSES. 


70 


It  is  the  universal  rule  that  husband  and  wife  cannot  testify  to 
confidential  communications  made  hj  one  to  the  other  when  alone, 
but  communications  by  a  wife  to  a  husband  in  the  presence  of  a 
third  party  are  admissible  and  are  not  privileged.®*  So  a  letter 
written  by  a  husband  to  his  wife  when  the  parties  were  living 
apart  and  dealing  at  arm's  length,  in  which  he  stated  what  he 
would  do  if  she  brought  divorce  proceedings  against  him,  is  not  a 
confidential  communication,  and  may  be  received  in  evidence/ 


Green,  270.  Husband  may  prove  the 
speaking  of  the  defamatory  words  in 
an  action  of  slander  brought  by  him- 
self and  wife.  Duval  v.  Davey,  32 
Ohio  St.  604;  Hawver  v.  Hawver,  78 
111.  412.  Wife  not  competent  for  hus- 
band in  action  by  latter  against  a 
stranger  for  carrying  away  husband's 
goods.  Hayes  v.  Parmalee,  79  HI.  563. 
Testimony  under  liquor  acts,  see  Jack- 
son V.  Beeves,  53  Ind.  231;  Snow  v. 
Carpenter,  49  Vt.  426.  Wife's  testi- 
mony may  now  be  that  of  substantial 
party  in  interest  as  to  her  property, 
and  testimony  of  husband  that  of  her 
agent.  Quade  v.  Fisher,  63  Mo.  325; 
Wilcox  v.  Todd,  64  Mo.  388.  In  stat- 
ute proceedings  to  compel  support,  see 
People  V.  Bartholf,  31  N.  Y.  272. 

As  to  declarations  of  deceased 
spouse  proved  by  the  survivor,  see 
Dye  V.  Davis,  65  Ind.  474;  White  v. 
Perry,  14  W.  Va.  66. 

As  to  testimony  affecting  claims 
against  a  deceased  spouse 's  estate,  see 
Freeman  v.  Freeman,  62  111.  189 ; 
Floyd  V.  Miller,  61  Ind.  224;  Doug- 
herty v.  Deeney,  41  la.  19 ;  Davis 
V,  Davis,  48  Vt,  502 ;  Barry  V.  Sturdi- 
vant,  53  Miss.  490;  Patton  v.  Wilson, 
2  Lea,  101.  Or  where  the  adverse 
party  is  representative  of  a  deceased 
person,  see  Hunter  v.  Lowell,  64  Me. 
572. 

A  divorced  wife  allowed  to  be  a 
competent  witness  in  certain  in- 
stances; showing  her  status  and  com- 
petency by  the  judgment  record  in  the 
divorce  suit.  Wottrich  v.  Freeman,  71 
N.  Y.  601. 

Wife  held  competent  to  prove  mar- 
riage contract  between  herself  and  her 


deceased  husband,  where  the  legality 
of  the  marriage  is  in  question.  Greena- 
walt  V.  McEnelley,  85  Penn.  St,  352. 

As  to  testimony  where  the  suit  re- 
lated to  property  held  by  husband  and 
wife  jointly,  see  McConnell  v.  Martin, 

52  Ind.  434. 

A  statute  providing  for  the  admis- 
sion of  interested  parties  as  witnesses 
does  not  per  se  remove  the  disqualifi- 
cation of  husband  and  wife.  Lucas  v. 
Brooks,  18  Wall.  436;  Gibson  v.  Com- 
monwealth, 87  Penn,  St,  253;  Schultz 
V.  State,  32  Ohio  St.  276;  Gee  v.  Scott, 
48  Tex.  510. 

If  one  marital  party  testifies  for  or 
against  the  other,  under  statute,  cross- 
examination  must  be  permitted,  even 
if  it  compels  the  testimony  to  the  op- 
posite direction,  Ballentine  v.  White, 
77  Penn.  St.  20;  Steinberg  v.  Meany, 

53  Cal.  425. 

A  wife  cannot  testify  against  her 
husband  upon  his  trial  for  theft  of  her 
property.  Overton  v.  State,  43  Tex. 
616. 

Concerning  testimony  as  to  conver- 
sations held  by  married  parties  when 
they  were  alone,  the  rule  of  the  com- 
mon law,  encouraging  their  confidence, 
is  presumed  to  be  unchanged  unless 
the  statute  is  positive  to  that  effect. 
Paynes  v.  Bennett,  114  Mass,  424; 
Westerman  v,  Westerman,  25  Ohio  St, 
500;  Brown  v.  Wood,  121  Mass,  137; 
Wood  V,  Chetwood,  27  N.  J,  Eq,  311; 
Stanford  v.  Murphy,  63  Ga.  410, 

99,  Pilcher  v,  Pilcher,  —  Va.  — ,  84 
S,  E,  667,  L.  E.  A.  1915D  9-02. 

1.  McNamara  v.  McNamara,  —  Neb. 
— ,  154  N.  W.  858,  L.  K.  A.  1916B 
1272. 


§    71  HUSBAND    AND    WIFE.  94 

In  a  recent  case  the  court  has  adhered  to  the  ancient  rule  in  all 
its  purity,  that  communications  between  husband  and  wife,  when 
alone,  are  privileged,  and  holds  that  a  wife  should  not  be  permitted 
to  show  that  her  deceased  husband  was  mentally  unsound  by  testi- 
fying to  his  habits  of  intoxication,  his  hearing  of  voices,  his  mut- 
terings  while  asleep,  the  delusions  which  caused  him  to  arm  him- 
self with  guns  and  pistols,  insults  oifered  her  and  attempts  to  take 
her  life.  The  fact  that  he  had  been  guilty  of  similar  conduct  in 
the  presence  of  others  does  not  authorize  her  to  testify  to  conduct 
and  declarations  when  alone.^ 

Even  a  statute  making  husband  and  wife  competent  witnesses 
against  each  other  does  not  apply  to  confidential  communications 
between  them,  and  such  privileged  testimony  cannot  be  divulged 
by  either  of  them.^ 

Under  a  statute  prohibiting  a  husiband  and  wife  from  testifying 
against  each  other  the  wife  may  be  called  by  the  husband  and 
testify  to  private  conversations  had  between  them  if  they  are  other- 
wise material.  The  statute  was  intended  to  protect  husband  and 
wife  and  for  their  benefit,  and  cannot  be  construed  to  deprive 
either  of  them  of  any  rights  they  otherwise  might  have.* 

There  is  a  clear  distinction  often  overlooked  between  the  dis- 
qualification of  one  spouse  not  to  testify  for  the  other  and  the 
privilege  of  one  not  to  have  the  other  testify  against  him.  The 
privilege  generally  remains,  but  the  disqualification  has  been  uni- 
versally removed  by  statute.^  When  a  wife  testifies  in  favor  of 
her  husband  her  testimony  may  be  impeached  as  in  case  of  any 
other  witness,^  but  where  her  testimony  against  her  husband  in 
grand  jury  proceedings  has  been  improperly  obtained  it  cannot  be 
used  to  impeach  her  later  testimony  in  favor  of  her  husband  before 
the  petit  jury.^ 

§  71.  Interest  of  Witness. 

There  have  been  some  important  changes  introduced  into  the  law 
of  evidence  in  some  parts  of  this  country  by  statute ;    such  as  per- 

2.  Whitehead  v.  Kirk,  —  Miss.  — ,  Rep.  — ,  123  Pac.  571,  40  L.  R.  A,  (N. 
61  So.  737,  51  L.  R.  A.    (N.  S.)    187.  S.)  43. 

3.  Williams  v.  Betts,  —  Del.  — ,  98  5.  Talbot  v.  United  States,  208  Fed. 
Atl.  371;  McCormick  v.  State,  —  144.  See  33  Harvard  Law  Review 
Tenn.    — ,    186   S.    W.    &5,   L.    R.    A.  873. 

1916F  382;  Wilkes  v.  Wilkes,  115  Va.  6.  Bell  v.  State,  —  Tex.  —  213  S. 

Sm,  80  S.  E.  745.  W.  647. 

4.  Hampton  v.  State,  —  Okla.  Grim.  7.  Doggett  v.  State,  —  Tex.  — ,  215 

S.  W,  454. 


95  AS    WITNESSES.  §    71 

mitting  interested  persons  to  testify  in  their  own  suits.  Where  the 
old  doctrine  prevails,  the  exclusion  of  the  husband,  by  reason  of 
direct  interest,  operates  to  exclude  his  wife  likewise.*  So  the 
husband  cannot  be  a  witness  in  a  controversy  respecting  his  wife's 
separate  estate,  though  in  respect  to  other  parties  concerned  he 
might  be  competent." 

Under  a  statute  rendering  one  incompetent  to  testify  as  to  a 
transaction  with  a  deceased  person  who  is  interested  in  the  event, 
the  wife  of  the  plaintiff  in  an  action  for  his  services  is  not  incom- 
petent, as  she  has  no  direct  legal  or  pecuniary  interest,  as  upon 
recovery  no  right  growing  out  of  the  married  relationship  would 
attach  to  the  money  recovered.  Where  the  property  in  controversy 
is  land  the  wife  may  be  incompetent  where  her  dower  may  be 
affected.'" 

On  the  whole,  the  prevailing  tendency  of  late  years  in  both 
England  and  America  is  to  regard  domestic  confidence  or  the  bias 
of  a  spouse  as  of  little  consequence  compared  with  the  public  con- 
venience of  extending  the  means  of  ascertaining  the  truth  in  all 
causes;  such  facilities  being  increased,  it  is  believed,  by  hearing 
whatever  each  one  has  to  say,  and  then  making  due  allowance  for 
circumstances  affecting  each  one's  credibility.  By  the  modern 
enlargement  of  the  wife's  separate  contract  and  property  relations, 
moreover,  the  spouses  are  presented,  not  so  constantly  as  partakers 
of  one  another's  confidence,  but  rather  as  persons  having  adverse 
interests  to  maintain,  or  else  as  principal  and  agent. 

8.  Greenl.  Evid.,  §  341;  Ex  parte  242;  Northern  Line  Packet  Co.  v. 
Jones,  1  P.  Wms.  610;  and  cf.  Stat.  Shearer,  61  111.  263;  Porter  v.  Allen, 
6  Geo.  IV.,  ch.  16,  §  37,  54  Ga.  623;  Wing  v.  Goodman,  75  111. 

9.  1  Burr.  424,  per  Lord  Mansfield;  159,  As  where  the  husband  dealt  with 
12  Vin.  Abr.  Evidence  B.  And  see  the  wife's  separate  property  as  her 
note  to  1  Greenl.  Evid.,  §  341,  with  au-  agent.  Chesley  v.  Chesley,  54  Mo.  347; 
thorities  cited.  In  various  States  a  Menk  v.  Steinfort,  39  Wis,  370,  But 
spouse,  under  statute,  may  be  a  compe-  cf.  Robison  v.  Robison,  44  Ala.  227. 
tent  witness  to  a  greater  or  less  extent  10.  Helsabeck  v.  Doub,  167  N.  C. 
with  reference  to  wife 's  separate  prop-  205,  83  S.  E.  241,  L.  R.  A.  1917A,  1. 
erty.    Musser  v,  Gardner,  66  Penn.  St. 


72  HUSBAJN'D    AND    WIFE.  96 


CHAPTER  V. 


GENERAL  INEQUALITIES. 


Section  73.  What  each  Spouse  yields  as  to  Property. 

73.  Husband's  Liability  for  Wife's  Contracts;  Wife's  Immunity. 

74.  Wife's  Immunity,  etc.,  as  to  Torts. 

75.  When  Wife  is  treated  as  Feme  Sole. 

§  72.  What  each  Spouse  yields  as  to  Property. 

The  property  rights  of  married  women  are  restrained  at  the 
common  law.  The  husband  yields  to  his  wife  no  participation 
whatever  in  his  own  property,  whether  acquired  before  or  during 
the  continuance  of  the  marriage  relation,  except  a  certain  right  of 
inheritance  to  his  goods  and  chattels,  of  which  he  can  generally 
deprive  her  by  his  will  and  testament,  and  also  dower  in  his  real 
estate,  which  is  her  only  substantial  privilege.  In  return  for  this, 
she  parts  with  all  control,  for  the  time  being,  over  her  own  prop- 
erty, whensoever  and  howsoever  obtained,  by  gift,  grant,  purchase, 
devise  or  inheritance ;  gives  him  outright  her  personal  property  in 
possession,  and  allows  him  to  appropriate  to  himself  those  outstand- 
ing rights  which  are  known  as  her  clioses  in  action,  or  all  the  rest 
of  her  personal  property;  parts  with  the  usufruct  of  her  real 
estate,  creating  likewise  a  possible  encumbrance  upon  it  in  the 
shape  of  tenancy  by  the  curtesy ;  and  finally  takes,  if  she  survives 
him,  only  her  real  estate,  such  of  her  personal  property  as  remains 
undisposed  of  and  unappropriated,  with  a  few  articles  of  wearing 
apparel  and  trinkets  called  paraphernalia.  She  cannot  restrain  his 
rights  by  will.  She  is  not  allowed  to  administer  on  his  personal 
estate  in  preference  to  his  own  kindred,  though  the  whole  of  it  were 
once  hers ;  while  he  can  administer  on  her  estate  for  his  own 
benefit,  and  exclude  her  kindred  altogether,  even  from  participation 
in  the  assets.  Thus  unequal  are  the  property  rights  of  husband 
and  wife  by  the  strict  rule  of  coverture.  We  speak  not  here  of 
recent  statutory  benefits  conferred  upon  the  wife;  nor  of  that 
relief  which  equity  affords  in  permitting  property  to  be  held  to  the 
wife's  separate  use,  and  giving  her  a  provision  from  her  choses  in 
action,  when  the  husband  seeks  its  aid  in  aippropriating  them  to 


97  GENERAL    INEQUALITIES.  §    '^5 

his  own  use ;   but  of  what  is  to  be  properly  termed  the  common  law 
of  husband  and  wife/^ 

§  73.  Husband's  Liability  for  Wife's  Contracts;  Wife's  Im- 
munity. 
Some  recompense  is  afforded  to  the  wife  for  the  loss  of  her  for- 
tune, in  the  rule  that  her  husband  shall  pay  her  debts  contracted 
while  a  feme  sole;  that  is,  unmarried.  And  while  coverture  lasts 
he  is  liable  for  all  just  debts  incurred  in  her  support.  He  has  even 
been  held  guilty  of  murder  in  the  second  degree  when  he  has  suf- 
fered her  to  die  for  want  of  proper  supplies.^^  The  wife  cannot 
make  a  contract  so  as  to  bind  herself ;  but  in  this,  and  other  cases  of 
express  or  implied,  authority,  she  can  bind  her  husband,  and  so 
secure  a  maintenance.  That  which  cannot  be  enforced  by  the  wife 
as  a  matter  of  obligation  is  often  attained  at  the  common  law  in 
some  indirect  way."  Nor  can  the  wife  sue  and  be  sued  in  her  own 
right. 

§  74.  Wife's  Immunity,  &c.,  as  to  Torts. 

So,  too,  the  husband  is  liable  civilly  for  the  frauds  and  injuries 
of  the  wife,  committed  during  coverture ;  being  sued  either  alone 
or  jointly  with  her,  in  accordance  with  the  legal  presumption  of 
coercion  in  such  cases.  And  he  must  respond  in  damages,  whether 
she  brought  him  a  fortune  by  marriage  or  not.  But  as  we  have 
seen,  this  rule  does  not  apply  to  crimes,  except  that  the  law  shows 
the  wife  a  certain  indulgence  where  a  similar  presumption  can  be 
alleged  on  her  behalf.  On  the  other  hand,  the  husband  takes  the 
benefit  of  such  injuries  as  she  may  suffer,  by  suing  with  her  and 
appropriating  the  compensation  by  way  of  damages  to  himself.^* 

§  75.  When  Wife  is  treated  as  Feme  Sole. 

We  may  add  that  the  wife  is  relieved  at  the  common  law  of  the 
disabilities  of  coverture,  and  placed  upon  the  footing  of  a  feme 
sole,  with  the  privilege  to  contract,  sue  and  be  sued,  on  her  own 
behalf,  in  one  instance,  namely,  where  her  husband  has  abjured  the 
realm  or  is  banished;    for  he  is  then  said  to  be  dead  at  the  law." 

11.  See  1  Bl.  Com.  442-445,  and  14.  1  Bl.  Com.  443;  2  Kent  Com. 
notes,    by    Christian,    Hargrave,    and       149,  150. 

others;   2  Kent  Com.  130-143.  15.   1  Bl.  Com.   443;    2   Kent   Com. 

12.  Reg.  V.  Plummer,  1  Car.  &  K.       154.    See  Separation,  post. 

600.  154.    See  Separation,  post,  §  1060  et 

13.  See  1   Bl.  Com,   442;    2  Kent,      »eq. 
Com.  143-149. 


§    75  HUSBAND    AND    WIFE.  98 

And  the  necessity  of  tlie  case  furnishes  the  strongest  argument  for 
this  exception.  Another  exception  early  prevailed  in  certain  parts 
of  England  by  local  custom, —  as  that  of  London, —  where  the  wife 
might  carry  on  a  trade,  and  sue  and  be  sued  in  reference  thereto 
as  though  single.^ 


16 


16.  1  Selw.  N.  P.  298;  Bing.  Inf.  statement  of  doctrines  which   at  the 

261,  26i2.     The  modern  practitioner  is  present  day  are  found  to  be  controlled 

here  cautioned  that  the  statement  of  and   changed,   to   a  great  extent,   hy 

the  common  law  in  this  chapter  is  a  modern  equity  rules  and  legislatioiL. 


9!J  wife's  antenuptial  debts.  §  76 


CHAPTER  VI. 

WIFE^S  ANTENUPTIAL  DEBTS. 

Section  76.  Rule  stated. 

77.  Extent  and  duration  of  Liability. 

78.  Hardship    of   Rule. 

79.  Actions  to  Recover  Antenuptial  Debts. 

80.  Effect  of  Bankruptcy. 

81.  Effect  of  Contract  Between  Spouses  as  to  Antenuptial  Debts. 

82.  Effect  of  Statute. 

§  76.  Rule  stated. 

One  of  the  immediate  effects  of  marriage  at  the  common  law  is 
that  the  husband  at  once  becomes  bound  to  pay  all  outstanding 
debts  of  his  wife, —  her  debts  dum  sola,  as  they  are  called, —  of 
whatever  amount.  This  is  a  sort  of  recompense  he  makes  for 
taking  her  property  into  his  hands.  But  whether  she  brings  him 
a  fortune  or  not,  his  liability  is  not  affected.  She  may  owe  large 
sums  at  the  time  of  marriage  and  have  nothing  to  offset  them. 
She  may  have  studiously  concealed  the  existence  of  the  debts 
from  her  affianced  husband.  But  none  of  these  considerations  can 
avail  to  shield  him.  "When  married,  she  is  married  with  her  debts 
as  well  as  her  fortunes.  As  Blackstone  observes,  her  husband  must 
be  considered  to  have  "  adopted  her  and  her  circumstances  to- 
gether."^^ 

This  rule  is  moreover  applied  without  discrimination  as  to  indi- 
viduals. An  infant  who  marries  is  bound  equally  with  an  adult 
husband.^*  A  second  husband  is  liable  for  the  debts  of  his  wife 
outstanding  at  the  close  of  her  widowhood,  whether  contracted 
prior  to  her  first  marriage,  or  while  living  separate  from  her  first 
husband,  and  upon  a  separate  maintenance,  or  after  the  termina- 
tion of  her  first  coverture  and  subsequent  to  the  second.^®  On  gen- 
eral principles  the  husband  is  bound  for  the  debt  of  his  infant 

17.  1  Bl.  Com.  44S;   3  Mod.  186;  2  18.  Roach  v.  Quick,  9  Wend.  (N.  Y.) 

Kent    Com.    143-146;    Macq.    Hus.    &  238;  Butler  v.  Breck,  7  Met.   (Mass.) 

Wife,  39-41;  Heard  v.  Stamford,  3  P.  164. 

Wms.  409 ;  Cas.  temp.  Talb.  173 ;  Fer-  19.  1  T.  R.  5 ;  7  T.  R.  348 ;  Prescott 

{ruaon  V.  Williams,  65  Ark.  631,  44  S.  v.  Fisher,  22  111.  39t);  Angel  v.  Felton, 

W.  1126;  Heyman  v.  Heyman,  19  Ga.  8  .Johns.  (N.  Y.)   149. 
App.  634,  92  S.  E.  25;  Miller  v.  Kal- 
wey,  4  Ky.  Law  362. 


HUSBAND    AIS'D    WIFE. 


100 


wife  wiile  sole  just  as  much  as  tliougli  she  were  an  adult,  though 
only  to  the  same  extent  as  she  would  have  been  hound.  Hence, 
where  the  demand  is  for  neces&aries  furnished  her  while  an  infant, 
the  husband,  after  marriage,  becomes  bound  to  pay  it,  since  she 
would  have  been  liable  if  she  had  not  married.  And  the  infancy 
of  the  husband  himself  cannot  be  pleaded  against  this  obligation. ^"^ 

§  77.  Extent  and  duration  of  Liability. 

The  liability  of  the  husband  for  his  wife's  debts  while  sole  is 
limited  strictly  to  legal  demands ;  that  is  to  such  as  she  was  bound 
to  pay  at  the  time  of  her  marriage.'^  And  if  a  demand  would  not 
be  enforceable  against  her  remaining  sole,  neither  is  it  enforceable 
against  her  husband.  But  the  promise  or  part-payment  of  the 
wife  cannot  take  a  debt  out  of  the  statute  of  limitations  as  against 
her  husband,  nor  can  the  promise  or  part-payment  of  the  husband 
as  against  his  wife.  !N^or  can  their  admissions  charge  one  another.^^ 
Their  rights  in  this  respect  are  separately  regarded.  The  husband 
remains  liable  for  the  debts  of  his  wife  dum  sola  only  so  long  as 
coverture  lasts.  As  his  liability  originated  in  the  marriage,  so  it 
ceases  with  it.  Hence  if  the  obligation  be  not  enforced  in  the  life- 
time of  the  wife,  the  surviving  husband  retains  her  fortune  (if 
any)  in  his  hands,  and  cannot  be  charged  further  with  her  debts 
either  at  law  or  in  equity.^^  The  wife's  clioses  in  action  still  unre- 
duced to  possession  at  the  time  of  her  death  may,  however,  be 
reached  by  her  creditors  where  he  has  received  them  as  her  admin- 
istrator, though  only  to  the  actual  amount  of  such  assets ;  so  that 
this  would  afford  them  but  partial  relief.^*  Nor  can  the  husband's 
estate  after  his  death  be  made  liable  for  t^e  wife's  debts  contracted 
while  sole.^^  ISTot  even  the  parol  promise  made  by  the  husband 
during  coverture  to  pay  his  wife's  debts  dum  sola  will  create  an 


20.  Cole  V.  Seeley,  25  Vt.  220;  An- 
derson V.  Smith,  33  Md.  465;  Bonney 
v.  Eeardin,  6  Bush  (Ky.)  34. 

21.  Cowley  v.  Eobertson,  3  Camp. 
438;  Caldwell  v.  Drake,  4  J.  J.  Marsh. 
(Ky.)  246. 

22.  Koss  V.  Winners,  1  Halst.  (K 
J.)  366;  Sheppard  v.  Starke,  3  Munf 
(Va.)  29;  Brown  v.  Lasselle,  6  Blackf 
(Ind.)  147;  Moore  v.  Leseur,  18  Ala 
606;  Farrar  v.  Bessey,  24  Vt.  89 
Parker  v.  Steed,  1  Lea  (Tenn.)  206 
But    see    Lord    Tenterden,    in    Hum 


phreys  v.  Eoyce,  1  Mood.  &  Rob.  140, 
as  to  admissions  of  the  wife  allowable 
in  evidence  after  her  death. 

23.  2  Kent  Com.  144.  See  Ch.  Ca. 
295. 

24.  Heard  v.  Stamford,  3  P.  Wms. 
409;  Cas.  temp.  Talb.  173;  Morrow  v. 
Whitesides,  10  B.  Mon.  (Ky.)  411; 
Day  V.  Messick,  1  Houst.    (Del.)   328. 

25.  Woodman  v.  Chapman,  1  Camp. 
189;  Curtton  v.  Moore,  2  Jones  Eq. 
(N.  C.)   204. 


101  wife's  antenuptial  debts.  §  78 

additional  liability  for  them  on  his  part.""  If  the  wife  survives  her 
husband,  she  becomes  liable  once  more  on  her  debts  while  sole. 
And  this,  too,  though  the  means  for  extinguishing  them  may  have 
already  been  squandered  by  her  husband  or  placed  beyond  her 
reach."'  Here  is  a  third  hardship.  Coverture,  therefore,  seems  to 
operate  here  as  a  temporary  disability,  and  not  so  as  to  utterly 
merge  the  wife's  identity.  The  husband  becomes  liable  by  mar- 
riage, not  as  the  debtor,  but  as  the  husband;  the  remedy  being 
suspended,  or  rather  shifted,  during  coverture. 

§  78.  Hardship  of  Rule. 

The  injustice  of  the  rule  in  certain  cases  is  obvious.  Suppos- 
ing a  feme  sole  is  worth  fifty  thousand  dollars,  and  owes  at  the 
time  of  her  marriage  five  thousand  dollars.  She  marries,  and 
dies  before  her  creditors  have  had  time  to  sue  her  husband.  There- 
upon the  husband  retains  for  himself  the  fifty  thousand  dollars, 
and  the  creditors  are  without  a  remedy.  Such  was  the  character 
of  the  argument  pressed  upon  the  distinguished  Lord  Talbot  more 
than  a  century  ago  in  the  case  of  Heard  v,  Stamford.^^  But  his 
reply  was  as  follows :  "  The  question  is,  whether  the  husband, 
as  such,  be  chargeable  for  a  deibt  of  his  wife's,  after  her  death,  in 
a  court  of  equity  ?  As,  on  the  one  hand,  the  husband  is  by  law 
liable  to  all  his  wife's  debts  during  the  coverture,  although  he  did 
not  get  one  shilling  portion  with  her,  and  although  her  debts  should 
amount  to  any  sum  whatever ;  so,  on  the  other  hand,  it  is  as  certain 
that  if  the  debt  be  not  recovered  during  the  coverture,  the  husband 
is  no  longer  chargeable  as  such,  let  the  fortune  he  received  be  ever 
so  great.  The  case,  perhaps,  may  be  hard,  but  the  law  hath  made  it 
so;  and  the  alteration  of  it  is  the  proper  work  of  the  legislature 
only." 

Lord  Macclesfield,  still  later,  encountered  a  different  objection 
to  the  common-law  rule,  arising  from  an  opposite  state  of  facts. 
This  he  endeavored  to  answer.  It  may  be  hard,  he  observes,  that 
the  husiband  should  be  answerable  for  the  wife's  debts  when  he  re- 
ceives nothing  from  her;  but  we  are  to  set  off  against  that  hard- 
ship the  rule,  that  if  the  husband  has  received  a  personal  estate 
with  the  wife,  and  happens  not  to  be  sued  during  the  coverture, 
he  is  not  liable.  He  runs  a  hazard  in  being  liable  to  the  debts 
much  beyond  the  personal  estate  of  the  wife ;  and  in  recompense 

26.  Cole  V.  Shurteleff,  41  Vt.  311.  28.  Heard  v,  Stamford,  3  P.  "Wms. 

27.  Woodman  v.  Chapman,  1  Camp.      409. 

N.  P.  189,  per  Lord  Ellenboroujrh. 


"9 


HUSBAND   AND    WIFE. 


102 


for  that  hazard  he  is  entitled  to  the  whole  of  her  personal  estate, 
though  far  exceeding  the  debts,  and  is  discharged  from  the  debts 
as  soon  as  the  coverture  ceases.^"  Constituting  a  right  by  balancing 
off  two  wrongs  may  seem  unsatisfactory  to  the  modern  reader. 
Still  the  court  decided  aright ;  for  the  difficulty  was  in  the  common- 
law  itself. 


§  79.  Actions  to  Recover  Antenuptial  Debts. 

All  the  actions  for  the  wife's  debts  while  sole  must  be  brought 
against  husband  and  wife  jointly,  and  not  against  either  sepa- 
rately ;  and  judgment  obtained  by  disregarding  this  rule  will  be  re- 
versed on  error.^"  The  object  is  to  retain  the  remedy  in  hand  so 
that  execution  may  be  taken  out  against  the  proper  party  according 
to  circumstances ;  for,  if  the  husband  should  die  pending  the  suit, 
the  wife,  on  her  survivorship,  would  become  liable. 

If  judgment  be  recovered  against  a  feme  sole  on  her  debt  before 
she  marries,  and  she  dies  before  execution  is  taken  out,  having 
married  in  the  meantime,  her  husband  will  be  discharged  from 
liability.  But  if  judgment  be  recovered  against  both  during  cover- 
ture, and  the  wife  dies  before  execution,  the  husband  is  still 
charged,  because  by  the  judgment  the  nature  of  the  debt  was 
altered,  and  it  became  his  own  debt.^^  So,  too,  when  judgment  was 
obtained  before  coverture,  and  scire  facias  brought  upon  it  against 
husband  and  wife  afterwards.^^  When  judgment  has  been  ob- 
tained for  a  debt  of  the  wife  while  sole,  and  she  afterwards  marries, 
execution  must  in  strictness  be  taken  out  against  her  alone,  be- 
cause execution  must  always  follow  the  judgment.^^  But  if  the 
creditor  desire  to  charge  a  person  who  was  not  a  party  to  the  record, 
as  the  husband  in  this  instance,  scire  facias  should  be  issued  so  as 
to  make  his  a  party.^*  This  rule  applies  likewise  where  the  wife 
marries  pending  the  suit.     The  death  of  the  wife  after  action  has 


29.  Thomond  v.  Suffolk,  1  P.  Wms. 
469;  2  Kent  Com.  144, 

30.  Robinson  v.  Hardy,  1  Keb.  281 ; 
Drue  V.  Thorn,  Alleyn,  72;  Angei  v. 
Felton,  8  Johns.  (N.  Y.)  149;  7  T.  R. 
348;  Gage  v.  Reed,  15  Johns.  (N.  Y.) 
403;  Gray  v.  Thacker,  4  Ala.  136; 
Platner  v.  Patehin,  19  Wis.  333. 

31.  2  Bright  Hus.  &  Wife,  3  Burton 
V.  Burton,  5  Harring.  (Del.)  441; 
O'Brien  v.  Ram,  3  Mod.  186;  Sid.  337; 
Treviband  v.  Lawrence,  2  Ld.  Baym. 
1050. 


32.  O'Brien  v.  Ram,  3  Mod.  186; 
Taylor  v.  Miller,  2  Lea  (Tenn.)  153. 
Mr.  Bright  seems  to  have  stated  this 
point  incorrectly.  See  2  Bright  Hus. 
&  Wife,  3. 

33.  Doyley  v.  White,  Cro.  Jac.  323 ; 
Bull.  Ch.  P.  23;  Benyon  v.  Jones,  15 
M.  &  W.  566;  and  see  Haines  v.  Cor- 
liss, 4  Mass.  659';  Commonwealth  v. 
Philipsburgh,  10  Mass.  78;  Tnggs  v. 
Triggs,  2  M.  &  Ry.  126  ??. 

34.  2  Bright  Hus.  &  Wife,  3,  4; 
Cooper  V.  Hunchin,  4  East,  521. 


103 


WIFE  B    ANTENUPTIAL    DEBTS. 


§   81 


been  commenced  against  husband  and  wife,  and  before  judgment, 
puts  an  end  to  the  suit,^''  while,  on  the  other  hand,  the  death  of 
the  husband  before  judgment  permits  the  suit  to  abate  as  to  him, 
and  proceed  against  her  as  survivor.^® 

The  rule  as  laid  down  in  England  conceniing  the  wife's  personal 
liability  on  her  debts  dum  sola  is  that  coverture  does  not  wholly 
relieve  her  from  the  consequences  of  judgment  for  the  time  being; 
for  that  both  may  be  taken  on  execution;  and  when  the  wife  is 
taken,  she  shall  not  be  discharged  unless  it  arppear  that  she  has  no 
separate  property  out  of  which  the  demand  can  be  satisfied.^^  This 
rule  does  not  seem  to  have  been  recognized  with  such  strictness  in 
this  country.^^  But  where  the  wife  after  marriage  pays  a  portion 
of  her  debt  contracted  while  sole  from  funds  derived  from  her 
separate  property,  it  is  said  that  the  husband  will  be  bound  by  the 
act,  unless  he  disaffirms  it  within  a  reasonable  time.'® 

§  80.  Effect  of  Bankruptcy. 

The  English  common-law  courts  hold  that  if  the  husband,  during 
coverture,  obtains  a  certificate  of  discharge  in  bankruptcy,  the 
wife's  debts  dum  sola  are  wiped  out  as  well  as  his  own.*"  We 
apprehend  the  equity  doctrine  to  be  that  though  the  husband  be 
discharged,  the  wife's  suspended  liability  yet  remains ;  and  this 
has  been  announced  in  New  York.*^  And  in  Maine  the  wife's 
creditors  dum  sola  may  have  a  fraudulent  conveyance  of  her  prop- 
erty set  aside  notwithstanding  her  husband's  insolvency.* 


42 


§  81.  Effect  of   Contract   Between  Spouses  as  to  Antenuptial 
Debts. 

So  far  as  the  rights  of  third  parties  are  concerned,  the  liability 
of  the  husband  for  his  wife's  debts  dum  sola  cannot  be  affected  by 
any  antenuptial  contract  between  the  two;*'  nor  of  course  by  their 
agreement  during  coverture.     The  special  contract  of  a  husband 


35.  WiUiams  v.  Kent,  15  Wend.  (N. 
Y.)  360.  Tor  the  proper  procedure  in 
case  of  a  mortgage  executed  by  the 
wife  dwm  sola,  and  foreclosed,  with  a 
decree  ordering  personal  judgment  for 
a  deficiency,  see  Plainer  v.  Patchin,  19 
Wis.  333. 

36.  Parker  v.  Steed,  1  Lea  (Tenn.) 
206. 

37.  Tidd,  Pract.,  9th  ed.,  1026; 
Sparkes  v.  Bell,  8  B.  &  C.  1;  Newton 


V.  Eoe,  7  Man.  &  Gr.  329;  Evans  v. 
Chester,  2  M.  &  W.  847. 

38.  Mallory  v.  Vanderheyden,  3 
Barb.  Ch.  (N.  Y.)  9;  1  Comst.  453. 

39.  Hall  V.  Eaton,  12  Vt.  510. 

40.  Miles  V.  Williams,  1  P.  Wms. 
249;  Lockwood  v.  Salter,  5  B.  &  Ad. 
303. 

41.  Mallory  v.  Vanderheyden,  3 
Barb.  Ch.  (N.  Y.)  9;  1  Comst.  453. 

42.  Hamlin  v.  Bridge,  24  Me.  145. 

43.  Harrison  v.  Trader,  27  Ark.  288. 


§  82 


HUSBAND    AND    WIFE. 


104, 


"witli  the  creditor,  relating  to  his  wife's  debt  dum  sola,  furnishes  a 
different  cause  of  action  to  the  creditor  from  that  which  arises 
out  of  the  debt  dum  sola  taken  by  itself.^ 


44 


§  82.  Effect  of  Statute. 

The  husband's  legal  responsibility  for  the  debts  incurred  by  his 
wife  before  marriage  being  founded  in  the  theory  that  he  had 
adopted  her  with  her  fortunes  or  misfortunes  together,  the  creation 
of  seiparate  property  rights  on  her  behalf  places  this  responsibility 
in  a  far  more  unfavorable  light.  The  English  Married 
Women's  Act  of  1870  abolishes  the  husband's  liability  for  his 
wife's  antenuptial  debts,  and  fastens  it  upon  such  property,  in- 
stead, as  the  wife  may  hold  to  her  separate  use;*®  though  this  is 
somewhat  modified  by  a  later  act  which  regards  certain  assets  he 
may  have  derived  from  her.*"  So,  too,  in  many  of  our  States,  it  is 
now  found  that  the  husband's  liability  for  his  wife's  antenuptial 
debts  is  either  modified  to  the  extent  of  the  property  received 
through  her,  or  else  abolished  altogether ;  her  sparate  estate,  if  she 
have  any,  being  made  subject,  instead,  to  their  payment.*^  It  has 
been  held,  however,  that  the  common-law  rule  has  not  been  abol- 
ished by  the  Arkansas  Married  Women's  Act.** 


44.  Wilson  v.  Wilson,  30  Ohio  St. 
365. 

The  common  law  as  to  the  wife's 
antenuptial  debts  is  changed  consider- 
ably by  our  modern  legislation. 

45.  Act  33  &  34  Vict.  c.  93;  Ex 
parte  Holland,  L.  K.  9  Ch.  307;  Sanger 
V.  Sanger,  L,  K.  11  Eq.  470. 

46.  Act  37  &  38  Vict.  c.  50  (1874)  ; 
De  Greuchy  v.  Wills,  L.  E.  4  C.  P.  D. 
362.  Under  this  act  the  creditor  may 
sue  the  husband,  who  has  the  option  to 
plead  non-liability,  except  as  the  act 
specifies.  Matthews  v.  Whittle,  L.  E. 
13  Ch.  D.  811. 

47.  Smith  v.  Martin,  124  Mich.  34; 
82  N.  W.  662;  7  Det.  Leg.  N.  104; 
Johnson  v.  Griffiths  &  Co.  (Tex.)  135 
S,  W.  683. 

Eoundtree  v.  Thomas,  32  Tex.  286; 
Shore  v.  Taylor,  46  Tnd.  345;  Travis 
V.  Willis,  55  Miss.  557;  Wood  v.  Or- 
ford,  52  Cal.  412;  Cannon  v.  Gran- 
tham, 45  Miss.  88;  Madden  v.  Gilmer, 
40  Ala.  637;  Bryan  v.  Doolittle,  38 
Ga.   255;    Smiley  v.   Smiley,   18   Ohio 


St.  543;  Bailey  v.  Pearson,  9  Post. 
(N.  H.)  77;  Eeunecker  v.  Scott,  4 
Greene  (Iowa),  185  Curry  v.  Shrader, 
19  Ala.  831;  Callahan  v.  Patterson,  4 
Tex.  61.  Such  abolishing  acts  are  not 
retrospectively  construed.  Clawson  v. 
Hutchinson,  11  S.  C.  323.  But  as  to 
Illinois,  see  Connor  v.  Berry,  46  111. 
370,  where  the  old  liability  is  still 
recognized.  So,  too,  in  Ohio.  Alex- 
ander v.  Morgan,  31  Ohio  St.  546. 
And  the  husband  is  there  held  liable 
for  debts  of  a  partnership  in  which 
the  wife  has  been  engaged  before  mar- 
riage. Alexander  v.  Morgan,  31  Ohio 
St.  546.  See  Mobray  v.  Leckie,  42 
Md.  474. 

Where  a  debt  was  contracted  before 
marriage,  it  is  held  that  the  remedy 
against  the  wife's  separate  estate 
becomes  suspended  during  marriage. 
Vanderheyden  v.  Mallory,  1  Comst. 
452.  But  see  Dickson  v.  Miller,  11  S. 
&  ]\r.   (Miss.)   594. 

48.  Kies  v.  Young,  64  Ark.  381,  42 
8.  W.  669,  62  Am.  St.  E.  198. 


105  NECESSAKIES.  §    83 


CHAPTER  VII. 


NECESSAKIES. 

Section     83.  Foundation  of    Common-Law  Doctrine. 

84.  Summary  of  Modern  Rule. 

85.  Liability  of    Husband  —  Rule  Stated. 

86.  To  Wife. 

87.  To  Relatives  of  Wife. 

88.  To  Third  Persons. 

89.  For  Necessaries  of  Putative  Wife. 

90.  For  Necessaries  of  Family  in  General. 

91.  For  Articles  in  part  Necessaries  and  in  part  not. 

92.  For  non-necessaries. 

93.  Agency  of  Wife  to  Bind  Husband  for  Necessaries. 

94.  Rule  of  Good  Faith. 

95.  Effect  of  Infancy. 

96.  Effect  of  Notice  not  to  Sell  to  Wife. 

97.  Effect  of  giving  Credit  to  Wife  or  Third  Person. 

98.  Effect  of  Money  Provision  for  Wife. 

99.  Effect  of  Husband's  ratification  of  Wife's  unauthorized  pur- 

chases. 

100.  Effect  of  Separation  in  General. 

101.  Effect  of  Abandonment  by  Husband. 

102.  Effect  of  Abandonment  by  Wife. 

103.  Effect  of  Separation  by  Consent. 

104.  Effect  of  Wife's  Adultery. 

105.  Effect  of  Divorce  and  Allowance  of  Alimony. 

106.  Effect  of  Banishment,  Insanity  or  Imprisonment. 

107.  Wife's  Right  to  sell  property  to  Obtain  Necessaries. 

108.  Liability  of  Wife. 

109.  What  constitutes  necessaries  —  in  general. 

110.  Illustration. 

111.  Counsel  Fees. 

112.  Medical  Services. 

113.  Dental  Services. 

114.  Last  Sickness  and  Funeral  Expenses. 

115.  What  are  not  Necessaries. 

116.  Joint  Statutory  Liability  for  "  Family  Expenses." 

117.  Measure  of  Liability. 

118.  Effect  of  Separation. 

119.  House  Rent. 

120.  Wliat  constitutes  ' '  Family  Expenses. '  * 

121.  What  are  not  "  Family  Expenses." 

§  83.  Foundation  of  Common-Law  Doctrine. 

On  the  important  principle  of  the  wife's  agency  rests  the  lia- 
bility of  the  husband,  at  common  law,  in  contracts  made  by  th© 


§    84  HUSBAND    AND    WIFE.  100 

wife  for  necessaries.  It  is  a  clear  obligation  which  rests  upon 
every  husband  to  support  his  wife;  that  is,  to  supply  her  with 
necessaries  suitable  to  her  situation  and  his  own  circumstances  and 
condition  in  life.     Notwithstanding  a  man  married  unwillingly, 

—  as,  for  instance,  to  avoid  a  prosecution  for  seduction  or  bastardy 

—  he  is  bound  to  support  her.***  But  though  this  obligation  appears 
to  rest  on  the  foundation  of  natural  justice,  the  common  law  assigns, 
as  the  true  legal  reason,  that  she  may  not  become  a  burden  to  the 
community.  So  long  as  that  calamity  is  averted,  the  wife  has  no 
direct  claim  upon  her  husband  under  any  circumstances  whatever  ; 
for  even  in  the  case  of  positive  starvation  she  can  only  come  upon 
the  parish  for  relief;  in  which  case  the  parish  authorities  will 
insist  that  the  husband  shall  provide  for  her  to  the  exent  of  sus- 
taining life.^°  If  a  husband  fail  in  this  respect,  so  that  his  wife 
becomes  chargeable  to  any  parish,  the  statute  4  Geo.  IV.,  c.  83,  §  3, 
says  that  "  he  shall  be  deemed  an  idle  and  disorderly  person  and 
shall  be  punishable  with  imprisonment  and  hard  labor."^^ 

§  84.  Summary  of  Modern  Rule. 

The  common-law  doctrine,  as  we  have  seen,  makes  the  ground  of 
the  husiband's  liability  for  his  wife's  necessaries  essentially  that  of 
agency.  This  agency  is  stated  as  an  agency  of  necessity  where  a 
deserving  wife  stands  in  want  of  supplies  because  of  her  husband's 
misconduct.  But  in  truth  such  necessity  transcends  all  the  analogies 
of  an  authorized  representation,  and  inasmuch  as  the  wife  has  no 
property  and  is  legally  dependent  on  her  husband,  a  right  to 
supply  her  wants  upon  his  credit  is  inferred  from  the  nature  of  her 
situation.  When  both  spouses  live  together,  the  wife  may  pledge 
her  husband's  credit  for  necessaries,  unless  he  supplies  them 
otherwise,  and  so  performs  his  duty  after  his  own  method ;  if  they 
separate,  his  liability  continues  commensurate  v^ith  his  obligation, 
60  that  she  can  only  pledge  his  credit  when  the  fault  was  not  her 
own,  but,  being  justified  in  her  conduct,  the  conjugal  right  to 
necessaries  is  perfect,  and  consequently  enforceable  in  this  manner, 
unless  he  performs  his  duty  after  his  own  method.  The  discrep- 
ancy of  the  cases  relates  chiefly  to  presumptions  in  favor  of  the 
person  who  supplies  the  necessaries ;  and  here,  as  we  have  seen, 
the  latest  decisions  leave  it  in  doubt  how  strong  a  presumption 

49.  State  v,  Eansell,  41  Conn.  433.  "Reg.  v.  Wendron,  7  Ad.  &  El.  819. 

50.  Rex  V.  Flintan,  1  B.  &  Ad.  227 ;  51.  See  Macphers.  Inf.  42,  43. 


107 


NECESSARIES. 


§  84 


cohabitation  as  husband  and  wife  furnishes  by  itself.  Formerly 
it  was  thought  that  private  arrangements  between  husband  and 
wife,  where  they  lived  together,  could  not  be  set  up  against  the 
seller  who  had  no  notice  thereof;  but  latterly  the  English  inclina- 
tion has  been,  as  we  shall  see,^^  to  limit  the  implied  agency  of  the 
wife  during  cohabitation  to  those  whose  dealings  have  already  been 
recognized  by  the  husband,  and  who  therefore  ought  to  have  notice 
of  revocation,  which  rule  of  course  narrows  down  the  presumption. 
Whatever  presumption  of  authority  may  be  inferred  from  cohabi- 
tation, separation  raises  the  counter-presumption  that  the  wife 
has  no  authority  to  pledge  her  husband's  credit.  Upon  the  whole, 
to  reconcile  the  earlier  and  later  decisions,  the  wife's  right  of 
procuring  necessaries  on  her  husband's  credit  may  be  deducted 
from  these  two  combined  considerations:  (1)  That  where  the 
husband  proves  remiss  in  furnishing  needful  support,  the  wife  has 
the  right  to  compel  such  support  by  pledging  his  credit,  whether 
they  cohabit  or  dwell  apart,  so  long  as  misconduct  on  her  part  has 
not  absolved  him  from  the  conjugal  duty, —  this  rule  of  compulsion 
taking  largely  the  place  in  modern  times  of  the  old  remedies  for- 
merly pursued  in  the  ecclesiastical  courts;  (2)  That  any  wife  may 
be  the  agent  of  her  husband  and  bind  him  to  the  extent  of  her 
authority,  like  other  representatives.  In  short  the  rule  of  agency 
and  a  wife's  necessaries  is  carried  far  enough  in  actual  practice  to 
make  that  agency  a  fiction  for  the  sake  of  a  wife's  self-protection 
against  her  unfaithful  spouse.^^ 

We  may  add  that  the  husband's  express  contract  with  others, 
or  his  express  promise  or  express  sanction  comes  in  aid  of  such 
legal  inference  concerning  his  liability  for  supplies  furnished  his 


52,  Post,  §  99. 

53.  That  agency  is  not  the  full 
measure  of  the  wife 's  power  to  bind 
her  husband  for  what  she  needs  is 
further  seen  in  the  decisions  upon  the 
point  of  a  wife 's  legal  expenses  ap- 
point of  a  wife 's  legal  expenses 
later  noticed.  Post,  §  111.  Here 
there  is  some  confusion  in  the  de- 
cisions; but  a  disposition  very  clear 
is  shown  by  the  courts  to  allow  the 


wife  in  numerous  instances  to  prose- 
cute or  defend  in  furtherance  of  her 
marital  rights,  even  though  it  be 
against  the  husband  himself.  Incon- 
sistently enough,  the  fiction  of  agency 
and  necessaries  has  been  here  em- 
ployed; but  the  true  ground  is  rather 
that  the  wife  is  permitted  to  main- 
tain her  rights  against  an  unfaithful 
husband  in  self-protection. 


85 


HUSBAND    AND    WIFE. 


108 


wife,  as  may  be  drawn  from  any  of  the  matrimonial  situations 
which  we  have  considered.^* 


§  85.  Liability  of  Husband  —  Rule  stated. 

At  common  law  the  duty  of  furnishing  necessaries  for  the  family 
rests  on  the  hushand  alone.^^  Late  cases  also  hold  that  if  the  hus- 
band fails  to  provide  necessaries,  he  will  be  liable  even  at  law  to 
those  furnishing  them  at  the  wife's  request,  even  when  they  co- 
habit^**  It  makes  no  difference  that  she  is  able  to  provide  for  her- 
self." The  rule  presupposes  that  the  debt  is  that  of  the  husband, 
and  not  of  the  wife,  whose  debts  he  is  not  generally  liable  to  pay.^* 
But  the  principle  is  that  the  husband  has  the  right  to  decide  from 
whom  and  from  what  place  the  necessaries  shall  come,  and  that 
so  long  as  he  has  provided  necessaries  in  some  way,  his  marital 
obligation  is  discharged,  whatever  may  be  the  method  he  chooses 
to  adopt.  Accordingly  where  the  spouses  dwell  together,  so  long 
as  the  husband  is  willing  to  provide  necessaries  at  his  own  home, 
he  is  not  liable  to  provide  them  elsewhere.^®  In  general,  while  the 
spouses  live  together,  a  husband  who  supplies  his  wife  with  neces- 
saries suitable  to  her  position  and  his  own,  is  not  liable  to  others 
for  debts  contracted  by  her  on  such  an  account  without  his  previous 
authority  or  subsequent  sanction.''^  In  determining  what  is.  a 
reasonable  expenditure  of  money  for  a  family,  the  income  of  the 
husband,  or  his  power  to  produce  or  earn  one,  is  as  important 


54.  See  e.  g.  Daubney  v.  Hughes,  60 
N.  Y.  187.  Any  notice  intended  to 
terminate  the  continuance  of  an  ex- 
press contract  must,  in  order  to  be 
effectual,  be  appropriate  thereto.  lb. 
And  see  Miekelberry  v.  Harvey,  58 
Ind.  523. 

55.  Heyman  v.  Heyman,  19  Ga.  App. 
634,  92  S.  E.  25;  Edminston  v.  Smith, 
13  Ida.  64,  92  P.  842;  Underbill  v. 
Mayer,  174  Ky.  22'9',  192  S.  W.  14; 
Noel  V.  O'Neill,  128  Md.  202,  97  A. 
513;  In  re  Kosanke's  Estate  (Minn.), 
lea  N.  W.  1060;  Dorrance  v.  Dor- 
rance,  257  Mo.  317,  165  S.  W.  783; 
Wickstrom  v.  Peck,  155  App.  Div, 
523,  140  N.  Y.  S.  570;  May  v.  Josias, 
159  N.  Y.  S.  820;  Weiserbs  v. 
Weiserbs,  169  N.  Y.  S.  Ill;  Negley 
V.  Stone,  32  Misc.  733,  66  N.  Y.  S. 
449 ;  Stevens  v.  Hush,  171  N.  Y.  Supp. 


41 ;  Woods  V.  Kaufman,  115  Mo.  App. 
398,  91  S.  W.  399.  Under  the  civil 
law  sums  paid  previously  to  a  dation 
en  paiment  for  the  support  of  the 
family,  from  all  appearances  by  the 
husband,  will  not  be  charged  to  the 
wife  on  the  ground  that  she  is  liable 
for  necessaries  for  the  family.  Leli- 
man  v.  Conlon,  105  La.  431,  29  So. 
879. 

56.  Humphreys  v.  Bush,  118  Ga. 
628,  45  S.  E.  911;  Bonney  v.  Perham, 
102  111.  App,  634;  Wilson  v.  Thomass, 
127  N.  Y.  S.  474. 

57.  Ott  V.  Hentall,  70  N.  H.  231, 
47  A.  80,  51  L.  R.  A.  226. 

58.  Werner  v.  Werner,  169  App. 
Div.  9',  154  N.  Y.  S.  570. 

59.  Morgan  v.  Hughes,  20  Tex.  141 ; 
Jolly  V.  Rees,  15  C.  B.    (N.  S.)    628. 

60.  Seaton  v.  Benedict,  5  Bing.  28. 


109  NECESSAEIES.  §    87 

as  the  actual  amount  expended.*^  The  common-law  rule  has  not 
been  changed  by  the  Married  Women's  Acts  in  Alabama,  Arkansas 
or  Xew  York.«' 

§  86.  To  Wife. 

A  wife's  own  claim  against  her  husband  for  moneys  expended 
in  procuring  necessaries  is  not  favorably  regarded.  Thus,  if  she 
leaves  her  spouse  for  good  cause,  and  lives  apart  from  him  for  many 
years,  she  ought  either  to  pledge  his  credit,  leaving  the  creditor  to 
his  own  remedies,  or  else  to  institute  such  judicial  proceedings  as 
may  result  in  the  award  of  alimony  or  a  separate  maintenance;  but 
not  to  expect  to  render  her  husband  a  debtor  to  herself.*^  But  as 
respects  her  right  of  support  she  is  a  creditor,  and  may  subject  his 
property  to  such  right,  if  rights  of  others  have  not  intervened.^* 
Where  a  wife  lived  apart  from  her  husband  for  eight  years  she  had 
no  claim  against  him  or  his  estate  for  money  expended  for  support 
and  maintenance  during  such  period,  though  she  left  him  for 
cruelty.^'^  If  she  has  used  her  own  earnings,  while  she  has  a  right 
to  them  under  a  Married  Women's  Act,  to  support  herself  when 
deserted  by  her  husband,  she  may  recover  from  him  the  amount  so 
expended.®"  To  maintain  such  an  action  she  must  show  not  only 
that  she  made  the  payments  out  of  her  separate  estate,  but  also  that 
the  articles  were  technically  necessaries."^ 

§  87.  To  Relatives  of  Wife. 

Policy  has  regarded  parental  claims  for  necessaries  furnished 
to  a  wife  with  great  distrust.  Such  claims  may  doubtless  accrue 
imder  an  express  contract."^  But  the  law  will  not  ordinarily 
imply  a  contract  as  against  a  son-in-law,  to  pay  his  wife's  board 
while  staying  at  her  father's  house.  "  Persons  in  such  a  near 
connection  as  father  and  children  do  not  usually  live  together  upon 
a  footing  of  obligation  to  account  wnth  and  pay  for  attentions  and 
services,  or  board  and  lodging.    When  the  parties  intend  to  live  in 

61.  Clark  v.  Cox,  32,  Mich.  204.  65.  Pierce  v.  Pierce,  9  Hun,  (X.  T.) 

62.  Ponder  v.  D.  W.  Morris  &  Bro.,       50. 

152  Ala.   531,  44  So.   651;   Sparks  v.  66.  Debrauwere  v.  Debrauwere,  203 

Moore,  66  Ark.  437,  56  S.  W.  1064;  N.  Y.  460,  96  N.  E.  722;   Pearson  v. 

Ruhl  V.  Ileintze,  97  App.  Div.  442,  80  Pearson,  173  N.  Y.  S.  563. 

N.  Y.  S.  1031.  67.  Pearson  y.  Pearson,  176  N.  Y. 

63.  Pierce  v.  Pierce,  16  N.  Y.   50.  S.  626. 

64.  Chittenden     v.     Chittenden,     22  68.   Daubney  v.  Hughes,  60  N.   Y. 
Ohio  Cir.  Ct.  498,  12  O.  C.  D.  526.  187. 


§  88 


HUSBAND    AND    WIFE. 


110 


that  way,  it  is  but  reasonable  to  require  that  there  should  be  an 
express  understanding  between  them  to  that  effect.""®  And  this 
principle  is  extended  to  the  husband's  own  board  ;  the  law  implying 
no  contract  by  which  the  relation  of  debtor  and  creditor  arises 
between  father-in-law  and  son-in-law,  either  for  support  on  the 
one  hand  or  services  on  the  other,^°  It  is  even  held  that  in  the 
absence  of  the  husband's  request  or  promise  to  pay,  the  father  of 
a  married  woman,  who  has  left  such  husband  ready  and  willing  to 
support  her,  cannot  recover  from  the  husband  for  her  board  or 
necessaries,  even  though  she  has  brought  a  libel  for  divorce  ;^^ 
though  such  claims,  when  bona  fide,  have  been  sustained  where  the 
wife  is  shown  to  have  sought  refuge  at  the  parental  abode,  from  the 
husband,  upon  grounds  wholly  justifiable.'^  Some  of  the  latest 
cases,  nevertheless,  imply  a  promise  on  the  husband's  part  to  pay 
his  wife's  board,  where  she  goes  to  her  parent's  house  upon  a  mutual 
understanding  that  she  may  stay  there  indefinitely,  the  spouses 
having  quarrelled.'^  With  the  growing  laxity  of  the  marriage 
union,  the  parent's  intervention  on  a  daughter's  behalf  against 
her  husband,  with  the  view  of  procuring  her  divorce,  and  boarding 
her  at  the  husband's  cost  meantime,  is,  unhappily,  becoming  far 
more  common  that  formerly,  and  more  readily  encouraged  by  the 
courts. 


§  88.  To  Third  Persons. 

Money  lent  the  wife  for  the  purchase  of  necessaries,  or  for 
other  purposes  however  suitable,  is  not  classed  with  necessaries  at 
the  common  law ;  probably  because  husbands  do  not  often  confer  an 
authority  liable  so  easily  to  abuse.'*  But  equity  takes  a  view  more 
consonant  to  the  wants  of  a  distressed  wife,  and  allows  the  person 
lending  the  money  to  stand  in  the  stead  of  the  tradesman,  and  to 
recover  if  the  money  was  actually  used  for  necessaries ;  thus  leav- 
ing him  bound,  in  other  words,  only  to  see  that  his  loan  is  properly 


69.  Per  Court,  in  Cantine  v.  Phil- 
lips, 5  Harring.    (Del.)   428, 

70.  Sprague  v.  Waldo,  38  Vt.   139. 

71.  Catlin  v.  Martin,  69  N.  Y.  393. 
The  wife  shouH,  rather,  apply  for  an 
allowance  pending  the  libel. 

72.  Biddle  v.  Frazier,  3  Houst. 
(Del.)  258.  Even  though  the  wife's 
libel  for  divorce  was  prosecuted  under 


her  father 's  direction.    Dowe  v.  Smith, 
11  Allen   (Mass.)   207. 

73.  Burkett  v.  Trowbridge,  61  Me. 
351.  And  see  Daubney  v.  Hughes,  60 
N.  Y.  187. 

74.  Walker  v.  Simpson,  7  W.  &  S. 
(Pa.)  83;  Stone  v.  McNair,  7  Taunt. 
432  ;  Stevenson  v.  Hardy,  3  Wils.  388  ; 
Knox  v.  Bushell,  3  C.  B.  (N.  S.)  334. 


Ill 


NECESSAKIES. 


89 


applied/'  Therefore,  money  advanced  for  and  applied  to  her 
support,  by  others,  under  like  circumstances  of  abandonment,  may 
be  recovered  of  him  in  equity. 


76 


§  89.  For  Necessaries  of  Putative  Wife. 

Marriage  de  facto,  or  reputed  marriage,  is  always  sufficient  to 
charge  the  husband  with  his  wife's  necessaries.  There  seem  to  be 
three  reasons  why  this  should  be  so;  one,  that  a  tradesman  cannot 
be  expected  to  inquire  into  such  matters ;  another  that  agency  binds 
any  principal;  the  third,  that  it  is  just  that  a  man  who  holds  out 
a  woman  to  society  as  his  wife  should  maintain  her  as  such.  Hence 
an  agency  is  to  be  inferred  wherever  there  is  cohabitation  of  parties 
as  husband  and  wife;  though  not,  it  would  appear,  where  the  co- 
habitation is  irregular  and  calculated  to  raise  a  different  impres- 
sion, and  strong  proof  of  actual  authority  bestowed  is  not  fur- 
nished. Lord  Kenyon  used  very  strong  language  to  this  effect  in 
Watson  V.  Threlkeld,  where  it  appeared  that  the  tradesman  knew 
that  there  had  been  no  marriage :  "  It  is  certain  that  if  a  man  has 
permitted  a  woman  to  whom  he  was  not  married  to  use  his  name 
and  pass  for  his  wife,  and  in  that  character  to  contract  debts,  he 
is  liable  for  her  debts  ;  and  I  am  of  opinion  that  he  is  liable  whether 
the  tradesman  who  furnished  the  goods  knew  the  circumstances  to 
be  so  or  not.  He  gives  her  a  credit  from  his  name  and  cohabita- 
tion ;  and  it  is  not  to  be  supposed  that  the  tradesman  could  look  to 
the  credit  of  a  woman  of  that  description  and  not  to  that  of  the 
man  by  whom  she  was  supported.""'  The  rule  is  especially  applic- 
able where  the  parties  have  gone  through  a  form  of  marriage.^* 
The  dictum  of  Lord  Ellenborough,  in  Bohinson  v.  Nahon,  would 
seem  to  narrow  this  rule  so  as  to  exclude  tradesmen  having  actual 
knowledge  of  the  illicit  relation  of  the  parties.^'     And  the  death 


75.  Harris  v.  Lee,  1  P.  Wms.  482; 
Walker  v.  Simpson,  7  W.  &  S.  (Pa.) 
83;  Kenyon  v.  Farris,  47  Conn.  510; 
Deare  v.  Soutten,  L.  R.  9  Eq.  151. 
See  Schullhofer  v.  Metzger,  7  Rob. 
(N.  Y.)  576  ;  De  Brauwere  v.  De  Brau- 
were,  203  N.  Y.  460,  96  N.  E.  722; 
Marshall  v.  Perkins,  20  R.  I.  34,  37 
A.  301,  78  Am.  St.  R.  841. 

76.  Kenyon  v.  Farris,  47  Conn.  510, 
36  Am.  R.  86;  De  Brauwere  v.  De 
Brauwere,  203  N.  Y.  430,  96  N.  E. 
722,  38  L.  R.  A.  (N.  S.)  508.  The 
rule  is  not  recognized  in  Massachu- 
setts.    Skinner  v.  Terrell,   159  Mass. 


474,  34  N.  E.  692,  21  L.  R.  A.  673; 
Deare  v.  Soutten,  L.  R.  9-  Eq.  151. 

77.  2  Esp.  637.  And  see  1  Greenl. 
Evid.,  §  207. 

78.  Frank  v.  Carter,  219  N.  Y.  35, 
113  N.  E.  549. 

79.  Robinson  v.  Nahow,  1  Camp. 
245.  But  reference  to  the  case 
shows  that  this  doubt  is  suggested 
more  strongly  in  the  reporter's 
headnote  than  in  his  lordship's  opin- 
ion. See  Jewsbury  v.  Newbold,  40  E. 
L.  &  Eq.  518 ;  Munroe  v.  De  Chomant, 
4  Camp.  215. 


§  90 


HUSBAND    AND    WIFE. 


112 


of  the  quasi  husband  is  held  to  revoke  his  authority  altogether,  so 
that  a  subsequent  contract  is  void  against  his  estate,  under  all 


circumstances 


80 


§  90.  For  Necessaries  of  Family  in  general. 

The  obligation  to  provide  necessaries  extends  to  the  whole  family, 
with  such  modifications  as  will  be  more  properly  noticed  in  treatises 
upon  the  topic  of  parent  and  child.  If  a  man  marry  a  widow  he 
is  not  bound  to  maintain  her  children;  unless  he  holds  them  out 
to  the  world  as  part  of  his  own  family,^^  nor  to  support  a  child 
which  his  wife  brings  into  the  family  without  his  consent.®^  But 
by  the  statute  4  and  5  Will.  IV.,  c.  76,  §  57,  the  husband  is  required 
to  maintain,  as  part  of  his  family,  any  child  or  children,  till  the 
age  of  sixteen,  legitimate  or  illegitimate,  that  his  wife  may  have 
at  the  time  of  entering  into  the  contract.®^  As  an  agent  duly 
authorized,  the  wife  may  doubtless  pledge  her  husband's  credit  for 
the  necessaries  of  the  children,  as  well  as  her  own.  But  upon  the 
doctrine  of  presumptions  and  an  implied  authority  from  him  to  do 
so,  the  common  law  is  more  reserved.  "  Family  necessaries  "  is  an 
expression  of  our  later  statutes  which  indicates  a  growing  favor 
in  that  direction,  and  modern  custom  may,  of  course,  extend  the 
implied  scope  of  an  agency  beyond  earlier  usage.  There  never  was 
a  doubt,  in  our  law,  of  the  obligation  which  rests  upon  the  father 
of  maintaining  his  children,**  and  it  has  sometimes  been  considered 
that  in  a  strong  case,  where  the  father  neglects  his  duty,  the  infant 
child  himself  may  bind  the  parent  by  his  contract.®^  "We  shall  ex- 
amine this  point  hereafter  in  the  light  of  modern  legislation,** 
but  may  here  remark  that  a  wife's  authority  is  more  favored  in 
this  respect  now  than  formerly,  and  that  upon  circumstances  show- 
ing that  the  husband  remitted  the  marital  care  and  custody  of 
children  to  the  wife,  she  has  been  treated  as  an  implied  agent  on  his 
behalf  of  their  necessaries ;  and  even  as  an  agent  of  necessity 


87 


80.  Blades  v.  Free,  9  B.  &  C.  167; 
Stinson  v.  Prescott,  15  Gray  (Mass.) 
335.  But  see  Ginochjo  v.  Poreella,  3 
Bradf.  Sur.  277. 

81.  Attridge  v.  Billings,  57  111.  489. 

82.  Haas  v.  American  Nat.  Bank, 
42  Tex.  Civ.  467,  94  S.  W.  439. 

83.  Tubb  V.  Harrison,  4  T.  E.  118 ; 
Tooper  v.  Martin,  4  East,  76;  Stone 
V.  Parr,  3  Esp.  IST.  P.  1 ;  Hall  v.  Weir, 
1  Allen  (Mass.)  261.  Pee  Schonlor 
Dom.  Eel.,  Parent  &  Child. 


84.  Supra,  §  85. 

Bazeley  v.  Forder,  L.  E.  3  Q.  B.  559. 

85.  See  Schouler  Dom.  Eel.,  Parent 
and  Child,  327,  328,  where  this  point 
is  considered  at  length. 

86.  See  Cook  v.  Ligon,  54  Miss.  368 ; 
Powers  V.  Eussell,  26  Mich.  179. 

87.  As  where  they  have  separated 
upon  the  mutual  understandine  that 
she  may  take  the  children  with  her. 
Gotts  V.  Clark,  78  111.  229:  Clark  v. 
Cox,  32  Mich.  204.    Or,  peihaps,  where 


113  NECESSAEIES.  §    92 

As  the  obligation  of  a  hiisband  to  support  does  not  extend  be- 
yond bis  wife  and  bis  own  children,  nor  even  to  step-cbildren,  a 
wife  cannot  ordinarily  make  a  binding  contract  to  support  ber 
own  parent,  brother,  sister,  or  near  relatives,  either  at  his  expense 
or  her  own,  since  she  is  neither  siii  juris  nor  presumably  his  agent 
for  that  purpose.** 

§  91.  For  Articles  in  part  Necessaries  and  in  part  not. 

The  reader  has  perceived  that  the  claim  for  a  wife's  necessaries 
involves  two  elements:  articles  furnished  must  be  of  the  suitable 
class,  such  as  food,  dresses,  or  medical  attendance ;  and,  further- 
more, of  that  class  the  wife  must  be  destitute  of  such  supply  as 
befits  her  condition  and  the  means  and  station  of  her  husband. 
Hence  a  blending  of  law  and  fact,  and  hence,  moreover,  much  con- 
fusion in  laying  down  the  rules,  though  a  tradesman  has  not  always 
to  inquire  strictly.  Where  one  has  supplied  the  wife  with  articles, 
some  of  which  are  necessaries  and  some  are  not,  some  of  which 
were  rightly  furnished  her  and  some  of  which  were  not,  he  can  yet 
recover  for  the  necessaries,  or  for  what  he  rightly  furnished.** 
But  on  the  other  hand,  one  cannot  furnish  articles  which  were  not 
necessaries  and  not  suitable,  and  recover  a  fraction  of  their  value 
on  the  plea  that  they  might  have  answered  the  purpose  of  other 
articles  which  would  have  been  necessaries.^" 

§  92.  For  non-necessaries. 

A  husband  is  not  usually  liable  for  non-necessaries  sold  to  his 
wife  without  his  authority,®^  and  on  her  sole  credit,®"  even  though 
he  fails  to  object  when  he  learns  of  the  transaction.®^  His  subsequent 

he  drives  wife  and  children  from  home  91.  Bennett  v.  Chamberlain   (Del.), 

by     his     misbehavior.       Reynolds     v.  5   Har.   391 ;    McBride  v.   Adams,    84 

Sweetser,      15      Gray      (Mass.)      78;  N.  Y.  S.  1060, 

88.  Olney  v.  Howe,  89  111.  556;  At-  92.  Mattar  Bros.  v.  Wathen,  99 
tridge  v.  Billings,  57  111.  489';  Cf.  Ark.  329,  138  S.  W.  455;  Charles  v. 
Schnuckle  v.  Bierman,  89  111.  454.  Strouse,  120  N.  Y.  S.  736. 

89.  Eames  v.  Sweetser,  101  Mass.  93.  Riehburg  v.  Sherwood,  101  Tex, 
78;   Roberts  v.  Kelley,  51  Vt,  97.  10,  102  S.  W.  905. 

90.  Thorpe    v,    Shapleigh,    67    Me, 
235. 


8 


§  93 


HUSBAND    AND    WIFE. 


lU 


promise  to  pay,  in  such  case,  is  without  consideration.** 
sold  with  his  knowledge  and  consent  he  will  be  liaible. 


But  if 


95 


§  93.  Agency  of  Wife  to  Bind  Husband  for  Necessaries. 

To  enforce  these  marital  obligations  the  law  takes  a  circuitous 
course ;  and  the  wife  may  secure  herself  from  want  against  a  cruel 
and  miserly  husband,  of  ample  means  to  support  her,  by  pledging 
his  credit  and  making  such  purchases  as  are  needful,  on  the 
strength  of  an  implied  authority  for  that  purpose.  Here,  all  other 
things  being  equal,  it  is  presumed  that  she  was  her  husband's  agent ; 
and  no  direct  permission  need  be  shown.  Indeed,  wherever  the 
facts  are  clear,  that  those  articles  were  actually  needed,  and  that 
the  husband  failed  to  supply  them,  this  presumption  is  carried  so 
far  as  to  control  even  the  express  orders  of  the  husband  himself. 
The  articles  for  which  a  wife  is  allowed  to  pledge  her  husband's 
credit  as  his  presumed  agent  are  designated  at  common  law  as 
necessaries.  There  is  a  broad  presumption  of  assent  which  co- 
habitation of  itself  furnishes.  The  simple  circumstance  that  hus- 
band and  wife  are  living  together  has  been  generally  held  sufficient, 
when  nothing  to  the  contrary  intervenes,  to  raise  a  presumption 
that  the  wife  is  rightfully  making  such  purchases  of  necessaries  as 
she  may  deem  proper.®^    "Whoever  then  supplies  her  in  good  faitli, 


94.  Slmman  v.  Steinel,  129  Wis. 
422,  109  N.  W.  74,  7  L.  K.  A.  (N.  S.) 
1048.  A  wife  purchased  a  hat,  the 
original  price  of  which  was  $4,  upon 
which  she  paid  50  cents,  and  said 
that  her  husband  would  pay  the  bal- 
ance that  evening.  Later  in  the  day 
the  husband  and  wife  appeared  at  the 
store,  and  the  husband  gave  his  wife 
50  cents,  which  she  paid  on  the  hat. 
The  husband  said  that  he  would  come 
and  pay  for  the  hat,  or  that  he  would 
come  back  next  Monday  and  pay  the 
balance.  Held,  that  there  was  an  as- 
sent to  or  ratification  of  the  wife's 
purchase  by  the  husband.  Landgrof 
V.  Tanner,  152  Ala.  511,  44  So.  397. 

95.  Jones  v.  Gutman,  88  Md.  355, 
41  A.  792. 

96.  2  Bright  Hus.  &  Wife,  6,  7; 
Bull.  N.  P.  134;  Langfort  v.  Tyler, 
Salk.  113;  Atkins  v.  Curwood,  7  Car. 
&  P.  756.  See  also  Dyer  v.  East,  1 
Vent.  42 ;  Beaumont  v.  Weldon,  2  Vent. 


155;  Montague  v.  Benedict,  3  B.  & 
C.  631;  Manby  v.  Scott,  1  Mod.  124; 
1  Sid.  109;  1  Eoll.  Abr.  351,  pi.  5; 
Freestone  v.  Butcher,  9  Car.  &  P.  643 ; 
Bonney  v.  Perham,  102  111.  App.  634 ; 
Tuttle  V.  Hoag,  46  Mo.  38,  2  Am.  E. 
481;  Hamilton  v.  McEwen,  144  Mo. 
App.  542,  129  S.  W.  39;  French  v. 
Burlingame,  155  Mo.  App.  548,  134 
S.  W.  1100;  Feiner  v.  Boynton,  73 
N.  J.  Law,  136,  62  A.  420;  Bradt  v. 
ShuU,  46  App.  Div.  347,  61  N.  Y.  S. 
484;  Dixon  v.  Chapman,  56  App.  Div. 
542,  67  N.  Y.  S.  540;  Constable  v. 
Rosener,  82  App.  Div.  155,  81  N.  Y. 
S.  376  (affd.  178  N.  Y.  587,  70  N.  E. 
1097)  ;  Baccaria  v.  Landers,  84  Misc. 
396,  146  N.  Y.  S.  158;  Graham  v. 
Schleimer,  28  Misc.  535,  59  N.  Y.  S. 
689;  Jones  v.  Bernstein,  177  N.  Y.  S. 
155;  Best  &  Co.  v.  Cohen,  174  N.  Y. 
Supp.  639 ;  McCreery  v.  Scully,  67  Pa. 
Super.  524 ;  Geiger  v.  Blackley,  86  Va. 
a28,  10  S.  E.  43.     The  implied  power 


115  NECESSARIES.  §    93 

as  the  law  has  usually  been  understood,  need  inquire  no  further, 
but  may  send  his  bill  to  her  husband.  The  rule  is  a  fair  one;  for 
it  is  not  to  be  supposed  that  a  husband  will  go  in  person  to  buy 
every  little  article  of  dress  or  household  provision  which  may  be 
needful  for  his  family.  As  Lord  Ahinger  observed,  a  wife  would 
be  of  little  use  to  her  husband  in  their  domestic  arrangements  if 
his  interference  was  always  to  be  deemed  necessary.''^  Accord- 
ingly, if  an  action  be  brought  against  the  husband  for  the  price  of 
goods  furnished  under  such  circumstances,  it  must  be  taken  prima 
facie  that  these  goods  were  supplied  by  his  authority,  and  he  must 
show  that  he  is  not  responsible.*^* 

The  wife's  contract  for  necessaries  will  bind  the  husband  to  a 
still  greater  extent  if  the  evidence  warrant  the  inference  that  a 
more  extensive  authority  has  in  fact  been  given."®  Thus  the  pre- 
sumption which  cohabitation  furnishes  is  strengthened  by  proof 
that  the  wife  has  been  permitted  by  the  husband  to  purchase  other 
articles  of  the  same  sort  for  the  use  of  the  household.^  But  it  must 
be  ordinarily  things  for  what  may  be  termed  the  domestic  depart- 
ment, to  which  the  wife's  authority  to  bind  her  husband  is  re- 
stricted," and  she  can  pledge  her  husband's  credit  for  necessaries 
only  in  case  of  real  necessity.^ 

But  we  must  observe  that  the  question  is,  after  all,  one  of  evi- 
dence ;  it  turns  upon  the  question  of  authority  from  the  husband ; 
and  this  presumption  in  the  wife's  favor  may  be  rebutted  by  con- 
trary testimony  on  the  husband's  behalf.*  Lord  Holt  says,  "  His 
assent  shall  be  presumed  to  all  necessary  contracts,  upon  the  account 
of  cohabiting,  unless  the  contrary  appear."  ^     And  in  the  leading 

of   a   wife   to   bind   her   husband   for  &    Man.    559;    M 'George   v.   Egan,   7 

necessaries,  where  it  exists,  is  for  her  Scott  Cases,  112. 

own  benefit,  and  not  for  the   benefit  1.  1  Sid.  128 ;  Jewsbury  v.  Newbold, 

of   those    with    whom    she    may    deal.  40  E.  L.  &  Eq.  518. 

Zent  V.  Sullivan,  47  Wash.  315,  91  P.  2.  Phillipson  v.  Hayter,  L.  R.  6  C. 

1088,  13  L.  R.  A.  (N.  S.)  244.  P.  38. 

97.  Emmet  v.  Norton,  8  Car.  &  P.  3.  Dolan  v.  Brooks,  168  Mass.  350, 
506.  47   N.   E.   408;   Steinfield  v.   Girrard, 

98.  Watts  V.  Moffett,  13  Ind.  App.  103  Me.  151,  68  A.  630;  Eder  v. 
399,  40  N.  E.  533 ;  Steinfield  v.  Gir-  Grifka,  149  Wis.  606,  136  N.  W.  154. 
rard,  103  Me.  151,  68  A.  630;  Howell  4.  Lane  v.  Ironmonger,  13  M.  &  W. 
V.    Blesh,    19    Okla.    260,    91    P.    893;  368. 

Clifford    V.    Laton,    3    Car.    &   P.    15,  5.  Etherington   v.   Parrott,    1    Salk. 

per    Lord    Tenterden ;     Debenham    v.  118.    See  also,  to  the  same  effect,  Holt 

Mellon,  L.  R.  5  Q.  B.  D.  394.  v.  Brien,  4  B.  &  Aid.  252 ;  McCutchen 

99.  2  Bright  Hus.  &  Wife,  9;  cases  v.  McGahay,  11  Johns.  281;  and  note 
cited  in  note  to  Filmer  v.  Lynn,  4  Nev.  by  Am.  editor  to  Bing.  Inf.  187.    The 


§    93  HUSBAND    AND    WIFE.  116 

case  of  Montague  v.  Benedict,  the  court  observes:  "  Cohabitatiou 
is  presumptive  evidence  of  the  assent  of  the  husband,  hut  it  may  be 
rebutted  by  contrary  evidence;  and  when  such  assent  is  proved  the 
wife  is  the  agent  of  the  husband  duly  authorized."  ^  The  presump- 
tion is  not  rebutted  by  evidence  that  he  told  her  to  get  the  articles 
at  a  different  place.^ 

The  usual  analogies  of  agency  may  be  transcended,  notwithstand- 
ing the  spouses  live  together,  where  the  one  is  truly  delinquent,  and 
the  other  deprived  of  the  support  owing  her.  Wherever  the  hus- 
band neglects  to  supply  his  wife  with  necessaries,  or  the  means  of 
procuring  them,  she  may  obtain  what  is  strictly  needful  for  her 
support,  although  it  be  against  his  wishes,  on  the  pledge  of  his 
credit.  And  the  person  furnishing  the  articles  may  sue  the  hus- 
band notwithstanding  he  has  been  expressly  forbidden  to  trust  her.* 
But  here  the  law  raises  a  presumption  of  agency  only  for  the  pur- 
pose of  enforcing  a  marital  obligation.  Such  an  agency  is  perhaps 
an  agency  of  necessity.''  And  the  tradesman  or  other  party  furnish- 
ing supplies  in  this  case  is  bound  to  show  affirmatively  and  clearly 
that  the  husband  did  not  provide  necessaries  for  his  wife  suitable 
to  her  condition  in  life.^°  It  is  held  in  Massachusetts  that  a  town 
may  supply  a  wife  who  is  in  need  of  relief,  through  the  neglect  of 
her  husband,  and  then  sue  him  for  necessaries  suitable  to  the  con- 
dition of  a  pauper,  and  no  more.^^  In  New  York,  if  the  husband 
be  of  sufficient  ability  to  support  his  wife,  it  would  appear  that  she 
cannot  be  supported  by  the  public  as  a  pauper  at  all.^^  And  so  in 
Indiana.^^ 

position  assumed  by  Mr.  Story,  in  his  8.  Keeler  v.  Phillips,  39  N,  Y.  351 ; 

work    on   Contracts,   that,   as   to    the  Cromwell  v.  Benjamin,  41  Barb.   (N. 

wife's    necessaries,    "the    law    raises  Y.)  558;  Woodward  v,  Barnes,  43  Vt. 

an  wncontroUdble  presumption  of  as-  330. 

sent  on  the  part  of  the  husband,"  is  9.  Pollock,  C.  B.,  in  Johnston  v. 
therefore  incorrect.  Story  Contr.,  2d  Sumner,  3  H.  &  N.  261,  likens  the 
ed.,  §  97.  "What  the  law  does  infer  agency  under  such  circumstances  to 
is,  that  the  wife  has  authority  to  con-  that  which  the  captain  of  a  ship  some- 
tract  for  things  that  are  really  neces-  times  exercises. 

sary  and  suitable  to  the  style  in  which  10.  Keller  v.  Phillips,  39  N.  Y.  351; 

th3  husband  chooses  to  live,  in  so  far  Cromwell     v.     Benjamin,     41     Barb, 

as  the  articles  fall  'fairly  within  the  (N.  Y.)  558;  Woodward  v.  Barnes,  43 

domestic    department    which    is    ordi-  Vt.   330. 

narily  confided  to  the  management  of  11.    Monson    v.    Williams,    6    Gray 

the  wife."    Willes,  J.,  in  Phillipson  v.  (Mass.),    416.      And   see   Eumney    v. 

Hayter,  L.  R.   6  C.  P.   38.      And  see  Keyes,  7  N.  H.  571. 

Bovill,  C.  J.,  ib.,  to  the  same  effect.  12.  Norton  v.  Rhodes,  18  Barb.  (N. 

e.  Montague  v.  Benedict,  3  B.  &  C.  Y.)  100. 

g32  13.  Commissioners  v.  Hildebrand,  1 

7.  Jones   v.    Gutman,   88    Md.    355,  Carter  (Tnd.),  555. 
41  A.  792. 


117  NECESSARIES.  §    96 

§  94.  Rule  of  Good  Faith. 

Courts  will  always  regard  the  rule  of  good  faith  in  matters  rela- 
tive to  the  wife's  necessaries.  Thus  if  the  husband  and  wife  be 
living  apart  without  the  husband's  fault,  and  he  wishes  to  terminate 
his  liability  by  requesting  her  to  return  home,  his  conduct  must 
show  sincerity ;  though,  if  his  intentions  are  bona  fide,  and  he 
makes  suitable  provision  at  his  own  home,  the  wife  forfeits  all 
claim  to  further  support  by  refusing  to  return.^*  So  where  a  hus- 
band expels  his  wife  and  afteinvards  designedly  misleads  her  into 
the  belief  that  he  is  dead,  whereupon  she  marries  another  with 
honest  motives,  and  leaves  him  at  once  on  learning  that  her  husband 
is  alive,  her  husband  cannot  set  up  her  bigamy  as  a  defence  to  an 
action  against  him  for  her  subsequent  necessaries.^^ 

§  95.  Effect  of  Infancy. 

An  adult  husband  is  bound  on  the  contracts  of  his  minor  wife 
for  necessaries.^®  And  a  minor  husband  is  liable  for  necessaries 
furnished  his  wife,  whether  she  be  minor  or  adult.^^  The  ordinary 
rules  of  husband  and  wife,  therefore,  apply  so  far  as  such  neces- 
saries are  concerned.  If  old  enough  to  contract  marriage,  an  infant 
is  presumed  old  enough  to  pay  for  his  wife's  board  and  lodging  as 
well  as  his  own.  And  such  claims  may  be  enforced  against  his 
estate,  though  he  die  under  age.^^  But  with  regard  to  his  wife's 
general  contracts  it  would  seem  that  infancy,  which  incapacitates 
him  from  making  contracts  in  person,  also  disqualifies  him  from 
employing  an  attorney. 

§  96.  Effect  of  Notice  not  to  Sell  to  Wife. 

As  a  rule,  a  husband  who  furnishes  his  wife  and  family  with 
necessaries,  in  any  reasonable  manner,  has  the  right  to  prohibit 
particular  persons  from  trusting  or  dealing  with  her  on  his  account. 
!N'otice  to  this  effect,  properly  given,  will  be  effectual  as  against 
any  presumption  which  cohabitation  raises.^®  And  notice  given 
to  a  tradesman's  servant   has  been  held  sufficient  notice  to  the 

14.  Walker  v.  Laighton,  11  Fost.  (Del.)  428.  And  see  Bush  v.  Lindsey, 
(N.  H.)  111.  14  Ga.  687. 

15.  Cartwright    v.    Bate,    1    Allen  18.  Hid. 

(Mass.)   514.     See  Pidgin  v.  Cram,  8  19.  B.  Altman  &  Co.  v.  Durland,  173 

N.  H.  350.  N.   Y.   S.   62 ;    Hibler   v.   Thomas,   99 

16.  Nicholson  v.  Wilborn,  13  Ga.  111.  App.  355;  McCutchen  v.  McGahay, 
467.  11  Johns.  (N.  Y.)  281;  Keller  v.  Phil- 

17.  Cantine  v.  Phillips,  5  Barring.  lips,  39  N.  Y.  351. 


§  96 


HUSBAND    AND    WIFE. 


118 


master.  But  notice  given  in  the  newspapers  not  to  trust  a  wife  is 
held  to  be  of  no  effect  against  such  as  have  not  had  actual  notice.^** 
Nor  is  a  successful  defence  against  one  bill  sufficient  notice  of  pro- 
hibition against  subsequent  bills.^^  In  order  to  bind  the  husband 
for  goods  furnished  after  notice  to  cease  furnishing,  the  seller  must 
show  not  only  that  the  articles  he  furnishes  are  necessaries,  but 
that  the  husband  failed  to  supply  them  properly.^^ 

Generally,  in  such  cases,  it  has  been  said  the  burden  of  proof  is 
upon  the  husband.^^  Such  a  statement,  however,  must  be  taken 
with  caution.  Cohabitation  furnishes,  as  we  have  seen,  a  presump- 
tion of  authority;  but  the  latest  English  decisions  go  very  far 
towards  annihilating  that  presumption  by  insisting  that  the  ques- 
tion of  the  wife's  express  or  implied  authority  is  purely  one  of  fact 
according  to  the  circumstances  of  each  case,  where  the  spouses  live 
together.  And  the  English  court  of  appeals  for  such  cases  -*  has 
lately  affirmed  a  lower  tribunal,^^  as  though  to  dispense  very  con- 
siderably with  the  necessity  of  notice  to  tradesmen  on  the  part  of  a 
husband  who  means  to  supply  his  wife  properly,  and  at  the  same 
time  prevent  her  from  pledging  his  credit.  The  point  decided, 
however,  affects  only  tradesmen  and  others  who  have  had  no  pre- 
vious dealings  with  the  wife,  to  which  the  husband's  assent  was 
given;  and  as  to  such  persons  it  is  ruled  that  the  husband  being 
able  and  willing  to  supply  his  wife  with  necessaries,  and  having 
actually  forbidden  her  to  pledge  his  credit,  he  cannot  be  held  liable 
for  what  she  buys,  even  though  no  notice,  express  or  implied,  has 
been  received  of  the  prohibition,^®  This  decision,  after  all,  is  not 
directly  contrary  to  the  rules  of  agency,  as  we  apprehend,  but 
operates  so  as  to  make  the  wife  a  sort  of  special  agent.  It  disposes 
of  an  idea  formerly  entertained  by  many,  that  the  wife  might 
pledge  her  husband's  credit  for  articles  termed  necessaries  to  any 
one,  unless  the  husband,  by  publication  or  otherwise,  had  affected 


20.  Walker  v.  Laighton,  11  Fost. 
(N.  H.)  Ill;  W.  &  J.  Sloane  v.  Boyer, 
95  N.  Y.  S.  531;  Menschke  v.  Riley, 
139  Mo.  App.  331,  140  S.  W.  639 

21.  Ogden  v.  Prentice,  33  Barb.  (N. 
Y.)  160. 

22.  Barr  v.  Armstrong,  56  Mo.  577. 

23.  Tebbets  v.  Hapgood,  34  N.  H. 
420. 

24.  Debenham  v.  Mellon,  L.  R.  5 
Q.  B.  D.  394.    Doubt  is  thrown  by  this 


decision  upon  Johnston  v.  Sumner,  3 
H.  &  N.  261. 

25.  Jolly  V.  Rees,  15  C.  B.  (N.  S.) 
&28. 

26.  Debenham  v.  Mellon,  L.  R.  5  Q. 
B.  D.  394.  The  opinion  of  Bramwell, 
L.  J.,  in  this  case  is  worthy  of  careful 
perusal.  The  same  principle  is  con- 
firmed in  this  country  by  Woodward  v. 
Barnes,  43  Vt.  330.  But  cf.  Cothran 
V.  Lee,  24  Ala.  380. 


119 


NECESSARIES. 


§  97 


the  seller  with  notice  of  his  dissent ;  and  it  requires  those  who  have 
had  no  previous  dealings  of  the  kind  to  make  inquiry,  at  their  peril, 
as  to  the  wife's  actual  authority  or  destitute  condition  before  they 
rely  upon  it.  They  who  have  already  furnished  supplies  to  the 
wife  on  the  husband's  credit  with  his  knowledge,  and  who  have 
come  thus  within  the  apparent  scope  of  her  agency  to  bind  him, 
may,  we  presume,  continue  doing  so,  until  death  or  suitable  notice 
of  the  husband's  dissent  operates  as  a  revocation  of  that  agency. 

§  97.  Effect  of  giving  Credit  to  Wife  or  Third  Party. 

The  presumption  of  an  agency  on  her  husband's  behalf  may  be 
overcome  by  the  fact  of  a  purchase  by  the  wife  upon  her  own  or 
some  third  person's  credit ;  wherever  she  is  really  trusted  as  prin- 
cipal herself,  or  as  the  agent  of  some  one  else  than  her  spouse ;  or 
where  the  third  person  ordered  them  in  person." 

In  all  cases  the  husband  will  be  discharged  from  liability  where 
it  appears  that  the  goods  were  not  supplied  on  his  credit,  but  that 
the  party  furnishing  them  trusted  the  wife  individually.^*  She 
might  have  separate  property,  independently  of  her  husband,  to 
which  the  tradesman  looked  for  payment,  or  a  special  allowance  of 
suflScient  amount  might  have  been  made  her  by  her  husband. ^^ 
Thus,  where  the  husband  during  a  temporary  absence  made  an 
allowance  to  his  wife,  he  was  held  not  to  be  liable  for  necessaries 
supplied  to  her,  the  tradesman  having  trusted  to  payment  from  her 
allowance.^"  So  if  credit  be  given  to  a  third  party,  the  husband 
is  not  liable.^^  And,  of  course,  if  the  tradesman  has  agreed  not  to 
charge  him,  there  is  no  liability  incurred  by  the  husband. ^^  Though 
the  wife  be  without  property,  the  rule  is  the  same;  and  it  would 
appear  that  the  husband  may  give  permission  to  trust  his  wife  on 
her  separate  credit  without  incurring  liability. 


S3 


27.  Though  as  to  the  right  of  her 
father  or  any  other  third  person  to 
stand  in  place  of  a  tradesman,  under 
proper  circumstances  of  necessity,  see 
supra,  87. 

28.  Metcalfe  v.  Shaw,  3  Camp.  22; 
Bentley  v.  Griffin,  5  Taunt.  356;  Pear- 
son V.  Darrington,  32  Ala.  227;  Stam- 
mers V.  Macomb,  2  Wend.  454;  Moses 
V.  Forgartie,  2  Hill  (S.  C),  335; 
Carter  v.  Howard,  39  Vt.  106;  Bugbee 
V.  Blood,  48  Vt.  497. 

29.  Levett  v.  Penrice,  24  Miss.  416 ; 


Simmons  v.  McElwain,  26  Barb. 
(N".  Y.)  420;  McMahon  v.  Lewis,  4 
Bush  (Ky.),  138;  Weisker  v.  Lowen- 
thal,  31  Md.  413. 

30.  Holt  V.  Brien,  4  B.  &  Aid.  252; 
Montague  v.  Benedict,  3  B.  &  C.  631 ; 
Harshaw  v.  Merryman,  18  Miss.  106; 
Renaux  v.  Teakle,  20  E.  L.  &  Eq.  345. 

31.  Harvey  v.  Norton,  4  Jur.  42. 

32.  Dixon  v.  Hurrell,  8  Car.  &  P. 
717. 

33.  Taylor  v.  Shelton,  30  Conn.  122. 


§    98  HUSBAND    AND    WIFE.  120 

That  the  wife  has  a  separate  income,  that  the  invoices  are  made 
out  to  her,  that  the  plaintiff  has  drawn  bills  of  exchange  upon  her 
for  part-payment  of  the  amount  due,  and  that  she  has  accepted 
such  bills  in  her  own  name,  payable  at  her  own  banker's  from  her 
separate  funds, —  all  these  are  circumstances  which  go  to  repel 
the  presumption  of  agency  and  show  that  the  wife  was  purchasing 
on  her  own  credit  with  the  tradesman's  assent.^*  So  is  the  studious 
concealment  of  the  purchases  from  the  husband's  knowledge,  by  the 
tradesman  and  the  wife,  and  the  attempt  of  the  latter  to  s-ecure  the 
debt  by  her  own  promissory  note.^^  All  these  are  facts  for  the 
jury,  and  if  the  husband  has  been  prejudiced  in  his  rights  by  such 
proceedings,  this  is  in  his  favor.^®  The  husband  is  not  relieved  by 
the  single  circumstance  that  the  goods  were  charged  on  the  shop 
books  to  the  wife;  since  prima  facie  the  actual  credit  is  always 
supposed  to  be  given  to  the  husband.^^ 

§  98.  Effect  of  Money  Provision  for  Wife. 

Not  only  is  the  husband  permitted  to  show  that  articles  in  con- 
troversy are  not  such  as  can  be  considered  necessaries,  but  he  may 
show  that  he  supplied  his  wife  himself  or  by  other  agents,  or  that 
he  gave  her  ready  money  to  make  the  purchase.^'  Some  courts 
hold  that  where  a  husband  makes  a  suitable  provision  of  cash  to 
pay  for  the  wife's  necessaries,  he  will  not  be  liable  for  other  goods 
sold  in  the  absence  of  evidence  that  he  authorized  or  ratified  the 
sale,^^  especially  where,  after  making  the  allowance,  he  forbids  her 

34.  Freestone  v.  Butcher,  9  Car,  &  v.  Brooks,  5  Harring.  (Del.)  396; 
P.  643 ;  Macq.,  Hus.  &  Wife,  135.  Furlong  v.   Hyson,   35   Me.   332 ;    H. 

35.  Mitchell  v.  Treanor,  11  Geo.  324.  Leonard  &  Sons  v.  Stowe,  166  Mich. 
But  see  Day  v.  Burnham,  36  Vt.  37,  681,  132  N.  W.  454. 

•which  regards  such  connivance  some-  38.  Manby  v.  Scott,  1  Sid.  109 ;   2 

what  kindly.  Smith's  Lead.  Cas.  (6th  Am.  ed).  469; 

36.  Attorney-General  v.  Riddle,  2  Etherington  v.  Parrott,  2  Ld.  Raym. 
Cr.  &  Jer.  493;   2  Tyr.  523;   Barnes  1006. 

V.  Jarrett,  2  Jur.  988.  39.  James  McCreery  &  Co.  v.  Mar- 

37.  Edministon  v.  Smith,  13  Ida.  tin,  84  N.  J.  Law,  626,  87  A.  433; 
645,  92  P.  842;  Warrington  v.  Ana-  Wanamaker  v.  Weaver,  176  N.  Y.  75, 
ble,  84  111.  App.  593;  Johnson  v.  68  N.  E.  135,  98  Am.  St.  R.  621; 
Briscoe,  104  Mo.  App.  App.  493,  79  Frank  v.  Carter,  219  N.  Y.  35,  113 
S.  W.  498;  Martin  v.  Oakes  42  Misc.  N.  E.  549;  Stevens  v.  Hush,  176  N. 
201,  85  N.  Y.  S.  387;  Best  &  Co.  v.  Y.  S.  602;  Best  &  Co.  v.  Cohen,  174 
Cohen,  174  N.  Y.  S.  639;  B.  Altman  N.  Y.  S.  639;  Jones  v.  Bernstein,  177 
&  Co.  V.  Durland,  173  N.  Y.  S.  62;  N.  Y.  S.  155;  Quinlan  v.  Westervelt, 
Wickstrom  v.  Peck,  163  App.  Div.  65  Misc.  547,  120  N.  Y.  S.  879 ;  Wein- 
608,  148  N.  Y.  S.  596;  Jewsbury  v.  green  v.  Beckton,  102  N.  Y.  S.  520; 
Newbold,  40  E.  L.  &  Eq.  518;  Godfrey  Rosenfield  v.  Peck,  134  N.  Y.  S.  392; 


121 


NECESSARIES. 


§   99 


to  open  credit  accounts/"  Where  a  husband  compels  his  wife  to 
live  apart  from  him.  by  his  misconduct,  he  is  liable  for  her  neces- 
saries, notwithstanding  the  fact  that  he  makes  her  her  allowance, 
so  long  as  that  allowance  is  insufficient,  and.  she  has  no  proper 
means  of  support.'*^  Making  such  a  provision  for  his  wife  does 
not  relieve  him  of  his  duty  except  where  the  fact  is  known  to  the 
creditor.*^  Where  she  habitually  clothes  herself  out  of  her  private 
estate,  it  may  be  deemed  a  provision  which  will  relieve  her  husband 
of  liability.'*^  In  such  case  it  is  not  material  that  the  creditor  did 
not  know  of  the  provision/ 


44 


§  99.  Effect  of  Husband's  ratification  of  Wife's  unauthorized 
purchases. 

Another  point,  as  we  have  already  suggested,  is  available  by  the 
person  who  has  furnished  necessaries,  on  the  general  principles  of 
agency ;  namely,  that  a  husband's  subsequent  ratification  is  as  good 
as  a  previous  authority.  So,  then,  if  it  can  be  shown  that  the 
husband  knew  his  wife  had  ordered  certain  necessaries,  and  yet 
failed  to  rescind  the  purchase;  or  if  there  be  proof  that  he  knew 
she  wore  the  articles  and  yet  expressed  no  disapprobation ;  the  law 
presumes  approval  of  her  contract  and  binds  him.^^  To  this  prin- 
ciple, perhaps,  may  be  referred  the  rule  which  Mr.  Roper  further 
states  (without,  however,  citing  any  authorities),  that  the  husband 
is  liable  whenever  the  goods  purchased  by  his  wife  come  to  her  or 
his  use  with  his  knowledge  and  permission,  or  when  he  allows  her 
to  retain  and  enjoy  them ;    in  other  words,  that  a  legal  liability 


Kenny  v.  Meislahn,  69  App.  Div.  572, 
75  N,  T.  S.  81. 

Where  a  husband 's  estate  amounted 
to  less  than  $200,000,  and  his  income 
■was  about  $20,000,  an  allowance  of 
$1,200  or  $1,300  a  month  to  his  wife 
living  expenses  was  sufficient  to  re- 
lieve him  from  liability  for  articles 
of  clothing  furnished  her  and  not 
paid  out  of  her  allowance.  Oatman  v. 
Watrous,  120  App.  Biv.  66,  105  N.  Y. 
S.  174;  Green  v.  Karp,  164  N.  T.  S. 
670 ;  B.  Altman  &  Co.  v.  Durland,  173 
N.  Y.  S.  62 ;  Lit  Bros.  v.  Hare,  69  Pa. 
Super.  Ct.  372. 

40.  McCreery  v.  Martin  (N.  J.)  87 
Atl.  433,  47  L.  S.  A.  (N.  S.)  279.  It 
has  been  held  otherwise  in  Massachu- 
setts as  to  medical  services.     Vaughan 


V.  Mansfield,  229  Mass.  352,  118  N.  E. 
652. 

41.  Litson  V.  Brown,  26  Ind.  469; 
Baker  v.  Sampson,  14  C.  B.  (N.  S.) 
383. 

42.  Fitzmaurice  v.  Buck,  77  Conn. 
390,  59  A.  415;  Cory  v.  Cook,  24  R. 
I.  421,  53  A.  315. 

43.  Dolan  v.  Brooks,  168  Mass.  350, 
47  N.  E.  408. 

44.  Dolan  v.  Brooks,  168  Mass.  350, 
47  N.  E.  408;  Meyer  v.  Jewell,  88  N. 
Y.  S.  972. 

45.  Seaton  v.  Benedict,  5  Bing.  28; 
H  Moo.  &  P.  74 ;  Parke,  B.,  in  Lane  v. 
Ironmonger,  13  M.  &  W.  368;  Day 
V.  Buruham,  36  Vt.  37;  Woodward  v. 
Barnes,  43  Vt.  330 ;  Ogden  v.  Prentice, 
33  Barb.  (N.  Y.)  160. 


§  99 


HUSBAND    AND    WIFE. 


122 


becomes  fixed  from  the  fact  that  the  husband  and  his  household 
take  the  benefit  of  the  purchase.*®  But  the  mere  fact  that  a  hus- 
band sees  his  wife  wearing  articles  purchased  without  authority 
will  not  charge  him ;  the  question  is  one  of  approval  or  disapproval, 
assent  or  dissent,  and  the  presumption  against  him  may  be 
rebutted."^ 

The  husband's  dissent  to  his  wife's  purchase  of  necessaries  should 
be  expressed  in  an  effectual  and  suitable  manner.  Mere  objection 
on  his  part  is  insufficient.  Thus  a  bill  for  medical  attendance  must 
be  paid  by  him,  even  though  he  objected  to  the  visits,  as  long  as  he 
was  present  and  gave  no  notice  to  the  physician  that  the  latter  must 
look  elsewhere  for  payment.*^  And  private  arrangements  between 
husband  and  wife  as  to  the  method  of  payment  cannot  affect  the 
rights  of  third  parties,  who  were  entitled  to  notice  thereof  and 
failed  to  receive  it.*®  If  he  means,  when  sued  in  assumpsit  for 
necessaries,  to  defend  the  action  as  to  part  only,  it  would  appear 
that  his  proper  plea  will  be  that  he  is  not  liable  beyond  a  certain 
amount,  and  he  should  pay  that  amount  into  court.''"  But  if  he 
means  to  dispute  the  charge  altogether,  common  honesty  dictates 
that  the  articles  unwarrantably  purchased  should  be  restored  with- 
out delay.^^  He  may  introduce  evidence  at  the  trial  to  show  that 
the  commodities  in  question  were  not  necessaries,  inasmuch  as  the 
wife  had  incurred  other  similar  debts  with  other  parties.^^  In  a 
word,  the  question  is  (in  the  absence  of  such  evidence  of  necessity 
as  may  show  an  agency  in  law)  whether  there  was  an  agency  and 
authority  in  fact.^^  Where  she  makes  a  contract  for  necessaries, 
and  he  afterwards  makes  payments  and  an  offer  of  settlement,  he 
is  liable." 


46.  2  Rop.  Hus.  &  Wife,  112;  2 
Bright,  Hus.  4  Wife,  9,  Mr.  Mac- 
queen  (Hus.  &  Wife,  note  to  p.  132) 
points  out  this  statement  of  Mr.  Roper 
with  a  doubt  as  to  the  authority,  al- 
though he  admits  the  justice  of  such 
a  rule,  on  the  civil-law  maxim  that 
"no  one  should  enrich  himself  at 
another's  loss." 

47.  Atkins  v.  Curwood,  7  Car.  &  P. 
756. 

48.  Cothran  v.  Lee,  24  Ala.  380. 

49.  lb.;  Johnston  v.  Sumner,  3  Hurl. 
&  Nor.  261.  We  have  seen,  supra, 
§    96,   that   the    latest    English   cases 


considerably  reduce  the  tradesman 's 
right  of  notice,  as  formerly  under- 
stood. Debenham  v.  Mellon,  L.  R.  5 
Q.  B.  D.  394. 

50.  Emmet  v.  Norton,  8  Car.  &  P. 
506. 

51.  Macq.,  Hus.  &  Wife,  136;  Gil- 
man  V.  Andrus,  28  Vt.  241.  See 
Tuttle  V.  Holland,  43  Vt.  542. 

52.  Renaux  v.  Teakle,  20  E.  L.  &  Eq. 
345. 

53.  Read  v.  Teakle,  24  E.  L.  &  Eq. 
332. 

54.  Mott  V.  Grunhut,  8  Daly  (N. 
Y.)   544. 


123 


NECESSARIES. 


§    100 


§  100.  Effect  of  Separation  in  general. 

It  has  generally  been  understood  that  whenever  husband  and 
wife  separate,  under  circumstances  showing  misconduct  on  the  part 
of  either,  the  presumption  of  agency  changes  sides.  The  fact  of 
their  living  apart  is  of  itself  a  caution  to  all  who  hold  dealings 
with  a  married  pair.  While  they  cohabit  it  is  usually  for  the 
husband  to  show  a  want  of  authority;  when  they  cease  to  cohabit 
the  seller  must  prove  authority ;  that  is  to  say,  he  must  prove  that 
the  wife  was  in  need  of  the  goods,  that  the  husband  failed  to  supply 
her,  and  that  the  wife  was  not  at  fault.  Prima  facie,  therefore,  a 
woman  living  apart  from  her  husband,  upon  either  voluntary  or 
involuntary  separation,^^  has  no  authority  to  bind  him,°*  the  separa- 
tion prima  facie  revoking  her  agency,^^  especially  if  he  provides  for 
the  family  notwithstanding  the  separation.^*  This  contrast  of 
presumptions  is  subject  to  the  new  English  doctrine  lately  com- 
mented upon,  which  seems  to  put  all  new  tradesmen  on  their  guard 
in  their  first  dealings  with  a  married  woman.^® 

Where  the  husband  is  merely  absent  from  home  for  temporary 
purposes,  the  wife's  presumed  authority  continues.*"  The  hus- 
band's liability  continues  where  there  is  no  open  separation ;  " 
and  where  the  fact  of  sepaartion  is  not  commonly  known,  or  where 
by  occasional  visits  the  husband  keeps  up  the  appearance  of  cohab- 
itation with  his  wife,  he  has  generally  been  considered  prima  facie 
liable  as  before ;  *"  though  notice  of  an  allowance  is  notice  of  his 
dissent  to  the  wife's  contracts.®^     He  may  agree  with  the  wife's 


55.  Johnston  v.  Sumner,  3  Hurl.  & 
Nor.  261,  per  Pollock,  C.  B.,  and  au- 
thorities there  commented  upon 

56.  Etherington  v.  Parrott,  2  Ld. 
Raym.  1006;  Mainwaring  v.  Leslie, 
1  Mood.  &  Malk.  18;  Montague  v. 
Benedict,  3  B.  &  C.  631;  per  Lord 
Tenterden,  Clifford  v.  Laton,  Mood,  & 
Malk.  101;  3  Car.  &  P.  16;  Bird  v. 
Jones,  3  M.  &  E.  121;  Walker  v. 
Simpson,  7  W.  &  S.  (Pa.)  83;  Mitchell 
V.  Treanor,  11  Ga.  324;  Rea  v.  Durkee, 
25  111.  503;  Pool  v.  Everton,  5  Jones 
(N.  C.)  241 ;  Porter  v.  Bobb,  25  (Mo.) 
36;  Stevens  v.  Story,  43  Vt.  327; 
Sturtevant  v.  Starin,  19  Wis.  268. 

57.  Hass  V.  Brady,  49  Misc.  235,  96 
N.  Y.  S.  449;  Hatch  v.  Leonard,  71 
App.   Div.   32,   75   N.   Y.   S.   726.     A 


wive  living  apart  from  a  husband  who 
is  confined  in  an  insane  asylum  has 
presumably  no  authority  to  pledge  his 
credit  even  for  necessaries.  Thedford 
V.  Reade,  25  Misc.  490,  54  N.  Y.  S. 
1007. 

58.  Robinson  v.  Litz,  123  N.  Y.  S. 
362;  Cory  v.  Cook,  24  B.  L  421,  53 
A.   315. 

59.  Debenham  v.  Mellon,  L.  R.  5  Q. 
P..  D.  394. 

60.  Frost  V.  Willis,  13  Vt.  202. 

61.  Ball  V.  Lovett,  98  N.  Y.  S.  815. 

62.  Rawlins  v.  Vandyke,  3  Esp.  250, 
per  Lord  Eldon. 

63.  Hinton  v.  Hudson,  Freem.  248; 
Kimball  v.  Keyes,  11  Wend.  (N.  Y.) 
33. 


§    101  HUSBAND   AND    WIFE.  124 

tradesman,  wtile  living  apart  from  her,  that  the  goods  supplied 
shall  not  be  charged  to  him;  and  to  such  special  agreement  the 
tradesman  will  be  held.®*  Where  a  husband  has  given  his  wife 
express  authority  to  pledge  his  credit,  the  power  continues  till  the 
particular  creditor  knows  of  a  separation.®"'  Xotice  to  a  creditor 
that  spouses  are  separated  cannot  be  inferred  from  the  fact  that 
the  separation  is  generally  known  in  the  community.®®  One  fur- 
nishing a  wife  necessiaries  when  living  apart  from  him  acts  at  his 
peril,  and  must  ascertain  the  facts  before  giving  credit.®^  He  has 
the  burden  of  showing  that  she  left  him  for  cause  or  that  the  sepa- 
ration was  by  consent,®^  and  that  the  husband  refused  to  provide, 
or  that  he  authorized  her  to  pledge  his  credit.®® 

§  101.  Effect  of  Abandonment  by  Husband. 

The  rule  is  that  where  the  husband  abandons  his  wife,  turns  her 
away  without  reasonable  cause,  or  compels  her  by  ill  usage  to  leave 
him,  without  adequate  provision,  he  is  liable  for  her  necessaries, 
and  sends  credit  with  her  to  that  extent,^"  even  though  she  con- 
tinues to  live  in  his  house,  which  he  leaves,'^  and  which  she  and  her 
family  have  a  right  to  use  for  their  maintenance  in  such  a  case.'^ 
The  wife's  faithfulness,  on  the  one  hand,  to  her  marriage  obliga- 
tions; on  the  other,  the  husband's  disregard  of  his  own:  these 
afford  the  reason  of  the  above  rule  and  suggest  its  proper  limitation. 
The  wife  in  such  cases  has  an  authority ;  but  here  what  some  have 
called  an  authority  of  necessity."  Or  we  may  say,  rather,  that 
the  law,  by  a  fiction,  infers  an  agency  without  asking  evidence 

64.  Dixon  v.  Hurrell,  8  Car.  &  P.  mand  on  and  refusal  by  a  husband  to 
717.  support  his  Avife  may  be  inferred  from 

65.  Sibley  v.  Gilmer,  124  N.  C.  631,  the  manner  in  which  he  abandoned 
32  S.  E.  9'64.  her,    when    such   that    only   a   refusal 

66.  Sibley  v.  Gilmer,  124  N.  C.  631,  could  be  expected.  Hardy  v.  Eagle, 
32  S.  E.  964.  23    Misc.    441,    51   N.   Y.   S.    501,   25 

67.  Porter  v.  Bobb,  25  Mo.  36;  Ben-  Misc.  471,  54  N.  Y.  S.  1045;  Hass  v. 
nett  V.  O 'Fallon,  2  Mo.  69,  22  Am.  Brady,  49"  Misc.  235,  96  N.  Y.  S.  449. 
Dec.  440;  Bostwick  v.  Brower,  22  70.  Peck  v.  Gibeson,  83  El.  App. 
Misc.  709,  49  N.  Y.  S.  1046;  Allen  v.  92;  Prescott  v.  Webster,  175  Mass. 
Kieder,  41  Pa.  Super.  534.  316,  56  N.  E.  577. 

68.  Cline  t.  Buddemeier,  164  111.  71.  W.  &  J.  Sloane  v.  Boyer,  95  N. 
App.   79;    Steele   v.   Leyhan,   210   111.  Y.  S.  531. 

App.  201;  Peaks  v.  Mayhew,  94  Me.  72.  Hollowell  v.  Adams  (Ky.),  119 

571,  48  A.  172 ;  Clothier  v.  Sigle,  73  S.  W.  1179. 

N.  J.  Law,  419,  63  A.  865.  73.  See  Pollock,  C.  B.,  in  Johnston  v. 

69.  S.  E.  Olson  Co.  v.  Youngquist,  Sumner,  3  Hurl.  &  Nor.  261. 
72  Minn.  432,  75  N.  W.  727.     A  de- 


125  NECESSAEIES.  §    101 

whicli  should  show  authority  in  fact,  and  requires  the  husband, 
under  these  circumstances,  to  maintain  his  wife  elsewhere. 

This  rule  suggests,  then,  three  cases  where  the  wife  may  pledge 
her  husband's  credit  when  they  are  living  apart :  the  first,  where 
he  abandons  her;  the  second,  where  he  turns  her  out  of  doors 
without  reasonable  cause ;  the  third,  where  his  misconduct  compels 
her  to  leave  him.  In  the  first  two  cases  his  own  acts  impose  the 
necessity,  and  her  conduct  is  involuntary.  But  in  the  third  her 
conduct  might  be  considered  voluntary,  though  induced  by  his  mis- 
conduct; and  the  rule  here  becomes  perplexing.  The  doctrine  of 
Honvood  V.  Heffer,  an  old  case,  is  that  the  wife  is  not  justified  in 
leaving  her  husband  unless  she  has  been  driven  from  the  house  by 
actual  violence  or  apprehension  for  her  personal  safety;  and  in 
this  case  the  husband  was  held  not  to  be  liable,  since  she  had  quitted 
his  house  because  he  placed  a  profligate  woman  at  the  head  of  the 
table.'^  This  doctrine  has  been  strongly  condemned  in  later  times, 
and  the  modern  cases  justly  regard  such  studied  insults  as  capable 
of  legal  redress.  If,  therefore,  the  husband,  by  his  indecent  con- 
duct, renders  his  house  unfit  for  a  modest  woman  to  share  it,  the 
rule  now  is  that  she  may  leave  him,  and  pledge  his  credit  elsewhere 
for  her  necessaries.''^ 

Where  the  wife  is  justified  on  any  of  the  above  grounds  in  living 
apart  from  her  husband,  he  is  not  discharged  from  liability  by 
showing  that  her  contract  was  in  fact  made  without  his  authority 
and  contrary  to  his  wishes.  Xor  will  his  general  advertisement  or 
particular  notice  to  individuals  not  to  give  credit  to  his  wife  affect 
the  case.^®  The  legal  presumption  must  prevail  for  the  wife's 
protection. 

Xor  in  such  cases  can  the  husband  terminate  his  liability  for 
necessaries  supplied  his  wife  during  the  separation,  by  a  simple 
request  on  his  part  that  she  shall  retum.^^  And  it  is  clear  that  if 
he  only  offers  to  take  her  back  upon  conditions  which  are  unreason- 
able and  improper,  his  liability  continues."®     It  is  the  husband's 

74.  3  Taunt.  421.  76.  Harris  v.  Morris,  4  Esp.  41;    1 

75.  Per  Lord  Ellenborough,  Liddlow  Selw.  N.  P.  298,  11th  ed.;  2  Stra. 
V.  Wilmot,  2  Stark.  77;  1  Selw.  N.  P.  1214.  See  Black  v.  Bryan,  18  Tex. 
298,  11th  ed.;  per  Best,  C.  J.,  Houlis-  453. 

ton  V.   Smyth,  3  Bing.  127;   10  Moo.  77.  Emery  v.  Emery,  1  You.  &  Jer. 

482 ;  2  Car.  &  P.  23  ;  Descelles  v.  Kad-  oOl. 

mus,  8  Clarke,  51;  Hultz  v.  Gibbs,  66  78.    Eeed   v.    Moore,    5    Car.    &    P. 

Pa.    360;    Reynolds    v.    Sweetser,    15  200. 

Gray   (Mass.)   78;  Bazeley  v.  Forder, 

L.  R.  3  Q.  B.  559. 


§   102 


HUSBAND    AND    WIFE. 


126 


duty,  by  some  positive  act,  to  detennine  his  liability ;  though  if  the 
wife  voluntarily  returns,  his  liability  for  necessaries  furnished 
abroad  is  discontinued.  But  in  default  of  any  amicable  arrange- 
ment, he  must  institute  proceedings  in  the  courts  with  divorce  juris- 
diction. And  until  some  such  unequivocal  act  is  done,  a  person 
making  a  proper  claim  in  a  court  of  law  for  necessaries  supplied  to 
the  wife  may  be  entitled  to  recover  against  him.'' 


79 


§  102.  Effect  of  Abandonment  by  Wife. 

Generally  a  wife  living  apart  from  her  husband  for  justifiable 
cause  may  pledge  his  credit  for  necessaries  for  herself  and  his 
children.*"  If  she  has  cause  for  leaving  her  husband  she  may 
select  her  residence  if  respectable,  and  if  the  expense  is  suited  to 
her  husband's  financial  condition.*^  He  is  not  relieved  by  showing 
that  when  she  left  him  he  procured  board  and  lodging  for  her  with 
a  person  with  whom  she  refused  to  live ;  ®^  nor  that  he  asks  her  to 
return,  and  makes  promises  of  kind  treatment,*^  or  that  she  seeks 
a  divorce.®*  Where  the  wife  had  good  reasons  for  leaving,  the 
husband  is  not  discharged  by  the  fact  of  her  subsequent  return  from 
liability  for  necessaries  furnished  during  her  justifiable  absence.*^ 

But  the  wife  should  have  weighty  and  sufficient  cause  for  leaving 
her  husband  in  order  to  be  permitted  to  pledge  his  credit  abroad. 
In  general,  the  s-ame  facts  suffice  as  justify  divorce  from  bed  and 


79.  Eeed  v.  Moore,  supra.  See  At- 
kyns  V.  Pearce,  2  C.  B.  (N.  S.)   763. 

80.  Bonney  v.  Perham,  102  111.  App. 
634;  Waxmuth  v.  McDonald,  96  111. 
App.  242;  Kirk  v.  Chinstrand,  85 
Minn.  108,  88  N.  W.  422;  Sultan  v. 
Misrahi,  47  Misc.  655,  94  N.  Y.  S. 
519;  Brinckerhoff  v.  Briggs,  92  111. 
App.  537;  In  re  Eudowsky's  Estate, 
181  111.  App.  318 ;  Litson  v.  Brown,  26 
Ind.  489;  Scott  v.  Carothers,  17  Ind. 
App.  673;  Arnold  v.  Brandt,  16  Ind. 
App.  169,  44  N.  E.  936;  Eariden  v. 
Mason,  30  Ind.  App.  425,  65  N.  E. 
554;  In  re  Newman's  Case,  222  Mass. 
563,  111  N.  E.  359;  Beaudette  v.  Mar- 
tin, 113  Me.  310,  93  A.  758;  East  v. 
King,  77  Miss.  738,  27  So.  608 ;  Ott  v. 
Hentall,  70  N.  H.  231,  47  A.  80,  51  L. 
E.  A.  226;  Clothier  v.  Sigle,  73  N.  J. 
Law,  419,  63  A.  865 ;  Hardy  v.  Eagle, 
25   Misc.    471,   54    N.    Y.    S.    1045,  23 


Misc.  441,  affd.  51  N.  Y.  S.  501 ;  Har- 
rigan  v,  Cahill,  100  Misc.  48,  164  N. 
Y.  S.  1005;  Dodge  v.  Holbrook,  176 
N.  Y.  S.  562;  Charles  M.  Decker  & 
Bros.  V.  Moyer,  121  N.  Y.  S.  630; 
Monahan  v,  Auman,  39  Pa.  Super. 
150;  2  Kent,  Com.  146,  147;  2  Bright, 
Hus.  &  Wife,  10-12;  Snover  v.  Blair, 
1  Dutch.  (N.  J.)  94;  Mayhew  v. 
Thayer,  8  Gray   (Mass.)   172. 

81.  Kirk  v.  Chinstrand,  85  Minn. 
108,  88  N.  W.  422,  56  L.  E.  A.  333. 

82.  Kirk  v,  Chinstrand,  85  Minn. 
108,  88  N.  W.  422,  56  L.  E.  A,  333. 

83.  Baker  v.  Oughton,  130  la.  35, 
106  N.  W.  272;  Bradish  v.  Huse,  1 
Dane  Abr.   (Mass.)   355. 

84.  Gleason  v.  Warner,  78  Minn. 
405,  81  N.  W.  206  (funeral  expenses), 

85.  Eeynolds  v.  Sweetser,  15  Gray 
(Mass.)  78. 


127 


NECESSARIES. 


§  102 


board/*  But  where  she  leaves  her  husband  without  sufficient 
cause  and  against  his  will,  he  is  not  liable  for  her  maintenance 
elsewhere,  and  she  cannot  bind  him ;  especially  if  the  person  fur- 
nishing goods  knows  that  cohabitation  has  ceased,  and  makes  no 
further  inquiries.*^ 

Supposing  the  wife  leaves  voluntarily  and  without  sufficient 
cause,  against  her  husband's  wishes,  and  she  afterwards  returns  to 
her  husband,  is  he  bound  to  receive  her ;  and,  if  he  refuse  to  receive 
her,  can  she  make  him  liable  for  debts  contracted  thenceforth  for 
necessaries?  The  current  of  authorities  is  in  favor  of  such  a 
position,  provided  she  conducted  herself  properly  in  her  absence.®* 
Some,  however,  have  suggested  doubts  as  to  this  doctrine ;  for,  they 
say,  since  the  wife  by  her  own  voluntary  act  discharged  the  husband 
from  his  obligation  to  maintain  her,  by  unnecessarily  quitting  his 
house  without  his  consent,  it  is  but  reasonable  to  say  that  his  lia- 
bility to  support  her  afterwards  should  not  be  revived  by  implica- 
tion without  his  express  concurrence  in  consenting  to  his  wife's 
return  to  his  protection,  or  until  cohabitation  was  restored  by 
mutual  agreement,  or  by  the  sentence  of  a  court  with  appropriate 
matrimonial  jurisdiction.*®  This  is  fair  reasoning  on  general 
grounds,  and  applies  a  mutual  doctrine  to  husband  and  wife;  but 
the  courts  appear  to  have  thought  otherwise. 

There  is  a  dictum  of  Lord  Holt  to  be  found  in  an  old  case  (or 


86.  Brown  v.  Patton,  3  Humph. 
(Tenn.)  135;  Hancock  v.  Merrick,  10 
Cush.  (Mass.)  41;  Caney  v.  Patton,  2 
Ashm.  140;  Rea  v.  Durkee,  25  111,  503; 
Schindel  v.  Schindel,  12  Md.  294; 
Stevens  t.  Story,  43  Vt.  327;  Barker 
V.  Dayton,  28  Wis.  SfiT;  Thorpe  v. 
Shapleigh,  67  Me.  235. 

87.  Brown  v.  Midgett,  40  Vt.  68; 
Etherton  v.  Parrott,  2  Ld.  Raym. 
1006;  Manby  v.  Scott,  1  Sid.  130; 
feailey  v.  Calcott,  4  Jur.  699';  Collins 
V.  Mitchell,  5  Harring.  369;  Bevier  v. 
Galloway,  71  111.  517;  Harttman  v. 
Tegart,  12  Kan.  177;  Oinson  v. 
Heritage,  45  Ind.  73 ;  Thome  v. 
Kathan,  51  Vt.  520;  Denver  Dry 
Goods  Co.  V.  Jester,  60  Colo.  290,  152 
Pac.  903,  L.  R.  A.  1917A  957;  Bensyl 
V.  Hughs,  lO?  111.  App.  86;  Bonney  v. 
Perham,  102  111.  App.  634;  Peaks  v. 
Mayhew,  94  Me.  571,  48  A.  172;  Stein- 


field  V.  Girrard,  103  Me.  151,  68  A. 
630;  B.  Altman  &  Co.  v,  Durand,  173 
N.  Y.  S.  62;  Constable  v.  Rosener,  82 
App.  Div.  155,  81  N.  Y.  S.  376,  affd. 
178  N.  Y.  587,  70  N.  E.  1097;  Ogle  v. 
Dershem,  91  App.  Div.  551,  8€  N.  Y. 
S.  1101;  Cline  v.  Hackbarth,  27  Tex. 
Civ.  391;  Sanger  Bros.  v.  Trammel 
(Tex.),  198  S.  W.  1175. 

88.  Manby  v.  Scott,  1  Sid.  129;   1 
Mod.  131 ;  Child  v.  Hardyman,  2  Stra. 
875;  Rawlins  v.  Vandyke,  3  Esp.  251 
Edwards  v.  Towels,  5  Man.  &  Gr.  624 
Hindley  v.  Westmcath,  6  B.  &  C.  200 
Howard  v.   Whetstone,   10   Ohio   365 
McCutchen  v.  McGahay,  11  Johns.  (N. 
N.)  281. 

89.  See  2  Bright,  Hus.  &  Wife,  13. 
But  see  2  Bisb.,  I^tar.  &  Div.,  5th  ed., 
§  33.  The  husband  should  not  be  de- 
prived of  his  divorce  remedies. 


103 


HUSBAND   AAD    WIFE. 


128 


rather  in  the  reporter's  note),  which  sometimes  finds  its  way  to 
the  text-books;  namely,  that  if  a  husband  receives  back  his  wife, 
he  becomes  liable  for  her  debts  contracted  during  the  whole  period 
of  her  unauthorized  absence.''"  This  seems  very  unreasonable, 
where  the  fault  was  on  her  part.  The  true  doctrine  is,  doubtless, 
that  after  such  reconciliation  the  husband  is  liable  upon  her  subse- 
quent contracts  only.  And  this  is  the  rule  expressly  asserted  in 
some  American  cases.®^  To  defeat  a  wife's  claim  of  support  on 
the  ground  of  her  voluntary  abandonment  of  the  husband's  domi- 
cile, the  fact  of  her  abandonment  must  clearly  appear.®^  Under 
the  Iowa  statute  neither  spouse  can  drive  the  other  from  the  home- 
stead without  such  other's  consent,  hence  when  a  husband  does  this 
he  is  bound  for  the  wife's  necessaries  regardless  of  the  cause  of  her 
expulsion.^^ 

§  103.  Effect  of  Separation  by  Consent. 

But  besides  involuntary  separation  there  is  the  case  of  voluntary 
separation  to  be  considered.  This  last,  now  so  frequent,  the  law 
tolerates,  but  does  not  favor.  The  rule  is,  that  where  a  husband 
and  wife  parted  by  mutual  consent,  and  a  suitable  allowance  is  fur- 
nished the  wife,  the  husband  is  not  bound  to  pay  any  bills  which 
she  may  have  contracted  as  his  agent."*  It  is  enough  that  the  sepa- 
ration be  a  matter  of  common  reputation  where  he  resides.  But  to 
this  allowance  two  things  are  requisite :  first,  that  it  shall  be  really 
sufficient  for  the  wife;  second,  that  it  shall  be  regularly  paid.  If 
either  requirement  be  wanting, —  a  fact  which  the  seller  must 
ascertain  at  his  peril, —  the  wife  is  not  confined  to  her  remedy  on 
the  deed  of  separation,  if  any,  but  may  pledge  her  husband's  credit. 
As  to  the  first  requirement,  the  question  is  not  whether  the  wife 
consented  to  accept  a  certain  allowance  as  sufficient  for  her  support. 


90.  Eobison  v.  Gosnold,  6  Mod.  171. 
See  Bing.  Inf,  190  n.,  Am.  ed. 

91.  Williams  v.  Prince,  3  Strobh. 
490;  Eeese  v.  Chilton,  26  Mo.  598; 
Oinson  v.  Heritage,  45  Ind.  73.  See 
also  Chitty  Contr.,  168;  Williamfl  v. 
McGahay,  12  Johns.  (S.  C.)  293. 

92.  Price  v.  Price,  75  Neb.  552,  106 
N.  W.  657. 

93.  Baker  v.  Oughton,  130  la.  35, 
106  N.  W.  272. 

94.  Dixon   v.  Hurrell,   8   Car.   &  P. 


717;  Todd  V.  Stokes,  1  Salk.  116;  1 
Ld.  Raym.  444;  Hindley  v.  West- 
meath,  6  B.  &  C.  200;  Mizen  v.  Pick, 
3  M.  &  W.  481;  Eeeve  v.  Marquis  of 
Conyngham,  2  Car  &  K.  444;  Calkins 
V.  Long,  22  Barb.  (N.  Y.)  97;  Kemp 
V.  Downham,  5  Harring.  (Del.)  417; 
Cauey  v.  Patton,  2  Ashm.  140;  Baker 
V.  Barney,  8  Johns.  (N,  Y.)  72;  Mott 
V.  Comstock,  8  Wend.  (N.  Y.)  544; 
Willson  V.  Smith,  1  B.  &  Aid.  801; 
Pensyl  v.  Hughs,  109  111.  App.  86. 


129 


NECESSARIES. 


§  103 


but  whether  it  be  actually  sufficient  in  the  opinion  of  the  jury.'*' 
As  to  the  second,  the  mere  covenant  or  contract  of  the  husband  to 
pay  separate  maintenance  will  not  discharge  him  from  liability  for 
necessaries;  for,  as  was  observed  in  a  leading  case,  "  the  common 
law  does  not  relieve  any  man  from  an  obligation  on  the  mere  ground 
of  an  agreement  to  do  something  else  in  the  place,  unless  that  agree- 
ment be  x)«rformed."  ^®  But  perhaps  it  would  be  held  otherwise 
where  articles  of  separation  provide  that  the  wife  shall  be  paid 
through  a  trustee,  and  the  trustee  squanders  or  misapplies  the 
allowance  which  is  properly  paid  into  his  hands.^^ 

If  wife  and  husband  part  by  mutual  consent,  and  there  is  no 
allowance  to  the  wife,  it  may  be  presumed  that  the  wife  has  the 
right  to  pledge  her  husband's  credit,  for  he  has  not  relieved  himself 
of  his  marital  obligation.^®  It  is  immaterial  whether  the  wife's 
allowance  be  secured  by  deed  or  not,  since  it  is  the  pajTnent  which 
discharges  him.®® 

Here  we  are  compeleld  to  notice  a  modern  departure  of  principle 
growing  out  of  the  increasing  favor  with  which  separation  deeds 
are  held.  Allowance  of  maintenance  by  a  formal  separation  deed 
appears  under  the  latest  English  decisions  to  be  treated  with  so 
great  respect  as  to  be  deemed  conclusive  of  the  extent  and  method 
of  a  husband's  liability  for  his  wife's  support  during  their  separa- 
tion. In  other  words,  the  separation  being  by  mutual  consent,  and 
the  allowance  fixed  by  mutual  assent  at  a  rate  which  it  is  covenanted 
shall  suffice  for  the  wife's  support,  the  wife  cannot  pledge  her 
husband's  credit  in  case  that  income  proves  insufficient  for  her 
wants.  ^ 

Allowance  of  a  separate  maintenance  will  not  exempt  the  hus- 


95.  Bonney  v.  Perham,  102  111.  App. 
634;  S,  E.  Olson  Co.  v.  Youngquist, 
76  Minn.  26,  78  N.  W.  870;  Thomp- 
son V.  Harvey,  4  Burr.  2177;  Hodg- 
kinson  v.  Fletcher,  4  Camp.  N.  P.  70; 
Pearson  v.  Darrington,  32  Ala.  227; 
Liddlow  V.  Wilmot,  2  Starkie,  77; 
Emmet  v.  Norton,  8  Car.  &  P.  506. 

96.  Nurse  v.  Craig,  5  B.  &  P.  148, 
per  Heath,  J.;  Hindley  v.  Westmeath, 
6  B.  &  C.  200;  Lockwood  v,  Thomas, 
12  Johns.  (N,  Y.)  248;  Kimball  v. 
Keyes,  11  Wend.  (N.  Y.)  33. 

97.  Calkins  v.  Long,  22  Barb.  (N. 
Y.)  97.  But  see  Burrett  v.  Booty,  8 
Taunt.  343. 

9 


98.  Eoss  V.  Eoss,  69  111.  569, 

99.  Hodgkinson  v.  Fletcher,  4  Camp. 
70;  Emery  v.  Neighbor,  2  Halst.  (N. 
J.)  142;  Holden  v.  Cope,  2  Car.  & 
K,  437.  But  see  Ewers  v.  Hutton,  3 
Esp.  255. 

1.  Eastland  v.  Burchell,  L.  E.  3  Q. 
B.  D.  432.  Qu.  whether  the  wife  has 
any  remedy  afforded  her  under  such 
circumstances  for  procuring  the  main- 
tenance which  it  continues  the  hus- 
band's duty  to  render.  Lush,  J.,  in 
this  case  seems  to  rest  the  wife 's  gene- 
ral right  to  pledge  her  husband 's 
credit  too  exclusively  upon  the  doc- 
trine of  agency. 


§    104:  HUSBAND    AND    WIFE.  130 

band  from  liabilities  caused  by  his  own  misconduct.'  In  case  of 
a  separation  by  consent,  if  the  contract  did  not  provide  for  the 
support  of  the  children  the  husband  is  liable  for  necessaries  for 
them.^ 

§  104.  Effect  of  Wife's  Adultery. 

But,  as  the  reader  may  have  inferred,  if  the  wife  elopes  and 
then  commits  adultery,  or  if  her  adultery  causes  separation,  the 
husband  becomes  relieved  from  her  support.  Her  crimes  ought  to 
put  an  end  to  her  authority  to  bind  the  injured  spouse,  and  it  does.* 
In  such  case  his  refusal  to  take  her  back  again  will  not  revive  his 
obligation  to  maintain  her.  But  as  forgiveness  always  interposes 
a  bar  to  legal  remedies  on  behalf  of  the  injured  one,  he  becomes 
once  more  liable  for  her  necessaries,  where  he  voluntarily  receives 
her  again  and  forgives  her.^ 

There  are  cases  where  the  marital  rights  and  duties  become  more 
confused.  Supposing  the  wife  be  turned  out  of  doors,  or,  what 
amounts  to  the  same  thing,  be  forced  by  her  husband's  misconduct 
to  leave ;  and  she  afterwards,  being  beyond  that  shelter  which  every 
wife  needs,  commit  adultery :  is  he  then  relieved  from  supporting 
her  ?  In  Govier  v.  Hancock  it  was  held  that  he  was,  even  though 
his  own  adultery  caused  her  departure.®  This  was  a  very  harsh 
decision.  The  court,  however,  admitted  that  necessaries  furnished 
before  her  own  adultery  could  be  recovered  from  her  husband. 
And  in  a  subsequent  case  it  was  held  that  adulterous  conduct  of 
the  wife,  with  the  connivance  of  the  husband,  or  at  least  without 
such  a  separation  of  the  married  pair  as  to  make  her  misconduct 
notorious,  would  not,  per  se,  operate  as  a  defence  and  protect  the 
husband  from  liability.'^  And  more  to  the  point  is  a  case  where 
the  husband  was  held  liable,  even  though  the  wife  had  been  found 
guilty  of  adultery  in  the  divorce  court;  since  it  appeared  that  he 
also  had  been  found  guilty  of  adultery,  so  that  no  divorce  was 
decreed.^ 

2.  Turner  v.  Rookes,  10  Ad.  &  El,  5.  Harris  v.  Morris,  4  Esp.  41 ;  Robi- 
47.  son  V.  Gosnold,  6  Mod.   171;   Holt  v. 

3.  McCarter   v.    McCarter,    10   Ga.  Brien,   4  B.   &  Aid.   252;    Quincy   v. 
App.  754,  74  S.  E.  308.  Quincy,  10  N.  H.  272;   Hall  v.  HaU, 

4.  Morris   v.   Martin,   1   Stra.   647;  4  ib.  462. 

Manwaring  v.  Sands,  2  Stra.  707;  Har-  6,  Govier  v.  Hancock,  6  T.  R.  603. 

die  V.  Grant,  8  Car.  &  P.  512.     And  7.  Norton  v.  Fazan,  1  B.  &  P.  225. 

see  Rex  v.  Flintan,  1  B.  &  Ad.  227;  8.  Needham  v.  Bremner,  L.  R.  1  C. 

Hunter  v.   Boucher,    3   Pick.    (Miss.)  P.  583. 
289 ;  Gill  V.  Read,  5  R.  I.  343 ;  Cooper 
V.Lloyd,:    C.  B.  (N.  S.)  519. 


131 


NECESSAEIES. 


§  lOG 


But  one  who  harbors  another  man's  wife  for  illicit  purposes  is 
a  wrong-doer,  and  cannot  recover  for  her  maintenance,  even  though 
she  had  fled  from  her  own  husband's  cruelty.® 

§  105.  Effect  of  Divorce  and  Allowance  of  Alimony. 

Where  the  divorce  court  takes  jurisdiction  for  the  purpose  of 
legalizing  a  separation  of  spouses,  judicial  action  upon  the  wife's 
support  changes  the  state  of  the  case.  Alimony  now  becomes  the 
regular  standard  of  allowance  for  necessaries ;  and  hence  the  pay- 
ment of  alimony,  even  if  actually  insufficient  for  the  wife's  main- 
tenance, will  discharge  the  husband  from  further  liability  for  her 
support. ^°  The  same  is  true  where  the  wife  has  been  denied  ali- 
mony.^^  If  the  alimony  be  insufficient,  the  wife  should  induce  the 
court  to  increase  it.  But  the  husband  is  liable  for  necessaries  sup- 
plied to  the  wife  before  alimony  is  decreed,  even  although,  as  it  is 
held,  the  decree  afterwards  direct  the  alimony  to  commence  from 
a  day  preceding  the  supply  of  the  necessaries.^^  One  who  sells  to 
a  wife  living  apart  is  chargeable  with  knowledge  of  the  allotment 
of  alimony,  and  this  applies  to  alimony  pendente  lite.^^ 

§  106.  Effect  of  Banishment,  Insanity  or  Imprisonment. 

The  destitute  wife  of  a  lunatic  living  separate  from  her  in  an. 
asylum  may  yet  pledge  his  credit  for  necessaries ;  ^*  though  not, 
of  course,  for  what  she  does  not  need,  as  where,  for  example,  she 
receives  sufficient  income  out  of  his  estate."  She  cannot  pledge, 
it  might  seem,  where  he  is  banished  or  in  prison,  provided  the  law 
recognize  her  as  feme  sole;  ^®  but  as  an  agent  of  necessity,  and  to 
compel  his  marital  obligation,  she  ought  to  be  permitted  to  do  so  if 
she  desires,  and  not  unfrequently  does  where  he  is  in  jail  or 
prison.*"     If  the  wife  be  in  an  insane  asylum,  the  husband  is  not 


9.  Almy  v.  Wilcox,  110  Mass.  443. 

10.  Willson  V.  Smyth,  1  B.  &  Ad. 
801. 

11.  Simpson  v.  Butcher,  123  N.  T. 
S.  340. 

12.  Keegan  v.  Smyth,  5  B.  &  C.  375; 
Mitchell  V.  Treanor,  11  Ga.  324;  Dowe 
V.  Smith,  11  Allen  (Mass.)  107;  Bur- 
kett  V.  Trowbridge,  61  Me.  251. 

13.  Hare  v.  Gibson,  32  Ohio  St.  33 ; 
Maiden  Hospital  v.  Murdock,  218 
Mass.  73,  105  X.  E.  457;  Wise  Me- 
morial Hospital  Ass'n  v.  Peyton 
(Neb.),  154  N.  W.  838. 


14.  Keed  v.  Legard,  4  E.  L.  &  Eq. 
523;  Shaw  v.  Thompson,  16  Pick. 
(Mass.)  198;  Badger  v.  Orr,  1  Ohio 
App.  293,  34  Ohio  Cir.  Ct.  328. 

15.  Chappell  v.  Nunn,  41  L.  T.  (X. 
S.)  287;  Richardson  v.  Du  Bois,  L.  R. 
5  Q.  B.  51. 

16.  Reeve  Dom.  Rel.  86. 

17.  See  Ahern  v.  Easterby,  42  Conn. 
546.  The  husband  is  liable  for  his 
wife's  necessaries,  even  though  she  has 
been  declared  a  fem€  sole  trader. 
Markley  v.  Wartman,  9  Phila.  (Pa.) 
236. 


§    107  HUSBAND   AND    WIFE.  132 

the  less  liable  for  her  support.^^  But  not  where  she  is  in  prison/" 
And  it  seems  that  under  circumstances  of  misconduct  on  the  wife's 
part  the  husband  may  compel  her  to  assent,  after  her  release  from 
confinement,  to  live  separate  on  an  allowance,  without  being  charge- 
able for  her  support  as  one  who  has  turned  his  wife  out  of  doors.^* 

§  107.  Wife's  Right  to  sell  property  to  Obtain  Necessaries. 

The  wife  ought  not,  without  authority,  to  raise  money  by  dis- 
posing of  her  husband's  property.  And  the  fact  that  a  wife  is  left 
by  her  husband  without  means  of  support  does  not  authorize  her  to 
give  away  household  furniture,  which  he  left  in  her  possession,  in 
payment  of  necessary  services  to  herself.^^  And  it  was  recently 
held  that  where  a  man  was  sent  to  jail  for  four  months  for  an 
assault  upon  his  wife,  by  which  she  was  disabled  from  work,  and 
he  took  with  him  all  his  money,  leaving  her  no  means  of  support, 
she  was  justified  in  selling,  in  her  extremity,  for  a  reasonable  price, 
a  cooking-stove  belonging  to  her  husband,  for  the  strict  purpose  of 
procuring  the  means  for  the  purchase  of  necessaries.^" 

Some  of  the  old  books  raise  a  curious  distinction :  namely,  that 
if  the  wife  takes  up  goods,  as  silk,  and  before  they  are  made  into 
clothes,  pawQs  them,  the  husband  shall  not  pay  for  them;  but 
that  it  is  otherwise  if  they  are  made  up  and  worn,  and  then 
pawned ;  for  in  the  former  case  they  never  came  to  the  husband's 
use,  while  in  the  latter  they  did.^^  We  apprehend  that  the  real 
question  in  such  cases  would  be  whether  the  articles  were  or  were 
not  in  fact  necessaries ;  while  at  the  same  time  purchases  of  cloth 
in  quantities,  it  might  be  admitted,  are  not  so  clearly  necessaries  as 
clothing  made  up  for  wear  and  worn.  The  practical  application  of 
this  rule  is  in  cases  where  the  wife  (being,  as  we  have  said,  for- 
bidden to  borrow  money  for  the  purchase,  real  or  ostensible,  of 
necessaries)  undertakes  to  raise  funds  for  her  own  purposes  by 
purchasing  goods  and  then  selling  or  pawning  them.  We  do  not 
find  a  modem  decision  on  this  precise  point. 

18.  Wray  v.  Wray,  33  Ala.  187.  And  Brookfield  v.  Allen,  6  Allen  (Mass.) 
see  Alna  v.  Plummer,  4  Greenl.  (Me.)       585. 

258;    Wray    v.    Cox,    24    Ala.    337;  21.  Edgerly  v.  Whalan,  106  Mass. 

Brookfield  v.  Allen,  6  Allen    (Mass.)  307. 

585.  22.    Ahern    v.    Easterby,    42    Conn. 

19.  2  Stra.  1122;  Bates  v.  Enright,  546. 

42  Me.  105.  23.   Holt,   C.   J.,   in   Etherington   v. 

20.  Wray   v.    Wray,   33    Ala.    187;       Parrott,  1  Salk.  118.    See  also  Eeeve 

Dom.  Eel.   84. 


133 


NECESSARIES. 


§  108 


§  108.  Liability  of  Wife. 

How  far  the  wife  can  contract  liability  for  necessaries  in  her  own 
person,  when  the  husband  is  discharged  by  her  delinquency,  was 
considered  in  the  case  of  Marshall  v.  Rutton.^*  Lord  Kenvon 
observed  that  it  was  not  a  necessary  consequence  of  the  determina- 
tion of  the  husband's  responsibility  that  the  wife  should  be  at  lib- 
erty to  act  as  a  feme  sole;  but  that  the  contrary  was  the  truth; 
and  that  any  persons  knowing  her  condition,  who  chose  to  trust 
her,  could  not  complain  if  they  found  themselves  unable  to  sue  her. 
But  these  remarks  are  very  cautiously  put ;  and  it  seems  reasonable 
to  suppose,  as  Justice  Buller  expresses  himself  in  the  case  upon 
which  Lord  Kenyon  commented,  that  the  wife  would  become  liable 
therefor ;  certainly  if  she  represented  herself  as  a  single  woman.^^ 
At  common  law  a  wife  was  not  liable  after  her  husband's  death  for 
necessaries  for  which  he  was  primarily  liable.^®  Under  Married 
Women's  Acts  a  wife  may  bind  herself  by  an  express  contract  for 
necessaries,'^  if  the  creditor  so  understands  the  contract.^*  But  it 
must  aflBrmatively  appear  that  she  made  the  purchases  on  her  indi- 


24.  MarshaU  v.  Button,  8  T.  E. 
547. 

25.  Cox  V.  Kitchin,  1  B.  &  P.  339 ; 
Childress  v.  Mann,  33  Ala.  206;  Mc- 
Henry  v.  Davies,  L.  R.  10  Eq.  88. 

26.  Bazemore  v.  Mountain,  121  N. 
C.  59,  28  S.  E.  17. 

27.  Charron  v.  Day,  228  Mass.  305, 
177  N.  E.  347;  Hazard  v.  Potts,  40 
Mise.  36-5,  82  N.  Y.  S.  246;  Glenn  v. 
Gerold,  64  S.  C.  236,  42  S.  E.  155; 
Adair  v.  Arendt,  126  Ark.  246,  190  S. 
W.  445;  Bonebrake  v.  Taner,  67  Kan. 
827,  72  P.  521;  Hardiman's  Adm'r  v. 
Crick,  131  Ky.  358,  115  S.  W.  236; 
Bearing  v.  Moran,  25  Ky.  Law,  1545, 
78  S.  W.  217;  Strawbridge  v.  Wolff, 
6.6  Pa.  Super.  328;  Desmond  v.  Dock- 
ery  (Tex.),  116  S.  W.  114;  Metier  v. 
Snow,  90  Conn.  690,  98  A.  322;  Bell 
V.  Rosingnol,  143  Ga.  150,  84  S.  E. 
542;  Grandy  v.  Haddock,  85  App. 
Div.  173,  83  N.  Y.  S.  90;  Oliver  v. 
Webber,  12  Ga.  App.  216,  76  S.  E. 
1081;  Noell  v.  O'Neill,  128  Md.  202, 
9'7  A.  513;  Valois  v.  Gardner,  122 
App.  Div.  245,  106N.  Y.  S.  808;  Wick- 
strom  V.  Peck,  179  App.  Div.  855,  167 
N.  Y.  S.  408 ;  Speckmann  v.  Foote,  N. 


Y.  S.  380 ;  In  re  Totten,  137  App.  Div. 
273,  121  N.  Y.  S.  942;  Nathan  v. 
Morgenthau,  114  N.  Y.  S.  796;  Hild  v. 
Hellman  (Tex.),  90  S.  W.  44;  Hall  v. 
Johns,  17  Idaho  224,  105  P.  71; 
Thomas  v.  Passage,  54  Ind.  106; 
Quisenberry  v.  Thompson,  19  Ky.  Law, 
1554,  43  S.  W.  723;  Bradt  v.  Shull,  46 
App.  Div.  347,  61  N.  Y.  S.  484;  An- 
derson v.  Davis  &  Ould,  55  W.  Va. 
429;  Woods  v.  Kauffman,  115  Mo. 
App.  398,  g'l  S.  W.  399;  Mayer  v. 
Lithauer,  28  Misc.  Rep.  171,  58  N.  Y. 
S.  1064;  Carter  v.  Wann,  45  Ala.  343, 
(overr.,  Cunningham  v.  Fontane,  25 
Ala.  644)  ;  Stevens  v.  Hush,  104  Misc. 
69,  171  N.  Y.  S.  41;  Edminston  v. 
Smith,  13  Ida.  645,  92  P.  842;  Weber 
V.  Look,  21  Ky.  Law,  1027,  53  S.  W. 
1034;  Hackman  v.  Cedar,  13  Ohio  Cir. 
Ct.  618,  5  O.  C.  D.  293;  Howe  v. 
North,  69  Mich.  272,  37  N.  W.  213; 
Vanderberg  v.  Kansas  City,  Mo.,  Gas 
Co.,  126  Mo.  App.  600,  105  S.  W.  17; 
Sherry  v.  Littlcfield  (Mass.),  122  N.  E. 
300 ;  Lipinsky  v.  Revell,  167  N.  C.  508, 
83  S.  E.  820. 

28.  Goodsou  v.  Powell,  9   Ga.   Ai>p. 
497,  71  S.  E.  765. 


108 


iIUSBA2s'I>   AXD    WIFE. 


134 


vidiial  credit.^^  In  sucli  case  she  will  be  presumed  to  intend  to 
charge  her  separate  estate.^"  Xo  such  contract  can  be  implied. ^^ 
A  wife  is  not  liable  for  necessaries  sold  to  her  husband,  where  there 
is  no  evidence  that  he  was  her  agent.^^  The  fact  of  such  agency 
must  affirmatively  appear.^^  Under  the  California  statute  a  wife 
is  not  liable  for  her  own  support  unless  the  community  property 
fails,  or  the  husband  refuses  to  support  her,  but  she  may  consent  to 
his  use  of  her  estate  for  that  purpose.^*  The  District  of  Columbia 
statute  providing  that  the  husband  shall  remain  liable  for  neces- 
saries contracted  for  by  the  wife  does  not  relieve  her  from  similar 
liability.^^  Under  the  Kentucky  statute  she  is  liable  where  the 
goods  were  charged  to  her  though  the  husband  is  primarily  liable 
for  the  same  debt.^^  She  may  be  liable  in  Louisiana  where  she 
has  reserved  to  herself  the  administration  of  her  separate  estate.*^ 
The  fact  that  a  husband  deserts  and  does  not  provide  for  his  family 
has  been  held  to  be  a  refusal  to  perform  a  contract  for  necessaries 
under  the  Michigan  statute  making  a  wife  liable  therefor  in  such 
case.^^  Under  the  Married  Women's  Act  in  the  same  State,  en- 
abling the  wife  to  contract  as  to  her  separate  estate,  she  is  not  bound 
by  a  contract  to  pay  for  medical  services  rendered  to  her  husband,^* 
but  under  the  same  statute  she  is  liable  for  clothes  furnished  to  her 
minor  son  under  her  contract.*"  Under  the  Nebraska  statute  the 
wife  is  liable  for  family  necessaries  where  a  judgment  therefor 
against  the  husband  has  been  returned  unsatisfied.*^  Under  the 
New  York  statute  a  wife  is  not  liable  for  medical  services  rendered 
to  her  and  her  child  at  her  request,  in  the  absence  of  a  special 
agreement/^  but  such  an  agreement  will  bind  her.*^  In  the  same 
State  her  promise  to  pay  for  board  and  lodging  furnished  to  her 
under  contract  made  with  her  husband  has  been  held  without  con- 


29.  Feiner  v.  Boynton,  73  N.  J.  Law 
136,  62  A.  420, 

30.  Miller   v.  Brown,   47  Mo.   504, 
4  Am.  K.  345. 

31.  Lavoie  v.  Dube,  229   Mass.   87, 
lis   X.  E.  179. 

32.  Dillon  v,  Mandelbaum,  97  App. 
Oiv.  107,  89  N.  Y.  C.  646. 

23.  Bazemore  v.  Mountain,  126  N. 
C.  313,  35  S.  E.  542. 

34.  Title  Ins.  &  Trust  Co.  v.  Inger- 
soll,  158  Cal.  474,  111  P.  360. 

35.  Dobbins  v.  Thomas,  26  App.  D. 
C.  157. 

36.  Underhill  v.  Mayer,  174  Ky.  229, 
192  S.  W.  14. 


37.  Crotchet  v.  Dugas,  126  La.  285, 
52  So.  495. 

38.  Carstens  v.  Henselman,  61  Mich. 
426,  28  N.  "W.  159',  1  Am.  St.  E.  606. 

39.  Buck  V.  Patterson,  75  Mich.  397, 
42   X.  W.   949. 

40.  Hirshfield  v.  "Waldron,  83  Mich. 
116,  47  N.  W.  239;  Barber  v.  Eberle's 
Estate,  131  Mich.  317,  91  N.  W.  123, 
9  Det.  Leg.  N,  325. 

41.  Leake  v.  Lucas,  65  Neb.  359,  93 
X.  W.  1019,  62  L.  E.  A.  190. 

42.  Eichards  v.  Young,  84  N.  Y.  S. 
265. 

43.  Flurscheim  v.  Eosenthal,  112 
X.  Y.  S.  1118. 


135 


NECESSAEIES. 


§  109 


sideration.**  Under  the  North  Carolina  statute  limiting  the  wife's 
capacity  to  contract  to  her  necessary  personal  expenses  or  those  for 
the  benefit  of  the  family,  it  was  held  that  she  could  not  contract 
for  the  erection  of  a  house  on  her  separate  estate.*^  But  it  was 
held  otherwise  as  to  advances  to  a  tenant  to  enable  him  to  make  a 
crop  which  were  made  by  a  third  person  at  the  wife's  request,  it 
appearing  that  the  wife's  rents  were  the  sole  support  of  the  family.** 
Under  a  Texas  statute  empowering  a  wife  to  contract  for  neces- 
saries and  for  the  benefit  of  her  separate  estate,  it  was  held  that 
she  was  not  liable  on  her  contract  for  nursing  her  husband,*^  but  it 
was  held  otherwise  as  to  a  contract  for  the  commercial  education  of 
a  daughter,  where  the  husband  was  absent  and  where  the  wife's 
means  justified  the  expense/®  In  that  State  a  wife  who  has  a 
separate  estate  may  bind  herself  by  a  contract  for  necessaries,**  and 
is  bound  by  a  note  executed  with  her  husband  for  necessaries  of 
which  she  bought  only  a  part.^°  In  Wisconsin  a  wife  cannot  bind 
herself  by  a  contract  to  pay  for  her  board  while  living  with  her 
husband  and  engaged  in  no  business.^^ 

§  109.  What  Constitutes  Necessaries  —  in  General. 

The  wife's  necessaries  are  such  articles  as  the  law  deems  essential 
to  her  health  and  comfort ;  chiefly  food,  drink,  lodging,  fuel,  wash- 
ing, clothing,  and  medical  attendance.  They  are  to  be  determined, 
both  in  kind  and  amount,  by  the  means  and  social  position  of  the 
married  pair,  and  must  therefore  vary  greatly  among  different 
grades  and  at  different  stages  of  society.^^  The  articles  furnished 
must  be  necessary  and  proper  for  a  family  such  as  that  of  the 
particular  husband,^^  and  the  creditor  has  the  burden  of  showing 
that  the  goods  sold  are  necessaries.^ 


54 


44.  Ruhl  V.  Heintze,  97  App.  Div. 
442,  89  N.  Y.  S.  1031. 

45.  Weathers  v.  Borders,  124  N.  C. 
610,  32  S.  E.  881  (reh.  den.,  121  N.  C. 
387,  28  S.  E.  524). 

46.  Bazemore  v.  Mountain,  121  N.  C. 
59,  2S  S.  E.  17. 

47.  Flannery  v.  Chidgey,  33  Tex. 
Civ.  638,  77  S.  W.  1034. 

48.  Haas  v.  American  Nat.  Bank, 
42  Tex.  Civ.  167,  94  S.  W.  439. 

49.  Palmer  v.  Coghlan  (Tex.),  55 
S.  W.  1122. 

50.  Hild  V.  Hellman  (Tex.),  90 
S.  W.  44. 


51.  Chickering-Chase  Bros.  Co.  v. 
L.  J.  White  &  Co.,  127  Wis.  83,  10« 
N.  W.  797. 

52.  2  Bright,  Hub.  &  Wife,  7,  8; 
Ozard  v.  Darnford,  Sel.  N.  P.  260; 
Dcnnys  v.  Sargeant,  6  Car.  &  P.  419; 
Berreblock  v.  Michael,  Cro.  Jac.  257, 
258;  n.  to  2  Kent  Com.,  10th  ed.,  146; 
ih.  138,  139;   1  Bl.  Com.  442. 

53.  Schwartz  v.  Cohn,  129  N.  Y.  S. 
464;  Wilder  v.  Brokaw,  141  App.  Div. 
811,  126  N.  Y.  S.  932;  B.  Altman  & 
Co.  V.  Durland,  173  N.  Y.  8.  62; 
Marshall  v.  Curry,  23  Pa.  Super.  143. 

54.  Frank  v.  Carter,  219  N.  Y.  35, 
113  N.  E.  549,  L.  R.  A.  1917B,  1288. 


§  no 


HUSBAND   AND    WIFE. 


136 


§110.  Illustration. 

Groceries  purchased  bj  the  wife  for  the  family  are  necessaries,^' 
as  well  as  suitable  clothing  for  her.'®  Such  clothing  must  be  suit- 
able to  the  wife's  condition  in  life  and  must  be  actually  needed." 
Thus  a  large  milliner's  bill  might  not  be  deemed  necessaries  for  the 
wife  of  a  laborer,  while  a  wealthy  merchant  would  be  bound  to  pay 
it.  So,  too,  necessaries  to-day  are  not  what  they  were  fifty  years  ago. 
Nor  is  the  ordinary  test  to  be  found  in  the  real  situation  and  means 
of  the  married  parties ;  for  this  a  tradesman  cannot  be  expected  to 
investigate ;  but  in  their  apparent  situation,  the  style  they  assume, 
and  the  establishment  they  maintain  before  the  world ;  which  every 
husband  is  supposed  to  regulate  with  sufficient  prudence.'*  Arti- 
cles, too,  may  be  of  a  kind  which  the  law  pronounces  necessaries, 
and  yet  a  wife  may  be  so  well  supplied  as  not  to  need  the  particular 
articles  in  question, —  a  distinction  of  some  consequence.  The 
decisions  in  the  books,  relating  to  necessaries,  are  therefore  some- 
what confusing,  as  might  be  expected ;  the  more  so  since  the 
dividing  line  between  law  and  fact,  in  such  cases,  is  not  marked 
with  distinctness.  Sometimes  the  court  decides  whether  articles 
are  necessary,  sometimes  a  jury.  The  ordinary  rule  is  that  the 
court  shall  decide  whether  certain  articles  are  to  be  classed  as  neces- 
saries ;  while  the  jury  may  determine  the  question  of  amount,  and 
apply  this  classification  to  the  facts,'^  but  this  rule,  though  seem- 
ingly precise,  is  found  difficult  in  its  practical  application. 

Among  the  cases  we  find  the  following  articles  classed  as  neces- 
saries for  the  wife:  Board  and  lodging,®"  furniture  of  a  house  for 
a  wife  to  whom  the  court  had  decreed  £380  a  year  as  alimony,®'- 
watches  and  jewelry  such  as  befits  the  style  of  dress  which  the  hus- 
band sanctions,  especially  if  not  wholly  ornamental,®"  silver  fringes 
to  a  petticoat  and  side-saddle  (value  £94)  furnished  to  the  wife  of 


55.  Fischer  v.  Brady,  47  Misc.  401, 
94  N.  Y.  S.  25. 

56.  Feiner  v.  Boynton,  73  N.  J. 
Law,  136,  62  A.  420. 

57.  Dolan  v.  Brooks,  168  Mass.  350, 
47  N.  3.  408. 

58.  Waithman  v.  Wakefield,  1  Camp. 
120;  Gately  Outfitting  Co.  v.  Vinson 
(Mo.)  182  S.  W.  133. 

59.  Renaux  v.  Teakle,  20  E.  L.  & 
Eq.  345;  1  Pars.  Contr.  241;  Hall  v. 
Weir,  1  Allen  (Mass.),  261;  Parke  v. 
Kleeber,  37  Pa.  251;  Eaynes  v.  Ben- 


nett,   114    Mass.    424;    Phillipson    v. 
Hayter,  L.  E.  6  C.  P.  38. 

60.  Harris  v.  Lee,  1  P.  Wms.  438; 
Mayhew  v.  Thayer,  8  Gray  (Mass.), 
172;  Cothran  v.  Lee,  24  Ala.  380; 
Webber  v.  Spannhake,  2  Eedf.  (N.  Y.) 
258;   Spaun  v.  Mercer,  8  Neb.  357. 

61.  Hunt  V.  De  Blaquiere,  5  Bing. 
550. 

62.  Cooper  v.  Haseltine,  50  Ind. 
App.  400,  98  N.  E.  437;  Eaynes  v. 
Bennett,  114  Mass.  424. 


137  NECESSAEIES.  §    111 

a  serjeant-at-law/^  household  supplies  reasonable  and  proper  for 
the  ordinary  use  of  a  family,  although  the  wife  receives  the  earn- 
ings of  two  daughters  living  with  her,^*  perhaps  a  piano,*^  a  horse 
worth  $45  for  the  invalid  wife  of  a  miller  earning  $30  per  month, 
in  order  that  she  might  take  exercise  as  advised  by  a  physician; 
the  question  of  suitableness,  however,  being  left  to  the  jury. 


86 


§  111.  Counsel  Fees. 

A  husband  has  been  held  liable  for  reasonable  legal  expenses 
incurred  by  a  wife  who  had  been  desereted  by  her  husband,  pre- 
liminary and  incidental  to  a  suit  for  restitution  of  her  conjugal 
rights,  and  in  obtaining  professional  advice  as  to  the  proper  method 
of  dealing  with  tradesmen  who  were  pressing  their  bills,*^  and  for 
reasonable  legal  expenses  in  defence  of  a  prosecution  instituted 
against  a  wife  by  her  husband,®*  and  even,  in  a  just  cause,  for 
prosecuting  him,®^  and  the  cost  of  divorce  proceedings,  including 
fees  of  a  proctor,  where  the  wife  had  reasonable  ground  for  institut- 
ing them,  but  not  otherwise,^"  especially  where  necessary  for  the 
wife's  protection.'^^  He  has  been  held  liable  for  such  services 
rendered  in  committing  her  to  an  insane  asylum,'^  and  for  counsel 
to  defend  her  character  in  a  suit  against  her.^^  He  has  been  held 
not  liable  for  the  expense  of  an  indictment  by  the  wife  for  assault,^* 
nor  for  counsel  fees  in  a  suit  for  divorce  or  to  enforce  a  marriage 
settlement,  whether  the  wife  be  plaintiff  or  defendant."     A  hus- 

63.  Skin.  349.  73.  Hamilton  v.  Salisbury,  133  Mo. 

64.  Hall  V.  Weir,  1  Allen    (Mass.)       App.  718,  114  S.  W.  563. 

261.  74.  Grindell  v.   Godmond,   5  Ad.   & 

65.  Parke  v.  Kleeber,  37  Pa.  251.  El.  755.  Especially  if  the  grounds  for 
But  see  Chappell  v.  Nunn,  41  L.  T.  instituting  criminal  proceedings  did 
287.  not     appear     reasonable.     Smith     v. 

66.  Cornelia  v.  Ellis,  11  111.  584.  Davis,  45  N.  H.  566. 

67.  Wilson  v.  Ford,  L.  K.  3  Ex.  63.  75.  Pearson  v.  Darrington,  32  Ala. 

68.  Warner  v.  Heiden,  28  Wis.  517.  227;   Dow  v.  Eyst^r,  79  111.  254;  Mc- 

69.  Shepherd  v.  Mackoul,  3  Camp.  CuUough  v.  Eobinson,  2  Ind.  630; 
326;  Morris  v.  Palmer,  39  N.  H.  123.  Yeiser  v.  Lowe,  50  Neb.  310,  69  N.  W. 

70.  Brown  v.  Ackroyd,  34  E.  L.  &  847;  Morrison  v.  Holt,  42  N.  H.  478, 
Eq.  214;  Porter  v.  Briggs,  38  la.  80  Am.  Dec.  120;  Wing  v.  Hurlburt, 
166.  15  Vt.  607,  40  Am.  Dec.  695;   Pear- 

71.  Maddy  v.  Prevulsky  (la.),  160  son  v.  Darrington,  32  Ala.  227;  Mor- 
N.  W.  762,  L.  E.  A.  1917C,  335;  rison  v.  Holt,  42  N.  H.  478;  Thomp- 
Wick  V.  Beck  (la.),  153  N.  W.  836,  son  v.  Thompson,  3  Head  (Tenn.), 
L.  R.  A.  1915F,  1162.  527;  Coffin  v.  Dunham,  S  Cush.  (Mass.) 

72.  Moran  v.  Montz,  175  Mo.  App.  404;  Shelton  v.  Pendleton,  18  Conn. 
360,  162  S.  W.  323.  417;   Johnson  v.  Williams,  3   la.  97; 


§  112 


HUSBAND    AND    WIFE. 


138 


band  whose  wife  is  living  apart  from  him  is  not  liable  for  counsel 
fees  incurred  by  her  in  defending  a  prosecution  for  that  offence,'^ 
nor  for  services  rendered  by  an  attorney  who  knew  of  a  separation, 
especially  where  the  court,  in  a  proceeding  for  separate  main- 
tenance, had  fixed  the  wife's  allowance,"  nor  in  such  an  action 
where  the  parties  have  become  reconciled  and  have  resumed  cohab- 
itation," nor  for  counsel  fees  in  a  proceeding  against  him  for 
divorce,  other  than  the  amount  allowed  by  the  court,^®  or  for  legal 
advice  pending  such  a  proceeding,*^  nor  for  such  services  in  an 
action  brought  against  both  spouses  for  the  construction  of  a  trust 
deed  made  by  the  husband  alone.®^ 

§  112.  Medical  Services. 

Medical  services  rendered  to  the  wife  are  generally  necessaries,*^ 
but  not  where  such  services  were  rendered  on  her  sole  credit,®^  or 
where  she  lives  apart  without  justifiable  cause.**  Under  the  Ken- 
tucky statute  the  husband  alone  is  liable  for  medical  services  fur- 
nished to  the  wife,  if  suitable  to  her  condition  in  life.*°     Medical 


Drais  v.  Hogan,  50  Cal.  121;  Dow  v. 
Eyster,  79  111.  254;  Whipple  v.  Gilea, 
55  N.  H.  139;  "Williams  v.  Monroe,  18 
B.  Mon.  (Ky.)  514;  Ray  v.  Adden, 
50  N.  H.  82.  Legal  expenses  and  fees 
are  sometimes  chargeable  against  a 
husband,  in  cases  of  this  sort,  because 
the  statute  says  so.  Thomas  v. 
Thomas,  7  Bush  (Ky.),  665;  Warner 
V.  Heiden,  28  Wis.  517;  Glenn  v.  Hill, 
50  Ga.  94. 

Decisions  differ;  but  the  weight  of 
authority  is  that  an  action  at  law  for 
his  fees  cannot  be  maintained  by  a 
solicitor  who  prosecutes  or  defends  on 
the  wife 's  behalf  against  her  husband. 
Fees  and  retainers  for  more  solicitors 
than  were  needful  cannot  be  allowed. 
See  Divorce,  post,  Vol.  II. 

76.  Peaks  v.  Mayhew,  94  Me.  571, 
48  A.  172. 

77.  Damman  v.  Bancroft,  43  Misc. 
678,  88  N.  Y.  S.  386. 

78.  Kuntz  V.  Kuntz,  80  N.  J.  Eq. 
429,  83  A.  787. 

79.  Zent  v.  Sullivan,  47  Wash.  315, 

91  P.  1088,  13  L.  R.  A.   (N.  S.)    244. 

80.  Meaher  v.  Mitchell,  112  Me.  416, 

92  A.  492,  L.  R.  A.  1915C,  467. 


81.  Mulligan  v.  Mulligan,  161  Ky. 
628,  171  S.  W.  420. 

82.  Johnson  v.  Coleman  (Ala.),  69 
So.  318;  City  of  Columbus  v.  Strass- 
ner,  138  Ind.  301,  34  N.  E.  5;  Button 
V,  Weaver,  87  App.  Div.  224,  84  N.  Y. 
S.  388;  Schneider  v.  Rosenbaum,  52 
Misc.  143,  101  N.  Y.  S.  529;  Thrall 
Hospital  V.  Caren,  140  App.  Div.  171, 
124  N.  Y.  S.  1038;  7??,  re  Babcock,  169 
X.  Y.  S.  800,  171  N.  Y.  S.  1078; 
Davenport  v.  Rutledge  (Tex.),  187 
S.  W.  988.  A  husband  is  not  liable 
to  a  surgeon  who  operated  on  his  wife, 
where  the  wife  did  not  request  the 
operation,  but  only  passively  acqui- 
esced in  it,  and  no  person  having  any 
power  of  agency  for  the  husband  re- 
quested or  authorized  it.  Kennedy  v. 
Benson,  144  N.  Y.  S.  787. 

83.  Black  v.  Clements,  2  Pennewill 
(Del.),  499;    47  A.   617, 

84.  Wolf  V.  Schulman,  45  Misc.  418, 
9  N.  Y.  S.  363 ;  Morgenroth  v.  Spencer, 
124  Wis.  564,  102  N.  W.  1086. 

85.  Towery  v.  McGaw,  22  Ky.  Law, 
155,  56  8.  W.  727. 


139 


NECESSAKIiiS. 


§   114 


attendance  rendered,  without  the  husband's  assent,  by  a  quack 
doctor,  are  not  necessaries,^"  but  when  a  husband  disputes  a  bill  for 
medical  attendance  on  the  ground  of  malpractice,  or  an  unnecessary 
surgical  operation,  the  burden  is  on  him  to  show  it/^ 

§  113.  Dental  Services. 

^Necessaries  include  a  set  of  false  teeth,  and  reasonable  den- 
tistry,*^ and  deutal  services  generally.*® 

§  114.  Last  Sickness  and  Funeral  Expenses. 

A  surviving  husband  is  primarily  liable  for  the  funeral  expenses 
of  his  deceased  wife,^"  even  though  she  lived  apart  from  him,®^  and 
has  a  separate  estate,^^  but  it  is  sometimes  held  that  her  estate  is 
secondarily  liable  where  he  does  not  pay  them.®^  In  Massachu- 
setts and  New  York  it  is  held  that  her  estate  is  solely  liable  for  her 
funeral  expenses.®*  A  third  person  defraying  a  wife's  funeral 
expenses  may  recover  from  the  husband  the  amount  expended.®^ 
He  is  also  liable  for  the  necessary  expense  of  her  last  sickness." 
But  a  wife  is  not  liable  for  her  husband's  funeral  expenses,  in  the 
absence  of  statute.®^     Under  the  Iowa  statute  the  expense  of  a 


86.  Wood  V.  O 'Kelly,  8  Gush. 
(Mass.)   406. 

87.  McClallan  v.  Adams,  19  Pick. 
(Mass.)  333. 

88.  Clark  v.  Tenneson  (Wis.),  130 
N.  W.  S95,  33  L.  E.  A.  (N.  S.)  426; 
Freeman  v.  Holmes,  62  Ga.  556;  Gil- 
man  V.  Andrus,  28  Vt.  241. 

89.  Clark  v.  Tenneson,  146  Wis.  65, 
130  N.  W.  895. 

90.  Carpenter  v.  Hazelrigg,  103  Ky. 
538,  20  Ky.  Law,  231,  45  S.  W.  666; 
Bowen  v.  Daugherty,  168  N.  C.  242, 
84  S.  E.  265;  Stack  v.  Padden,  111 
Wis.  42,  86  N.  W.  568;  Gustin  v. 
Bryden,  205  111.  App.  204;  Scott  v. 
Carothers,  17  Ind.  App.  673,  47  N.  E. 
389;  In  re  Skillman's  Estate,  146  la. 
601,  125  N.  W.  343;  Ketterer  v.  Nel- 
son, 146  Ky.  7,  141  S.  W.  ■\Q9;  Brand's 
Ex'r  V.  Brand,  109'  Ky.  721,  22  Ky. 
Law,  1366;  Sears  v.  Giddey,  41 
Mich.  590,  2  N.  W.  917,  32 
Am.  R.  1G8;  Bowen  v.  Daugherty, 
168  N.  C.  242,  84  S.  E.  265;  Hatton 
V.  Cunningham,  162  N.  Y.  S.  1008; 
George  H.  Humphrey  &  Son  v.  HufiF, 


3  Ohio  App.  Ill,  35  Ohio  Cir.  Ct.  117; 
In  re  StadtmuUer,  110  App.  Div.  76, 
96  N.  Y.  S.  1101;  In  re  Klingensmith, 
58  N.  Y.  S.  375,  29  Civ.  Proc.  R.  69; 
Towery  v.  McGaw,  22  Ky.  Law,  155, 
56  S.  W.  727. 

91.  Scott  V.  Carothers,  17  Ind.  App. 
673,  47  N.  E.  389;  Watkins  v.  B^o^vn, 
89  App.  Div.  193,  85  N.  Y.  S.  820. 

92.  In  re  Conn's  Estate,  65  Pa. 
Super.  511. 

93.  Carpenter  v.  Hazelrigg,  103  Ky. 
538,  20  Ky.  L.  231,  45  S.  W.  666. 

94.  Morrissey  v.  Mulhern,  168  Mass. 
412,  47  N.  E.  407;  In  re  StadtmuUer, 
no  App.  Div.  76,  96  N.  Y.  S.   1101. 

95.  Stone  v.  Tyack,  164  Mich.  550, 
12g  N.  W.  694,  17  Det.  Leg.  N.  1118. 

96.  Ketterer  v.  Nelson,  146  Ky.  7, 
141  S.  W.  409;  Long  v.  Board,  20  Ky. 
Law,  1036;  Stonesifer  v.  Shriver,  100 
Md.  24,  59  A.  139. 

97.  Robinson  v.  Foust,  31  Ind.  -'Vpp. 
384,  99  Am.  St.  R.  269;  Hollands- 
worth  V  Squires  (Tenn.),  56  S.  W. 
1044;  Compton  v.  Lancaster  (Ky.), 
114  S.  W.  260. 


115 


HUSBAND    AND    WIFE. 


140 


husband's  last  sickness  is  a  family  expense  for  which  the  wife  is 
liable,  even  though  the  claim  against  the  estate  of  the  husband  had 
been  lost  by  failure  to  prove  within  the  statutory  period.^^  Under 
the  Washington  statute  a  wife  is  secondarily  liable  for  her  hus- 
band's funeral  expenses  after  the  funds  of  his  estate  have  been 
exhausted,^®  and  for  her  husband's  medical  and  hospital  expenses, 
though  she  was  in  another  State  when  they  were  rendered,  it  ap- 
pearing that  she  corresponded  with  him  and  after  his  death  secured 
a  decree  giving  her  his  estate/  Under  the  Wisconsin  statute  the 
wife's  estate  is  primarily  liable  where  the  undertaker  furnishes  the 
funeral  on  the  credit  of  her  separate  estate,  independently  of  the 
liability  of  the  husband,  who  ordered  it.^ 

§  115.  What  are  not  Necessaries. 

The  following  articles  have  been  held  not  to  be  necessaries : 
Articles  of  jewelry  for  the  wife  of  a  special  pleader,^  a  deed  of 
separation,^  passage  tickets  in  general  to  enable  the  wife  to  travel, 
except  perhaps  for  a  clearly  needful  purpose,^  "  religious  instruc- 
tion," or  the  rent  of  a  church  pew,*  diamond  earrings,  a  watch  for 
the  wife's  daughter  by  a  former  husband,  and  chain  for  a  servant's 
lover,'^  a  set  of  "  Stoddard's  Lectures,"  *  apartment  decorations  fur- 
nished and  charged  to  the  wife,^  a  sofa  cushion,  lamp  and  gown  for 
a  wife,  the  whole  bill  amounting  to  $22.25,^°  board  at  a  summer 
hotel  for  the  period  of  the  summer  season  at  a  place  away  from  the 
family  domicile,^^  a  horse  for  use  in  the  wife's  separate  business.^^ 
Articles  which  are  extravagant  and  altogether  beyond  the  husband's 
circumstances  and  degree  in  life  are  not  necessaries/*     A  husband 


98.  Vest     V.     Kramer     (la.),     114 
N.  W.  886. 

99.  Butterworth  v.   Bredemeyer,  74 
Wash.  524,  133  P.  1061. 

1.  Russell    V.    Grauman,    40    Wash. 
667,  82  P.  998. 

2.  Schneider  v.  Breier's  Estate,  129 
446,   109  N.  W.  99,  6  L.  R.  A. 

S.)   917. 

Montague  v.  Benedict,  3  B.  &  C. 


Wis. 
(N. 

3. 
631. 

4. 

5. 
334. 

6.  St.  John's  Parish  v.  Bronson,  40 
Conn.  75. 

7.  Otto  V.  Matthie,  70  111.  App.  54. 

8.  Shuman  v.  Steinol,  129  Wis.  422, 


Ladd  V.  Lynn,  2  M.  &  W.  265. 
Knox  V.  Bushel],  3  C.  B.  (N.  S.) 


109  N.  W.  74,  7  L.  R.  A.  (N,  S.)  1048. 

9.  Proctor  v.  Woodruff,  119  N.  Y. 
S.  232, 

10.  Raymond  v.  Cowdrey,  19  Misc. 
34,  42  N.  T.  S.  557. 

11.  Stevens  v.  Hush,  176  N.  Y. 
Supp.  602. 

12.  Palmer  v.  Coghlan  (Tex.),  55 
S.  W.  1122. 

13.  Caney  v.  Patton,  2  Ashm.  140. 
In  Phillipson  v.  Hayter,  L.  R.  6  C.  P. 
38,  goods,  such  as  a  gold  pencil-case, 
cigar-case,  glove-box,  scent-bottle, 
guitar,  music,  and  purse,  to  the  value 
of  £20,  were  held  not  to  be  necessaries 
chargeable  against  the  husband,  who 
was  a  clerk  with  a  salary  of  £400  a 
year. 


141 


NECESSABIES. 


§  116 


is  not  liable  for  expenses  of  administering  his  wife's  estate  or  for 
an  action  brought  bj  her  representative/* 

§  116.  Joint  Statutory  Liability  for  "Family  Expenses." 

A  contract  capacity,  involving  legal  liability  from  the  separate 
estate,  is  now  quite  frequently  sustained  as  to  the  wife,  without 
requiring  her  to  stand  on  her  old  footing  of  agent  for  the  husband 
to  sen'e  her  dire  needs.^'  This,  as  an  enlargement  of  contract 
power  in  a  married  woman,  results  in  part  from  protecting  her 
separate  property,  over  which  it  is  hardly  just  that  she  should  enjoy 
full  dominion,  without  contributing  something  from  its  income  to 
the  comforts  of  the  matrimonial  abode.  In  many  States  the  hus- 
band is  still  under  the  common-law  obligation  to  support  his  wife 
and  family;  and  primarily  this  continues  almost  universally  his 
duty;  but  great  modifications  of  the  old  rule  have  of  late  been 
established  both  in  England  and  America. 

Thus,  under  the  English  Married  Women's  Act  of  1870,  a  wife 
having  separate  property  is  rendered  liable  to  the  parish  for  the 
maintenance  of  her  husband  and  children.^®  Some  of  the  Amer- 
ican married  women's  acts,  too,  charge  the  wife's  separate  estate 
distinctly  with  necessaries  or  with  articles  of  "  family  supply," 
though  not  unless  she  contracted  for  the  articles,  or  unless,  at  least, 
her  husband  was  destitute  of  the  means  of  payment. 


17 


14.  Long   V.    Beard,    20    Ky.    Law,      wife    at    her    request,    may    be    thus 


1036,  48  S.  W.  158. 

15.  For  the  coverture  doctrine  of 
necessaries  and  the  wife's  agency  for 
procuring  them,  see  swpra,  83, 

16.  Act  33  &  34  Vict.,  ch.  93. 

17.  Covert  v.  Hughes,  15  N.  Y.  305; 
McCormick  v.  Muth,  49  la.  536;  Cun- 
ningham V.  Fontaine,  25  Ala.  644; 
Kogers  v.  Boyd,  33  Ala.  175;  Finn  v. 
Rose,  12  la.  565.  See  Sharp  v.  Burns, 
35  Ala.  653;  Callahan  v.  Patterson, 
4  Tex.  61.  Debt  incurred  in  procuring 
a  substitute  for  a  husband  who  was 
drafted  is  not  included  among  "neces- 
saries" thus  chargeable  upon  the 
wife.  Ford  v.  Teal,  7  Bush  (Ky.), 
156.  See,  further,  Lawrence  v.  Sinna- 
mon,  24  la.  80.  State  aid  to  a  sol- 
dier's wife  is  chargeable  as  above. 
Hammond  v.  Corbett,  51  N.  H.  311. 


charged.  Tat«s  v.  Lurvey,  65  Me.  221 ; 
May  V.  Smith,  48  Ala.  483.  But  see 
Thomas  v.  Passage,  54  Ind.  106;  Web- 
ber V.  Spannhake,  2  Eedf.  (N.  Y.) 
258.  Needful  servants  are  thus 
charged.    Pippin  v.  Jones,  52  Ala.  161, 

But  in  New  York,  to  charge  the 
wife's  separate  estate  for  nurses  and 
household  expenses  not  rendered  for 
its  benefit,  a  distinct  agreement  to 
that  effect  must  appear  on  the  wife 's 
part.  Eisenlord  v.  Snyder,  71  N.  Y. 
45. 

A  husband,  under  some  local  stat- 
utes, is  not  liable  for  municipal  ex- 
penses incurred  in  treating  his  insr,ne 
wife  at  a  public  institution.  Delaware 
County  V.  McDonald,  46  la.  170; 
Commissioners  v.  Schmoke,  51  Ind. 
416.    As  to  making  a  husband  a  pau- 


Medical     attendance,     rendered     the     per,   by   his   wife's   receiving  pauper 


§   116 


HUSBAriD    AM)    WIFE. 


142 


Doubtless  a  married  woman  may  become  bound  for  her  own 
necessaries,  and  in  a  sense  for  what  may  be  called  "  family  neces- 
saries "  to  a  reasonable  and  proper  extent,  contracted  on  the  faith 
of  her  separate  estate,  whether  her  husband  be  insolvent  or  not,  or 
without  means,  so  long  as  neither  he  nor  his  credit  were  considered 
in  the  transaction  between  herself  and  the  storekeeper;  and  her 
separate  estate  is  answerable  accordingly  in  a  suit  against  her  under 
many  statutes/*  Under  such  a  statute  both  spouses  are  princi- 
pals," each  holding  the  other  out  by  the  marriage  relation  as  agent 
to  incur  family  expenses,^"  This,  in  part  at  least,  upon  equity 
principle,  too,  as  something  beneficial  to  her,  and  authorized  by  her 
upon  the  express  credit  of  her  separate  estate.^^     And  though  the 


aid,  under  laws  of  settlement,  see 
Lewiston  v.  Harrison,  69  Me.  504. 

As  statutory  necessaries  cannot  be 
charged  against  the  wife 's  separate 
property,  improvements  on  real  estate, 
out-houses,  and  fencing.  Lee  v. 
Campbell,  61  Ala.  12.  Money  of  the 
wife  used  by  her  husband,  with  her 
consent  and  knowledge,  in  payment 
of  ordinary  household  expenses,  and 
without  agreement  for  its  repayment, 
cannot  be  recovered  by  her  from  his 
estate.  Courtright  v.  Courtright,  53 
la.  57.  But  see  Sherman  v.  King,  51 
la.  182.  As  to  the  wife's  check  or 
draft  for  supplies,  see  Castleman  v. 
Jeffries,  60  Ala.  380. 

Under  the  Mississippi  Code  the 
v.ife's  separate  estate  is  liable  for 
' '  plantation  supplies. ' '  Lake  v.  Dil- 
lard,  55  Miss.  63;  Wright  v.  Walton, 
56  Miss.  1 ;  Ogden  v.  Guice,  56  Miss. 
330;  Grubbs  v.  Collin,  54  Miss.  368. 
"Articles  of  comfort  and  support  for 
the  household ' '  are  thus  chargeable  in 
Alabama.  Baker  v.  Flournoy,  58  Ala. 
650;  Jones  v.  Wilson,  57  Ala.  122; 
May  v.  Smith,  48  Ala.  483;  Cauly  v. 
Blue,  62  Ala.  77.  "Expenses  of  the 
family"  are  thus  chargeable  under 
Iowa  Code.  McCormick  v.  Muth,  49 
la.  536 ;  Jones  v.  Glass,  48  la.  345. 

18.  Gunn  v.  Samuel,  33  Ala.  201; 
Catron  v.  Warren,  1  Cold.  (Tenn.) 
358;  Wylly  v.  Collins,  9^  Ga.  223; 
Black  V.  Bryar,  18  Tex.  453;  Rigoney 
V.  Neiman,  73  Pa.  330;   O'Connor  v. 


Chamberlain,  59  Ala.  431;  Labarco  v. 
Colby,  99  Mass.  559;  Davidson  v.  Mc- 
Candlish,  69'  Pa.  169;  Campbell  v. 
White,  22  Mich.  178 ;  Craft  v.  Holland, 
37  Conn.  491;  Murdy  v.  Skyles,  101 
la.  549,  70  N.  W.  714,  63  Am.  St.  R. 
411;  Houghteling  v.  Walker,  100  F. 
253  (wife's  liabilitiy  for  rent  of 
house  leased  by  husband)  (affd.  46 
C.  C.  A.  512,  107  F.  619)  ;  Banner 
Mercantile  Co.  v.  Hendrick,  24  N.  D. 
16,  138  N.  W.  993;  Meier  &  Frank 
Co.  v.  Mitlhuer,  75  Ore.  331,  146  P. 
796;  Dale  v.  Marvin,  76  Ore.  528,  148 
P.  1116,  rehearing  denied  Id.  1151. 

19.  In  re  Skillman's  Estate,  146  la. 
601,  125  N.  W.  343. 

20.  Arnold  v.  Keil,  81  111.  App. 
237. 

21.  The  wife's  equitable  separate 
estate  is  not,  apart  from  her  credit, 
liable  for  family  board,  though  the 
husband  be  insolvent.  Mayer  v.  Gal- 
luchat,  6  Rich.  Eq.  (S.  C.)  1.  But 
when  upon  credit  of  her  separate  es- 
tate, equity  will  enforce  it.  Priest 
V.  Cone,  51  Vt.  495;  Roberts  v.  Kel- 
ley,  51  Vt.  97.  But  cf.  Weir  v.  Groat, 
4  Hun  (N.  Y.),  193;  Sorrel  v.  Clay- 
ton, 42  Tex.  188;  Baker  v.  Harrier, 
4  Hun,  272 ;  Collins  v.  Underwood,  33 
Ark.  265.  For  in  some  States  the 
wife 's  own  benefit,  apart  from  chil- 
dren or  husband,  is  strictly  regarded. 
House  rent  to  a  reasonable  amount 
may  be  thus  charged  by  wife 's  express 
]»rocuremont.     Harris  v.  Williams,  44 


143 


NECESSAEIES. 


§  116 


husband  be  considered  still  presumably  liable,  as  to  supplies  for  the 
needful  clothing,  support,  and  education  of  his  wife  and  family, 
the  wife  continuing  his  agent  as  at  the  common  law,  yet  for  such 
supplies  the  wife  may,  as  some  States  hold,  render  herself  liable, 
and  by  her  actual  consent,  express  or  implied,  constitute  even  the 
husband  himself  a  purchaser  of  such  supplies  as  her  agent,  she 
being  the  principal."^  If  there  be  any  good  sense  in  the  rule  that, 
where  credit  is  once  given  to  the  wife,  the  husband  will  not  be 
liable,  though  the  articles  purchased  be  a  necessary,  it  is  in  cases 
where  the  wife  has  a  separate  income  or  separate  property  of  her 
own,  and  under  her  omti  control."^  If  the  expense  is  for  the  family 
within  the  meaning  of  the  statute  it  is  immaterial  whether  it  was 
strictly  necessaries,^*  if  the  articles  are  for  and  are  used  by  some 
member  of  the  family,"^  or  go  to  the  support  or  joint  benefit  of 
both,"^  or  if  purchased  by  a  member  of  the  family,  though  over 
age,  and  whether  purchased  before  or  after  the  husband's  death.^'^ 
To  recover  under  such  a  statute  the  creditor  must  show  that  there 


Tex.  124;  Wright  v.  Meriwether,  51 
Ala.  183.  But  not  without  such  ex- 
press procurement.  Eustaphieve  v. 
Ketchum,  13  N.  Y.  621.  Whether  a 
husband's  discharge  in  bankruptcy 
will  relieve  the  wife's  estate  from  a 
claim  for  family  necessaries  where  it 
is  not  clear  that  express  credit  was 
given  to  the  wife,  see  Wilson  v.  Een- 
shaw,  91  Pa.  224;  Jones  v.  Glass,  48 
la.  345. 

Articles  not  stricly  necessaries  have 
thus  been  charged  upon  the  wife,  she 
having  expressly  contracted.  Adams 
V.  Charter,  46  Conn.  551 ;  Miller  v. 
Brown,  47  Mo.  305.  But  not  usually 
what  were  neither  her  necessaries  nor 
expressly  contracted  for.  Parker  v. 
Dillard,  50  Ala.  14.  Where  articles 
consist  partly  of  enforceable  necessa- 
ries, and  partly  of  articles  not  so  en- 
forceable, the  liability  of  the  former 
may  be  enforced,  regardless  of  the 
latter  articles.  Parker  v.  Dillard,  50 
Ala.  14 ;  Lee  v.  Tannenbaum,  62  Ala. 
501;  Koberts  v.  Kellcy,  51  Vt.  97. 
No  change  in  the  wife's  statutory 
separate  estate,  existing  and  liable  for 
the  account  when  it  was  made,  can 


defeat  proceedings  to  compel  pay- 
ment. Cheatham  v.  Newman,  59  Ala. 
547. 

22.  Cook  V.  Ligon,  54  Miss.  36S. 
And  see  Powers  v.  Russell,  26  Mich. 
179;  Wilson  v.  Herbert,  41  N.  J.  L. 
454;  Sherman  v.  King,  51  la.  182; 
Miller  v.  Brown,  47  Mo.  505,  as  to 
requiring  affirmative  proof  that  the 
wife  purchased  on  her  own  credit  in 
order   to   charge   her   separate   estate. 

23.  Equity,  under  very  strong  cir- 
cumstances of  expediency,  has  re- 
quired the  wife's  separate  income  to 
be  applied  towards  her  support;  as 
where  she  is  insane,  and  consequently 
both  helpless  as  a  wife  and  incapable 
of  giving  or  withholding  assent.  See 
Davenport  v.  Davenport,  5  Allen 
(Mass.),  464. 

24.  Berow  v.  Shields,  48  Utah,  270, 
159  P.  538. 

25.  Oilman  v.  Matthews,  20  Colo. 
App.   170,  77   P.  366. 

26.  Ferrigino  v.  Keasbey  (Conu.), 
106  A.  445. 

27.  Graliam  &  Corry  v.  Work,  162 
la.  383.  141  N.  W.  428. 


118 


HUSBAND    A^^D    WIFE. 


144 


was  a  legal  relation  of  husband  and  wife.^^  Under  the  Connecticut 
etatute  bath  spouses  are  liable  for  the  "  reasonable  apparel  "  of  the 
wife,  though  he  has  not  abandoned  her.'®  Under  the  Illinois  stat- 
ute making  a  wife  liable  for  family  expenses,  a  wife  was  held  not 
liable  for  the  expense  of  caring  for  a  drunken  husband,  from  whom 
she  was  separated.^"  Under  the  Iowa  statute  making  the  wife 
liable  for  family  expenses,  a  creditor  who  has  a  judgment  against 
the  husband  for  such  a  debt  may  in  equity  subject  the  wife's  prop- 
erty to  the  debt  without  first  obtaining  judgment  against  her.^^  In 
Louisiana  a  wife  separated  from  her  husband  in  property  should 
contribute  to  the  family  expenses  and  the  education  to  the  extent  of 
her  means.^^  Under  the  N'ebraska  statute  the  wife  is  liable  for 
the  husband's  support  and  necessary  medical  attendance  while  he  is 
temporarily  helpless,  if  he  is  a  member  of  the  family.^^  In  Texas 
both  spouses  are  liable  for  her  support  where  he  abandons  her.^ 


34 


§  117.  Measure  of  Liability. 

Under  such  a  statute  the  wife's  liability  is  measured  by  her 
husband's  contract,  and  payment  by  him  and  the  statute  of  limita- 
tions both  inure  to  her.^^  Therefore  a  note  which  the  husband  has 
given  for  such  a  debt  does  not  bind  either  as  to  the  validity  of  the 
debt  or  the  amount  of  it.^*  Her  liability  cannot  be  enlarged  by 
his  act  and  should  not  be  extended  by  construction.^ 


37 


38 


§  118.  Effect  of  Separation. 

Such  statutes  do  not  apply  where  there  has  been  a  separation. 
Where  there  is  a  permanent  separation  the  creditor  cannot  recover 
under  such  a  statute,  there  being  no  "  family,"  within  its  mean- 
ing.^® Therefore,  under  such  a  statute  the  creditor  must  show  that 
the  goods  sued  for  were  within  the  statute  and  that  the  spouses  were 


28.  Eand  v.  Bogle,  197  111.  App. 
476;  Berow  v.  Shields  (Utah),  159  P. 
538. 

29.  Paquin,  Limited,  v.  Westervelt 
(Conn.),  106  A.  766. 

30.  Featherstone  v.  Chapin,  93  111. 
App.  223. 

31.  Boss  V.  Jordan,  118  la.  204,  89 
N.   W.   1070. 

32.  First  Natchez  Bank  v.  Moss,  52 
La.  Ann.  1524. 

33.  Leake  v.  Lucas,  65  Neb.  359, 
91  N.  W.  374,  62  L.  R.  A.  190  (a£fd. 
reh.,  65  Neb.  359,  93  N.  W.  1019). 


34.  Palmer  v.  Coghlan  (Tex.),  55 
S.  W.  1122. 

35.  Morse  v.  Minton,  101  la.  603, 
70  N.  W.  691. 

36.  McCartney  &  Sons  Co.  v.  Carter, 
129  la.  20,  105  N.  W.  339. 

37.  McCartney  &  Sons  Co.  v.  Carter, 
129  la.  20,  105  N.  W.  339. 

38.  O  'Brien  v.  Galley -Stockton  Shoe 
Co.  (Colo.),  173  P.  544. 

39.  Berow  v.  Shields,  48  Utah,  270, 
159  P.  538  (holding  that  a  temporary 
separation  will  not  prevent  recovery). 


145 


NECESSARIES. 


§   120 


in  fact  living  togetlier."  Under  such  statutes  the  rights  of  the 
creditor  are  not  affected  bj  a  contemplated  separation  of  which  he 
knows  nothing,*^  especially  where  he  has  no  means  of  knowledge/^ 

§  119.  House  Rent. 

Under  the  Colorado  statute  making  the  wife  liable  for  family 
expenses,  where  a  husband  leased  a  house  which  the  family  occu- 
pied as  a  home  and  where  he  vacated  prior  to  the  determination  of 
the  lease,  during  which  the  furniture  was  damaged,  it  was  held  that 
the  rent  after  the  family  moved  out  and  the  damage  to  the  furniture 
were  not  family  expenses.'*^  Under  the  same  statute  she  was  held 
liable  for  room  rent  though  her  husband  rented  the  room.**  Under 
the  Illinois  statute  it  was  held  that  the  wife  was  liable  for  the  rent 
of  house  leased  by  the  husband,  of  which  she  occupied  part  only,  he 
leasing  the  remainder  to  another  tenant.*^  Under  the  Kentucky 
statut-e  enabling  the  wife  to  contract  for  necessaries  it  was  held  that 
she,  was  not  liable  on  her  lease  of  a  hotel  purely  for  profit. ■**  Under 
the  same  statute  the  personal  property  of  a  tenant's  wife  cannot  be 
subjected  to  payment  of  the  rent.*^  Under  the  Minnesota  statute 
making  the  spouses  jointly  liable  for  "  necessary  household  articles 
and  supplies,"  she  was  held  not  liable  for  the  rent  of  a  house  leased 
by  him*^ 


§  120.  What  constitutes  "  Family  Expenses." 

Under  such  statutes  the  liability  has  been  held  to  extend  to  a 
diamond  shirt  stud  used  by  the  husband  as  an  ornament,*"  and  to 
a  heating  stove,  wringer,  coal  and  oil  can,  buggy  and  carriage  kept 
for  the  use  of  the  family,^"  and  to  a  honiton  and  point  lace  waist 


40.  Perkins  v.  Morgan,  36  Colo.  360, 
85  P.  640;  Gilman  v.  Matthews,  20 
Colo.  App.  170,  77  P.  366;  Robertson 
V,  Warden,  197  111.  App.  478. 

41.  Arnold  v.  Keil,  81  111.  App.  237. 

42.  Stoutenborough  v.  Rammel,  123 
111.  App.  487. 

43.  Straight  v.  McKay,  15  Colo. 
App.  60,  60  P.  1106. 

44.  McDonnell  v.  Solomon  (Colo.), 
170  P.  951. 

45.  Barnett  v.  Marks,  71  111.  App. 
€73. 

10 


46.  Crow  V.  Shacklett,  18  Ky.  Law, 
908,  38  S.  W.  69'2. 

47.  Fit«  V.  Briedenback,  127  Ky. 
504,  32  Ky.  Law,  400,  105  S.  W,  1182. 

48.  Lewis  v.  France  (Minn.),  163 
N.  W.  656. 

49.  Neasham  v.  McNair,  103  la. 
695,  72  N.  W.  773,  38  L.  R.  A.  847, 
64  Am.  St.  R.  202. 

50.  McDaniels  v.  McClure,  142  la. 
370,  120  N.  W.  1031. 


§  121 


HUSBAND    AND    WIFE. 


146 


costing  $200  for  the  wife,^^  and  to  a  buggy  for  family  use,^"  and 
to  the  medical  and  hospital  expenses  of  the  husband,  though  the 
wife  was  in  another  State,  where  she  later  obtained  an  order  for  his 
estate,^^  and  to  supplies  used  for  family  servants,  have  been  held 
within  it.^*  Under  the  similar  California  statute  she  is  liable  for 
medical  services  furnished  to  her  children.^°  Under  the  Kentucky 
statute  enabling  a  wife  to  contract  in  writing  for  necessaries  for 
herself  or  for  any  member  of  the  family,  she  was  held  liable  on  a 
note  given  in  payment  for  a  mule  to  make  a  crop  for  their  joint 
support,^**  Under  the  Missouri  statute  making  the  wife  liable  for 
family  expenses  she  is  liable  for  medical  attendance  furnished  to 
the  family,  though  her  husband  has  given  his  note  for  the  bill.^' 

§  121.  What  are  not  "  Family  Expenses." 

Under  such  statutes  "  family  expenses  "  have  been  held  to  ex- 
clude the  husband's  board,^^  beer  purchased  by  him,^®  feed  for  a 
horse  used  by  him  in  his  business/"  and  a  piano,  never  received  or 
used  by  the  family,®^  or  even  if  it  was  used  by  the  family,  if  the 
husband  has  refused  to  consent  to  its  purchase.^"  Under  the  Illi- 
nois statute  making  a  wife  liable  for  family  expenses,  she  was  held 
not  liable  for  a  stanhope  frequently  used  by  the  husband,  a  doctor, 
in  his  profession,  and  sometimes  by  other  members  of  the  family.*' 
That  statute  does  not  include  a  ring  for  the  personal  use  of  one  of 
the  spouses.®*  Under  the  Iowa  statute  the  expenses  of  keeping 
a  husband  in  an  insane  asylum  have  been  held  not  within  it.*^ 
Under  the  Kentucky  statute  the  wife  is  not  liable  for  the  price  of  a 
city  home  to  educate  her  children,  where  her  general  estate  con- 


51.  Ross  V.  Johnson,  125  111.  App. 
65. 

52.  Houck  V.  La  Junta  Hardware 
Co.,  50  Colo.  228,  114  P.  645. 

53.  Russell  v.  Graumann,  40  Wash. 
667,  82  P.  998. 

54.  Perkins  v.  Morgan,  36  Colo.  360, 
85  P.  &40. 

55.  Evans  v.  Noonan,  20  Cal.  App. 
288,  128  P.  794. 

56.  Allen  v.  Long,  19  Ky.  Law,  488, 
41  S.  W.  17. 

57.  Gabriel  v.  Mullen,  111  Mo.  119, 
19  S.  W.  1099  (overrg.,  Bedsworth  v. 
Bowman,  104  Mo.  44,  15  S.  W.  990). 


58.  Vose  V.  Myott,  141  la.  506,  120 
N.  W.  58. 

59.  O'Neil  v.  Cardinal,  159r  la.  78, 
140  N.  W.  196. 

60.  Martin  Bros.  v.  Vertres,  130  la. 
175,  106  N.  W.  516. 

61.  Jones-Rosquist-Killen  Co.  v.  Nel- 
son, 98  Wash.  539,  167  P.  1130. 

62.  Bush  &  Lane  Piano  Co.  v.  Wood- 
ard  (Wash.),  175  P.  329. 

63.  Staver  Carriage  Co.  v.  Beaudry, 
138  111.  App.  147. 

64.  Hyman  v.  Harding,  162  111.  357, 
44  N.  E.  754. 

65.  Blackhawk  County  r.  Scott,  111 
la.  190,  82  N.  W.  492, 


147  JS'ECESSAKIES.  §    121 

listed  only  of  a  life  estate  in  one  kundred  acres  of  land,®^  or  on  a 
note  given  for  money  advanced  to  pay  interest  on  a  mortgage  where 
it  did  not  appear  that  the  family  occupied  the  mortgaged  estate."^ 
Under  the  Oregon  statute,  neither  the  expenses  of  a  business  con- 
ducted by  either  or  both  spouses,  nor  work  on  a  farm  or  in  pruning 
an  orchard,  are  family  expenses/ 


68 


66.  Herr  v.  Lane,  20  Ky.  Law,  1950,  68.      Chamberlain      v.      Townsend 
5  S.  W.  545.  (Ore.),  142  P.  782  (affd.  reh.,  72  Ore. 

67.  Watts  V.   Turner,  23  K7.  Law,  207,  143  P.  924). 
279,  62  S.  W.  878. 


§  122  HUSBAND  AND  WIFE.  148 


CHAPTEK  VIII. 

LIABILITY  FOK  TOKTS  OF  WIFE. 

Section  122.  Sole  liability  of  Husband  —  General  Eule  Stated. 

123.  Presumption  of  Coercion. 

124.  Necessity  of  Valid  Marriage. 

125.  Extent  of  Liability. 

126.  For  Torts  of  Wife  Arising  from  Contract. 

127.  For  Devastavit  by  Wife. 

128.  Sole  Liability  of  Wife. 

129.  Joint  Liability  of  Spouses. 

130.  Effect  of  Statute. 

131.  Wife 's  Liability  under  Statute. 

132.  For  Torts  of  her  Agent. 

133.  Damages. 

134.  English  Eule  in  Equity. 

§  122.  Sole  Liability  of  Husband —  General  Rule  Stated. 

As  to  private  wrongs  or  torts,  the  general  rule  of  law  is  that  the 
husband  is  liable  for  the  frauds  and  injuries  of  the  wife,  whether 
committed  before  or  during  coverture;  if  committed  under  his 
coercion  or  by  him  alone,  he,  and  he  alone,  is  liable;  otherwise, 
both  are,  for  the  time  being,  liable.®^  He  is  liable  for  her  torts 
in  his  presence  even  though  committed  against  his  protest.'^"  Where 
the  fraud  or  injury  is  coiumitted  in  his  company  and  by  his  order, 
coercion  is  presumed,  and  the  husband  becomes,  prima  facie,  the 
only  wrong-doer;  and  where  committed  without  his  order  and  in 
his  absence,  the  wife  is,  in  reality,  the  offending  party,  while  the 

69.  Horsbaugh  v.  Murasky,  16?  Cal.  Cassin  v.  Delany,  38  N.  Y.  178;  BaU 

500,   147   P.   147;    O'Brien   v.  Walsh,  v.  Bennett,  21   Ind.  427;   Marshall  v. 

63  N.  J.  Law,  350,  43   A.  664;   Ed-  Oakes,  51  Me.  308;    Clark  v.  Bayer, 

wards  v.  Wessinger,  65  S.  C.  161,  43  32  Ohio  St.  299. 

S.  E.   518,  95  Am.  St,  R.  789;   Ma-  70,   Gill  v.   State,   39  W.   Va.   479, 

honey   v.   Eoberts,   86    Ark.    130,   110  20  S.  E.   568,  45  Am.  St.  R.  928,  26 

S.  W.  225;  2  Kent  Com.  149;  Bing.  L.  E.  A.  655,     In  Nebraska  the  com- 

Inf.    256,    257;    Angel    v.    Felton,    8  mon-law  rule  that  a  husband  is  liable 

Johns.  (N.  Y.),  149;  Gage  v.  Eeed,  15  for  his  wife's  torts  committed  in  his 

111.    403 ;    Carl    v.    Wonder,    5    Watts  presence  and  without  his  participation 

(Pa.),    97;    Whitman    v.    Delano,    6  or  instigation,  and  that  solely  because 

N.  H,   543;   Gray  v.   Thacker,  4  Ala.  of    the    marriage    relation,    does    not 

136;  McKeown  v.  Johnson,  1  McCord  exist.      Goken   v.    Dallugge,   72    Neb. 

(S..C.),  578;  Benjamin  v.  Bartlett,  3  16,  99  N.  W.  818   (mod.  72  Neb.  16, 

Miss.  86;  Wright  v.  Kerr,  Addis.  13;  101  N,  W.  244,  103  N.  W,  287), 


149  TOETS    OF    WIFE.  §    12 


husband  has  become  responsible  for  her  acts  by  reason  of  her 
coverture.  In  the  latter  class  of  cases  the  husband  is  properly 
joined  with  his  wife  in  the  suit ;  for  if  the  wife  alone  were  sued,  his 
property  might  be  seized  without  giving  him  an  opportunity  for 
defence;  and  if  the  husband  alone  were  sued,  he  would  become 
chargeable  absolutely.  In  the  former  class  of  cases  the  husband 
should  be  sued  alone.'^ 

A  husband  is  liable  in  replevin  for  his  wife's  unlawful  detention 
of  another's  chattels  under  claim  of  title  in  herself.'^'' 

§  123.  Presumption  of  Coercion. 

This  presumption  of  coercion,  too,  is  much  the  same  in  civil  as 
in  criminal  offences.  It  is  said  by  Chancellor  Kent  that  a  wrong 
committed  by  the  wife  "  in  company  with  "  her  husband,  or  "  by 
his  order,"  renders  the  husband  alone  liable;  but  this  statement 
is  too  general  and  should  be  limited  to  the  case  of  her  acting  by 
his  coercion."  It  is  said  that  the  privilege  of  presumptive  coercion 
extends  to  no  other  person  than  a  wife,  not  even  to  a  servant.''* 
The  presence  of  the  husband  and  his  direction  should  usually  be 
concurrent,  in  order  to  amount  to  coercion  ;  and  the  presumption  of 
a  wife's  coercion  in  a  tort  is,  of  course,  not  conclusive,  but  may 
be  controlled  by  evidence  of  the  facts.'^ 

As  to  private  wrongs  the  question  occurs,  why  should  the  husband 
be  made  to  stand  in  the  wife's  place  where  the  offence  is  considered 
against  an  individual,  any  more  than  when  it  is  between  herself 
and  the  State.  This  seems  to  be  the  true  answer,  as  in  case  of  her 
debts  dum  sola;  namely,  that  the  husband  adopts  her  and  her  cir- 
cumstances together ;  that  he  takes  her  f ortime,  if  she  has  one,  and 

71.    Miller    v.    Busey     (Mo.),    186  v.  Foley,  121  Mass.  259,  23  Am.  R. 

S.    W.    983;    Presnell   v.    Moore,    120  R.  270. 

N.   C.    390,   27   S.   E.   27    (slander)  ;  72.  Choen  v.  Porter,  66  Ind.  194. 

Park      V.    Hopkins,    2    Bailey,    411;  73.  Gray,  C.  J.,  in  Handy  v.  Foley, 

Matthews  v.  Fiestel,   2   E.   D.   Smith  121  Mass.  259;  2  Kent  Com.  149. 

(N.  Y.),  90;  Jackson  v.  Kirby,  37  Vt.  74.  Reeve  Dom.  Rel.  72;   Barnes  v. 

448;   Edwards  v  Wessinger,  65  S.  C.  Harris,  Busbee,   15;    Griffin   v.  Reyn- 

161,  43  S.  E.  518,  95  Am.  St.  R.  789  olds,  17  How.   (U.  S.)   609. 

(assault);    Huber  v.   Seeger    (Wis.),  75.  Cassin  v.  Delany,  38  N.  Y.  178; 

152  N.  W.  82?;   Emmons  v.  Stevane,  Ferguson  v.  Brooks,  67  Me.  251.    Co- 

73  N.  J.  Law,  3A9,  64  A.  1014.   That  a  ercion,  if   relied   upon,  should  be  set 

husband    instigated    and    directed    a  up  in  defence.     See  Clark  v.  Bayer, 

wife  to  commit  a  tort  in  his  absence  32  Ohio  St.  299;  Ferguson  v.  Brooks, 

may  be  shown  by  acts  of  his  in  cxe-  67  Me.  251. 
cution  of  the  same  purpose.     Handy 


§  126 


HUSBAND    ANB    WlFi;. 


150 


assumes  all  possible  liabilities  tberefrom.     Since  the  wife  is  not 
disabled  to  commit  a  tort,  the  presumption  may  be  rebutted.''* 

§  124.  Necessity  of  Valid  Marriage. 

Simple  cohabitation  will  not  be  enough  to  make  a  husband  re- 
sponsible for  bis  wife's  civil  injuries.  Marriage  in  fact  is  essen- 
tial." 

§  125.  Extent  of  Liability. 

The  husband's  liability  is  after  all  a  limited  one,  wbere  he,  in 
the  first  instance,  was  free  from  wrong;  that  is  to  say,  that  tke 
deatb  of  the  wife  before  the  recovery  of  damages  puts  an  end  to 
his  liability  altogether.  This  is  correct,  not  only  on  the  principle 
announced  in  the  case  of  the  wife's  debts  dum  sola,  but  because 
wrongs,  being  personal,  die  with  tbe  person,  which  last  is  the 
common  explanation  of  this  rule.  If  the  husband  dies  before 
damages  are  recovered  in  the  suit,  the  wife  alone  remains  liable."* 
So  it  would  seem  that  the  common  law  recognizes  a  liability  on  her 
part  which  continues  through  the  marriage  relation ;  coverture 
operating,  however,  so  as  to  suspend  the  remedy  against  the 
married  woman,  and  to  bring  in  as  a  joint  party  the  custodian  of 
her  fortune. 

The  husband's  liability  for  his  wife's  torts  lasts  so  long  as  the 
relation  lasts,  even  though  the  married  pair  be  permanently  sepa- 
rated; but  possibly  not  if  the  wife  be  living  in  adultery  at  the 
time  the  wrong  was  committed.'^  A  divorced  man  is  not  liable  to 
this  joint  action  for  a  tort  committed,  while  the  relation  lasted,  by 
the  woman  from  whom  he  is  discovered.*"  Where  a  husband  is 
liable  for  a  wife's  tort  he  is  so  liable  to  the  same  extent  as  she.*^ 

§  126.  For  Torts  of  Wife  Arising  from  Contract. 

There  are,  however,  not  only  torts  simpliciter,  or  simple  wrong's 
at  law,  but  wrongs  where  the  substantive  basis  of  the  fraud  is  the 


76.  Jones  v.  Monson,  137  Wis.  478, 
119  N.  W.  179;  Mahoney  v.  Roberts, 
86  Ark,  130,  110  S.  W.  2-25. 

77.  Overholt  v.  Ellsworth,  1  Ashm. 
200.  See  Norwood  v.  Stevenson,  Andr. 
227. 

78.  Minor  v.  Mapes  (Ark.),  144 
R.  W.  219,  39  L.  R.  A.  (N.  S.)  214; 
2  Bright  Hus.  &  Wife,  22  n.;  and  see 
Stroup  V.  Swarts,  12  S.  &  R.  (Pa.)  76. 

79.  Head  v.  Briscoe,  5  C.  &  P.  484. 


Why  adultery  per  se  should,  on  legal 
principle,  affect  this  liability,  it  is 
hard  to  perceive;  but  if  so,  one  might 
infer  that  wherever  the  husband  has 
ground  for  divorce  he  is  relieved, 
though  not  actually  divorced. 

80.  Cape!  v.  Powell,  17  C.  B.  (N.  S.) 
743. 

81.  Collier  v.  Struby,  99  Tenn.  241. 
47  S.  W.  90;  Austin  v.  Wilson,  4 
Push.   (Mass.)  273,  50  Am.  Dec.  766. 


151  TORTS    OF    WIFE.  §    126 

wife's  contract.  The  common  law  has  be^n  supposed  to  apply  with 
the  same  force  in  both  cases,  partly  because  in  the  latter  instance 
the  person  injured  would  be  otherwise  without  a  remedy.*^ 

This  point  came  directly  before  the  English  Court  of  Exchequer, 
in  1854,  for  decision.  The  circumstances  of  the  case  were  as 
follows:  A  man  applied  for  a  loan  of  £30  to  a  loan  association, 
upon  the  security  of  a  promisory  note,  to  be  signed  by  himself  and 
sureties.  One  of  the  sureties  was  a  married  woman  who  falsely 
represented  herself  to  the  association  as  single.  The  security  was 
accepted  and  the  loan  made.  Afterwards  the  loan  association,  re- 
curring to  the  sureties  for  payment  of  the  note,  sought  to  make  her 
husband  liable  on  the  note,  alleging  her  fraud.  The  court  decided 
that  the  action  was  not  maintainable;  on  the  ground  that  though 
the  husband  is  liable  for  the  wife's  general  frauds,  yet  when  the 
fraud  is  directly  connected  with  her  contract,  and  is  the  means 
of  affecting  it  and  part  and  parcel  of  the  same  transaction,  the 
wife  cannot  be  responsible,  nor  can  the  husband  be  sued  for  the 
fraud  together  with  the  wife.*^ 

In  a  recent  American  case,  the  same  doctrine  was  aflfirmed  where 
articles  had  been  supplied  to  a  married  woman  by  a  tradesman, 
for  which  he  could  not  recover  payment  against  the  husband  under 
the  rule  of  necessaries,  and  he  attempted  to  get  rid  of  the  rule  by 
charging  that  the  wife  procured  the  articles  upon  false  and  fraudu- 
lent representations  that  they  were  needful.**  And  other  decisions 
are  to  the  same  effect.*^  But  there  are  cases  where  the  wife  will 
bind  her  husbad  by  her  fraudulent  representations  on  the  gTound  of 
her  agency.  Thus  in  Taylor  v.  Green  an  advertisement  appeared 
in  a  newspaper,  offering  for  sale  a  baker's  shop  with  the  good-will 
of  the  business,  and  misrepresenting  the  extent  of  the  business.  It 
did  not  appear  that  the  baker  took  any  part  in  the  transaction, 
further  than  to  receive  the  purchase  money  and  pay  the  broker  his 
commission.  The  court  held,  nevertheless,  that  he  was  bound  by 
the  fraudulent  representations  of  his  wife,  inasmuch  as  she  was  his 

82.  Macq.  Hus.  &  Wife,  130,  131;  85.  Keeu  v.  Hartmann,  48  Pa.  497; 
Head  v.  Briscoe,  5  Car.  &  P.  484,  per  Barnes  v.  Harris,  Busbee,  15;  Carle- 
Tindal,  C.  J.;  Reeve  Dom.  Eel.  72,  73.  ton   v.   Haywood,  49   N.  H.   314.     In 

83.  Liverpool  Adelphi  Loan  Associa-  this  last  ease  the  wife  had  received 
tion  V.  Fairhurst,  9  Exch.  422.  See  money  under  an  agreement  to  keep 
also  Cooper  v.  Witham,  1  Lev.  247.  or  loan  the  same  according  to  her 
See  vosi,  §  128.  judgment. 

84.  Woodward    v.    Barnes,    46    Vt. 
332. 


§  129 


HUSBAND   AND    WIFE. 


152 


agent  in  managing  the  shop  and  finding  a  purchaser,  and  that  he 
must  respond  in  damages.*'^  Xor  is  the  doctrine  of  the  loan  asso- 
ciation case  as  yet  broadly  applied,*'  while  the  modem  tendency  is, 
of  course,  to  change  the  whole  coverture  doctrine  on  the  point  of  a 
wife's  torts  and  frauds,  nor  was  the  husband  usually  liable  for 
such  torts.** 


§  127.  For  Devastavit  by  Wife. 

The  husband  of  an  executrix  or  administratrix  is  liable  for  her 
devastavit,  or  other  wrongful  act  committed  before  or  during  cover- 
ture, if  his  liability  be  fixed  before  the  death  of  the  wife.**  And 
if  she  survive  him,  her  appointment  having  been  complete  in  all 
respects,  she  becomes  liable  once  more;  even  for  a  devastavit  com- 
mitted by  him  when  alive.®"  But  the  husband  cannot  be  sued 
as  an  executor  de  son  tort  for  acts  of  his  wife  done  without  his 
knowledge;  though  it  is  otherwise  where  he  advises  or  aids  her  in 
the  commission  of  the  wrongful  acts ;  for  every  one  so  participat- 
ing becomes  a  principal.®^ 

§  128.  Sole  Liability  of  Wife. 

Where  the  husiband  is  not  liable,  the  wife  is  liable  for  her  own 
torts,®^  but  nor  for  his.®^  At  common  law  the  wife  was  not  liable 
for  her  torts  arising  out  of  contract.'* 

§  129.  Joint  Liability  of  Spouses. 

At  common  law  a  wife  was  liable  jointly  with  her  husband  for 
her  tort«.'^  Where  the  tort  is  committed  by  both  spouses,  and  the 
wife  does  not  act  by  coercion,  both  husband  and  wife  may  be 


86.  Taylor  v.  Green,  8  Car.  &  P. 
316;  Macq.,  Hus.  &  Wife,  127.  And 
see,  as  to  the  wife's  quasi  criminal 
act,  in  violation  of  the  excise  laws, 
Attorney-General  v.  Eiddle,  2  Cromp. 
&  Jer.  493. 

87.  See  "Wright  v.  Leonard,  11  C.  B. 
(N.  S.)   (1861)  258. 

88.  De  Wolff  &  Co.  v.  Lozier,  68 
N.  J.  Law,  103,  52  A.  303. 

89.  2  Bright  Hus.  &  Wife,  22-36, 
and  cases  cited;  Bobe  v.  Frowner,  18 
Ala.   89. 

90.  Soady  v,  TurnbuU,  L.  E.  1  Ch. 
494. 


91.  Hinds  v,  Jones,  48  Me.  348. 
The  wife  cannot  hold  such  offices  dur- 
ing coverture  independently  of  her 
husband's  control,  as  we  shall  see  here- 
after. 

92.  E.  E.  Yarbrough  Turpentine  Co. 
V.  Taylor   (Ala.),  78  So.  812. 

93.  Prentiss  v.  Bogart,  84  Wash. 
481,  147  P.  39. 

94.  Locke  v.  Reeves,  116  Ala.  590, 
22  So.  850;  Brunnell  v.  Carr,  76  Vt. 
174,  56  A.  660;  Eowley  v.  Shepard- 
son  (Vt.),  96  A.  374.    See  ante,  §  126. 

95.  Magerstadt  v.  Lambert,  39  Tex. 
Civ.  472,  87  S.  W.  1068. 


153 


TORTS    OF    WIFE. 


§  130 


jointly  sued.®*  Husband  and  wife  are  sued  together  for  the  libel 
or  slander  of  the  wife;^^  and  generally  for  forfeitures  under  a 
penal  statute  w^here  she  participated.^^  So,  too,  for  assault  and 
battery.^^  Or  for  the  forcible  removal  of  a  gate.^  Spouses  are 
jointly  liable  for  conspiracy  to  alienate  a  wife's  affections,  the 
gist  of  the  wrong  being  the  damages  and  not  the  conspiracy.'^  If 
the  tort  is  committed  in  the  husband's  absence,  he  is  jointly  liable 
with  her.^ 

The  husband  has  full  management  of  the  defence.  And  we  need 
hardly  add  that  he  may  compromise  without  his  wife's  assent* 

Where,  during  the  absence  of  the  husband,  the  wife,  without 
his  knowledge,  keeps  vicious  dogs  on  the  premises  for  her  pro- 
tection, she  is  liable  for  an  injury  they  do  to  a  passerby  when  she 
knew  of  their  vicious  disposition,  as  this  is  her  tort  not  committed 
in  the  presence  or  under  the  supposed  influence  of  her  husband. 
The  husband  is  jointly  liable  witli  her  because  of  their  marriage 
relations.^ 


§  130.  Effect  of  Statute. 

In  some  states  the  common-law  rule  is  not  affected  by  Married 
Women's  Acts,^  particularly  as  regards  personal  torts  of  the  wife 


96.  Rigdon  v.  Hedges,  12  Mod. 
246;  Vine  v.  Saunders,  5  Scott,  359; 
Marshall  v.  Oakes,  51  Me.  308;  Gray, 
C.  J.,  in  Handy  v.  Foley,  121  Mass. 
259. 

97.  McElfresh  v.  Kirkendall,  36  la. 
224.  Exemplary  damages  may  be  al- 
lowed in  such  action.  Fowler  v.  Chi- 
chester, 26  Ohio  St.  9. 

98.  Austin  v.  Wilson,  4  Cush. 
(Mass.)  273;  McQueen  v.  Fulgham, 
27  Tex.  463;  Baker  v.  Young,  44  111. 
42 ;  Enders  v.  Beck,  18  la.  86.  As  to 
suits  to  recovery  penalties  for  usury, 
see  Jackson  v.  Kirby,  37  Vt.  448; 
Porter  v.  Mount,  43  Barb.  (N.  Y.) 
422. 

99.  Griffin  v.  Reynolds,  17  How. 
(U.  8.)  609;  Roadcap  v.  Sipe,  6  Gratt. 
(Va.)  213.  See  Miller  v.  Sweitzer,  22 
Mich.  391;  Tobey  v.  Smith,  15  Gray 
(Mass.),  535.  For  a  peculiar  state  of 
facts,  see  Rowing  v.  Manley,  57  Barb. 
(N.  Y.)  479.  And  as  to  suit  for  the 
conversion  of  stolen  millinery  by  the 
wife,  see  Heckle  v.  Lurvey,  101  Mass. 
344. 


See  Gove  v.  Farmers',  &c.,  Ins.  Co., 
48  X.  H.  41,  where  a  husband,  the 
owner  of  insured  buildings,  being 
guilty  of  no  fraud  or  gross  negligence, 
was  permitted  to  recover  money  on  the 
insurance  policy,  although  his  insane 
wife  had  set  the  buildings  on  fire. 

1.  Handy  v.  Foley,  121  Mass.  259. 

2.  Jones  v.  Monson,  137  Wis.  478, 
119  N.  W.   179. 

3.  Missio  v.  Williams,  129  Tenn.  504, 
167   S.  W.  473. 

4.  Coolidge  v.  Parris,  8  Ohio  St. 
594. 

5.  ^rissio  V.  Williams  (Tenn.),  167 
S.  W.  473,  L.  R.  A.  1915A  500. 

6.  Williams  v.  Fulkes,  103  Ark.  196, 
146  S.  W.  480;  Jackson  v.  Williams, 
92  Ark.  486,  123  S.  W.  751;  Crawford 
V.  McElhinney  (la.),  154  N.  W.  310; 
Poling  V.  Pickens,  70  W.  Va.  117,  73 
S.  E.  251 ;  Kellar  v.  James,  63  W.  Va. 
139;  59  S.  E.  939;  Minor  v.  Mapes, 
102  Ark.  351,  144  S.  W.  219;  Graham 
V.  Tucker,  56  Fla,  307,  47  So.  563. 


§   130 


HUSBAND   AND    WIFE. 


154 


not  committed  in  the  management  of  her  separate  estate/  Other 
courts  have  held  that  the  common-law  rule  is  entirely  abrogated 
by  Married  Women's  Acts,  vesting  the  wife  with  entire  control  of 
her  separate  estate  without  her  husband's  interference,^  and  modem 
policy,  in  giving  the  wife  her  separate  property,  inclines  to  hold 
her  responsible,  like  a  single  woman,  for  her  civil  injuries  to  others. 
Hence,  numerous  local  statutes  in  the  United  States  have  recently 
taken  away  the  husband's  legal  liability  for  his  wife's  private 
wrongs,  committed  upon  others  without  his  participation  and 
privity,  and  have  fastened  it  upon  her  separate  estate  instead;" 
especially  if  committed  in  his  absence,  ^"or  else  they  have  limited 
his  liability  for  her  frauds  and  injuries  to  that  of  a  surety.^^ 

Hence,  as  such  statutes  usually  run,  the  joinder  of  the  husband 
as  defendant  is  neither  necessary  nor  proper,  where  one  sues  for 
a  tort  or  fraud  of  the  wife  committed  with  reference  to  her  sepa- 
rate estate,  and  by  the  wife  alone;  while  the  wife,  on  her  part,  is 
liable  substantially  in  the  same  manner  and  to  the  same  extent  for 
frauds  or  torts  committed  in  its  management  as  upon  her  con- 
tracts relating  to  it/^ 


7.  Henley  v,  Wilson,  137  Cal.  273; 
70  Pac.  21,  58  L.  E.  A,  941;  Williams 
V.  Fulkes,  103  Ark.  196,  146  S.  W.  480 
(slander) ;  Polong  v.  Pickens,  70  W. 
Va.  117,  73  S.  E.  251. 

8.  Martin  v.  Eobson,  65  111.  129,  16 
Am.  E.  578 ;  Hagebush  v.  Eagland,  78 
111.  40;  Norris  v.  Corkill,  32  Kan.  409, 
4  Pac.  862;  Lane  v.  Bryant,  100  Ky. 
138,  37  S.  W.  584;  Culmer  v.  Wilson, 
13  Utah,  129,  44  Pac.  833;  Schuler  v. 
Henry,  42  Colo.  367,  9^4  Pac.  360, 
Hageman  v.  Vanderdoes  (Ariz.)  138 
Pac.  1053,  L.  E.  A.  1915A  491  (as- 
sault) ;  Harrington  v.  Jagmetty,  83 
N.  J.  L.  548,  83  Atl.  880;  Fadden  v. 
McKinney  (Vt.),  89  Atl.  357;  Tanzer 
V.  Eead,  160  App.  Div.  584  (driving 
automobile),  145  N.  Y.  Supp.  708. 

9.  Teal  v.  Chancellor,  117  Ala.  612, 
23  So.  651;  Austin  v.  Cox,  118  Mass. 
58;  McCarty  v.  De  Best,  120  Mass. 
&9;  Eici  v.  Mueller,  41  Mich.  214,  2 
N.  W.  23 ;  Gustine  v.  Westenberger, 
224  Pa.  455,  73  A.  913;  Grouse  v, 
Lubin,  260  Pa.  329,  103  A.  725;  Dear- 
dorff  V.  Pepple,  36  Pa.  Super.  224; 
Eillingsworth  v.  Keen,  89  Wash.  597, 


154  P.  1096  ;  Burt  v.  McBain,  29  Mich. 
260;  Missio  v.  Williams,  129  Tenn. 
504,  167  S,  W.  473;  Stnibing  v. 
Mahar,  46  App.  Div.  409,  61  N.  Y.  S. 
799;  Fadden  v.  McKinney,  87  Vt.  316, 
89  A.  351;  EusseU  v.  Phelps,  73  Vt. 
390,  50  A.  1101. 

10.  Schuler  v.  Henry,  42  Colo.  367, 
94  P.  360,  14  L.  E.  A.  (N.  S.)  1009; 
Murray  v.  Newmyer  (Colo.),  182  P. 
888;  Eadke  v.  Schlundt,  30  Ind.  App. 
213,  65  N.  E.  770  (negligence)  ;  Lane 
v.  Bryant,  100  Ky.  138,  18  Ky.  Law 
Eep.  658,  37  S.  W.  584,  36  L.  E.  A. 
709;  Miles  v.  Salisbury,  21  Ohio  Cir. 
Ct.  333,  12  O.  C.  D.  7  (holding  a  hus- 
band not  liable  for  malicious  prosecu- 
lion  for  an  arrest  caused  by  the  wife) ; 
Hinski  v.  Stein,  68  Pa.  Super.  441; 
T'ace  V.  Hoban,  27  Pa.  Super.  574 
(holding  that  a  husband  was  not  lia- 
ble for  mesne  profits  where  the  wife 
wrongfully  assigned  to  another). 

11.  Brown  v.  Kemper,  27  Md.  666.. 

12.  Quilty  v.  Battie,  135  N.  Y.  201, 
32  N.  E.  47,  17  L.  E.  A.  521;  Hage- 
man V.  Vanderdoes,  15  Ariz.  312,  138 
P.   1053;    Henly  v.  Wilson,   137  CaL 


155  TOETS    OF    WIFE.  §    131 

Even  in  States  where  the  husband  is  not  held  liable  for  the  torts 
of  the  wife  committed  out  of  his  presence  he  maj  be  held  for  her 
negligence  in  driving  an  automobile  which  he  has  furnished  for 
her.  This  is,  however,  on  the  theory  of  agency  and  not  of  the 
matrimonial  relation/^  Under  the  Missouri  statute  the  husband 
is  exonerated  from  liability  for  his  wife's  antenuptial  torts  and 
torts  committed  in  the  management  of  her  separate  estate,  but 
remains  liable  for  personal  torts  committed  during  coverture,  like 
slander  and  alienation  of  affection.^*  Under  the  North  Carolina 
statute  the  husband  is  jointly  liable  with  his  wife  for  all  her  torts 
committed  while  the  spouses  cohabit/^  Under  the  South  Dakota 
statute  spouses  are  jointly  liable  for  torts  committed  by  one  at 
the  instigation  of  the  other/®  In  Illinois  the  husband  is  liable  for 
his  wife's  torts  as  his  agent,^"'  but  not  for  her  other  torts  except 
where  he  would  have  been  liable  if  the  marriage  did  not  exist" 

§131.  Wife's  Liability  under  Statute. 

For  injuries  disconnected  with  her  separate  property  she,  and 
not  her  husband,  is  held  liable  under  some  Married  Women's  Acts. 
Thus,  she  is  to  be  sued  alone  for  wilfully  setting  fire  to  her  own 
insured  house  to  another's   injury;^®  for  careless  driving;^"  for 

273,  70  P.  21,  92  Am.  St.  E.  160,  58  227  Pa.  488,  76  Atl.  219,  29  L.  K.  A. 

L.  E.  A.  941;   Davidson  v.  Manning,  (N.  S.)    856;   Birch   v.   Abercrombie, 

168  Ky.  288,  181  S.  W.  1111;  Boutell  74   Wash.   486,   133   Pac.   1020.     See, 

V.  Shellaberger  (Mo),  174  S.  W.  384,  contra,  Van  Blaricom  v.  Dodgson,  220 

387;  Nichols  v.  Nichols,  147  Mo.  387,  N.  Y.   Ill,  L.  E.  S.   19'17F  363,   115 

48  S.  W.  947;  Bruce  v,  Bombeck,  79^  N.  E.  443;  McFarlane  v.  Winters,  47 

Mo.    App.    231;    Harrington    v.    Jag-  Utah,    598,    155    Pac.    437,   L.    E.    A. 

metty,  83  N.  J.  Law  548,  83  A.  880;  1916D  618. 

Tanzer  v.  Bead,   160  App.  Div.   584,  14.   Boutell   v.   Shellaberger    (Mo.) 

145  N.  Y.  S.  708;  Baum  v.  Mullen,  47  174  S.  W.  384,  L.  E.  A.  1915D  847; 

N.  Y.  577;   Eowe  v.  Smith,  55  Barb.  Taylor  v.  Pullen,  152  Mo.  434,  53  S. 

(N.  Y.)417;  Lansing  v.  Holdridge,  58  W.  1086;  Nichols  v.  Nichols,  147  Mo. 

How.  Pr.    (N.  Y.)    449;    Ferguson  v.  407,  48  S.  W.  947. 

Brooks,  67  Me.  251;   Moore  v.  Doerr,  15.  Brittingham  v.  Stadiem,  151  N. 

199    Mo.    App.    428,   203    S.    W.    672;  C.  299,  66  S.  E.  128. 

Aronson  v.  Eicker,  185  Mo.  App.  528,  16.  Bebout  v.  Pense  (S.  D.),  150  N. 

172  S.  W.  641;   Claxton  v.  Pool,  182  W.  289. 

Mo.  App.  13,  167     S.  W.  623,  197  S.  17.  McNemar  v.  Cohn,  115  111.  App. 

W.  349.  31  (negligence) ;  Vannctt  v.  Cole  (N. 

13.  Hutchins  v.  Haffner  (Colo.)  167  D.),  170  N.  W.  663. 

Pac.  966;  Lemke  v.  Ady  (la.)  159  N.  18.  Christensen  v.  Johnston,  207  111. 

W.   1011;    Stowe   v.   Morris,   147   Ky.  App.  209, 

386,  144  8.  W.  52,  39  L.  E.  A.  (N.  S.)  19.  Lansing  v.  Holdridge,  58  How. 

224;    Missell    v.    Hayes,    86    N.    J.   L.  Pr.  (N.  Y.)   449. 

348,  91  Atl.  322 ;  Moon  v.  Matthews,  20.  Eicci  v.  Mueller,  41  Mich.  214. 


§  131 


HUSBAXD    AND    WIFE. 


156 


trespass  ;-^  for  obstructing  a  neighbor's  enjo^Tnent  of  bis  own  prem- 
ises;-- for  carelessly  injuring  property  bailed  to  ber  f^  for  a  slander 
by  ber  of  which  her  husband  is  not  cognizant,"*  and  the  like.  Pro- 
vided, in  all  fit  cases,  that,  by  demand  or  otherwise,  the  wife  be 
put  in  the  position  of  wrong-doer,  as  under  the  ordinary  law  of 
torts." 

For  her  frauds,  too,  the  wife  is  usually  held  responsible  in  many 
States.  As  where  she  represents  herself  as  a  single  woman,  and 
obtains  false  credit.'®  But  where  property  is  conveyed  to  the  wife 
in  fraud  of  her  husband's  creditors,  she  is  not  liable  usually  to  a 
judgment  in  personam,  nor  are  her  executors  ;  but  the  only  remedy 
available  to  the  injui'ed  parties  is  to  pursue  the  property.^' 

The  wife  may  be  liable  to  one  who  is  injured  in  the  husband's 
house  simply  on  the  ground  that  she  promised  the  plaintiff  to 
leave  a  certain  light  burning  when  she  extinguished  the  light  and 
the  plaintiff  in  the  exercise  of  her  duties  of  nurse  was  injured 
thereby.^*  Under  the  New  Jersey,  Vermont  and  West  Virginia 
Married  Women's  Acts  she  is  liable  for  her  torts  committed  in 
the  management  of  her  separate  estate.^^  We  here  assume  that 
the  husband  has  not  connived  at  or  abetted  the  wife's  tort.  If  he 
be  a  party  to  the  fraud  or  injury,  he  is  answerable  on  his  own  part 
like  any  one  sui  juris.  As  to  the  married  woman  herself,  courts 
still  disincline  to  hold  her  liable  upon  any  theory  of  principal  em- 
ploying agents,  or  where  the  wrongful  act  was  committed  without 
her  personal  knowledge  and  sanction.^"  And  where  the  husband 
appears  to  have  compromised  his  wife  in  some  transaction,  es- 


21.  Ferguson  v.  Brooks,  67  Me.  251; 
Carpenter  v.  Vail,  36  Mich.  226; 
Dailey  v.  Houston,  58  Mo.  361.  The 
rule  of  the  wife 's  liability  for  trespass 
of  her  stray  animals  is  strictly  en- 
forced in  New  York.  Eowe  v.  Smith, 
4  3  N.  Y.  230. 

22.  Austin  v.  Cox,  118  Mass.  58. 

23.  Hagebush  v.  Ragland,  78  111.  40; 
Gilbert  v.  Plant,  18  Ind.  308. 

24.  McClure  v.  McMartin,  104  La. 
496,  29  So.  227  (slander). 

25.  Campbell  v.  Quackcnbush,  33 
Mich.  287;  Jansen  v.  Varnum,  89  111. 
100. 

26.  Goulding  v.  Davidson,  26  N.  Y. 
604.    But  as  the  contract  capacity  of  a 


married  woman  is  not  fully  admitted 
by  legislators,  frauds  relating  to  her 
general  contracts  are  not  always  thus 
punishable.  See  Felton  v.  Reid,  7 
Jones  (X.  C.)  269. 

27.  Phipps  V.  Sedgwick,  95  U.  S.  3. 

28.  McLeod  v.  Rawson,  215  Mass. 
257,  102  N.  E.  429,  46  L.  R.  A.  (N. 
S.)   547. 

29.  De  Wolff  &  Co.  v.  Lozier,  68  N. 
.7.  Law,  103,  52  A.  303;  Russell  v. 
Phelps,  73  Yt.  390,  50  A.  1101;  Leros 
V.  Parker,  79  W.  Va.  700,  91  S.  E. 
f)60. 

30.  See  J'anssD  v.  Varnum,  89  111. 
100. 


157  TORTS    OF    WIFE.  §    1 


peciallj  one  relative  to  business  or  property,  whose  wrongfulness 
he  was  likely  to  have  understood  more  readily  than  herself,  or 
where  he  coerced  or  misinformed  her,  and  agency  on  his  part, 
which  shall  charge  her  with  the  mischief,  should  not  readily  be 
assumed.  Hence,  as  it  is  said,  perhaps  broadly,  a  wife  shall  not 
be  held  liable  for  the  tort  of  her  husband  by  reason  of  a 
prior  assent,  advice,  or  authorization  by  her,  or  a  passive  ac- 
quiesence,  if  she  does  not  participate  as  an  actor,  and  has  not 
profited  or  obtained  benefit  for  her  separate  estate  thereby.^^  For 
a  joint  trespass  or  wrong  by  husband  and  wife,  it  may  be  presumed 
still  that  the  latter  was  under  the  former's  coercion,^^  though,  such 
presumption  being  far  from  conclusive,  a  wife  is  now  held  respon- 
sible, under  statute,  for  wrongs  she  commits  deliberately  in  her 
husband's  company,  and,  like  other  parties  not  under  disability, 
for  what  she  plainly  and  understandingly  authorizes  and  ratifies  to 
another's  injury. 


33 


§  132.  For  Torts  of  her  Agent. 

Under  Married  Women's  Acts  a  wife  may  be  liable  for  the  torts 
of  her  agent  within  the  scope  of  his  authority.^*  Thus  sh-e  has 
been  held  liable  for  her  husband's  fraud  in  exchanging  her  prop- 
erty as  her  agent,^^  but  not  for  his  negligence  in  operating  her  auto- 
mobile in  her  absence  and  without  her  consent.^® 

§  133.  Damages. 

A  husband  is  not  liable  for  exemplary  damages  even  when  such 
damages  are  assessed  against  her,^^  if  the  tort  was  without  his 
knowledge  or  participation.^^  The  fact  that  the  husband  is  made 
responsible  by  the  fact  of  coverture,  and  did  not  commit  the  wrong 
in  person,  cannot  go  in  mitigation  of  damages. 


39 


31.  Vanneman  v.  Powers,  56  N.  Y.  v.  Rucker,  177  Mo.  App.  402,  164  S. 
39.  W.  170. 

32.  See  Dailey  v.  Houston,  58  Mo.  35.    Firebaugh    v.    Trough    (Ind.), 
361.  107  N.  E.  301. 

33.  Ferguson  v.  Brooks,  67  Me.  251;  36.  Brenner  v.  Goldstein,  171  N.  Y. 
Sherman  v.  Hogland,  73  Ind.  472.  8.  579. 

34.  Manson   v.   Dempsey,   88   S.   C.  37.  Price  v.  Clapi>,   119   Tenn.  425, 
100  Ky.  361,  18  Ky.  Law,  792,  38  S.  105  S,  W.  864. 

W.  494   (false  representation),  Shane  38.  Price  v.  Clapp,  119  Tenn.  425, 

representation),  38  S.  W.  494;  Shane  105  S.  W.  864. 

V.  Lyons,  172  Mass.  199,  51  N.  E.  976,  39.     Austin     v.     Wilson,     4     Cush. 

70  Am.  St.  R.  261  (negligence)  ;  Long  (Mass.)    273. 


§    134  HUSBAJMD    AXD    WIFE.  ISf 

§  134.  English  Rule  in  Equity. 

In  England,  where  the  coverture  doctrine  appears  still  tx)  pre- 
vail in  this  respect,  settlements  to  the  wife's  separate  use,  under  a 
restraint  of  anticipation,  cannot  be  evaded  or  set  aside;  that 
clause  strictly  operating  even  in  case  of  the  wife's  gross  fraud  to 
another's  injury.*"  And  the  rule  strictly  obtains  in  courts  of 
chancery,  that  the  separate  estate  of  a  married  woman  is  not  liable 
for  her  torts  or  breach  of  trust.*^ 

40.  Stanley  v.  Stanley,  7  Ch.  D.  589.      Eq.  321;  Marler  v.  Tommas,  L.  B.  17 

41.  n.;  Wainford  v.  Heyl,  L,  E.  20      Eq.  8. 


159  WIFE  AS  AGENT  OF  HUSBAND.  §  135 


CHAPTER  IX. 

THE  WIFE  AS  AGENT  OF  THE  HUSBAND. 

Section  135.  General  Considerations. 

136.  Wlien  Wife  may  bind  Husband  as  Agent. 

137.  Extent  of  Power  as  Agent. 

138.  Evidence  of  Agency. 

139.  Wife's  agency  under  Express  Power. 

140.  Wife's  agency  under  Implied  Power. 

141.  In  Household  matters  and  Care  of  Husband's  Property. 

142.  As  to  Real  Estate. 

143.  Effect  of  Contract  by  Wife  in  her  own  name. 

144.  Effect  of  Husband's  Ratification  of  Wife's  Unauthorized  Acts. 

§  135.  General  Considerations. 

Although  the  wife,  as  such,  has  no  power  to  make  a  contract,  she 
is  allowed  at  the  common  law  to  bind  her  hu&band  in  certain  cases 
as  his  agent.  Her  authority  may  be  general  or  special,  express  or 
implied.  Blackstone  says  that  the  power  of  the  wife  to  act  as 
attorney  for  her  husband  implies  no  separation  from,  but  is  rather 
a  representation  of,  her  lord.^^  Whenever  the  husband  expressly 
empowers  his  wife  to  make  a  contract  for  him,  he  will  be  bound 
as  in  the  case  of  any  other  principal.  And  he  may  bind  himself 
in  like  manner  for  any  unauthorized  contract  proceeding  from 
his  wife  as  agent,  by  subsequent  conduct  on  his  part  amounting  to 
ratification.  But  greater  difficulty  arises  in  determining  his  lia- 
bility upon  contracts  where  the  authority  is  not  express,  but  only 
implied.  How  far  does  the  law  go  in  presuming  against  the  hus- 
band, and  what  are  the  proper  limits  of  an  implied  authority  in 
the  wife  to  bind  him  by  her  contracts  ?  This  is  an  important  in- 
quiry which  we  shall  presently  consider. 

But  let  us  premise,  as  a  suitable  conclusion  from  the  preceding 
sections,  that  the  husband  may  be  bound  in  one  of  two  ways,  either 
upon  his  own  contract  or  upon  that  made  by  the  wife  as  his  agent ; 
and  hence  he  may  be  held  liable  because  the  debt  or  obligation  was 
his  own,  or  because  his  wife  represented  him.  The  natural  effect 
of  his  joining  with  her  in  executing  a  contract  or  instrument  wo^ild 
be  to  render  it  his  individual  obligation,  since  he  is  sui  juris;*' 

42.  1  Bl.  Com.  442;   2  Man.  &  Gr.  172;  Mizen  v.  Peck,  3  M.  &  W.  481. 

43.  Dresel  v.  .Jordan,  104  Mass.  497. 


§    136  HUSBAIfD    AND    WIFE.  160 

while  if  ske  executed  alone  and  without  a  suitable  agency  on  hig 
behalf,  the  obligation  would  be  altogether  void. 

§  135.  When  Wife  may  bind  Husband  as  Agent. 

The  usual  cases  in  which  a  wife  binds  the  husband  on  contracts 
not  for  necessaries  may  be  reduced  to  two  classes;  the  one  where 
the  nature  of  his  employment  is  such  that  the  wife  is  expected 
to  share  in  it ;  the  other  where  he  is  absent  from  home  and  some 
one  must  carry  on  the  household  and  small  business  matters.** 
Instances  of  the  first  class  are  those  of  farmers,  victuallers,  and 
small  shopkeepers.*^  \Miile,  on  behalf  of  married  women,  ex- 
tended authority  is  to  be  implied  from  the  fact  of  a  husband's 
absence,  as  in  our  second  class,  every  wife  will  readily  be  regarded 
as  her  husiband's  representative  in  the  ordinary  househould  pur- 
chases, such  as  provisions  and  furniture,  although  the  articles  may 
not  be  strictly  included  among  her  personal  necessaries.  They 
might  be  called  household  necessaries.  But  where  the  husband  is 
a  laboring  man,  or  in  general  a  person  obliged  to  be  absent  from 
his  home  much  of  the  time,  the  presumption  of  the  wife's  agency 
would  be  stronger  and  extend  further.  If  the  occupation  be  that  of 
carrying  on  a  farm,  or  if  small  bills  are  to  he  collected,  such  as 
h.e  and  his  wife  have  always  attended  to,  her  powers  in  his  absence 
take  a  still  wider  scope;  and  this  too  seems  reasonable.  Usage 
will  go  far  in  determining  such  questions.  But  since  persons  carry- 
ing on  a  large  business,  totally  distinct  from  their  household  occu- 
pation, are  not  in  the  habit  of  employing  their  wives  to  manage  it 
for  them,  strong  proof  of  agency  for  such  transactions  should  be 
required  to  warrant  a  wife's  interference  during  her  husband's 
absence ;  the  more  so  if  he  has  left  other  competent  agents  of  his 
own  to  manage  the  business  for  him.  So,  too,  in  large  pecuniary 
affairs,  of  whatever  nature,  her  agency  is  not  readily  inferred; 
while  it  often  is  in  collecting  small  rents  and  paying  small  bills ; 
such  payments  and  receipts  being  permitted  to  bind  her  husband. 
And  although  a  wife  may,  by  actual  authority  from  her  husband, 

44.  Qu.  whether  the  wife's  power  to  erby,  42  Conn.  546.  From  the  absence 
dispose  of  her  husband's  property  for  of  a  husband  in  distant  military  or 
necessary  purposes  may  arise  by  impli-  naval  service  may  be  inferred  an  en- 
cation  from  the  fact  of  his  absconding.  largement  of  the  wife 's  authority.  Bu- 
Butts  V.  Newton,  29  Wis.  632.  The  ford  v.  Speed,  11  Bush  (Ky.)  338. 
doctrine  of  some  such  extended  agency  45.  See  Webster  v.  McGinnis,  5 
where  the  husband  was  in  ^ai\  might  Binn.  (Pa.)  235;  Rotch  v.  Miles,  2 
support  the  decision  in  Ahem  v.  East-  Conn.  638. 


161  WIFE  AS  AGENT  OF  HUSBAND.  §    13G 

indorse  his  notes,  mortgage  and  dispose  of  his  personal  property, 
conduct  his  business  as  a  trader,  and  even  borrow  money  for  carry- 
ing on  his  business  on  the  pledge  of  his  credit,  signing  the  notes 
and  securities  in  his  behalf, —  for  all  this  is  sometimes  done, — 
such  authority  requires  strict  proof;  or  at  least  conduct  on  the 
part  of  the  husband  showing  his  own  approval  of  such  hazardous 
proceedings  on  her  part.*^  The  difficulty  of  laying  down  a  more 
positive  rule  on  this  subject  is  shown  by  two  cases  which  came  be- 
fore the  courts  of  two  of  our  neighboring  States,  not  many  years 
since,  on  a  presentation  of  facts  almost  identical,  but  where  the  re- 
spective decisions  were  precisely  opposite.  A  farmer  was  absent 
from  home.  His  wife  had  been  left  in  charge  of  the  farm,  but 
W'ithout  express  authority  from  him.  A  creditor  attached  the  real 
estate  and  crops;  and  she  permitted  the  hay,  after  attachment,  to  be 
used  by  the  officer ;  to  the  advantage  of  the  creditor,  or  at  least  to 
her  husband's  detriment.  In  the  Vermont  case  it  was  held  that 
the  wife  had  a  prima  facia  authority  to  bind  her  husband ;  in  the 
Connecticut  case  it  was  held  that  she  had  not.  Xeither  of  these 
tribunals  erred  in  their  statement  of  leading  principles ;  but  their 
duty  here  being  rather  an  application  of  broad  rules  to  facts,  than 
a  clearly  legal  deduction,  they  differed  just  as  two  men  would 
have  done,  sitting  upon  a  jury. 


47 


46.  Church  v.  Landers,  10  Wend.  v.  Naff,  4  Cold.  (Tenn.)  370.  See  1 
(N.  Y.)  79;  Gates  v.  Browcr,  5  Seld.  Greenl.  Evid.,  §  185;  Plimmer  v.  Sells, 
(N.  Y.)  205;  Leeds  v.  Vail,  15  Pa.  N.  &  M.  422;  Dodd  v.  Acklom,  6  M.  & 
185;  Alexander  v.  Miller,  16  Pa.  215;  Gr.  673;  Thrasher  v.  Tuttle,  22  Me. 
Burk  V.  Howard,  13  Mo.  241;  Godfrey  335;  Hopkins  v.  Mollineaux,  4  Wend. 
V.  Brooks,  5  Harring.  396;  Savage  v.  (N.  Y.)  465;  Filmer  v.  Lynn,  4  N.  & 
Davis,  18  Wis.  608;  Krebs  v.  O 'Grady,  M.  559;  Taylor  v.  Green,  8  Car.  &  P. 
23  Ala.  726;  Sawyer  v.  Cutting,  23  Vt.  316;  Gulick  v.  Grover,  4  Vroom  (N. 
486;  Shaw  v.  Emery,  38  Me.  484;  J.)  463,  as  to  the  rule  of  evidence  suffi- 
Spencer  v.  Tisue,  Addis.  316;  Green  v.  cient  to  show  the  wife's  authority  to 
Sperry,  16  Vt.  390;  Keakert  v.  Sand-  manage  her  husband's  business.  The 
ford,  5  Watts  &  Serg.  (Pa.)  164;  Ab-  principles  of  ordinary  agency  gener- 
bott  V.  Mackinley,  2  Miles,  220;  Mayse  ally  apply  to  such  cases.  See  also 
V.  Biggs,  3  Head  (Tenn.),  36;  Shoe-  Wharton  v.  Wright,  1  Car.  &  K.  585; 
maker  v.  Kunkle,  5  Watts,  107;  Gil-  Clifford  v.  Burton,  1  Bing.  11T9;  Petty 
bert  V.  Plant,  18  Ind.  308.  v.  Anderson,  3  Bing.  170;  Emerson  v. 

47.  Felker  v.  Emerson,  16  Vt.  653;  Blouden,  1  Esp.  142. 

Benjamin  v.  Benjamin,  15  Conn.  347.  In  some  States  a  wife  acting  as  her 
A  third  person  may  be  sued  on  a  con-  husband's  agent  is  a  competent  wit- 
tract  made  with  a  married  woman  ness  as  to  matters  within  the  scope  of 
after  she  had  performed  her  part,  al-  such  agency.  Chunot  v.  Larson,  43 
though  she  had  no  right  to  make  it.  Wis.  536. 
Ham  V.  Boody,  20  N.  H.  411;  Lowry 

11 


§    138  HUSBAND    AND    WIFE.  162 

§  137.  Extent  of  Power  as  Agent. 

If  lie  authorizes  lier  to  act  for  him  in  a  particular  matter,  she 
has  similar  authority  to  act  in  all  things  pertaining  to  such  mat- 
ter.^* so  where  in  order  to  purchase  goods  it  is  necessary  to  give  a 
mortgage,  she  may  bind  him  by  such  a  mortgage.***  And  where 
her  agency  extends  only  to  the  performance  of  certain  specific  acts 
of  a  general  transaction,  she  cannot  bind  him  by  her  acts  and 
admissions  respecting  other  matters  connected  with  the  general 
transaction.^"  Her  agency  may  be  inferred  from  his  acts  and  con- 
duct respecting  her ;  and  the  general  rule  applies  that  such  agency 
is  to  be  measured  by  the  scope  of  the  usual  employment.^^  In  ac- 
cordance with  the  principles  we  have  stated,  it  is  held  that  where 
a  husband  permits  his  wife  to  carry  on  a  certain  business  in  his 
name,  and  to  draw  in  his  name  checks  and  notes  to  be  used  in  the 
course  of  the  business,  she  cannot  make  him  liable  as  surety  for 
loans  to  third  persons,  or  upon  accommodation  paper,  merely  be- 
cause of  such  an  agency.  ^^ 

§  138.  Evidence  of  Agency. 

In  order  to  bind  a  husband  by  his  wife's  contracts  made  in  his 
name  it  must  appear  that  he  has  held  her  out  as  his  agent,^^  or 
that  he  has  given  her  express  authority  to  act  as  such,^*  and  the 
person  seeking  to  hold  the  husband  on  such  a  contract  has  the 
burden  of  proof.^^  A  written  contract  by  the  wife  as  agent,  given 
as  a  promisory  note  should  show  her  authority  on  its  face.^®    Her 

48.  A.  A,  Fielder  Lumber  Co.  v.  85  N.  Y.  S.  387.  Evidence  that  plain- 
Smith  (Tex.),  151  S.  W.  605.  tiff    told    defendant    that    planitiff 's 

49.  Mosley  v.  Stratton  (Tex.),  203  wife  would  meet  defendant  at  the 
S.  W.  397.  county  clerk's  office,  and  receive  cer- 

50.  Goodrich  v.  Tracy,  43  Vt.  314.  tain  money  due,  authorized  defendant 

51.  Cox  V.  Hoffman,  4  Dev.  &  Batt.  to  pay  the  money  to  the  wife.  Pea- 
(N.  C.)  180;  Mackinley  v.  McGregor,  cock  v.  Newton,  144  Ky.  552,  ISO'  S. 
3  Whart.  369;  Camelin  v.  Palmer  Co.,  W.    791;    Auringer   v.    Cochrane,   225 

10  Allen  (Mass),  539;  Euddock  v.  Mass.  273,  114  N.  E.  355;  Proctor  v. 
Marsh,  38  E.  L.  &  Eq.  515;  Pickering  Woodruff,  119  N.  Y.  S.  232;  Balkema 
V.  Pickering,  6  N.  H.  124;  Abbott  v.  v.  Grolimund,  92  Wash.  326,  159  P. 
Mackinley,  2  Miles,  220;  Gray  v.  Otis,  127;  James  McCreery  &  Co.  v.  Martin,. 

11  Vt.  628;   Miller  v.  Delamater,   12  84  N.  ,T.  Law,  626,  87  A.  433. 
Wend.  (N.  Y.)  433;  Hughes  v.  Stokes,  54.  Hays  v.  Cox   (Mo.),  185  S.  W. 
21  Hayw.  372;  Mickelberry  v.  Harvey,  1164;   Stevens  v.  Hush,  172  N.  Y.  S. 
58  Ind.  523,  Henry  v.  Sargent,  54  Cal.  258;   In  re  Van  Benburgh,  178  App. 
396;    Williams    v.    Douglas,    139    La.  Div.  237,  164  N.  Y.  S.  966. 

922;  72  So.  455  (notes  for  loan  large-  55.  McBride  v.  Adams,  84  N.  Y.  S. 

ly  in  excess  of  authority).  1060. 

52.  Gulick  V.  Grover,  2  Vroom  (N.  56.  Neward  v.  Mead,  7  Wend.  (N. 
J.)   182;  4  Vroom  (N.J.)  463.  Y.)     68;     Galuska    v.    Hitchcock,    29 

53.  Martin  v.  Oakes,  42  Misc.  201,  Barb.  (N.  Y.)  193,  2  Man.  &  Gr.  172. 


163 


WIFE  AS  AGENT  OF  HUSBAND. 


§  140 


agency  may  be  inferred  from,  the  circumstances.''^  Statements 
made  by  the  wife  as  to  her  authority  have  been  held  not  binding 
on  the  husband.^^  Less  evidence  may  sustain  a  finding  of  agency 
tban  in  ordinary  cases,  owing  to  the  intimacy  of  the  relation.^ 


59 


§  139.  Wife's  agency  under  Express  Power. 

The  wife  may  bind  her  husband  for  other  contracts  than  those 
for  necessaries,  where  an  agency  in  the  premises,  express  or  im- 
plied, can  be  shown.  The  natural  incapacities  of  her  sex  super- 
added to  those  of  the  marriage  state,  the  practical  difficulties  which 
persons  dealing  through  such  an  agent  must  encounter,  particularly 
where  they  find  she  has  exceeded  her  authority,  and  yet  cannot 
hold  her  liable  in  person,  her  ovni  exposure  to  fraud,  deceit,  and 
coercion, —  all  these  combine  to  render  the  wife  an  undesirable 
business  representative ;  and  cases  of  this  sort  come  rarely  before 
the  courts.  But  this  wife  may  be  delegated  an  attorney,  even  under 
a  sealed  instrument.  And  on  principle  there  is  little  reason  to 
doubt  her  capacity  to  bind  her  husband  in  all  general  transactions 
where  he  has  given  her  express  authority.^"  Where  the  husband 
gives  his  wife  express  authority  as  his  agent  he  may  be  bound  by 
her  contract  as  given  though  she  disregards  his  instructions.®^ 
He  may  be  bound  by  her  indorsement  of  commercial  paper  in  his 
name  with  his  authority,®^  but  not  by  her  execution  of  a  note  as 
maker  where  he  authorized  only  an  indorsement  for  accommoda- 
tion.''^ He  may  be  bound  by  her  promises,  if  made  with  his 
knowledge  and  request 


64 


§  140.  Wife's  agency  under  Implied  Powrer. 

Although  nothing  in  the  marital  relation  prevents  a  wife  from 
being  her  husband's  agent,®^  at  common  law  no  authority  to  her 


57.  Proctor  v.  Woodruff,  IIQ'  N".  Y. 
S.  232;  HoAve  v.  Finnegan,  61  App. 
Div.  610,  70  N.  Y.  S.  19;  Lilly  v. 
Yeary   (Tex.),  152  S.  W.  823. 

58  Butler  v.  Davis,  119  Wis.  166,  96 
N.  W.  561. 

59.  French  v.  Spencer,  23  Pa.  Super." 
42S. 

60.  Goodwin  v.  Kelly,  42  Barb.  (N. 
Y.)  194;  Presnall  v.  McLeary  (Tex.), 
50  S.  W.  1066. 

61.  Stevens  v.  Uv.sh,  176  N.  Y.  S. 
C02;  Haraill  r.  Samuels  (Tex.),  135 
S.  W.  746. 


62.  Billington  v.  Hamomnd,  3  Will- 
son,  Civ.  Cas.   (Tex.)  295. 

63.  Cuyler  v.  Merrifield,  5  Hun  (N. 
Y),  559. 

64.  Cook  v.  Newby,  213  Mo.  471,  112 
S.  W.  272. 

65.  James  McCrecry  &  Co.  v.  Mar- 
tin, 84  X.  J.  Law  626,  87  A.  433; 
Greenberg  v.  Palmiori,  71  N.  J.  Law 
S3,  58  A.  297 ;  Bro^ATiell  v.  Moorehead 
(Okla.),  165  P.  408;  Parrott  v.  Pea- 
cock Military  College  (Tex.),  ISO 
S.  W.  132. 


142 


HUSBAND   AND    WIFE. 


164 


to  act  as  such  is  implied  from  tihe  mere  fact  of  the  relation.®®  It 
has  sometimes  been  held  otherwise  where  the  husband  was  unable 
to  care  for  his  property.®^  The  husband  may,  by  suitable  conduct, 
make  his  wife  his  agent  for  receiving  settlement  of  claims  due  him 
while  absent  f^  or  for  employing  legal  assistance  as  incidental  to 
managing  his  affairs.®**.  The  wife  has  no  implied  agency  to  make 
changes  in  her  husband's  contracts/"  or  to  find  him  by  a  lease  of 
real  estate,'^^  or  to  receive  his  wages/^  or  to  pledge  his  property.'^* 
or  to  draw  his  money  from  the  bank/*  or  to  pass  title  to  his  sewing 
machine,  though  used  only  by  herself 


75 


§  141.  In  Household  matters  and  Care  of  Husband's  Property. 

In  the  absence  of  the  husband  the  wife  has  a  general  agency  to 
act  for  the  husband  in  all  household  matters,  such  as  the  care  of 
furniture,  etc.,'®  and  for  his  property  generally,  unless  he  has 
appointed  another  agent/'  but  not  for  its  general  improvement, 
without  his  express  authority  or  knowledge.'^  Thus  she  may 
rescind  a  contract  for  meat  wich  turned  out  to  be  bad.'®  The  facts 
that  she  has  acted  for  him  in  his  absence  will  not  empower  her  to 
sell  his  property  when  he  absconds.^"  It  is  otherwise  when  he 
places  his  property  in  her  hands  before  leaving. 


81 


§  142.  As  to  Real  Estate. 

The  wife  may  be  her  husband's  agent  as  to  his  real  estate,  not 
only  for  the  purpose  of  collecting  rents  and  making  small  repairs. 


66.  Brown  v.  Woodward,  75  Conn. 
254,  53  A.  112 ;  Essington  v.  Neill,  21 
111.  139;  McNemar  v.  Cohn,  115  111. 
App.  31;  Peaks  v.  Mayhew,  94  Me. 
571,  48  A.  172;  Stevens  v.  Hush,  176 
N.  Y.  S.  602;  Baker  v.  Whitten,  1 
Okla.  160,  30  P.  491. 

67.  Buford  v.  Speed,  11  Bush  (Ky.) 
338  (retaining  counsel  for  husband  ab- 
sent in  Confederate  army)  ;  Tradewell 
V.  Chicago  &  N.  W.  Ey.  Co.,  150  Wis. 
259,  136  :T.  W.  794. 

88.  Stall  V.  Meek,  70  Pa.  181.  See 
Meader  v.  Page,  39  Vt.  306,  where  a 
wife,  in  contracting  a  loan,  was  held 
to  have  acted  within  the  scope  of  her 
apparent  agency. 

89.  Buford  v.  Speed,  11  Bush  (Ky.) 
338. 

70.  Ross  V.  Dunn,  130  Mich.  443, 
90  N.  W.  296,  9  Det.  Leg.  N.  112; 
Trawick  v.  Trussell,  122  Ga.  320,  50 
S.  E.  86. 


71.  Ivy  Courts  Eealty  Co.  v.  Lock- 
wood,  140  N.  Y.  S.  374. 

72.  Husche  v.  Sass,  67  111.  App.  245. 

73.  Souther  v.  Hunt  (Tex.),  141  S. 
W.  359, 

74.  Allen  v.  Williamsburg,  &c.,  Bank, 
2  Abb.  N.  C.  (N.  Y.)  342. 

75.  Wheeler  &  Wilson  Mfg.  Co.  v. 
Morgan,  29  Kan.  519. 

76.  Tyler  v.  Mutual  District  Mes- 
senger Co.,  17  App.  D.  C.  85;  Heyert 
V.  Eeubman,  86  N.  Y.  S.  797. 

77.  People  v.  Horton,  4  Mich.  67. 

78.  Thompson  v.  Bro^vn,  121  Ga. 
814,  49  S.  E.  740. 

79.  Haberman  v.  Gasser,  104  Wis. 
98,  80  N.  W.  105. 

80.  In  re  Thomas,  199  F.  214. 

81.  Evans  v.  Crawford  County  Far- 
mers' Mut.  Fire  Ins.  Co.,  130  Wis. 
189,  109  N.  W.  952. 


165  WIFE  AS  AGENT  OF  HUSBAND.  §  14-i 

but  in  tlie  more  important  transactions.  But  as  deeds  and  written 
instruments  are  liere  commonly  requisite,  and  formalities  must  be 
followed,  little  can  be  left  to  inference.  Such  authority  presup- 
poses usually  a  husband's  long  absence.  Thus  the  management  of 
a  farm  in  a  husband's  absence,  with  the  care  of  the  stock,  is  not 
unfrequently  entrusted  to  the  wife.*"  It  is  not  to  be  presumed 
that  a  wife  can  revoke  her  husband's  license  on  his  premises,  given 
to  a  third  person,*^  nor  grant  an  irrevocable  license  thereon.** 

The  wife  may  represent  her  husband,  not  only  in  the  general 
management  of  his  owti  lands,  so  as  to  bind  him,  but,  under  cer- 
tain circumstances,  with  reference  to  her  real  estate  in  which  he 
has  the  usual  marital  rights,  or  lands  owned  partly  by  her  and 
partly  by  him.*^  Where  he  has  been  away  for  a  long  period,  she 
may  bring  an  action  to  protect  his  land  from  trespass.*^  She  has 
no  implied  authority  to  sell  his  real  estate.*' 

§  143.  Effect  of  Contract  by  Wife  in  her  own  name. 

It  has  been  held  that  he  cannot  bind  himself  by  a  ratification 
where  the  wife  contracts  in  her  own  name,**  and  if  she  contracts  in 
her  name  for  improvements  on  his  property,  not  acting  as  agent,  he 
does  not  become  liable  by  paying  for  part  of  the  work.*®  In  iSTorth 
Carolina  it  has  been  held  that  the  fact  that  goods  purchased  by 
a  wife  were  charged  to  her  will  not  make  it  her  contract  where  the 
evidence  shows  that  she  acted  as  agent.^**  The  Maryland  statute 
providing  that  a  husband  shall  not  be  liable  on  contracts  made 
by  the  wife  in  her  own  name  and  on  her  own  responsibility 
does  not  apply  to  her  contracts  as  his  agent  or  for  necessaries.®^ 

§  144.  Effect  of  Husband's  Ratification  of  Wife's  Unauthorized 
Acts. 

Ratification  by  the  husband  is  not  essential  where  the  scope  of  the 
wife's  agency  was  sufiicient  without  it,  but  it  cures  acts  of  doubtful 

82.  Chunot  v.  Larson,  43  Wis.  536;  87.  Evans  v.  Crawford  County  Far- 
McAfee  V.  Robertson,  41  Tex.  355.  As  mers'  Mat.  Fire  Ins.  Co.,  130  Wis. 
to  putting  a  lightning-rod  on  a  man's       189,  109  IST.  W.  9'52. 

house  in  his  absence,  see  Meiners  v.  88.  Shuman  v.  Steinel,  129  Wis.  422, 

Munson,  53  Ind.  138.  109   N.   W.    74,   7   L.   R.   A.    (N.   S.) 

83.  Kellogg  V.  Robinson,  32  Conn.       1048. 

335.  89.    Thompson   v.    Brown,    121    Ga. 

84.  Nelson  v.  Garey,  114  Mass.  418.  814,  49  S.  E.  740. 

85.  Cheney  v.  Pierce,  38  Vt.  515;  90.  Sibley  v.  Gilmer,  124  N.  C.  631, 
Dresel  v.  Jordan,  104  Mass.  497.  32  S.  E.  964. 

86.  Gore  v.  Whiteville  Lumber  Co.  91.  Noel  v.  O'Neill,  128  Md.  202,  07 
(S.  C),  96  S.  E.  683.                                   A.  513. 


14:4: 


htjsbajN'D  and  wife. 


166 


authority  so  as  to  bind  him.^"  Tlie  wife's  sale  or  gift  of  her  hus- 
band's personal  property,  even  without  authority,  or  her  purchase 
on  his  behalf,  may  be  confirmed  by  his  subsequent  acts  amounting 
to  ratification ;  and  one  mode  of  ratification  is  to  accept  knowingly 
the  benefits  of  her  transaction.^^  The  husband  ratifies  by  express- 
ing approval  of  the  transaction  afterwards;^*  or  by  promising  ',o 
pay  the  amount  due,^"*  or  by  bringing  an  action  to  recover  his  money 
loaned  by  his  wife  without  authority,  if  the  action  is  based  on  the 
theory  of  a  loan  made  by  him,"*^  or  by  making  payments  on  the  con- 
tract which  was  charged  to  him  and  statements  sent  him.^'  Where 
he  has  once  ratified  her  acts  as  agent,  he  will  be  bound  by  future 
purchases  from  the  same  vendor  until  he  notifies  them  that  the  au- 
thority is  withdra\vn.^^  Where  a  wife  makes  a  contract  for  her 
husband  in  his  presence  his  failure  to  object  will  amount  to  a 
ratification.^^  Where  a  father  authorized  his  wife  to  indorse  a 
note  for  accommodation  in  his  name  and  she  executes  it  as  joint 
principal,  the  father's  statements  to  the  holder  that  the  other 
joint  principal  was  good  and  would  do  the  right  thing  is  not  a 
ratification.^  Acts  done  by  the  wife  in  relation  to  her  husband's 
property,  without  authority,  should  of  course  be  promptly  dis- 
avowed by  him  within  a  reasonable  time,  if  he  wishes  to  escape  re- 
sponsibility.^ Xor  can  a  husband  stand  by  and  see  his  wife  use 
the  proceeds  of  a  sale  of  his  property  sold  by  her  with  his  knowl- 
edge, and  afterwards  reclaim  the  property.^ 


92.  See  McAfee  v.  Eobertson,  41 
Tex.  355;  Montgomery  v.  Kirkpatrick, 
162  111,  App.  59 ;  Hewling  v.  Wilshire, 
22  Ky.  Law,  1702,  61  S.  W.  264; 
Grant  v.  White,  42  Mo.  285. 

93.  Mechanics'  Bank  v.  Woodward, 
74  Conn.  6S9,  51  A.  1084;  Eepetti  v. 
Eepetti,  127  N.  T,  S.  229;  Wright  v. 
Couch  (Tex.),  113  S.  W.  321;  Dunna- 
hoe  V.  Williams,  24  Ark.  264;  IMickel- 
berry  v.  Harvey,  58  Ind.  523 ;  Pike  v. 
Baker,  53  111.  163;  Shaw  v.  Emery,  38 
Me.  484.  Even  a  trifling  gift  from 
the  Tvife  by  way  of  charity  has  been 
upheld,  though  without  the  husband's 
permission.  Spencer  v.  Storrs,  38  Vt. 
156. 

94.  Xagler  v,  L'Esperance,  126  N. 
T.  S.  655.  Merely  saying,  "My  wife 
is  boss.  Anything  as  far  as  the  wife 
goes  that's  all  right,"  has  been  held 
not  a  ratification.  Syring  v.  Zelenski, 
77  N.  J.  Law,  406,  71  A.  1119. 


95.  Shuman  v.  Steinel,  129'  Wis.  422, 
109  N.  W.  74,  7  L.  E.  A.  (N.  S.) 
1048. 

96.  Kowal  V.  Lehrmau,  128  N.  Y.  S. 
968. 

97.  Ventress  v.  Gunn,  6  Ala.  App. 
226,  60  So.  560. 

90.  Bonwit,  Teller  &  Co.  v.  Lovett, 
102  N.  Y.  S.  800. 

99.  Stotts  V.  Bates,  73  111.  App.  640. 

1.  Cuyler  v.  Merrifield,  5  Hun  (N. 
Y.),  559. 

2.  Auringer  v.  Cochrane,  225  Mass. 
273,  114  N.  E.  355;  Evans  v.  Craw- 
ford County  Farmers'  Mut.  Fire  Ins. 
Co.,  130  Wis.  189,  109  X.  W.  9^52;  Hill 
V.  Sewald,  53  Pa.  271;  Ness  v.  Singer 
Mfg.  Co.,  68  Minn.  237,  70  X.  W. 
1126. 

3.  Delano  v.  Blanchard,  52  Vt.  578 ; 
Huff  V.  Price,  50  Mo.  228. 


167  WIFE  S    PEKS02fAL,    PKOPEKTY.  §    145 


CHAPTEK  X 

EFFECT  OF  COVERTUKE  UPO:^  THE  WIFe's  PEKS0>'AL  PROPERTY. 

Section  145.  Effect  of  Marriage  —  Operation  as  Gift  to  Husband. 

14<6.  Exception  to  Eule  —  Personal  Property  held  by  Wife  in  Trust. 

147.  What  Law  Governs. 

148.  Extent  of  Husband's  Eight  —  Effect  of  Divorce. 

149.  Choses  in  Possession  —  In  General. 

150.  Personal  Apparel  of  Wife. 

151.  Money. 

152.  Earnings  of  Wife. 

153.  Property  Purchased  with  Wife 's  Earnings. 

154.  Bank  Deposits. 

155.  Slaves. 

156.  Proceeds  of  Joint  Labor  of  Spouses. 

157.  Choses  in  Action  —  What  Constitutes  in  General. 
15S.  Necessity  of  Eeduction  to  Possession. 

159.  Effect  of  Waiver  or  Failure  to  Eeduce  to  Possession. 

160.  Effect  of  Bankruptcy,  Insolvency  and  Assignment  for  Benefit 

of  Creditors. 

161.  What  Constitutes  Eeduction  to  Possession  —  In  General. 

162.  Effect  of  Insanity  of  Husband. 

163.  Effect  of  Possession  by  Husband. 

164.  Constructive  Possession. 

165.  By  Eelease. 

166.  By  Pledge. 

167.  By  Suit  or  Arbitration. 

168.  By  Assignment. 

169.  By  Delivery  to  Agent  of  Husband. 

170.  Joint  or  Sole  Eeceipt. 

171.  As  to  Commercial  Paper. 

172.  As  to  Legacies  or  Destributive  Shares. 

173.  As  to  Money. 

174.  As  to  Shares  of  Stock. 

175.  Wife's  Equity  to   Settlement  —  In  General. 

176.  Nature  of  Eight. 

177.  Effect  of  Divorce  or  Separation. 

178.  Effect  of  Antenuptial  Settlement  or  Jointure. 

179.  Effect  of  Waiver. 

180.  Effect  of  Fraud  of  Wife. 

181.  As  to  Property  in  Hands  of  Third  Persons. 

182.  As  to  Vested  Estate. 

183.  As  to  Life  Estates  and  Eeversions. 

184.  As  to  Property  in  Litigation. 

185.  Amount  of  Settlement. 

§  145.  Effect  of  Marriage  —  Operation  as  Gift  to  Husband. 

In  general  it  may  be  premised  that  tlie  wife's  personal  property 

goes  to  the  husband,  whether  belonging  to  her  at  the  time  of  mar- 


§  145  HUSBAND  AND  WIFE.  168 

riage,  or  acquired  afterwards  by  gift,  bequest,  or  purchase; 
whether  actually  or  beneficially  possessed ;  whether  principal  fund 
or  income.  So  her  earaings  belong  to  her  husband.  Marriage, 
therefore,  operates  in  this  respect  as  a  gift  to  the  husband,  but  the 
gift  is  only  qualified,  so  far  as  things  in  action  are  concerned.* 
Her  compensation  is  deemed  to  be  her  dower.^  Therefore,  at 
common  law  a  wife's  personal  property  belonged  to  the  husband 
jure  mariti,  whether  acquired  before  or  during  coverture^  with- 
out her  concurrence,  and  without  a  transfer,^  his  right  is  restrained 
by  her  deed  before  marriage,  or  by  the  instrument  whereby  she 
taies  title.^  It  is  a  matter  of  course  that  the  wife's  property  should 
be  hers  in  her  own  right,  in  order  that  the  husband's  title  may 
attach.  For  property  may  come  to  her  with  restrictions  upon  the 
husband's  rights,  such  as  the  giver  has  seen  fit  to  impose.^  In 
equity  she  may  hold  personal  property  apart  from  him.^°  Since 
the  husband's  title  to  his  wife's  personal  property  at  the  common 
law  is  either  absolute  or  qualified,  according  as  the  particular  prop- 
erty belongs  to  the  one  class  or  the  other,  we  shall,  therefore,  treat 
of,  first,  the  wife's  things  or  personal  property  in  possession; 
second,  her  things  or  personals  in  action. 

4.  1  Bright,  Hus.  &  Wife,  34,35;  Co.  W.  67,  L.  R.  A.  1918C,  1009;  Snyder 
Litt.  305  a,  351  h;  2  Kent,  Com.  130  v.  Jett,  138  Tenn,  211,  197  S.  W.  483; 
&e.;  Campbell  v.  Galbreath,  12  Bush  Williford  v.  Phelan,  120  Tenn.  589, 
(Ky.)  459;  Thompson's  Admrx.  v.  113  S.  W.  365.  Where  personalty  has 
Elam's  Ex'x,  11  Ky.  Law,  455,  12  S.  become  the  property  of  the  husband  by 
W.  1134;  Miltenberger  v.  Keys,  25  virtue  of  his  marriage  and  is  brought 
La.  Ann.  287;  Hart  v.  Leete,  104  Mo.  into  this  State  and  is  sold,  and  the 
315,  15  S.  W.  976 ;  Boyer  v.  Davis,  17  proceeds  invested  in  land,  and  the  title 
Ohio  Cir.  Ct.  191,  9  O.  C.  D.  526;  taken  in  the  name  of  the  husband, 
Blakely  v.  Kanaman  (Tex.),  168  S.  and  he  dies  in  possession,  title  to  the 
W.  447 ;  Prewitt  v.  Bunch,  101  Tenn.  land  on  his  death  vests  in  his  heirs, 
723,  50  S.  W.  748.  and  not  in  the  heirs  of  the  -wife.    El- 

5.  Goldstein  v.  Goldstein,  86  N.  J.  lington  v.  Harris,  127  Ga.  85,  56  S. 
Ch.  351,  98  A.  835.  E.  134. 

6.  Leslie  v.  Bell,  73  Ark.  338,  84  7.  Birmingham  Waterworks  Co.  v. 
S.  W.  49'1;  Ellington  v.  Harris,  127  Hume,  121  Ala.  168,  25  So.  806,  77 
Ga.  85,  56  S.  E.  134;  Carpenter  v.  Am.  St.  R.  43  (shares  of  stock), 
Hazelrigg,  103  Ky.  538,  20  Ky.  Law  8.  Endsley  v.  Taylor,  143  Ga.  607, 
231  45  S.  W.  666;  Moreland  v.  Myall,  85  S.  E.  852;  Coatney  v.  Hopkins,  14 
14   Bush     (Ky.)    474;    Gay   v.   Botts,  W.  Va.  338. 

13  Bush    (Ky.)   299;   Fowler  v.  Fow-  9.  Co.     Litt.     351;      Thompson     v. 

ler,    138   Ky.    326,    127    S.   W.    1014;  Pinchell,   11    Mod.   178. 

Benne  v.   Sehnecko,   100  Mo.   250,   13  10.   Botts  v.   Gooch,  97  Mo.   88,   11 

S.  W.  82 ;  Otto  F.  Stifel's  Union  Brew-  S.  W.  42,  10  Am.  St.  R.  286;  White  v. 

ing  Co.  V.  Saxy,  273  Mo.  159,  201  S.  Clasby,  101  Mo.  162,  14  S.  W.  180. 


169  wife's  peesoxal  pkopeety.  §  14G 

§  146.  Exception  to  Rule  —  Personal  Property  held  by  Wife  in 
Trust. 
Property  held  by  the  wife  in  a  representative  capacity  at  the 
time  of  marriage  cannot  vest  in  the  husband ;  for  here  she  has  no 
beneficial  interest  which  the  law  can  transfer  to  her  husband.^^ 
Any  other  rule  would  operate  a  fraud  upon  creditors  and  cestuis 
que  trust.  But  if  the  wife  be  executrix  or  administratrix  at  the 
time  of  her  marriage,'  the  husband  is  entitled  to  administer  in  her 
right,  by  way  of  partial  offset  to  his  liability  for  her  frauds  and 
injuries  in  such  capacity.  As  incidental  to  this  authority,  he  may 
release  and  compound  debts,  and  dispose  of  the  effects,  and  reduce 
outstanding  trust  property  into  possession,  as  his  wife  might  have 
done  before  coverture.^"  He  is  accountable  for  all  property  which 
came  to  her  possession,  whether  actually  received  by  him  or  not.^^ 
A  married  woman  cannot  become  executrix  or  administratrix  with- 
out her  husband's  concurrence;  so  long,  at  least,  as  he  remains 
liable  for  her  acts ;  ^*  nor  will  payments  made  to  her  in  such 
capacity  without  his  assent  be  valid.^^  It  is  to  be  generally  ob- 
served in  cases  of  this  kind  that  the  right  of  disposition  which  the 
husband  exercises  is  strictly  the  right  of  performing  the  trust  vested 
in  his  wife,  it  being  assumed  that  she  cannot  perform  it  consist- 
ently with  her  situation  as  a  feme  covert.  His  position  is  a  fidu- 
ciary one,  so  that  he  cannot  purchase  from  a  coadministratrix 
without  consent  of  all  beneficiaries  in  interest.^® 

11.  Co.  Litt.  351;  Thompson  v.  band  under  a  deed  of  separation  with 
Pinchell,  11  Mod.  178 ;  1  Bright,  Hus.  apt  provisions.  Goods  of  Hardinge,  2 
&  Wife,  39,  40.  Curt.  640. 

12.  lb.;  Jenk.  Eep.  79;  Woodruffe  15.  1  Salk.  282  ;  Lover  v.  Lover,  6  Jur. 
V.  Cox,  2  Bradf.  Sur.  (X,  Y.)  153;  156;  Bubbers  v.  Hardy,  3  Curt.  50; 
Keister  v.  Howe,  3  Ind.  268;  Claussen  cases  cited  in  2  Eedf.  Wills,  78.  As  to 
V.  La  Franz,  1  la.  226;  Dardier  v.  the  indorsement  of  a  note  payable  to 
Chapman,  L.  E.  11  Ch.  D,  442.  And  the  wife  as  administratrix,  see  Roberts 
may  foreclose  a  mortgage  with  a  co-  v.  Place,  18  X.  H.  183.  And  see  Mur- 
executrix.  Buck  v.  Fischer,  2  Col.  T.  phree  v.  Singleton,  37  Ala.  412.  Stat- 
709.  utes  sometimes  require  the  husband  to 

13.  Scott  V.  Gamble,  1  Stoekt.  (N.  join  in  the  wife's  bond  as  executrix. 
J.)  218.  For  a  case  in  which  the  hus-  See  Airhart  v.  Murphy,  32  Tex.  131; 
band  put  money  of  his  own  into  a  bank  Cassedy  v.  Jackson,  45  Miss.  397. 
where  the  wife  had  an  account  as  ex-  Wife  made  sole  executrix  with  her  hus- 
ecutrix,  see  Lloyd  v.  Pughe,  L.  R.  8  band's  consent.  Stewart,  In  re,  56 
Ch.  88.  Me.  300. 

14.  Administration  has  been  granted  16.  Pepperell  v.  Chamberlain,  27  W. 
to  a  wife  living  apart  from  her  hus-  R.  410. 


§    147  HUSBA]\'D    AlfD    WIFE.  ITO 

An  administrator  cannot  sue  in  Ms  rej)resentative  character  uj)on 
contracts  made  after  the  death  of  the  intestate  merely  in  the  course 
of  carrying  on  the  intestate's  business.  Hence  the  husband  must 
sue  alone,  for  goods  supplied  by  husband  and  wife,  in  carrying  on 
the  business  of  the  wife's  father,  whose  administratrix  the  wife 
was ;   and  the  joinder  of  the  wife  is  improper.^^ 

By  marriage  with  a  female  guardian,  too,  the  husband  becomes 
responsible  for  the  moneys  with  which  she  may  then  or  afterwards 
during  coverture  be  chargeable  in  such  capacity ;  the  responsibility 
extending  while  she  continues  to  act,  whether  it  were  proper  for  her 
to  so  continue  or  not.^® 

§  147.  What  Law  Governs. 

As  between  husband  and  wife,  their  rights  in  the  wife's  chattels 
are  governed  by  the  law  of  the  domicile  when  the  properfty  is 
received.^^  The  same  rule  applies  to  future  acquisitions  where 
there  is  no  change  in  domicile,  but  where  there  is  such  change  the 
law  of  the  actual  and  not  the  matrimonial  domicile  will  govem.^*^ 
Where  a  husband  acquires  title  to  his  wife's  property  in  one  State, 
his  title  is  not  devested  by  removal  into  a  State  where  such  prop- 
erty would  have  been  the  wife's  separate  estate,  and  where  he  would 
have  taken  no  title.^^  Therefore  it  was  held  that  in  Illinois  a  wife 
could  not  recover  for  rents  of  her  real  estate  in  Canada  without 
showing  that  she  was  entitled  to  them  bv  the  law  of  Canada,^" 
Under  the  Missouri  Married  Women's  Act  the  property  of  the 

17.  Bolingbroke  v.  Kerr,  L.  E.  1  Ex.  other  State,  choses  in  action  of  the 
222.  wife  not  reduced  to  possession.     Mil- 

18.  Allen  v.  McCullough,  2  Heisk.  ler  v.  Miller,  156  Ky.  267,  160  S.  W. 
(Tenn.)  174.  923.    Property  rights  of  husband  and 

19.  Metier  v.  Snow,  90  Conn.  690,  wife  are,  in  New  Mexico,  except  as 
98  A.  322;  Sencerbox  v.  First  Nat.  modified  by  statute,  to  be  judged  by 
Bank,  14  Ida.  95,  93  P.  369;  In  re  the  Spanish  law  in  force  in  New  Mexi- 
Mesa's  Estate,  172  App.  Div.  467,  159  co  at  the  date  of  its  acquisition  from 
N.  Y.  S.  59;  Birmingham  Water  Mexico.  Eeide  v.  De  Lea,  95  P.  131. 
Works  Co.  V.  Hume,  121  Ala.  168,  25  20.  Fisher  v.  New  Orleans  Anchor 
So.  806,  77  Am.  St.  E.  43;  Eeddick  v.  Line,  15  Mo.  519;  Miller  v.  Miller, 
Walsh,  15  Mo.  519;  A  v.  De  Lea,  156  Ky.  267,  160  N.  W.  923;  North- 
14  N.  M.  442,  95  P.  131;  Northwest-  western,  &e.,  Ins.  Co.  v.  Adams,  155 
em  Mut.  Life  Ins.  Co.  v.  Adams,  144  Wis.  355,  144  X.  W.  1108;  McClain  v. 
N.  W.  1108,  155  Wis.  335.     Where  a  Abshire,  72  Mo.  App.  390. 

husband  and  wife  resided  in  a  State,  21.  Ellington  v.  Harris,  127  6a.  83, 

a  statute  of  which   gave   him  all   of  56  S.  E.  134. 

her  choses  in  action  if  he  reduced  them  22.    Dempster    v.    Stephen,    63    111. 

to    possession,     the     husband     cannot  App.  126. 

claim  as  his  own,  in  the  courts  of  an- 


171 


WIFE  S  PERSONAL  PROPERTY. 


§  li'J 


wife  coming  into  the  husband's  hands  is  held  in  trust  for  her,  and 
when  removed  by  him  into  another  State  becomes  subject  to  the 
laws  of  that  State.^^ 

§  148.  Extent  of  Husband's  Right  —  Effect  of  Divorce. 

Where  the  husband  has  acquired  his  wife's  personal  property  it 
remains  his  until  the  title  has  been,  legally  devested,-*  or  as  long 
as  the  marriage  relation  continues,  even  though  he  be  living  apart 
from  his  wife  in  adultery,  and  she  acquire  the  property  by  her  own 
labor,-^  or  by  bequest."®  Xeither  divorce  from  bed  and  board, 
nor  separation,  takes  away  his  right."  But  divorce  from  the 
bonds  of  matrimony,  or  the  death  of  either  party,  puts  an  end  to 
the  gifts  of  coverture,  leaving  open  the  adjustment  of  the  rights  of 
the  respective  parties  with  one  another,  or  between  the  survivor 
and  the  representatives  of  the  deceased,  on  other  principles  to  be 
hereafter  explained. 

§  149.  Choses  in  Possession  —  In  General. 

Xow  to  take  the  broad  division  of  the  common  law  as  applied 
to  all  the  wife's  personal  property. 

First,  as  to  the  wife's  choses  or  personals  in  possession,  or  cor- 
]X)real  personal  property.  To  these  the  husband's  right  at  common 
law  is  immediate  and  absolute.  He  may  dispose  of  them  as  he  sees 
fit  during  his  life,  whether  with  or  without  his  wife's  consent ;  he 
may  bequeath  them  by  will ;  and  after  his  death  such  property  is 
regarded  as  assets  of  his  estate,  the  title  passing  to  his  executors 
and  administrators,  to  the  exclusion  of  the  wife,  though  she  survive 
hi 


im 


28 


If  the  wife's  interest  in  personal  property  be  that  of  a  tenant  in 


23.  Brown  v.  Daugherty,  120  F. 
526. 

24.  Ellington  v.  Harris,  127  Ga.  85, 
56  S.  E.  134. 

25.  Russell  v.  Brooks,  7  Pick. 
(Mass.)  65;  Turtle  v.  Muncy,  2  J.  J. 
Marsh.  (Ky.)  82;  Armstrong  v.  Arm- 
strong, 32  Miss.  279. 

26.  Vreeland  v.  Kyno,  26  X.  J.  Eq. 
160. 

27.  Glover  v.  Proprietors  of  Drury 
Lane,  2  Chitty,  117;  Washburn  v. 
Hale,  10  Pick.  (Mass.)  429;  Prescott 
V.  Brown,  23  Me.  305;  1  Eoll.  Abr. 
343.     But  see  Divorce,  Vol.  II,  j^ost. 


28.  Co.  Litt.  300,  351  b;  2  Kent, 
Com.  143;  Legg  v.  Legg,  8  Mass.  99; 
Lamphir  v.  Creed,  8  Ves.  599;  Wins- 
low  V.  Crocker,  17  ^fe.  29;  Bing.  Inf. 
&  Cov.  208,  cases  cited  by  Am.  ed. ; 
Hoskins  v.  Miller,  2  Dev.  (N.  C.)  360; 
Hyde  V.  Stone,  9  Cow.  (N.  Y.)  230; 
Morgan  v.  Thames  Bank,  14  Conn. 
99;  Hawkins  v.  Craig,  6  Mon.  (Ky.) 
257;  Caffee  v.  Kelly,  1  Busb.  48; 
Skillman  v.  Skillman,  2  Beasley,  403; 
Hopkins  v.  Carey.  23  Miss.  54;  Crop- 
sey  v.  :NreKinney,  30  Barb.  (N.  Y.) 
47 :  Carleton  v.  Lovejoy,  54  Me.  445. 


149 


HUSBAIfD    AND   WIFE. 


172 


common,  the  husband  becomes  a  tenant  in  common  in  her  stead. ^" 
So  corporeal  chattels  of  a  female  ward,  in  the  hands  of  her  guard- 
ian, being  legally  hers  at  the  time  of  marriage,  become  her  hus- 
band's, and  his  marital  rights  attach  at  once,  notwithstanding  the 
guardian  retains  possession  longer.^"  The  wife's  vested  remainder 
in  personal  estate  goes  to  the  husband  on  termination  of  the  par- 
ticular estate;  and  where  both  husband  and  wife  die  during  the 
<»,ontinuance  of  the  particular  estate,  the  husband's  representatives, 
and  not  the  wife's,  are  held  to  take  such  remainder.^^  But  the 
husband  cannot  be  considered  a  purchaser  by  marriage  for  a  valu- 
able consideration  against  a  legal  title  admitted  to  be  valid  by  his 
wife  before  marriage.^^ 

Chattels  bequeathed  to  the  wife,  without  restriction,  pass  to  the 
husband  at  once  like  her  other  things  in  possession.^^  So  all  her 
movables,  such  as  jewels,  household  goods,  furniture,  and  the  like, 
also  cash  in  her  hands,  go  to  him  absolutely  and  at  once,  whether 
owned  by  the  wife  at  the  time  of  marriage  or  nominally  vesting  in 
her  at  some  period  of  her  coverture.  Money  paid  by  a  married 
woman  upon  a  bond  to  convey  land  to  her  is  prima  facia  her  hus- 
band's, and  may  be  recovered  by  him.^*  And  proceeds  of  the  sale  of 
a  widow's  dower  vest  in  her  second  husband.^''  But  circumstances 
in  all  such  cases  favor  a  resulting  trust  in  the  wife's  favor.  Since 
a  lease  for  years  is  a  chattel,  if  such  a  lease  is  made  to  a  wife 
without  limitation  to  her  separate  use,  it  belongs,  at  common  law, 
to  the  husband.^® 


29.  Hopper  v.  McWhorter,  18  Ala. 
229. 

20.  Sallee  v.  Arnold,  32  Mo.  532; 
Chambers  v.  Perry,  17  Ala.  726;  Mc- 
Daniel  v.  Whitman,  16  Ala.  343;  Mil- 
ler V.  Blackburn,  14  Ind.  62.  And  a 
guardian,  having  no  right  to  convert 
the  ward 's  personalty  into  real  estate, 
cannot  defeat  the  husband's  right  by 
investing  thus  just  before  the  female 
■ward  marries.  Davis's  Appeal,  60 
Pa.  118;  Schouler,  Dom.  Eel.,  466. 

31.  Tune  v.  Cooper,  4  Sneed  (Tenn.) 
296. 

32.  Willis  V.  Snelling,  6  Eich.  (S. 
C.)   280. 

33.  Shirley  v.  Shirley,  9  Paige  (N. 
T.),  363;  Newlands  v.  Paynter,  4  M. 
&  C.  408;  Crane  v.  Price,  7  M.  &  W. 
183;  Eex  v.  French,  E.  &  E.  C.  C.  491. 


34.  Casey  v.  Wiggin,  8  Gray  (Mass.) 
231. 

35.  Ellsworth  v.  Hinds,  5  Wis.  613; 
Bartlett  v.  Janeway,  4  Sandf.  Ch.  (N. 
Y.)  396  (N.  Y.  Stat.)  In  Barber  v. 
Slade,  30  Vt.  191,  it  is  held  that  where 
husband  and  wife  agree  with  the  mak- 
ers of  a  promissory  note  given  to  the 
wife  for  her  lands  deeded  to  them, 
that  they  should  furnish  her  family 
with  goods,  and  apply  them  upon  the 
note;  goods  so  delivered  constitute  a 
part-payment;  but  aliter  as  to  goods 
delivered  by  the  husband's  ordee  to 
persons  not  members  of  the  family. 
Eeduetion  of  such  note  by  husband 
requires  a  positive  act. 

36.  Myers  v.  Marcus,  1  Ky.  Law 
416. 


173 


WIFE  S  PERSONAL  PROPEETY. 


§   151 


§  150.  Personal  Apparel  of  Wife. 

Her  paraphernalia  follow  a  rule  somewhat  peculiar.^^ 
As  to  the  wife's  personal  apparel,  the  doctrine  of  paraphernalia 
will  be  found  to  reserve  to  her  a  needful  right  in  the  most  delicate 
instance  where  controversy  can  arise.  Otherwise  it  would  appear 
that  her  apparel  belongs  to  her  husband  at  common  law.  Such 
apparel  purchased  from  their  joint  earnings  is  certainly  his  in 
such  sense  that  he  only  can  sue  others  for  its  loss.  She  cannot  sell 
or  give  her  clothing  away,  probably,  except  by  virtue  of  an  agency ; 
which  agency,  however,  might  be  readily  inferred  from  circum- 
stances. But  the  wife's  reasonable  clothing  belongs  to  the  husband 
for  the  wife's  use,  like  her  victuals  and  other  necessaries,  and  he 
must  not  wantonly  deprive  her  of  it  so  as  to  leave  her  destitute. 
Even  if  he  allows  her  to  leave  him  on  an  agreement  of  separation, 
it  may  be  presumed  that  he  gives  her  the  right  to  the  clothing  she 
takes  with  her.^^  Happily  such  petty  controversies  seldom  occur 
between  husband  and  wife. 

A  tacit  mortgage  attaches  in  Louisiana  in  favor  of  the  wife  on 
her  husband's  property  for  the  price  of  paraphernal  property  sold 
by  him.^'^  Under  the  Spanish  law  the  husband  would  not  alienate 
the  wife's  paraphernal  property  without  her  consent.*"  The  Xew 
Jersey  Married  Women's  Act  has  not  changed  the  common-law  rule 
that  the  wearing  apparel  and  ornaments  received  by  a  wife  from 
her  husband  during  coverture  remain  his  property. 


41 


§  151.  Money. 

At  common  law  if  the  husband  received  his  wife's  money  he  was 
presumed  to  take  it  as  his  own,*-  and  in  legal  contemplation  money 
paid  to  her  is  paid  to  him.*^  Thus,  the  money  held  by  the  wife 
for  the  support  of  herself  and  her  children  was  the  husband's 
property.**     The  true  test  of  the  husband's  title  is  this ;    whether 


37.  See  infra,  Vol.  II,  as  to  rights 
upon  death  of  a  spouse. 

38.  See  Delano  v.  Blanchard,  52  Vt. 
578. 

39.  Walker  v.  Duverger,  4  La.  Ann. 
569. 

40  Boyle  v.  Graham,  32  Mo.  66, 

41.  Farrow  v.  Farrow,  72  N.  J.  Eq. 
421,  65  A.  1009. 

42.  Jesser  v.  Armentrout's  Exr.,  100 
Va.  666,  42  S.  E.  681. 


43.  Parker,  Jones  &  Steele  v.  Parker, 
25  Ky.  Law,  2193,  80  S.  W.  209;  Lith- 
gow  V.  Kavenagh,  9'  Mass.  161 ;  Downs 
V.  Miller,  95  Md.  602,  53  A.  445. 

44.  Com.  V.  j\ranly,  12  Pick.  (Mass.) 
172;  Pierce  v.  Thompson,  17  Pick. 
(Mass.)  391;  Ames  v.  Chew,  5  Mote. 
(]\rass.)  320;  Commonwealth  v.  Davis, 
9  Cush.  (Mass.)  283. 


§    152  HUSBAISTD    AND    WIFE.  174 

the  personal  property  in  question  was  or  was  not  teclinically  a  tiling 
in  possession. 

Money  actually  received  from  the  sale  of  the  wife's  land,  or  as 
proceeds  arising  from  her  inheritance,  becomes,  as  personal  prop- 
erty, apart  from  equity  rules,  the  absolute  property  of  the  hus- 
band/"' Avhether  in  money  or  other  personal  property.*®  And  if  he 
invests  the  same  in  his  own  name,  no  resulting  trust  will  arise  in 
the  wife's  favor.*^ 

§  152.  Earnings  of  Wife. 

Earnings  of  the  wife  belong  to  the  husband.  The  rule  of  the 
common  law  is  that  he  takes  all  the  benefits  of  her  industry,** 
unless  by  some  clear  and  distinct  act  he  evidences  an  intention  to 
hold  them  in  trust  for  her,*''  the  reason  being  that  he  was  bound 
to  support  her.^**  It  was  otherwise  where  she  lived  separate  from 
him.^^ 

Independently,  therefore,  of  statutes  which  plainly  secure  to 
married  women  their  separate  earnings  under  the  circumstances, 
it  is  held  that  an  agreement  between  the  wife,  with  the  knowledge 
and  consent  of  her  husband,  and  a  third  person,  for  nursing  and 
attention,  the  stipulation  being  that  she  shall  be  paid  what  her 
services  are  reasonably  worth,  gives  to  the  wife  no  title  as  against 
her  husband.^^  He  alone  can  give  a  discharge  for  any  demand 
which  may  arise  from  her  services.  He  may  of  course  constitute 
her  his  agent  for  receiving  the  pay  to  herself;    but,  without  evi- 

45.  Plummer  v.  Jarman,  44  Md.  Thus  money  received  by  the  wife  from 
632 ;  Lichtenberger  v.  Graham,  50  Ind.  a  boarding-house  belongs  to  him. 
288.  Briggs  v.  Devoe,  89  App.  Div.  115,  84 

46.  Mahoney  v.  Bland,  14  Ind.  176.      N.  Y.  S.  1063,  14  N.  Y.  Ann.  Cas.  201. 

47.  Thomas  v,  Chicago,  55  III.  103.  49.  Small  v.  Pryor,  72  N.  J.  Eq.  939, 
It  is  here  assumed  that  equity  does  not       73  A.  1118. 

impress  the  proceeds  with  the  charac-  50.  Vose  v.  Myott,  141  la.  506,  120 

ter  of  tlic  original  property  from  rea-  N.  W.  58. 

sons  sucli  as  will  sometimes  occur.  51.  Greve  v.  Echo  Oil  Co.,  8   Cal. 

48.  Snickles  v.  City  of  St.  Joseph,  App.  275,  96  P.  904. 

155   Mo.   App.   308,   136   S.   W.   752;  52.  Woodbeck  v.  Havens,  42  Barb. 

Missouri,  K.  &  T.  Ey.  Co.  v.  Holman,  (N.   Y.)    66.     And  this,  even   though 

15     Tex.     Civ.     16;     Knippenberg    v.  the  husband  makes  of  his  house  a  sort 

Morris,  80  Ind.  540;  Standen  v.  Penn-  of  hospital,  and  his  wife  assists  him. 

sylvania  E.   Co.,   214   Pa.   189,  63   A.  Reynolds  v.  Eobinson,  64   N.  Y.   589. 

467;  Klapper  v.  Metropolitan  St.  Ey.  And    soc    Elliott   v.   Bently,    17    Wis. 

Co.,  34  Misc.   528,  69  N.  Y.  S.  955;  591;    Duncan  v.  Roselle,   15   la.   501: 

Macq.,  Hus.  &  Wife,  44,  45;   Eeeve,  McKavlin  v.  Bresslin,  8  Gray  (Mass.), 

Doni.  Eel.,  63;  McUavid  v.  Adams,  77  177. 
111.  155;   Yopst  V.  Yopst,  51  Tnd.  61. 


175 


wife's  personal  property. 


§  152 


dence  of  some  such  authority,  the  person  who  employs  her,  as  a 
nurse  for  instance,  cannot  protect  himself  by  showing  her  separate 
receipts."''^  For  these  earnings  the  husband  sues  alone,  and  in  his 
own  name.^*  She  cannot  maintain  a  separate  action,''^  even  after 
the  husband's  death,  if  the  services  sued  for  were  performed  in  his 
lifetime.^® 

A  crop  produced  on  land  of  which  the  husband  is  lessee,  by  labor 
employed  and  paid  by  the  wife,  must  still  presumptively  belong 
to  the  husband.  And,  on  the  other  hand,  the  product  of  his  own 
skill  and  labor  on  her  land  belongs  presumptively  to  her  as  an 
accretion.^^  The  husband  may  waive  his  right  and  permit  her  to 
retain  her  earnings.'^*  He  may  consent  that  they  be  her  own,  but 
that  right  rests  upon  his  consent.^®  His  consent  may  be  oral,*°  but 
that  consent  cannot  be  exercised  in  disregard  of  his  existing  cred- 
This  rule  applies  to  money  earned,  and  to  other  produce 


itors.**^ 


53.  Offley  v.  Clay,  2  Man.  &  Gr. 
172;  and  see  Glover  v.  Drury  Lane, 
2  Chitt.  117;  Russell  v.  Brooks,  7 
Pick.  (Mass.)  65.  But  see  Starrett  v. 
Wynn,  17  S.  &  R.  (Pa.)  130. 

54.  Hensley  v.  Tuttle,  17  Ind.  App, 
253,  46  N.  E.  534.  A  wife's  duty  to 
render  family  services  is  co-extensive 
with  the  husband's  duty  to  support. 
Randall  v.  Randall,  37  Mich.  563; 
Gould  v.  Carlton,  55  Me.  511;  Mc- 
David  v.  Adams,  77  111.  155. 

55.  See  Beau  v.  Kiah,  6  Thomp.  & 
C.   (N.  Y.)   464. 

56.  McClintie  v.  McClintic,  111  la. 
615,  82  N.  W.  1017. 

57.  Hamilton  v.  Booth,  55  Miss.  60 ; 
Bottoms  V.  Corley,  5  Heisk.  (Tenn.)  1. 

58.  Priblle  v.  Hall,  13  Bush  (Ky), 
61;  Dowling  v.  Dowling,  116  Mich. 
346,  74  N.  W.  523,  4  Det.  Leg.  N. 
1168.  Where,  by  consent  of  the  hus- 
band, the  wife  keeps  boarders  on  her 
own  account,  and  invests  the  accumu- 
lated board  money  in  land  in  her  own 
name,  it  is  not  subject  to  her  hus- 
band's debts.  Ehlcrs  v.  Blumer,  129 
la.  168,  105  N.  W.  406.  Where  cir- 
cumstances forced  a  wife  to  become 
the  executive  and  working  head  of  a 
family,  and  the  husband  for  years 
recognized  her  right  to  earn  and  dis- 
burse money,  he  himself  doing  busi- 


ness with  her  as  with  a  stranger,  and 
she  has  sought  to  acquire  for  their 
sons  a  business  in  which  they  could 
earn  their  living  and  has  exercised 
good  judgment  in  seeing  to  it  that  the 
husband  did  not  interfere  in  the  man- 
agement thereof,  he  is  not  entitled  to 
the  ownership  of  the  earnings  of  the 
wife.  Pearll  v.  Pearll  Advertising 
Co.,  17  Det.  Leg.  N.  543,  127  N.  W. 
264. 

59.  Georgia  R.  &  Banking  Co.  v. 
Tice,  124  Ga.  459,  52  S.  E.  916,  See 
post,  as  to  wife 's  power  to  trade,  etc., 
Cotter  V.  Gazaway,  141  Ga.  534,  81 
S.  E.  879;  Mock  v.  Neffler  (Ga.),  95 
S.  E.  673;  Roberts  v.  Haines,  112  Ga. 
842,  38  S.  E.  109 ;  Georgia  R.  &  Bank- 
ing Co.  V.  Tice,  124  Ga.  459^,  52  S.  E, 
916;  Central  of  Georgia  Ry.  Co.  v. 
Cheney,  20  Ga.  App.  393,  93  S.  E.  42 ; 
Patterson  v.  Franklin,  168  N.  C.  75, 
84  S.  E.  18;  Monahan  v.  Monahan,  77 
Vt.  133,  59  A.  169,  70  L.  R.  A.  939; 
Rockwell  V.  Robinson's  Estate,  158 
Wis.  31?,  148  N.  W.  868. 

80.  Gage  V.  Gage,  78  Wash.  262, 
138  P.  886. 

61.  Cramer  v.  Redford,  2  C.  E. 
Green  (N.  J.),  367;  Post-Nuptinl 
Settlements,  post,  §  520  et  seq.;  Glaze 
V.  Blake,  56  Ala.  379. 


155 


HUSBAND   AND    WIFE. 


176 


of  the  wife's  earnings,^^  and  to  property  purchased  with  such  earn- 
iugs.*'^  If  her  earnings  are  not  reduced  to  possession  by  him  in 
his  lifetime,  they  survive  to  her  at  his  death.^*  But  even  under 
Married  Women's  Acts  she  is  still  obliged  to  render  services  in 
care  of  the  household.®^ 

§  153.  Property  Purchased  with  Wife's  Earnings. 

Equity  does  not  raise  a  resulting  trust  in  the  wife's  favor, 
where  she  contracted,  with  the  consent  of  her  husband,  for  the  pur- 
chase of  a  lot  of  land,  conveyed  to  him,  though  she  paid  off  the 
mortgage,  given  for  part  of  the  purchase-money,  from  her  own 
earnings,*'®  provided  no  agreement  be  shown,  antenuptial  or  post- 
nuptial, that  the  wife  shall  hold  these  earnings  in  her  own  right ; 
nor  where  even  the  deed  is  made  out  to  a  trustee  for  the  wife's 
benefit,  can  she  hold  it  against  her  husband's  creditors.^' 

§  154.  Bank  Deposits. 

Whether  money  at  her  banker's  follows  this  same  principle  may 
depend  upon  a  distinction  first  taken  by  Sir  William  Grant  in 
Carr  v.  Carr.^^  He  there  says  that  a  balance  at  a  banker's  is  a  debt 
and  not  a  deposit.  But  if  the  money  were  delivered  to  the  banker 
in  a  sealed  bag,  it  would  then  be  truly  a  depositum.  It  would  then 
have  what  is  called  an  ear-mark;  in  other  words,  it  would  be  a 
specific  chattel,  and,  as  such,  would  vest  by  the  marriage  in  the 
husband  as  his  absolute  property.®^  Therefore,  should  the  husband 
die  without  recovering  such  specific  chattels  or  goods,  they  would 
belong  to  his  representatives,  and  not  to  the  wife  by  right  of  sur- 
vivorship.'^" 

§  155.  Slaves. 

At  common  law  the  title  to  the  wife's  slaves  vested  in  the  hus- 
band,*^^  and  if  she  had  only  a  life  estate,  he  took  what  estate  she 


62.  Bucher  v.  Eeam,  68  Pa.  421; 
Hawkins  v.  Providence  E.,  119  Mass. 
596. 

63.  In  re  Diamond,  158  F.  370, 

64.  Bailey  v.  Gardner,  31  W.  Va. 
94,  5  S.  E.  636,  13  Am.  St.  R.  847, 

65.  Larisa  v.  Tiffany  (R.  I.),  105 
A.  739. 

66.  Skillman  v.  Skillman,  15  N.  J, 
Ch.  478. 

67.  Campbell  v,  Bowles,  30  Gratt. 
(Va.)  652. 

68.  Carr  v.  Carr,  1  Mer.  543,  n. 


69.  Per  Sir  William  Grant  in  Carr 
V.  Carr,  1  Mer.  543;  Hill  v.  Foley,  1 
Phill.  404.  Money  deposited  with  a 
banker  in  the  usual  way  is  money  lent 
to  the  banker,  with  the  obligation 
superadded  that  it  be  repaid  when 
called  for.    Pott  v.  Cleg,  11  Jur.  289. 

70.  Hawkins  v.  Providence  R.,  111^ 
Mass.  596. 

71.  Ordinary  v.  Geiger,  2  Nott  & 
McC.  (S.  C.)  151,  note;  Taylor  v. 
Yarbrough,  13  Grat.   (Va.)   183. 


177  wife's  rERSO:XAL  PROPEKTY.  §  157 

had.'^     Where  she  had  a  remainder  oulj,  he  tooK  title  on  the 
termination  of  the  life  estate/^ 

§  156.  Proceeds  of  Joint  Labor  of  Spouses. 

The  proceeds  of  the  joint  labor  of  husband  and  wife  belong  at 
common  law  to  the  husband;  as  where,  for  instance,  they  raise 
cotton  together ;  '*  or  carry  on  a  hotel  or  boarding-house  or  private 
hospital  together.^^  Money,  or  cotton,  the  proceeds,  or  things  per- 
sonal or  land  bought  with  such  proceeds,  all  are  the  husband's,  if 
he  acts  consistently  with  his  rights.^' 

§  157.  Choses  in  Action  —  What  Constitutes  in  General. 

At  common  law  a  husband  is  entitled  jure  mariti  to  his  wife's 
choses  in  action.''^  It  becomes  important,  therefore,  to  distinguish 
the  wife's  things  in  action  from  her  things  in  possession.  To  the 
class  of  things  in  action  belong  such  property  as  rests  upon  obliga- 
tion, contract,  or  other  security,  for  payment;  and  not  only  rights 
presently  vested  and  capable  of  immediate  reduction  to  possession, 
but  those  which  are  contingent  upon  some  event  or  reversionary 
upon  some  prior  interest.'^  Debts  owing  the  wife,  arrears  of  rents, 
of  profits,  and  of  income,  also  outstanding  loans,  are  plainly  choses 
in  actionJ^  Money  due  on  mortgage  is,  before  foreclosure,  a  cliose 
in  action,  and  even  though  lent  before  coverture  with  covenants 
running  to  the  wife's  heirs  or  executors,  it  must  follow  the  usual 
rule.^"  So  are  bonds  and  certificates  of  stock.®^  Income  of  a 
cliose  in  action  is  as  much  a  chose  as  the  principal  itself;  and  ac- 
cording to  the  ordinary  rule  the  wife  becomes  entitled  to  it  by 
survivorship.*-  A  devise  of  land  to  be  sold  and  proceeds  to  be 
divided  among  certain  persons,  gives  to  each  a  chose  in  action.^^ 

t 

72.  Garland  v.  Denny,  3  B.  Mon.  Clapp  v.  Stoughton,  10  Pick.  (Mass.) 
(Ky.)  125.  463. 

73.  Terrill  v.  Boulware,  24  Mo.  254,  80.  Perkins  v.  Clements,   1  Pat.  & 

74.  BoAvden  v.  Gray,  49  Miss.  547.  H.  (Va.)  141;  Bell  Hus.  &  Wife,  52; 

75.  Shaeffer  v.  Rheppard,  54  Ala.  contra.  Turner  v.  Crane,  1  Vern.  170; 
244;  Reynolds  v.  Robinson,  64  N.  Y.  Rees  v.  Keith,  11  Sim.  3S8. 

589.  81.  Johnson  v.  Hume,  138  Ala.  564, 

76.  Hawkins  v.  Providence  R.,  119  36  So.  421;  Stanwood  v.  Stanwood,  17 
Mass.  596;  Carleton  v.  Rivers,  54  Ala.  Mass.  57;  .Tackson  v.  Parks,  10  Cush. 
467.  (Mass.)   552;   Slaymakcr  v.  Bank,  10 

77.  Arnold  v.  Limeburger,  122  Ga.  Pa.  373;  "Wells  v.  Tyler,  5  Post.  (N. 
72,  49  S.  E.  812;  McKay  v.  Mayes,  3  6  H.)  340. 

Ky.  Law,  862,  29'  S.  W,  327.  82.  Wilkinson    v.    Charlosworth,    11 

78.  See  Bell  Hus.  &  Wife,  52.  Jur.  644. 

79.  1    Bright    Hus.    &    Wife,    36;  83.  Smilie's  Estate,  22  Pa.  130. 


157 


HUSBAisD    AXD    "WIFE. 


178 


Bills  of  exchange  and  promissory  notes,  unlike  many  clioses  in 
action  in  being  legally  transferable  by  simple  indorsement,  are  now 
considered  clioses  in  action  of  a  peculiar  nature,  though  it  was 
formerly  thought  that  they  vested  absolutely  in  the  husband  by 
marriage,^*  and  bani:  checks,  certificates  of  deposit,®^  and  public 
securities  of  a  negotiable  character  may  be  placed  in  the  same 
class.®^  A  note  made  payable  to  order  of  '*A.  B.  (a  married 
woman),  or  to  A.  B.  and  her  husband"  in  the  alternative,  consti- 
tutes the  husband  the  payee.^'  The  husband  acquired  title  to  the 
wife's  notes  whether  made  before  ^®  or  during  coverture.^^ 

Legacies  and  distributive  shares  are  sometimes  treated  as  though 
they  vested  absolutely  in  the  husband  without  reduction  into  pos- 
session; but  unquestionably  the  better  opinion  is  that  they  are 
choses  in  action  (especially  if  no  decree  of  distribution  has  been 
rendered,  or  the  estate  is  unsettled),  in  which  case  the  creditor  of 
the  husband  ought  not  to  be  allowed  to  attach  them  before  the 
latter  has  done  some  act  disaffirmins:  his  wife's  title.^*'     Therefore 


84.  Gaters  v.  Maddeley,  6  M.  &  W. 
423;  Nash  v.  Nash,  2  Madd.  133;  1 
Eoper  Hus.  &  Wife,  211;  1  Bright 
Hus.  &  Wife,  37  a,  3S;  Eichards  v. 
Eichards,  2  B,  &  Ad.  447;  Searpellini 
V.  Acheson,  7  Q.  B.  864;  9  Jur.  827; 
Phelps  V.  Phelps,  20  Pick.  (Mass.) 
556;  Hayward  v.  HajTvard,  ih.  525; 
Lenderman  v.  Talley,  1  Houst.  (Del.) 
523. 

85.  Eodgers  v.  Pike  County  Bank, 
69  Mo.  560. 

86.  Such,  for  instance,  as  United 
States  bonds.  Brown  v.  Bokee,  53 
Md.  155. 

87.  Wildman  v.  Wildman,  9  Yes. 
Jr.  174;  Twisden  v.  Wise,  1  Vern. 
161;  Eyland  v.  Smith,  1  M.  &  C.  53. 

88.  Holland  v.  Moody,  12  Ind.  170. 

89.  Commonwealth  v.  Manley,  12 
Pick.  (Mass.)  173;  Wilbur  v.  Crane, 
13  Pick.  (Mass.)  284. 

90.  2  Kent  Com.  135;  eases  cited  in 
Am.  editor's  notes  to  Bing.  Inf.  & 
Cov.  209;  Carr  v.  Taylor,  10  Ves.  Jr. 
574,  578;  Lamphir  v.  Creed,  8  ih.  509; 
Palmer  v.  Trevor,  1  Vern.  261.  See 
Schuyler  v.  Hoyle,  5  Johns.  Ch. 
(N.  V.)   196;  Curry  v.  Fulkinson,  14 


Ohio,  100;  Wheeler  v.  Moore,  13  N.  H. 
478;  Harper  v.  Archer,  8  Sm.  &  M. 
(Miss.)  229;  Probate  Court  v.  Niles, 
32  Yt.  775;  Hooper  v.  Howell,  50  Ga. 
165;  Jacks  v.  Adair,  31  Ark.  616; 
Chappell  V.  Causey,  11  Ga.  25;  Gillet 
V.  Camp,  19  Mo.  404;  Johnson  v. 
Spaight,  14  Ala.  27;  Gallego  v.  Gal- 
lego,  2  Brock.  2S5;  Eevel  v.  Eevel,  2 
Dev.  &  Batt.  (N.  C.)  272;  Wallace  v. 
Talliaferro,  2  Call  (Ya.),  447;  Clif- 
ton V.  Haig,  4  Des.  (S.  C.)  330.  See 
contra,  Albee  v.  Carpenter,  12  Cush. 
(Mass.)  382;  Wheeler  v.  Bowen,  20 
Pick.  (Mass.)  563;  Griswold  v.  Pen- 
niman,  2  Conn.  564;  Holbrook  v. 
Walters,  19  Pick.  (Mass.)  354.  But 
even  in  Massachusetts,  where  the  doc- 
trine prevails  which  is  disapproved  in 
the  text,  it  is  held  that  if  the  husband 
die  before  judgment  in  the  suit  by 
creditors,  his  wife's  survivorship  is 
not  barred.  Strong  v.  Smith,  1  Met. 
(Mass.)  476.  See  Parks  v.  Cushman, 
9  Yt.  320,  which  allows  the  wife's 
share  to  be  attached  in  trustee  process 
by  the  husband 's  creditors  after  a  de- 
cree of  distribution. 


179 


WIFE  S  PERSONAL,  PROPEETY. 


§  158 


legacies  and  distributive  stares  vest  absolutely  in  the  husband  by 
reduction  to  possession,  but  not  before."^ 

It  is  held  that  where  an  estate  in  personalty  vests  in  the  wife 
under  a  will,  and  becomes  a  legal  interest  by  the  executor's  assent, 
and  goes  into  possession  of  the  person  in  whom  Avas  vested  the 
precedent  particular  estate,  and  no  adverse  possession  is  shown, 
such  estate  passes  to  the  husband  by  virtue  of  his  marital  rights."" 
Where  a  will  bequeathed  a  life  estate  in  money  to  a  wife  to  be  paid 
to  her  at  twenty-one,  the  will  taking  effect  at  a  time  when  such  a 
bequest  did  not  create  a  separate  estate,  the  husband's  marital 
rights  attached  and  entitled  him  to  use  it  for  his  life,  on  reducing 
it  to  possession.®^  He  might  after  her  death  maintain  an  action  to 
recover  a  legacy  to  which  she  became  entitled  during  coverture.®* 
The  wife's  choses  in  action  must  not  be  confounded  with  her  goods 
or  specific  chattels  in  the  hands  of  third  parties,  which,  unlike  her 
choses  in  action,  vest  in  the  husband  absolutely  by  the  marriage.®^ 

Money  rights  or  claims  generally,  as  for  instance  a  claim  for 
damages  growing  out  of  a  tort  committed  upon  the  person  or  char- 
acter of  the  wife,  fall  under  our  present  head.®®  Where  a  wife  is 
a  reversioner  in  land  after  an  estate  in  dower,  he  must  reduce  her 
right  to  possession  before  his  rights  attach.®^  And  where  a  wife 
is  entitled  to  a  portion  of  the  assets  of  her  first  husband's  estate, 
and  then  remarries,  her  second  husband  must  reduce  this  portion 
into  possession  during  coverture,  or  it  will  survive  to  her.^ 


98 


§  158.  Necessity  of  Reduction  to  Possession. 

The  husband's  right  to  his  wife's  incorporeal  personal  property 
—  or  at  least  to  her  choses  in  action,  as  they  are  commonly  called  — 
is  qualified.®®  Reduction  into  possession  offers  many  very  nice 
distinctions,  involving  conflicting  rights  of  considerable  magnitude. 
Courts  of  equity,  which  have  taken  this  subject  under  their  especial 


91.  Brown  v.  Daugherty,  120  P. 
526;  Hart  v.  Leete,  104  Mo.  315,  15 
S.  W.  976. 

92.  Walker  v.  Walker,  41  Ala.  353. 

93.  Crawford  v.  Clark,  110  Ga.  729, 
36  8.  E.  404 ;  Brantley  v.  Porter,  111 
Ga.  886,  36  S.  E.  970. 

94.  Norse  v.  Ray,  1  Dane  Abr. 
(Mass.)  351;  Hapgood  v.  Houghton, 
23  Pick.  (Mass.)  480;  Mason  v. 
Homer,  105  Mass.  116. 

95.  1  Sehouler  Per?.  Prop.  32-37. 


96.  Anderson  v.  Anderson,  11  Bush. 

(Ky.)  327. 

97.  Arnold  v.  Limeburger,  122  Ga. 
72,  4ff  S.  E.  812. 

98.  Harper  v.  Archer,  28  Miss.  212. 
See  also  Ex  parfc  Norton,  35  E.  L.  & 
Eq.  600 ;  Montefiore  v.  Belircno,  L.  R. 
1  Eq.  171 ;  Wiggins  v.  Blount,  33  Ga. 
409. 

99.  Powes  V.  Marshall,  I  Sid.  172; 
Macq.  Hus.  c<l-  Wife,  10.  20:  1  Bnc. 
Abr.  700,  tit.  Baron  &  Feme,  V.;  1 
Roper  Hus.  &  Wife,  169;  1  Vent.  261. 


§  159  HUSBAND  AND  WIFE.  180 

control,  seem  to  lay  down  variable  rules ;  and  it  must  be  confessed 
tbat  the  law  of  reduction  is  so  built  upon  exceptions,  tbat  one  may 
more  readily  determine  what  acts  of  the  husband  do  not,  than  what 
acts  do,  bar  the  wife's  survivorship.  Another  difficulty  in  dealing 
with  this  subject  appears  from  the  circumstance  that  personal  prop- 
erty is  rapidly  growing,  and  species  of  the  incorporeal  sort  are 
developed  quite  unknown  to  the  old  common  law;  while,  on  the 
other  hand,  the  doctrine  of  the  wife's  separate  estate  has  expanded 
so  fast  as  to  furnish  already  new  elements  of  consideration  for 
most  of  the  latest  reduction  cases,  threatening  to  extinguish  at  no 
distant  day  all  the  old  learning  on  the  subject,  even  before  its 
leading  principles  could  be  clearly  shaped  out  in  the  courts. 

Reduction  during  the  minority  of  an  infant  husband  is  good, 
though  he  dies  before  majority.^ 

§  159.  Effect  of  Waiver  or  Failure  to  Reduce  to  Possession. 

The  husband  might  waive  his  right  and  permit  her  to  retain  the 
property,^  and  might  bind  himself  by  an  agreement  that  she  retain 
it  as  her  separate  estate.^  Such  a  waiver  was  inferable  from  his 
conduct,*  as  where  he  gave  her  a  note  payable  to  her  for  money 
received  as  her  distributive  share  of  an  estate,^  or  where  he  allowed 
her  to  deal  with  her  personal  property  as  she  wished,^  or  where  he 
treated  the  property  as  that  of  the  wife.''  Likewise,  the  appropria- 
tion of  the  spouse  as  husband  may  be  negatived  by  proof  of  his 
declarations  and  acts  and  conduct  when  the  supposed  appropriation 
took  place.^ 

1.  Ware  v.  Ware,  18  Gratt.  (Va.)  lifetime  of  the  wife  a  gift  fb  Bfer  of 
670.  As  to  reduction  by  the  husband  the  chattels,  title  to  wliich  the  hus- 
of  an  infant  wife,  see  Shanks  v.  Ed-  band  acquired  by  the  marriage,  or 
mondson,  28  Gratt,  (Va.)  804,  such  a  gift  of  the  proceeds  of  the  sale 

2.  Boldrick  v.  Mills,  29  Ky,  Law,  of  such  chattels  before  the  same  were 
852,  96  S,  W,  524;  White  v,  Clasby,  invested  in  land.  Ellington  v.  Har- 
101  Mo.  162,  14  S.  W,  180;  Borland  ris,  127  Ga,  85,  56  S,  E.  134;  Smith  v. 
V,  Borland,  59  App,  Div.  37,  69  N.  Y.  Farmers'  &  Merchants'  Nat.  Bank,  57 
S.  179   (where  the  husband  agreed  to  Ore.  82,  110  P.  410. 

hold  in  trust  for  the  wife).  5.  Bennett  v.  Bennett's  Adm'r,  134 

3.  Lovewell  v.  Schoolfield,  217  F.  Ky.  444,  120  S.  W.  372;  Struss  v. 
689,  133  C.  C.  A.  449'.  Norton,  20  Ky.  Law,  1116,  48  S.  W. 

4.  Mere   admissions   by  a  husband  976. 

who   has   purchased   realty  with  per-  6.  Boynton  v.  Miller,  144  Mo,  681, 

sonalty    belonging    originally    to    his  46  S.  W,  754. 

wife,  but  which  has  vested  in  him  by  7.  Bidwell    v,    Beckwith,    86    Conn, 

his  marriage,  that  he  holds  the  land  462,  85  A.  682. 

for   the   benefit    of   the    heirs   of  his  8.  Moyer's    Appeal,    77    Pa.    482; 

wife,  will  not  devest  the  title  of  his  Perry  v.  Wheeloek,  49  Vt,  63. 

heirs,  unless  there  has  been  during  the 


181 


WIFE  S  PEESONAL  PKOPEETY. 


§  159 


Marriage  operates,  not  as  an  absolute  gift  of  such  property,  but 
rather  as  a  conditional  gift,  the  condition  being  that  the  husband 
shall  do  some  act,  while  coverture  lasts,  to  appropriate  the  choses 
to  himself.  If  he  happen  to  die  before  he  has  done  so,  such  choses, 
not  having  been  reduced  to  possession,  remain  the  property  of  the 
wife,  and  his  personal  representatives  have  no  title  in  them.*  But 
this  applies  only  to  outstanding  things  in  action ;  for  some  may 
have  been  reduced  to  possession  by  the  husband  during  his  life- 
time, and  some  may  not.  If  the  wife  die  before  the  husband  has 
reduced  the  chose  to  possession,  he  has  no  title  in  it  as  huslband, 
but  it  goes,  strictly  speaking,  to  her  administrator  or  personal  rep- 
resentative,"'' though  under  our  statutes  the  husband  has  commonly 
the  right  both  to  administer  and  inherit  a  good  part  of  his  wife's 
personal  property,  and  she  cannot  will  otherwise." 

With  respect  to  such  choses  in  action  as  may  accrue  to  the  wife 
solely,  or  to  the  husband  and  wife  jointly,  during  coverture,  the 
same  doctrine  applies.  The  husband  may  disagree  to  his  wife's 
interest  and  make  his  own  absolute  at  any  time  during  coverture  by 
recovering  in  suit  in  his  own  name  or  otherwise  reducing  them  to 
possession.  But  until  such  disagreement,  such  choses  in  action 
belong  to  the  wife,  and,  if  not  reduced  into  possession  by  the  hus- 
band, will  likewise  survive  to  her.^^ 

The  husband's  right  to  reduce  his  wife's  choses  in  action  into 
possession  is  one  of  election  merely.  He  may  therefore  neglect  or 
refuse  to  do  so,  and  thus  keep  the  property  vested  in  his  wife.^' 


9.  Co.  Litt.  351;  1  Bright  Hus.  & 
Wife,  36;  2  Kent  Com.  135  et  seq., 
and  cases  cited;  Scawen  v.  Blunt,  7 
Ves.  294;  Fleet  v.  Perrins,  L.  E.  3 
Q.  B.  536;  Langham  v.  Nenny,  3  Ves. 
467;  Tritt  v,  Colwell,  31  Pa.  228; 
Needles  v.  Needles,   7  Ohio   St.   432; 

"Burieigh  v.  Coffin,  2  Post.  (N.  H.) 
118;  Whiteman  v.  Whiteman  (Del), 
105  A.  787;  Copeland  v.  Jordan,  147 
Ga.  601,  95  S.  E.  13;  Cooper  v. 
Walker,  142  Ky.  138,  134  S.  W.  171 ; 
Smith  V.  Farmers'  &  Merchants'  Nat. 
Bank,  57  Ore.  82,  110  P.  410;  Willi- 
ford  V.  Phelan,  120  Tenn.  589,  113 
S.  W.  365;  Prewitt  v.  Bunch,  101 
Tenn.  723,  50  S.  W.  748. 

10.  Walker  v.  Walker,  41  Ala.  353; 
Fleet  V.  Perrins,  L.  R.  3  Q.  B.  536; 
Serutton  v.  Pattillo,  L.  R.  13  Eq.  369. 


11.  See,  as  to  dissolution  by  death, 
post,  Vol.  II. 

12.  Coppin  V.  ,  2  P.  Wms.  497 ; 

Day  V.  Padrone,  2  M.  &  S.  396,  n.; 
Howell  V.  Maine,  3  Lev.  403;  Wild- 
man  V.  Wildman,  9  Ves.  174 ;  1  Bright 
Hus.  &  Wife,  37;  2  Kent  Com.  135, 
and  cases  cited;  Wilkinson  v.  Chaxles- 
worth,  11  Jur.  644;  Standeford  v. 
Devol,  21  Ind.  404. 

13.  Southern  Bank  v,  Nichols,  235 
Mo.    401,    138    S.    W.    881;    Hart    v. 
Leete,   104   Mo.   315,   15   S.   W.   976 
Coffin  V.  Morrill,  2  Post.  (N.  H.)  352 
Harris  v.  Taylor,  3   Sneed    (N.  H.) 
536;  Gallego  v.  Gallcgo,  2  Brock.  287 
Mellingen  v.  Bansmann,  45  Pa.  522 
Stoner  v.  Commonwealth,  16  Pa.  387 
Snowden  v.  Lindsley,  6  Cold.  (Tenn.) 
122.    See  Peacock  v.  Pembroke,  4  Md. 


§  160 


HUSBAND    AND    WIFE. 


182 


This  becomes  a  very  important  principle  in  determining  the  rights 
of  his  creditors.  For,  supposing  him  to  be  embarrassed  in  his 
affairs,  can  they  attach  the  unreduced  choses  in  action  of  his  wife 
as  his  property  ?  It  is  settled  that  they  cannot.^*  But  if  he  once 
makes  the  property  his  own,  they  can  reach  it ;  and  he  cannot 
transfer  it  again  to  his  wife  in  prejudice  of  their  pre-existing 
rights,  even  though  it  vested  in  him  but  for  a  brief  time.  Of 
course  his  own  expressions  of  regret  cannot  avail  against  the  hus- 
band's actual  and  complete  appropriation  of  his  wife's  choses  in 
action.^^  And  even  his  subsequent  promise  to  refund  that  which 
he  has  once  made  absolutely  his  own  is  a  promise  without  legal  con- 
sideration, and  the  wife  or  her  representative  cannot  enforce  it. 


16 


§  160.  Effect  of  Bankruptcy,  Insolvency  and  Assignment  for 
Benefit  of  Creditors. 
A  general  assignment  in  bankruptcy  or  insolvency  passes  at  law 
the  wife's  property ;  and  by  way  of  partial  recompense,  as  it  would 
appear,  the  husband's  discharge  has  been  allowed  to  operate  upon 
the  wife's  debts  dum  sola  as  well  as  his  own.  But  in  equity  the 
assignees  are  permitted  to  take  the  same  interest  in  the  wife's 
choses  in  action  as  the  husband  possessed,  and  no  more ;  and  unless 
they  reduce  them  into  possession  during  her  husband's  lifetime  she 
will  be  entitled  to  them  by  survivorship.^^  Indeed,  in  Pennsyl- 
vania a  voluntary  assignment  of  the  husband  to  trustees  for  wife 
and  child,  so  as  to  defeat  his  creditors,  has  been  upheld  by  a  court 
of  equity  against  such  creditors  on  the  ground  that  it  was  for  the 
benefit  of  his  wife  and  child.^® 


280.  It  is  held  in  Georgia  that 
his  right  to  reduce  his  wife 's  property 
to  possession  is  not  affected  by  the 
enactment  of  a  statute  changing  the 
common-law  rule.  Arnold  v.  Lime- 
burger,  122  Ga.  72,  49  S.  E.  812. 

14.  In  re  Hill,  IffO  F.  390;  South- 
ern Bank  of  Fulton  v.  Nichols,  235 
Mo.  401,  138  S.  W.  881. 

15.  Nolen's  Appeal,  23  Pa.  37. 

16.  Fletcher  v.  Updike,  3  Hun 
(N.Y.),  350. 

17.  Sherrington  v.  Yates,  12  M.  & 
W.  855;  Miles  v.  Williams,  1  P.  Wms. 
249;   Mitford  v.  Mitford,  9  Ves.  87; 


2  Kent  Com.  138;  Van  Epps  v.  Van 
Deusen,  4  Paige,  64;  Outcalt  v.  Van 
Winkle,  1  Green  Ch.  (X.  J.)  516; 
Moore  v.  Moore,  14  B,  Mon.  (Ky.) 
259;  1  Bright  Hus.  &  Wife,  79,  83, 
and  cases  cited;  Hay  v.  Bowen,  5 
Beav.  610;  Poor  v.  Hazleton,  15  N.  H. 
564;  Mann  v.  Higgins,  7  Gill  (Md.), 
265. 

18.  Siter  v.  Jordan,  4  Rawle  (Pa.), 
468.  See  also  Andrews  v.  Jones,  10 
Ala.  400;  contra,  Dold  v.  Geiger,  2 
Gratt.  (Va.)  98;  O'Conner  v.  Harris, 
81  N.  C.  279. 


183  wife's  PEKSO^■AL  rROPERTY.  §  IGl 

§  161.  What  Constitutes  reduction  to  Possession  —  In  General. 

What  acts  on  the  husband's  part  amount  to  an  appropriation  of 
his  "wife's  choses  in  action,  or  in  other  words  constitute  reduction 
into  possession  so  as  to  bar  her  rights  by  survivorship,  may  here  be 
fitly  considered.  Mere  intention  on  his  part  is  not  sufficient.  The 
purpose  must  be  followed  by  some  positive  act  asserting  an  owner- 
ship.^^ The  cases  show,  in  short,  that  there  should  always  exist 
both  the  intent  to  appropriate  to  his  ovm  use  and  the  act  of  appro- 
priation. Thus  there  may  be  a  resulting  trust  implied  from  vari- 
ous circumstances  connected  with  the  case.  Thus,  where  the 
husband  receives  the  proceeds  of  a  sale  of  the  wife's  lands  or  of 
her  landed  inheritance,  under  an  agreement  to  treat  the  same  as  a 
loan  to  himself  or  to  reinvest  it  for  her  benefit,  or  to  hold  it  as  her 
trustee  or  attorney,  the  disposition  of  the  courts  is  very  strong  to 
rule  against  a  full  reduction  into  possession.  And  such  disposition 
must  be  the  stronger  where  a  full  reduction  would  convert  real  into 
personal  property,  and  thereby  disturb  the  usual  property  rights.^** 
He  must  intend  to  acquire  title.^^ 

Any  act  on  the  husband's  part  which  amounts  to  a  complete  act 
of  exclusive  ownership  over  his  wife's  chose  in  action^  such  act  of 
ownership  extending  to  the  whole  fund  in  question  —  is  an  effectual 
reduction  into  his  own  possession.  The  rule  is,  that  if  he  recovers 
her  debt  by  a  suit  in  his  own  name,  or  if  he  releases  the  debt,  or 
novates  the  debt  by  taking  a  new  security  in  his  own  and  not  in  his 
wife's  name, —  in  all  these  cases,  upon  his  death  and  the  dissolution 
of  the  marriage  relation,  the  right  of  survivorship  in  the  wife  to 
the  property  is  found  to  have  ceased.^^  But  the  mere  assertion  of 
title  thereto  by  a  disposition  under  the  husband's  will  does  not 
amount  to  a  reduction  during  liis  lifetime  or  while  coverture  lasts.^' 

An  agreement  to  sell  the  fund  is  not  a  reduction  into  possession.^* 
Xor  is  a  fund  reduced  by  being  set  off  against  the  husband's  debt, 
no  money  having  passed  nor  releases  having  been  interchanged. 
At  least  this  is  the  doctrine  of  some  cases.     Thus  in  Harrison  v. 

19.  Blount  V,  Bestland,  5  Ves.  Jr.  son  v.  Miller,  14  Sim.  22 ;  S  Jur.  20ff, 
515.  ^32;  Burnham  v.  Bennett,  2  Coll,  C.  C. 

20.  See  Drury  v.  Briscoe,  42  Md.  254;  Scott  v.  Hix,  2  Sneed  (Tenn), 
154.  192. 

21.  Johnson  v.  Hume,  13S  Ala.  564,  23.  Grebill's  Appeal,  ST  Pa.  lOr); 
36  So.  421;  Southern  Bank  of  Fulton  Serutton  v.  Pattillo,  L.  R.  19  Eq.  369. 
V.  Nichols,  235  Mo.  401,  138  S.  W.  24,  Harwood  v.  Fisher,  1  Youngc  & 
881,  Coll.  110;  1  Bright  Hus.  &  Wife,  52. 

22.  2  Kent  Com.  137,  138,  See  Han- 


163 


HUSBAND    AND    WIFE. 


184 


Andrews,  a  testator  gave  a  legacy  to  the  wife;  the  husband  being 
indebted  to  the  testator  in  an  equal  amount,  the  husband  and  wife 
agreed  to  set  off  the  debt  against  the  legacy,  and  signed  a  legacy 
receipt  for  the  amount ;  but  it  was  held  that  these  acts  constituted 
no  reduction.^^ 


§  162.  Effect  of  Insanity  of  Husband. 

It  is  held  in  England  that,  where  the  husband  was  a  lunatic, 
payment  into  court  of  the  wife's  chose  in  action  to  the  credit  of  the 
lunacy  amounted  to  a  reduction  into  possession."^  But  in  'New 
Hampshire  a  singular  doctrine  is  laid  down;  namely,  that  the 
husband's  right  of  reduction  is  so  far  personal  to  him  that  it  can- 
not be  exercised  by  his  guardian  if  he  be  insane.^ 


27 


§  163.  Effect  of  Possession  by  Husband. 

Possession  of  a  wife's  property  by  the  husband  is  usually  suffi- 
cient to  show  title  in  him,^^  but  actual  possession  of  her  chose  in 
action  is  not  a  sufficient  reduction  per  se,  for  the  husband's  inten- 
tion may  be  to  hold  it  in  the  right  of  another.  Thus  he  may  take 
the  property  in  trust  for  his  wife ;  and  if  so  he  is  accountable  like 
any  other  trustee.^^  So  he  may  receive  it  as  a  loan  from  his  wife, 
in  which  case  he  shall  refund  it  like  any  other  boiTower.  That 
reduction  into  possession  which  makes  the  chose  absolutely  as  well 
as  potentially  the  husband's  is  a  reduction  into  possession,  not  of 
the  thing  itself,  but  of  the  title  to  it.^° 

And  where  the  makers  of  a  promissory  note,  payable  to  the  wife 
or  bearer,  and  given  as  the  proceeds  of  sale  of  her  real  estate,  hand 
the  note  to  the  husband,  who  immediately  delivers  it  to  the  wife,  in 
whose  separate  possession  it  thereafter  continues,  no  reduction  takes 
place.^^  But  it  would  be  otherwise,  we  apprehend,  if  the  husband 
had  placed  the  note  among  his  own  effects,  never  given  it  to  his 
wife,  nor  admitted  a  trust  on  his  part,  and  in  all  other  respects 
acted  as  the  owner  of  the  property. 


25.  Harrison  v.  Andrews,  13  Sim. 
595.  So  Sir  Wm.  Grant  in  Carr  v. 
Taylor,  10  Ves.  Jr.  574.  See  other 
cases  cited  in  n.  to  1  Bright,  Hus.  & 
Wife,  52. 

26.  In  re  Jenkins,  5  Russ.  183. 

27.  Andover  v.  Merrimack  County, 
37  N.  H.  437. 

28.  Williford  v.  Phelan,  120  Tenn. 
589,  113  S.  W.  365. 

29.  Smith  v.  Haire  (Tenn.),  181  S. 


W.  161;  Baker  v.  Hall,  12  Ves.  Jr. 
497;  Estate  of  Hinds,  5  Whart.  138; 
Mayfield  v.  Clifton,  3  Stew.  (N.  J.) 
375;  Eesor  v.  Eesor,  9  Ind.  347;  Bell 
Hus.  &  Wife,  57. 

30.  Strong,  J.,  in  Tritt's  Admr.  v. 
Caldwell's  Admr.,  31  Pa.  233. 

31.  Barber  v.  Slade,  30  Vt.  191; 
Hall  V.  Young,  37  N.  H.  134 ;  Barron 
V.  Barron,  24  Vt.  375. 


185  wife's  personal  property.  §  166 

If  the  husband  places  the  wife's  chose  in  an  envelope,  with  a 
memorandum  that  it  be  disposed  of  as  directed  by  his  will,  keeps  it 
in  his  possession,  and  then  leaves  a  will  disposing  of  it,  the  reduc- 
tion is  complete.^" 

The  property  must  come  under  the  actual  control  of  the  husband, 
quasi  husband,  and  not  as  trustee  or  attorney  for  the  wife ;  though 
a  husband's  appointment  as  trustee  will  not  deprive  him  of  the 
same  right  to  reduce  the  trust  fund  to  his  own  possession,  which  he 
would  have  were  a  third  person  the  trustee.^^  All  this,  however, 
does  not  prevent  a  full  reduction  from  taking  place  upon  suitable 
evidence.^* 

§  164.  Constructive  Possession. 

Constructive  possessions  are  not  favored  in  law  when  they  tend 
to  defeat  the  wife's  survivorship.  Yet  reduction  into  possession 
of  the  wife's  chose  in  action,  unexplained  by  other  circumstances, 
is  prima  facie  evidence  of  conversion  to  the  husband's  use,  and  is 
therefore  effectual.^^  And  reduction  of  a  fund  may  be  suflScient 
upon  the  happening  of  a  condition  annexed  to  it.^* 

§  165.  By  Release. 

There  seems  to  be  no  reason  for  a  distinction  between  releases 
and  assignments  from  the  husband,  so  far  as  the  effect  upon  the 
wife's  survivorship  is  concerned.  But  in  one  case  it  was  observed 
that  the  husband's  release  might  amount  to  reduction  as  against  the 
wife.^^  A  later  decision,  however,  puts  releases  and  assignments 
on  the  same  footing.^®  And  in  this  country  no  distinction  is  made 
between  the  two  modes  of  transfer.^® 

§  166.  By  Pledge. 

It  has  been  held  that  a  pledge  of  her  property  is  a  good  reduction 
to  possession.'*" 

32.  Dunn  v.  Sargent,  101  Mass.  336.      band's  favor.     Harper  v.  Archer,  2S 

33.  Wall  V.  Tomlinson,  16  Ves.  413;       Miss.  212. 

Dunn  V.  Sargent,  101  Mass.  336;  Ry-  36.  Dunn  v.  Sargent,  101  Mass.  336. 

land  V.  Smith,  1  My.  &  Cr.  53;  Burn-  37.  Hore  v.  Becher,  12  Sim.  465,  6 

ham  V.  Bennett,  2  Coll.  254;  Barron  v.  Jur.  94,  Shadwell,  V.  C. 

Barron,  24  Vt.  375;   Savage  v.  Ben-  38.  Kogers  v.  Acaster,  11  E.  L.  & 

ham,  17  Ala.  119.     But  see  Kees  v.  Eq.  300;  14  Beav.  445. 

Keith,  11  Sim.  388.  39.  Needles  v.  Needles,  7   Ohio  St. 

34.  Thomas  v.  Chicago,  55  111.  103,  432;    Kenny  v.   Udall,   5   Johns.   Ch. 
85.  Johnston  v.   Johnston,   1   Grant  (N.  Y.)  464. 

Cas.  468.     Lapse  of  time  may  raise  a  40.  Birmingham   Water   Works  Co. 

presumption  of  reduction  in  the  hus-       v.  Hume,  121  Ala.  168,  25  So.  806,  77 

Am.  St.  E.  43. 


167 


HUSBAND    AND    WIFE. 


186 


If  the  husband  pledges  his  wife's  chose  in  action  not  already 
reduced  to  possession,  or  assigns  it  as  collateral  security,  it  would 
appear  that  on  the  redemption  of  such  pledge  or  security  the  chose- 
is  placed  in  statu  quo,  and  remains  the  property  of  the  wife  until 
further  reduction.  Whether  the  same  can  be  said  of  a  chattel 
mortgage  is  not  certain.*^  The  language  of  the  instrument  in 
describing  the  parties  might  aid  in  determining  the  question  of 
intention  whenever  it  arises.  Certainly,  whatever  may  be  the 
technical  difference  between  a  pledge  and  a  chattel  mortgage,  the 
latter  operates  a  defeasible  title  only  in  the  mortgagee.  As  to 
money  secured  by  a  mortgage  to  the  wife,  it  is  held  that,  if  the  debt 
has  been  once  paid  to  the  husband^  reduction  is  completed,  even 
though  he  die  before  executing  a  reconveyance  of  the  property. 
Under  such  circumstances  equity  will  actually  compel  the  wife  to 
reconvey  and  perfect  the  title  without  allowing  her  any  benefits 
from  the  property.*^ 

§  167.  By  Suit  or  Arbitration. 

The  wife's  outstanding  choses  may  be  recovered  by  a  suit  so  as 
to  prevent  them  from  going  back  to  her  in  case  she  be  the  survivor. 
The  general  rule  is  that  for  property  accruing  to  the  wife  before 
marriage,  the  wife  must  be  joined  in  the  suit,  although  the  husband 
during  coverture  may  alter  the  deibtor's  liability,  as  by  changing 
the  security,  or  giving  time  on  a  promise  to  himself,  and  may  then 
sue  alone,^^  in  which  case,  perhaps,  the  reduction  into  possession  is 
effected  by  the  alteration  of  the  debt  and  not  by  the  suit.  Where, 
however,  property  accrues  to  the  wife  after  marriage,  the  husband 
may  elect  either  to  sue  alone  or  to  join  his  wife  as  the  meritorious 
cause.**  Such  being  the  state  of  the  law,  there  is  a  distinction 
between  suits  brought  in  the  husband's  name  alone,  and  suits  in  the 
name  of  both  husband  and  wife.  In  the  former  case  he  elects  to 
disaffirm  his  wife's  title,  and  bringing  the  suit  operates  as  a  reduc- 


41.  Latourette  v.  Williams,  1  Barb. 
(X.  Y.)  9;  Hartman  v.  Dowdel,  1 
Eawle  (Pa.),  279.  There  is  a  dictum 
of  Chancellor  Kent  (2  Kent  Com.  137; 
also  in  Schuyler  v.  Hoyle,  5  Johns.  Ch. 
(N.  Y.)  196)  to  the  effect  that  the 
mortgage  of  a  cJiose  in  action  is  of 
itself  a  sufficient  reduction  into  pos- 
sesion. We  find  no  authorities  to  sup- 
port this  statement.  But  see  Tritt  v. 
Colwell,    31   Pa.    228,   a   recent   case 


which  recognizes  a  distinction  in  this 
respect  between  a  pledge  and  a  mort- 
gage. 

42.  Eees  v.  Keith,  11  Sim.  388; 
Bosoil  V.  Brander,  1  P.  Wms.  4^8 ; 
Bates  V.  Dandy,  2  Atk.  208. 

43.  Yard  v.  Ellard,  1  Salk.  117,  pi. 
8;  Carth.  463;  Sid.  299. 

44.  See  Bright  Hus.  &  Wife,  61-66; 
Chitty  PI.  32-38,  7th  ed. 


187  wife's  personal  peopekty.  §  167 

tion.^^  In  the  latter  he  admits  her  possible  title  by  survivorship, 
and  the  reduction  is  ineffectual  until  the  debt  is  collected  on  execu- 
tion or  otherwise.^*'  Thus  the  institution  of  a  suit  to  recover  a 
legacy  accruing  to  the  wife  is  not  sua  vi  a  reduction  when  brought 
in  the  name  of  both  parties/^  and  even  a  recovery  of  judgment  is 
insufficient.^^  But  payment  to  the  husband  or  his  attorney,  after 
judgment,  operates  a  reduction.^^  Wherever  practice  recognizes  a 
separate  right  in  the  wife,  a  judgment  which  may  be  considered  as 
obtained  at  her  wishes,  or  for  her  benefit,  is  inconclusive  evidence 
of  '.eduction.^° 

In  chancery  proceedings  both  husband  and  wife  are  made  par- 
ties; and,  as  we  shall  presently  see,  equity  compels  a  settlement 
upon  the  wife  before  entering  a  decree  in  the  husband's  favor.  It 
is  said  that  decrees  in  chancery  so  far  resemble  judgments  at  law 
that  until  the  money  be  ordered  to  be  paid,  or  declared  to  belong 
to  the  husband,  the  wife's  rights  will  remain  undistui-'bed.  A 
decree  in  the  joint  names  of  husband  and  wife  is  insufficient  reduc- 
tion.^^ But  an  order  for  payment  of  money  to  the  husband  vests 
it  in  him  free  from  the  vdfe's  right  by  survivorship.'^^ 

As  to  the  submission  to  arbitration  it  is  said  that  the  original 
claim  is  extinguished  by  the  award  and  a  new  duty  thereby  cre- 
ated.^^  If  the  money  awarded  be  to  the  hushand,  and  he  die  before 
payment,  it  will  go  to  his  personal  representatives,  and  not  his 
vvife.^*     So  much  has  been  decided.     Some  are  of  the  impression 

45.  Oglander  v.  Baston,  1  Vern.  band  that  the  wife's  right  survives, 
396,  2  Ves.  Sen.  677,  12  Mod,  346,  even  though  the  husband's  adminis- 
See  Pierson  v.  Smith,  9  Ohio  St,  554,  trator  collects  it.  Perry  v.  Wheelock, 
as  to  insufficiency  of  judgment  in  hus-  49  Vt.  63. 

band 's  favor  where  he  sued  for  de-  49.  Alexander  v.  Crittenden,  4  Allen 

stroying  wife's  separate  property.  (Mass.),  342. 

46,  Bond  v.  Simmons,  3  Atk,  21.  50,  Pike  v,  Collins,  33  Me,  38;  Pet- 
The  exception  formerly  made  in  favor  tengill  v,  Butterfield,  45  N,  H.  1?5. 
of  bills  of  exchange  and  promissory  51,  Mason  v.  McNeill,  23  Ala,  201; 
notes  does  not  now  exist.  See  cases  Lowery  v.  Craig,  30  Miss.  19. 
supra,  §  153.  The  husband  must  52,  Edgarton  v.  Muse,  Dud.  Eq. 
therefore  follow  the  above  rules  of  (S.  C)  179,  See  Xanney  v.  Martin, 
suit,  Sherrington  v,  Yates,  12  M.  &  Eq,  Cas.' Abr.  68,  3  Atk.  726;  Macau- 
W.  855,  1  Dowl.  &  L,  1032.  lay  v.  Phillips,  4  Ves.  19;  Heygate  v. 

47,  Knight  v.  Branner,  14  Md,  1;  Annesley,  3  Bro.  C,  C,  362;  1  Bright 
Harris  v,  Taylor,  3  Sneed  (Tenn),  Hus.  &  Wife,  67-69 ;  Lowery  v,  Craig, 
-)36;    Hall    V.    McLain,    11    Humph.  30  Miss.  19, 

(Tenn).  425,  53.  Roeve  Dom.   Rol.   21.     But  see 

48.  Crittenden  v.  Alexander,  15  Hunter  v.  Rice,  15  East,  100;  Thorpe 
Gray  (Mass.),  432.  An  order  for  the  v.  Eyre,  1  Ad.  &  El.  926,  3  Xev.  &  M. 
proceeds  of  the  Judgment  collected  in  214. 

a  suit  may  be  so  treated  by  the  hus-  54.  Oglander  v.  Baston,  1  Vern.  396. 


1G8 


HUSBAXD    AXD    WIFE. 


188 


that  in  other  respects  tlie  "wife's  interest  will  depend  upon  the  stage 
of  proceedings  reached  at  the  time  of  the  husband's  death,  and  that 
neither  the  submission  to  arbitration,  nor  the  award  itself,  unless 
in  the  husband's  favor,  operates  as  a  reduction  into  possession/^ 

§  168.  By  Assignment. 

This  brings  us  to  a  very  perplexing  branch  of  the  present  sub- 
ject; namely,  that  of  the  husband's  reduction  into  possession  by 
assignment.  Choses  in  possession  are  capable  of  assignment. 
Choses  in  action^  however,  with  the  exception  of  negotiable  instru- 
ments, such  as  bills  of  exchange,  checks,  and  promissory  notes  (to 
which  we  may  doubtless  add  coupon  bonds  ^^),  cannot  be  assigned 
at  law;  but  in  equity  they  may.^^  The  assignment,  however,  to 
be  effectual,  should  be  without  reservation.  And  the  husband's 
agreement  to  assign  is  likewise  sustainable  in  equity,  on  the  prin- 
ciple that  what  one  agrees  to  do  shall  be  considered  as  done.^^  A 
joint  assignment  by  husband  and  wife  appears  to  have  been  sus- 
tained as  something  stronger  than  the  husband's  sole  assignment, 
where  the  wife  herself  has  not  sought  to  avoid  it  afterwards/* 
But  whether  the  husband's  assignment  of  itself  will  bar  the  rights 
of  the  wife  by  survivorship,  and  constitute  reduction  into  posses- 
sion, is  quite  another  thing. 

If  the  assignment  of  the  wife's  choses  in  action  be  purely  volun- 
tary and  without  consideration,  it  does  not  bind  the  wife.*"  As, 
for  instance,  where  a  husband,  pending  divorce  proceedings  against 
him,  makes  a  pretended  transfer  for  the  purpose  of  barring  her 
rights  to  the  property.  Kor  does  a  voluntary  assignment  for  the 
benelt  of  creditors  carry  them.^^ 


55.  See  1  Bright  Hus.  &  Wife,  70; 
Macq.  Hus.  &  Wife,  52.  The  wife 
will  not  be  bound  by  her  agreement 
pending  suit.  Macaulay  v.  Phillips, 
4  Yes,  15.  But  why  should  not  the 
husband  be  allowed  to  disaffirm  his 
wife 's  title  by  submitting  the  clwse  to 
arbitration  as  his  own  as  well  as  in 
suing  alone? 

56.  See  Thomson  v.  Lee  County,  3 
Wall.  (U.  S.)  327. 

57.  Crouch  v.  Martin,  2  Vern.  595; 
Hrnner  v.  Morton,  3  Euss.  65. 

58.  Druee  v.  Dennison,  6  Ves.  394; 
Steed  V.  Craig,  9  Mod.  43. 


59.  McCaleb  v.  Crichfield,  5  Heisk. 
(Tenn.),  288. 

60.  Wright  v.  Eutter,  per  Ld.  Alvan- 
ley,  2  Ves.  Jr.  673;  Burnett  v.  Kin- 
naston,  2  Vern.  401;  Sir  Wm.  Grant, 
in  Mitford  v.  Mitford,  9  Ves.  87 ;  Sir 
Thomas  Plumer,  in  Johnson  v.  John- 
son, 1  Jae.  &  Walk.  472 ;  Jewson  v. 
Moulson,  2  Atk.  417;  2  Kent  Com. 
137;  Hartman  v.  Dowdel,  1  Eawle 
(Pa.)  279. 

61.  Cases  supra;  Wright  v.  Eutter, 
2  Ves.  Jr.,  673;  1  Bright  Hus.  & 
Wife,  81. 


189  wife's    PEESOiS^AL    PEOPEKTY.  §    168 

But  the  equity  nile  as  to  assigmnents  of  the  wife's  choses  in 
action  to  indi^'icluals  for  valuable  consideration  is  very  capricious. 
It  was  formerly  maintained  that  the  husband's  assignment  of  his 
wife's  chose  in  action  for  a  valuable  consideration  would  bar  not 
only  a  present  interest  of  the  wife,  but  also  a  contingent  interest, 
or  the  possibility  of  a  term  or  a  specific  possibility.^"  Sir  William 
Grant  threw  doubt  upon  this  doctrine  by  the  objection  that  this 
would  give  the  assignee  a  greater  right  than  the  husband  himself.*' 
It  remained  for  Sir  Thomas  Plumer  to  break  it  down  completely, 
and  to  place  all  assignments  upon  the  same  footing.  This  he 
attempted  in  the  celebrated  case  of  Purdew  v.  Jackson,^*  where  the 
question  arose  as  to  the  effect  of  an  assignment  by  husband  and  wife 
of  her  vested  interest  in  remainder.  In  an  elaborate  opinion  he 
maintained  that  whatever  the  nature  of  the  assignment,  whether  in 
bankruptcy,  to  trustees  for  payment  of  debts,  or  to  a  specific  pur- 
chaser for  value,  it  could  pass  the  husband's  interest  and  no  more ; 
that  the  assignee  must  afterwards  reduce  the  property  to  possession 
during  the  husband's  lifetime ;  and  that  no  assignment  was  possible 
of  the  wife's  reversionary  interest,  so  as  to  bar  her  as  survivor, 
provided  the  interest  continued  reversionary.  Afterwards  Lord 
Lyndhurst,  while  approving  this  doctrine  to  the  extent  of  the  actual 
decision,  suggested  a  distinction  between  the  cases  where  the  hus- 
band can  completely  appropriate,  at  the  time  of  the  assignment, 
and  those  where  he  cannot: ;  and  thought  that  the  assignment  might 
stand  in  the  former  instance  as  an  agreement  to  appropriate  or  a 
sort  of  equitable  reduction  into  possession.®^  The  later  English 
cases  seem  to  follow  this  suggestion.®*  So  that  the  present  doctrine 
in  England  is  understood  to  be  that  the  husband's  assignment  for 
value  to  a  specific  purchaser  will  bar  the  wife's  survivorship,  pro- 
vided the  husband  has  during  coverture  the  right  of  reducing  into 
his  own  possession;  but  that  he  cannot  assign,  so  as  to  bar  the 
wife's  survivorship,  unless  such  reduction  becomes  possible  before 
his  death." 

62.  See  Chandos  v.  Talbot,  2  P.  fully  approved.  See,  too,  Ellison  v. 
Wms.    601;    Bates   v.   Dandy,   2    Atk.       Ehvin,  13  Sim.    309. 

207;  Hawkins  v.  Obin,  ib.  549;  n.  to  65.   Honner  v.   Morton,   3  Russ.  65. 

2   Kent  Com.,   138.  66.  Per  Lord  Brougham,  Stanton  v. 

63.  Mitford  v.  Mitford,  9  Ves.,  87.  Hall,  2  Russ.  &  My.  175;  Elliott  v. 
And    see   Hornsby   v.    Lee,    2    Madd.  Cordell,  5  Madd.  Ch.  149. 

Ch.,   16.  67.  Tidd  v.  Lister.  17  E.  L.  &  Eq. 

64.  Russ.  1-71  (1823).  In  Ashby  v.  567;  s.  c,  on  appeal,  3  De  G.,  M.  &  G. 
Ashby,    1    Coll.    553,    this    rule    was      857. 


§  169 


HUSBAND    AND    WIFE. 


190 


In  this  country  the  rule  is  far  from  uniform.  The  Pennsyl- 
vania courts,  repudiating  this  modern  chancery  doctrine  altogether^ 
maintain  that  the  assigTiment  to  a  specific  purchaser  for  value  bars 
the  wife's  right  of  survivorship.^^  For,  it  is  said,  the  husband  by 
marriage  gains  a  full  power  of  disposal  over  his  wife's  property, 
and  any  distinction  between  vested  and  contingent  interests  in 
respect  to  the  marital  dominion  and  power  of  transfer  is  unsound.®^ 
This  doctrine  has  received  approval  in  some  other  States.^"  But 
the  doctrine  of  Purdew  v.  Jackson  has  been  more  frequently  ap- 
proved by  our  courts ;  probably,  if  the  question  should  now  arise 
again,  with  the  qualifications  which  Lord  Lyndhurst  introduced.^^ 

§  169.  By  Delivery  to  Agent  of  Husband. 

Reduction  into  possession  may  be  effected  through  the  medium 
of  a  third  person  duly  empowered  to  act  for  that  purpose.^^  And 
the  receipt  of  the  wife's  distributive  share  by  an  agent  appointed 
under  a  power  of  attorney  executed  by  the  wife  to  her  husband  is 
a  sufficient  reduction  by  the  husband,  and  enables  the  latter  to  sue 
the  attorney  for  the  proceeds.^^  Even  where  husband  and  wife 
together  appoint  an  agent  to  receive  the  wife's  legacy,  and  he 
receives  it  and  does  not  pay  it  over,  his  receipt  is  a  conversion  of 
the  fund,  and  the  husband  may  treat  the  property  as  his,  and  sue 
accordingly.'*     But  where  A.  receives  money  for  the  use  of  a  mar- 


68.  Shuman  v.  Eeigart,  7  W.  &  S. 
(Pa.),  169;  Siter's  Case,  4  Rawle 
(Pa.),  468;  Webb's  Appeal,  21  Pa. 
248;   Smilie's  Estate,  22  Pa.  130. 

69.  See  Siter's  Case,  supra,  per  Gib- 
son, C.  J. 

70.  Manion  v.  Titsworth,  18  B.  Mon. 
(Ky.),  582;  Turtle  v.  Fowler,  22  Conn. 
58;  Hill  V.  Townsend,  24  Tex.  575. 

71.  Bugg  V.  Franklin,  4  Sneed 
(Tenn.),  129;  George  v.  Goldsby,  23 
Ala.  326;  Arrington  v.  Yarborough,  1 
Jones  Eq.  (N.  C),  72;  Lynn  v.  Brad- 
ley, 1  Met.  (Ky.),  232;  O'Connor  v. 
Harris,  81  N.  C.  279;  Smith  v.  At- 
wood,  14  Ga.  402 ;  State  v.  Robertson, 
5  Harring.  (Del.),  201;  Needles  v. 
Needles,  7  Ohio  St.  432;  Bryan  v. 
Spruill,  4  Jones  Eq.  (N.  C),  27. 
The  husband's  assignee  may  avail 
himself  of  fraud  upon  the  husband's 
marital  rights.    Joyner  v.  Denny,  Bus- 


bee  Eq.  176.  In  Stiffe  v.  Everett,  1 
M.  &  C.  37,  Lord  Cottingham  suggests 
what  may  be  at  the  foundation  of  the 
present  distinction  in  the  English 
equity  rule  as  to  assignees  for  value, 
namely,  that  neither  the  husband 
alone,  nor  the  husband  and  wife  to- 
gether, can  dispose  of  the  wife's  life- 
interest  in  a  fund,  beyond  the  dura- 
tion of  coverature.  See  Macq.,  Hus. 
&  Wife,  58,  59. 

72.  Roll.  Abr.,  342,  350;  1  Bright, 
Hus.  &  Wife,  53. 

73.  Turton  v.  Turton,  6  Md.  375; 
Alexander  v.  Critenden,  4  Allen 
(Mass.),  342. 

74.  Semhle  such  reduction  by  agent 
is  of  itself  a  reduction  by  the  hus- 
band. Dardier  v.  Chapman,  L.  R.  11 
Ch.  D.,  442.  No  instruction  were 
given  to  the  agent  to  collect  in  the 
wife  's  right. 


191  wife's  peeso^'al  peopeety.  §  170 

ried  woman,  and  writes  to  her  that  he  holds  the  money  at  her  dis- 
posal, this  constitutes  an  attornment  to  the  wife,  and  not  to  the 
husband ;  and  the  latter  must  do  something  more  in  order  to  make 
the  fund  his  own.'"  And  where  husband  and  wife  empower  an 
attorney  to  collect  and  receive  on  the  wife's  account,  or  the  agent 
in  question  receives  the  fund,  not  by  way  of  reducing  on  the  hus- 
band's behalf,  the  husband's  right  remains  unexercised.'* 

§  170.  Joint  or  Sole  Receipt. 

The  receipt  of  the  husband  and  wife  jointly  for  the  wife's  chose 
in  action  does  not  constitute  sufficient  reduction  by  the  husband, 
for  this  is  the  proper  form  of  receipt  given  to  third  parties  when 
the  fund  is  placed  in  the  wife's  hands.'''  But  the  sole  receipt  of 
the  husband  with  intent  to  appropriate  constitutes  a  complete 
reduction,  the  property  having  been  delivered  to  him  instead  of 
the  wife.'*  The  same  is  true  of  a  joint  order  by  both  spouses  that 
her  property  be  applied  to  his  debt.'^  A  married  woman's  fund 
held  subject  during  coverture,  not  to  the  husband's  sole  drafts, 
checks,  or  orders,  but  to  the  order  of  both  husband  and  wife,*"  or  to 
the  order  of  either,*^  must,  as  to  the  residue  not  drawn  when  cover- 
ture ceases,  be  considered  as  never  reduced  to  the  husband's  posses- 
sion. A  receipt  of  the  fund  subject  to  the  order  of  either  spouse, 
or  their  joint  order,  cannot  be  set  up  against  the  wife  or  her  repre- 
sentative; nor  is  a  transfer  of  stock  to  the  joint  names  of  husband 
and  wife ;  *"  nor  the  receipt  and  indorsement  of  a  check  payable 
to  the  order  of  husband  and  wife,  which  the  husband  does  not 
deposit  or  use  for  his  sole  account.*' 

§  171.  As  to  Commercial  Paper. 

As  to  bills  and  notes,  there  is  a  conflict  between  the  earlier  and 
later  cases,  from  the  fact  that  negotiable  instruments  were  not 

75.  Fleet  t.  Perrins,  L.  R.  3  Q.  B.  79.  Luecarello  v.  Eandolph  (Tenn.), 
536.  58  S.  W.  453. 

76.  HiU  V.  Hunt,  9  Gray   (Mass.),  80.   Scrutton  v.  Pattillo,  L.  R.   19 
66;     Chappelle    v.    Olney,    1    Sawyer  Eq.  369. 

(U.  S.),  401.  81.  Scrutton  v.  Pattillo,  L.  E.  19  Eq. 

77.  Timbers   v.    Katz,   6   W.   &   S.  369;    Broivn  v.  Bokee,  53   Md.    155; 
(Pa.)   290.  Parker  v.  Lcclimerc,  41  L.  T.  152. 

78.  Roll.   Abr.   342,  350;    1  Bright,  82.    Nicholson    v.    Drury    Buildings 
Hus.  &  Wife,   53;   Lowe  v.  Cody,  29  Estate  Co.,  L.  R.  7  Ch.  D.  48. 

Ga.  117.  83.   Parker  v.  Lechmere,  41   L.   T. 

152. 


170 


HUSBAND    AND    WIFE. 


192 


formerly  regarded  as  choses  in  action  at  all.®*  Assuming  them  to 
be  such,  however,  the  indorsement  and  transfer  of  the  husband  is  a 
sufficient  reduction  into  possession.  Hence,  if  a  note  be  made 
payable  to  the  order  of  a  feme  sole,  and  she  afterwards  marries, 
her  husband  may  transfer  the  note  to  himself  or  others  by  his 
own  indorsement.®^  The  receipt  of  partial  payment,  it  would  seem, 
is  only  a  reduction  pro  tanto.^^  The  wife  cannot  indorse  over  a 
note  payable  to  her  order,  even  with  authority  from  her  husband, 
where  it  does  not  appear  that  the  indorsement  was  made  for  value 
received  by  the  husband  from  the  indorsee,  or  as  a  gift  from  the 
husband  to  the  indorsee;  if  she  does  so,  it  does  not  bar  her  rights 
by  survivorship.*^ 

It  is  clear  that  the  receipt  of  interest  due  on  a  bond  or  note  is 
not  a  sufficient  reduction  of  the  latter,  nor  of  future  instalments, 
although  it  constitutes  a  reduction  of  the  particular  interest  instal- 
ment itself.*®  Her  indorsement  without  his  assent  is  prima  facie 
had.®^  If  a  note  be  negotiable,  the  husband  alone  can  trans- 
fer it.^'*  What  evidence  irrespective  of  indorsement  and  transfer 
by  the  husband  suffices  to  show  reduction  into  possession  —  as  for 
instance  where  the  note  is  payable  to  bearer  —  is  not  quite  clear 
from  the  authorities.  But  reduction  of  the  wife's  notes  into  posses- 
sion is  not  effected  by  the  husband,  merely  because  he  keeps  them, 
for  safety  and  at  her  request,  with  his  own  papers ;  it  certainly  is 
not  while  he  consistently  treats  them  as  hers,  asserting  no  claim 
to  them ;  ®^  nor  does  the  fact  that  her  whole  property  consisted  of 
such  notes,  and  that  at  her  request  and  because  they  were  not  due, 
he  provided  the  wedding  dress  and  furnished  the  house,  give  the 


84.  See  Scarpellini  v.  Acheson,  7  Q. 
B,  864;  9  Jur.  827;  Gaters  v.  Mad- 
deley,  6  M.  &  W,  423;  McNeilage  v. 
Hollo  way,  1  B.  &  Aid.  218;  Sher- 
rington V.  Yates,  12  M,  &  W.  855;  1 
Pars.  Bills  &  Notes,  87.  If  a  note 
be  payable  to  husband  and  wife,  it 
•would  clearly  survive  to  the  latter. 
Eichardson  v.  Daggett,  4  Vt.  336; 
Draper  v.  Jackson,  16  Mass.  480. 

85.  Mason  v.  Morgan,  2  Ad.  &  El. 
30;  Evans  v.  Secrest,  3  Ind.  545.  And 
the  wife's  signature  is  mere  sur- 
plusage where  both  indorse  the  note. 
J6. 


86.  Nash  v.  Nash,  2  Madd.  133. 

87.  Scarpellini  v.  Acheson,  7  Q.  B. 
864. 

88.  Howman  v.  Corrie,  2  Vern.  190 ; 
Hart  V.  Stephens,  6  Q.  B.  937;  Stan- 
wood  V.  Stanwood,  17  Mass.  57 ;  Burr 
V.  Sherwood,  3  Bradf.  Sur.  (N.  Y.), 
85. 

89.  Wall  V.  Tomlinson,  16  Ves.  Jr., 
'IIS;  Hemmingway  v.  Matthews,  10 
Tex.  207;  Tryon  v.  Sutton,  13  Cal. 
400;  James  v.  Groff,  157  Mo.  402,  57 
S,  W.  1081. 

90.  Evans  v.  Secrest,  3  Ind.  545. 

91.  Miller  v.  Aram,  37  Wis.  142. 


193 


WIPE  S  PEESONAX,  PEOPEETT. 


§  172 


husband  a  lien  upon  them,  or  amount  to  a  reduction.®^  A  collec- 
tion of  the  wife's  notes  would  be  a  reduction  into  possession ;  and 
so  probably  would  be  transfer  and  delivery,  with  intent  to  pass  the 
property. 

Where  real  estate  of  the  wife  is  sold,  and  notes  are  given  payable 
to  her,  the  property  changes  its  character,  and  becomes  personal 
property  in  the  shape  of  a  cliose  in  action.^^  So,  if  the  notes  taken 
for  the  purchase-money  are  in  the  husband's  own  name,  the  reduc- 
tion is  held  complete.^* 

§  172.  As  to  Legacies  or  Destributive  Shares. 

At  common  law  the  husband  was  entitled  to  his  wife's  legacies.*' 
The  husband  may  assign  a  legacy  or  distributive  share  like  any 
other  chose.^^  Reduction  of  a  legacy  has  been  considered  complete 
where  the  husband  takes  a  quitclaim  deed  from  the  testator's  re- 
siduary devisee  upon  condition  that  he  shall  pay  this  and  the  other 
legacies.®^  But  some  distinct  act  of  o^vnership  on  the  husband's 
part  is  necessary ;  and  it  is  doubtful  whether  his  right  is  complete 
even  after  a  decree  of  distribution,  the  decree  itself  effecting  no 
reduction.  The  share  or  legacy  should  be  actually  severed  from 
the  bulk  of  the  estate  whence  it  was  derived.^^  The  husband  may 
then  reduce  into  possession  as  in  other  cases.  And  if  the  executor 
or  other  party  making  the  sale  pays  the  cash  proceeds  into  the 
husband's  hands,  the  money  belongs  to  him  absolutely,  and  his 
receipt  extinguishes  all  claims  of  his  wife.^ 


92.  Holmes  v.  Holmes,  28  Vt.  765. 
And  see  Lenderman  v.  Talley,  1  Houst. 
623.  A  negotiable  note  given  to  a 
third  party  by  a  husband  before  mar- 
riage is  not  extinguished  by  the  mere 
fact  of  its  purchase  from  such  party 
by  the  wife,  by  money  belonging  to 
her  before  marriage,  not  reduced  to 
possession  by  the  husband.  Russ  v. 
George,  45  N.  H.  467. 

93.  Taggart  v.  Boldin,  10  Md.  104 ; 
McCrory  v.  Foster,  1  Iowa,  271.  See 
Peacock  v.  Pembroke,  4  Md.  280; 
Eamsdale  v.  Craighill,  9  Ohio,  199. 

94.  Dixon  v.  Dixon,  18  Ohio  113; 
Talbot  V.  Dennis,  1  Carter  (Ind.), 
471;  McCrory  v.  Foster,  1  la.  271. 
When  secured  by  mortgage,  the  mort- 
gage also  ought  to  be  in  the  husband 's 
name.  But  cf.  language  of  court  in 
MeCullough  V.  Ford,  96  111.  439. 

13 


95.  Brock  v.  Sawyer,  39  N.  H.  547. 

96.  Bryan  v.  Spruill,  4  Jones  Eq. 
(N.  C),  27;  Weems  v.  Weems,  19  Md. 
334. 

97.  Howard  v.  Bryant,  9  Gray 
(Mass.),  239. 

98.  Short  V.  Moore,  10  Yt.  446 ;  Pro- 
bate Court  V.  Niles,  32  Vt.  775;  Lewis 
V.  Price,  3  Rich.  Eq.  (S.  C.)  172; 
Walker  v.  Walker,  25  Mo.  367;  Van- 
derveer  v.  Alston,  16  Ala.  494.  As  to 
whether  the  husband's  note  given  for 
purchase  at  the  administrator's  sale 
can  be  set  off  against  the  wife 's  claim 
for  distributive  share,  see  Roberts  v. 
Adams,  2  S.  C.  (X.  S.)  337,  which 
holds  that  it  cannot. 

1.  Johnson  v.  Bennett,  39  Barb.  (N". 
Y.)  237;  Thomas  v.  Chicago.  55  Til. 
103;  Plummer  v.  Jarman,  44  Md.  632. 


§    174  HUSBAND    AND    WIFE.  194 

Where  chattels  are  delivered  to  T.  on  behalf  of  himself  and  the 
other  next  of  kin,  of  whom  Mrs.  W.  is  one,  and  Mr.  W.  sells  to  T. 
his  wife's  share,  and  receives  and  appropriates  the  purchase-money, 
this  is  a  clear  reduction  of  possession.^  Merely  claiming  a  legacy 
due  to  his  wife,  if  not  paid  before  his  death,  is  insufficient,^  or  is 
mere  possession  as  administrator  of  an  estate  of  her  distributive 
share  of  it.*  Where  he  causes  a  distributive  share  to  be  paid  to 
him,  there  is  a  good  reduction.^ 

§  173.  As  to  Money. 

The  following  have  been  held  good  reductions  of  a  wife's  prop- 
erty to  possession:  using  her  money  as  his  own,^  investing  her 
money  in  land  in  his  own  name,'  and  collection  of  her  money,  not 
acting  as  agent  or  trusitee.® 

§  174.  As  to  Shares  of  Stock. 

The  conversion  of  stock  dividends  or  coupons  on  securities  °  is 
not  of  itself  a  good  reduction  of  the  stock  to  possession.  Nothing 
short  of  the  transfer  of  stock  standing  in  the  wife's  name  to  the 
husband's  name  seems  to  be  a  sufficient  reduction  of  such  stock  into 
possession;  ^°  the  transfer  to  their  joint  names  is  insufficient."  A 
sale  and  delivery  of  his  wife's  certificate  of  stock,  assigned  to  him 
by  her  in  writing,  has  been  held  a  good  reduction  to  possession.^^ 

Since  stock  which  stands  in  the  wife's  name  does  not  belong  to 
her  husband  until  reduced  to  possession  by  him,  it  follows  that  he 
cannot  be  made  personally  liable  in  respect  to  the  fund  where  he 
has  failed  to  so  reduce  it." 

2.  Widgery  v.  Tepper,  7  L.  E.  7  Ch.  99  S.  W.  973 ;  WilUams  v.  Keef,  241 
D.^  423.  Mo.   366,  145  S.  W.   425. 

3.  Donaldson  v.  West  Branch  Bank,  8.  Hart  v.  Leete,  104  Mo.  315,  15  S. 
1  Pa.  286.  W.  976. 

4.  Hauser  v.  Murray,  256  Mo.  58,  9.  Dunn  v.  Sargent,  101  Mass.  336. 
165  S.  W.  376.  10.  Arnold  v.  Euggles,  1  E.  I.  165; 

5.  Shanks  v.  Edmondson,  28  Grat.  2  Bright,  Hus.  &  Wife,  54 ;  Slaymaker 
(Va.)    804.  V.  Bank,  10  Pa.  373;  Brown  v.  Bokee, 

6.  Tucker  v.  Tucker's  Adm'r,  165      53  Md.  155. 

Ky.  306,  176  S.  W.  1173.  11.    Nicholson    v.    Drury   Buildings 

7.  MiUer  v.  Blackburn,  14  Ind.  62 ;  Estate  Co.,  L.  E.  7  Ch.  D.  48. 
Alford  V.  Guffy  (Ky.),  115  S.  W.  216;  12.  Johnson  v.  Hume,  138  Ala.  564, 
Neel's  Ex'r  v.   Noland's   Heirs,   166  36  S.  421. 

Ky.  455,  179  S.  W.   430;   Ahlering's  13.  Dodgson  v.  Bell,  3  E.  L.  &  Eq. 

Ex'r  V.  Speckman,  30  Ky.  Law,  940,       542.   And   see   :Matter  of  Eeciprocity 

Bank,  22  N.  Y.  9. 


195 


WIFE  S  PERSONAL  PROPERTY. 


§  175 


§  175.  Wife's  Equity  to  Settlement — In  General. 

The  wife's  equity  to  a  settlement,  which  constitutes  an  important 
branch  of  the  English  chancery  jurisprudence,  is  closely  connected 
with  the  husband's  right  of  reduction  into  possession.  Whenever 
the  husband  or  his  representative  has  to  seek  the  aid  of  a  court  of 
chancery  in  order  to  recover  his  wife's  property,  he  must  submit 
to  its  order  of  a  suitable  settlement  from  the  fund.  This  settle- 
ment, which  is  made  upon  the  wife  for  the  separate  benefit  of  her- 
self and  the  children  as  a  provision  for  their  maintenance  and 
comfort,  is  known  as  the  wife's  equity.^*  Thus  chancery,  by  a 
stretch  of  power  somewhat  arbitrary,  interferes  to  do  an  act  of 
justice.  The  doctrine  seems  to  rest  upon  two  grounds :  first,  that 
whoever  comes  into  equity  must  do  equity ;  second,  that  chancery 
is  the  special  champion  of  women  and  children.^^ 

The  rule  is  the  same  whether  the  thing  to  be  reduced  into  posses- 
sion be  a  debt,  legacy,  or  distributive  share  belonging  to  the  wife, 
or  any  other  chose  in  action}^  Chancery  will  also  restrain  the 
husband,  by  injunction,  from  proceeding  to  recover  a  fund  in  the 
ecclesiastical  or  probate  courts  until  a  like  provision  is  made ;  for 
the  reason  that  it  has  a  concurrent  or  appellate  jurisdiction  in  the 
settlement  of  estates.^^  In  this  country  a  court  of  equity  has  some- 
times gone  so  far  as  to  lay  held  of  property  for  which  recovery  is 
sought  in  the  courts  of  common  law.^*  But  the  English  cases  do 
not  warrant  such  an  exercise  of  power."  The  blending  of  equity 
and  common-law  functions  in  American  tribunals  might  here  jus- 


14.  2  Kent,  Com.  139-143,  and  cases 
cited;  1  Bright,  Hus.  &  Wife,  230- 
265;  2  Story  Eq.  Juris.,  §  635. 

15.  Meals  v.  Meals,  1  Dick.  (N.  J.) 
373;  Peachey  Mar.  Settl.,  158,  159. 
This  jurisdiction  appears  to  have  been 
exercised  from  the  earliest  period. 
Sturgis  V.  Champneys,  5  M.  &  C.  103, 
per  Lord  Chancellor  Cottenham. 

16.  Campbell  v.  Galbreath,  12  Bush 
(Ky.),  459;  Kenney  v.  Udall,  5 
Johns.  Ch.  (N.  Y.)  464,  3  Cow.  (N. 
Y.)  590;  Durr  v.  Bower,  2  McCord. 
Ch.  (S.  C.)  368;  Duvall  v.  Farmers' 
Bank  of  Maryland,  4  Gill  &  Johns. 
(Md.)  282;  Barron  v.  Barron,  29  Vt. 
375,  391;  Abernothy  v.  Abernethy,  8 
Fla.  243 ;  Haviland  v.  Bloom,  6  Jones 
Ch.  (N.  C.)  178;  Smith  v,  Kane,  2 
Paige    (N.   Y.),   303. 


17.  Jewson  v.  Moulson,  2  Atk.  419; 
Kobinson  v.  Eobinson,  L.  R.  12  Ch.  D. 
188;  Dumond  v.  Magee,  4  Johns.  Ch. 
(N.  Y.)   318. 

18.  Van  Epps  v.  Van  Deusen,  4 
Paige  (N.  Y.),  64;  note  to  2  Kent, 
Com.  140;  2  Kent,  Com.  141,  142; 
Corley  v.  Corley,  22  Ga.  178;  Dearin 
V,  Fitzpatrick,  Meigs,  551.  But  see 
Matter  of  Miller,  1  Ashm.  323;  Par- 
eons  V.  Parsons,  9  N.  H.  309-336; 
Allen  V.  Allen,  6  Ired.  Eq.  (N.  C.) 
293. 

19.  1  Roper,  Hus.  &  Wife,  263; 
Jacob's  notes  to  1  Roper,  Hus.  & 
Wife,  257,  258;  Oswell  v.  Probert,  2 
Ves.  Jr.  682 ;  Sturgis  v.  Champneys, 
5  M.  &  C.  105;  Jewson  v.  Jfoulson.  2 
Atk.  419.  And  see  Jackson  v.  Hill, 
25  Ark.  223.    According  to  the  latest 


§  177 


HUSBAIN'D    AjSD    WIFE. 


196 


tifj  a  deiJarture  from  the  parent  system,  wliile  there  are  doubtless 
States  which  follow  the  English  rule  in  this  respect.""  Where  the 
husband  received  a  large  fortune  through  his  wife,  and  has  squan- 
dered nearly  the  whole  of  it,  the  remaining  fund  may  be  placed 
where  it  will  accumulate  for  her  benefit  or  the  income  may  be  paid 
for  her  support.  So  if  he  maltreats  her  or  otherwise  conducts 
himself  shamefully.  And  if  he  becomes  insolvent  the  wife  may 
have  a  reasonable  provision  secured  to  her  out  of  her  life  estate.^'" 

§  176.  Nature  of  Right. 

But  though  the  wife's  equity  to  a  settlement  is  recognized  as  due 
herself  and  her  children,  the  right  is  so  far  personal  to  herself  that 
it  cannot  be  exercised  by  any  one  else,  and  it  expires  if  she  die 
pending  proceedings,  though  there  may  be  children  surviving  her.^^ 
The  husband  in  such  case  takes  the  proceeds  as  in  other  cases.  In 
fact,  the  latest  cases  show  a  clear  disposition  on  the  part  of  the 
court  to  leave  a  dutiful  husband's  interest  in  any  such  fund  unim- 
paired, except  so  far  as  may  be  necessary  to  provide  for  the  wife 
and  for  all  children  she  may  possibly  have;  for  which  reason  a 
fund  will  be  limited,  after  the  death  of  the  husband  and  in  default 
of  children  of  the  wife,  to  the  husband,  whether  he  survives  her 
or  not.^^ 

§  177.  Effect  of  Divorce  or  Separation. 

The  wife's  adultery  is  a  complete  bar  to  the  equity;  and  other 
misconduct  would  certainly  reduce  the  amount  if  not  extinguish 


English  decisions,  the  wife's  equity 
does  not  extend  to  a  reversionary  in- 
terest. No  settlement  can  be  asked 
until  the  fund  falls  into  possession ; 
i.  e.,  until  the  husband  has  a  right  to 
receive  it.  Osborn  v.  Morgan,  8  E.  L. 
&  Eq.  192. 

20.  Wiles  V.  Wiles,  3  Md.  1. 

21.  Bond  V.  Simmons,  3  Atk.  20.  As 
to  insolvency  where  husband  has  not 
taken  benefit  of  bankrupt  acts,  see 
Ex  parte  Cosegayne,  1  Atk.  192 ; 
Pryor  v.  Hill,  4  Bro.  C.  C.  142 ;  Oswcll 
V.  Probert,  2  Ves.  682;  Bell,  Hus.  & 
Wife,  121. 

22.  Delagarde  v.  Lempriere,  6  Beav. 
344,  per  Lord  Langdale;  Baldwin  v. 
Baldwin,  5  Do  G.  &  R.  319;  contra, 
Steinmetz  v.  Halthin,   1   G.  &  J.   67. 


See  Peachey,  Mar.  Settl.,  166,  167. 
But  not,  according  to  the  English 
equity  practice,  if  she  die  after  a  cer- 
tain advanced  stage  of  the  proceed- 
ings. See  Rowe  v.  Jackson,  2  Dick. 
(N.  J.)  604;  Murray  v.  Elibank,  10 
Ves.  92 ;  Lloyd  v.  Mason,  5  Hare,  149 ; 
Bell,  Hus.  Wife,  128,  129;  Peachey, 
Mar.  Settl.,  168,  and  cases  cited; 
Baldwin  v.  Baldwin,  15  E.  L.  &  Eq. 
158.  In  Hobgood  v.  Martin,  31  Ga. 
62,  the  children  were  allowed  to  file  a 
supplemental  bill  after  the  wife's 
loath. 

23.  Walsh  V.  Wason,  L.  K.  8  Ch. 
482;  In  re  Suggitt's  Trusts,  L.  E.  3 
Ch.  215;  Croxton  v.  May,  L.  E.  9  Eq. 
404. 


197 


WIFE  S    PERSONAL    PEOl'ERTY. 


§  i:^ 


the  equity  altogether.-*  But  it  does  not  follow  that  in  case  of  the 
wife's  adultery  the  fund  would  be  decreed  absolutely  and  at  once 
to  the  husband ;  the  court  might  wait  until  the  anomalous  relation- 
ship of  the  parties  had  been  legally  determined  by  divorce.^^  Not- 
withstanding a  separation  between  husband  and  wife  under  a  deed, 
if  they  come  together  again,  and  the  provisions  of  the  separation 
deed  do  not  dispose  meantime  of  the  fund,  the  wife  may  claim  her 
equity.^®  And  the  wife's  stinginess  in  dealing  with  her  separate 
estate,  the  absence  of  misconduct  on  the  husband's  part,  and  the 
fact  that  she  has  ample  means  of  her  own,  irrespective  of  any  allow- 
ance which  might  be  made  from  the  new  fund,  are  also  circum- 
stances which  may  debar  her  from  receiving  an  equity  therein, 
where  she  and  her  husband  are  living  separate. 


27 


§  178.  Effect  of  Antenuptial  Settlement  or  Jointure. 

The  husband  may  become  the  purchaser  of  his  wife's  fortune 
where  he  has  made  a  competent  settlement  upon  her  before  mar- 
riage. Regarding  him  in  this  light,  chancery  will  in  such  a  case 
not  only  refuse  to  allow  the  wife  a  settlement  from  the  fund  in 
litigation,  but  will  let  in  his  representatives  after  his  death  to  make 
the  reduction  complete.^^  Lord  Eldon  said,  however,  that  in  order 
to  bar  the  wife's  equity  the  articles  of  marriage  settlement  should 
expressly  state  that  it  was  in  consideration  of  the  wife's  fortune,  or 
else  the  contents  must  import  it  as  clearly  as  if  expressed.^®  A 
jointure  is  not  an  adequate  settlement,  for  this  is  merely  a  bar  of 
her  possible  dower.  But  any  adequate  settlement,  eo  nomine, 
seems  to  be  an  effectual  bar  to  the  wife's  equity.  A  covenant  to 
settle  must  be  performed  by  the  husband  before  he  can  be  regarded 
as  a  purchaser.^"     And  the  cases  admit  that  a  marriage  settlement 


24.  Ball  V.  Montgomery,  2  Ves.  191 ; 
Carr  v.  Eastabrooke,  4  Ves.  146; 
Peachey,  Mar.  Settl.,  174-176;  Carter 
V.  Carter,  14  S.  &  M.  59 ;  Fry  v.  Fry, 
7  Paige   (X.  Y.),  462. 

25.  Barrow  v.  Barrow,  18  Beav.  529. 
This  rule  has  been  modified  in  extreme 
cases,  however,  so  as  to  grant  equity 
even  after  adultery.  In  re  Le win's 
Trusts  20  Beav.  378;  Greedy  v.  Lav- 
ender, 13  Beav.  64;  Ball  v.  Coults,  1 
VeP.  &  B.  302. 

26.  Ruffles  V.  Alston,  L.  R.  19  Eq. 
539. 

27.  Giacometti  v.  Prodgers,  L.  R.  14 


Eq.  253  ;  L.  R.  8  Ch.  338.  As  to  equity 
of  settlement  on  foreclosing  a  mort- 
gage see  Hill  v.  Edmonds,  15  E.  L.  & 
Eq.    280. 

28.  Kent,  Com.,  143 ;  Cleland  v.  Cle- 
land,  Prec.  in  Ch.  63;  Poindexter  v. 
Jeffries,  15  Gratt.   (Va.)   363. 

29.  Druce  v.  Denison,  6  Ves.  395. 
See  Salway  v.  Salway,  Amb.  692  ;  Carr 
V.  Taylor,  10  Ves.  574;  Doe  v.  Ford, 
2  El.  &  B.  970. 

30.  Bell,  Hus.  &  Wife,  413,  and 
cases  cited;  Holt  v.  Holt,  2  P.  Wms. 
647;  Pyke  v.  Pyke,  1  Ves.  Sen.  376. 


180 


HUSBAND    AiS'D    WIFE. 


198 


is  not  presumed  to  cover  property  accruing  during  coverture,  but 
is  to  be  confined  to  such  as  belongs  to  tiie  wife  at  the  time  of  settle- 
ment, unless  apt  words  are  used  to  indicate  a  different  intent  of  the 
parties  thereto.^^ 

§  179.  Effect  of  Waiver. 

The  wife  may  waive  her  equity  to  a  settlement ;  for,  unlike  her 
right  of  survivorship,  it  is  the  mere  creature  of  equity.  But  her 
consent  must  be  formally  taken  under  the  direction  of  the  court, 
and  apart  from  her  husiband.^'  The  court  will  not  receive  the 
wife's  consent  until  her  share  is  ascertained,^^  and  an  order  made 
with  the  wife's  consent  may  afterwards  be  set  aside  if  prejudicial 
to  her  interests.^*  If  a  wife  who  has  funds  in  chancery  be  not  of 
full  age,  she  is  incapable  of  giving  consent  to  its  disposition ;  and 
hence  her  waiver  during  minority  will  not  be  permitted,  but  the 
court  will  protect  her  interests  as  justice  may  require. 


35 


§  180.  Effect  of  Fraud  of  Wife. 

A  married  woman  may  also  be  precluded  by  her  own  fraud  from 
claiming  her  equity  against  purchasers.  Thus,  where  a  married 
woman  wrote  out  an  assignment  of  her  reversionary  interest  in  a 
trust  fund,  dating  it  before  marriage  and  signing  it  in  her  maiden 
name,  in  order  to  enable  her  husband  to  borrow  money  upon  it,  and 
afterwards  gave  to  the  purchasers  a  letter  to  one  of  the  trustees  of 
the  fund,  stating  that  she  had  before  her  marriage  assigned  her 
interest  in  the  same  to  her  husband, —  it  was  held,  notwithstanding 
some  evidence  of  coercion  in  the  first  instance,  that  she  was  debarred 
from  claiming  a  settlement.^* 

§  181.  As  to  Property  in  Hands  of  Third  Persons. 

The  wife's  equity  does  not  attach  to  her  property  while  in  the 
hands  of  third  persons.     They  may,  if  they  choose,  defeat  it  by 


31.  Note  to  2  Kent,  Com.,  143.  See 
Marriage  Settlements,  post,  §  490  et 
seq. 

32.  1  Dan.  Ch,  Pract.  95;  Set.  on 
Decrees,  255,  256;  Macq.,  Hus.  & 
"Wife,  75;  Coppedge  v,  Threadgill,  3 
Sneed  (Tenn.),  577;  Ward  v.  Amory, 
1  Curt.  (U.  S.)  419.  See  Campbell  v. 
French,  2  Ves.  321;  May  v.  Eopcr,  4 
Sim.  3G0.  Waiver  by  wife  may  be 
established  by  acts  and  conduct.  Ex 
parte  Geddes,  4  Eich.  Eq.  (S.  C.)  301; 
Clark  V.  Smith,  13  S.  C.  585. 


33.  Jernegan  v.  Baxter,  6  Madd.  33 ; 
Peachey,  Mar.  Settl.,  181. 

34.  Watson  v.  Marshall,  19  E.  L.  & 
Eq.  569;  17  Jur.  651,  See  Tobin  v. 
Dixon,  2  Met.    (Ky.)    422. 

35.  Abraham  v,  Newcome,  12  Sim. 
566;  Phillips  v.  Hassel,  10  Humph. 
(Tenn.)  197;  Cheatham  v.  Huff,  2 
Tenn.  Ch.  616;  Shipway  v.  Ball,  L.  E. 
16  Ch.  D.  376. 

36.  In  re  Lush 's  Trusts,  L.  E.  4  Ch. 
591.  And  see  Sharpe  v.  Foy,  L.  E.  4 
Ch.  35. 


199  wife's  person al  pkoperty.  §  181 

placing  the  fund  directly  in  the  husband's  hands  without  the  inter- 
vention of  a  suit.  Thus,  where  an  executor  pays  over  a  legacy 
accruing  to  the  wife,  taking  a  proper  receipt  from  the  husband, 
a  court  of  equity  will  not  call  it  back  from  the  husband  to  enable 
a  settlement  to  be  enforced,^^  but  it  is  otherwise  if  the  executor 
pays  the  legacy  over  after  proceedings  are  commenced.  For  as 
soon  as  the  bill  is  filed  the  court  becomes  the  trustee  of  the  fund.'* 

As  to  assignees  and  legal  representatives  of  the  husband,  the 
rule  is  the  same.  Their  application  to  the  court  is  treated  as  the 
husband's  would  have  been ;  especially  if  the  assignment  in  ques- 
tion has  not  effected  a  complete  reduction  so  as  to  bar  the  wife's 
survivorship ;  a  topic  which  has  already  been  sufficiently  dis- 
cussed.'^ The  court  disregards  the  party  who  asks  equity,  and 
fastens  the  obligation  upon  the  property  itself.*" 

But  the  wife's  right  of  equity  to  a  settlement  is  something  dis- 
tinct from  her  right  of  survivorship;  that  is,  her  right  upon  her 
husband's  death  to  property  not  reduced  by  him.*^  And  even  if 
the  husband  has  assigned  the  fund,  tte  court  will  protect  such 
equity  upon  due  application.*"  The  husband's  assignee  for  valu- 
able consideration  takes  subject  to  the  wife's  equity,  although  her 
survivorship  may  have  been  barred  by  the  assignment.*'  She  may 
ask  for  such  settlement  out  of  her  choses  which  the  husband's 

37.  Glaister  v.  Hewer,  8  Ves.  205;  v,  Jackson,  and  other  cases,  supra; 
Murray  v.  EUibank,  10  Ves.  9*0;  Bell,  Carter  v.  Carter,  4  S.  &  M.  (Miss.) 
Hus.  &  Wife,  115 ;  Pool  v.  Morris,  29       69, 

Ga.  374.    It  has  been  held  in  Missouri  40.  Agnilar  v.  Aguilar,  5  Mad.  414; 

that  where  her  choses  have  been  fully  Taunton  v.  Morris,  L.  R.  11  Ch.  779; 

vested  in  the  husband,  a  court  cannot  Osborne  v.  Edwards,  3  Stockt.  (N.  J.) 

devest  them  to  make  a  settlement  for  73.     See  2  Story,  Eq.  Juris.,  §  1414; 

her.     Hart  v.  Lette,  104  Mo.  315,  15  Wiles   v.    Wiles,    3    Md.    1;    Guild   v. 

S.  W.  976.  Guild,  16  Ala.  121. 

38.  Murray  v.  Elibank,  10  Ves.  90;  41.  Norris  v.  Lantz,  18  Md.  260; 
Delagarde  v.  Lempriere,  6  Beav.  347 ;  Hall  v.  Hall,  4  Md.  Ch.  283. 

Wiles  v.  Wiles,  3  Md.  1 ;  Crook  v.  Tur-  42.  Osborne  v.  Edwards,  3  Stockt. 

pin,  10  B.  Mon.   (Ky.)   243.     But  see  (X.  J.)  73. 

Dearin  v.  Fitzpatrick,  Meigs.  551.  43.    Moore   v.    Moore,   14   B.   Mon. 

39.  Oswell  v.  Probert,  2  Ves.  Jr.  (Ky.)  259;  2  Story,  Eq.  Juris.,  § 
679;  Jacobson  v.  Williams,  1  P.  Wms.  1412,  and  cases  cited.  In  McCalcb  v. 
382;  Jewson  v.  Moulson,  2  Atk.  417;  Crichfield,  5  Heisk.  (Tenn.)  288,  the 
Earl  of  Salisbury  v.  Newton,  1  Eden,  assignee  was  held  entitled  to  the  resi- 
370;  Bosvil  v.  Brander,  1  P.  Wms.  duary  interest  under  a  will  a^ssigned 
458;  Kenney  v.  Udall,  5  Johns.  Ch.  by  husband  and  wife  jointly,  no  pro- 
(jST.  Y.)  464;  McCaleb  v.  Crichfield,  5  cecdings  having  been  set  on  foot  by 
Heisk.  (Tenn.)  288;  2  Bright,  Hus.  &  the  latter  during  her  life  to  avoid  t"Re 
Wife,  236.     See  discussion  of  Purdew  assignment  or  enforce  her  equity. 


§    183  HUSBAJN'D    AND    WIFE.  200 

assignee  in  insolvency  has  reduced  to  possession,  if  she  acts  before 
the  estate  is  distributed.**  But  the  wife's  antenuptial  debts  must 
first  be  provided  for,*^  An  equity  may  be  allowed  the  wife  out  of 
land  in  controversy  purchased  by  an  insolvent  husband  with  her 
personalty  not  reduced  to  possession  by  him,  where  a  creditor  seeks 
to  compel  a  conveyance  to  himself  of  the  land.^ 


46 


§  182.  As  to  Vested  Estate. 

As  to  all  ves'ted  interests,  whether  acquired  by  gift,  devise,  or 
inheritance,  before  or  during  coverture,  the  rule  of  equity  is  that 
the  property  is  subject  to  the  settlement  of  a  suitable  provision  for 
her  support,  unless  expressly  waived  by  her,  or  forfeited  through 
her  misconduct;  and  this  settlement  will  be  protected  equally 
against  the  husband,  his  creditors  or  his  assignees,  with  or  without 
value,  so  far  as  chancery  can  properly  exercise  jurisdiction  in  the 
premises.*' 

§  183.  As  to  Life  Estates  and  Reversions. 

A  distinction  seems  to  have  been  made,  however,  in  the  English 
chancery  courts,  between  cases  in  which  the  wife  takes  an  absolute 
interest,  and  those  in  which  she  takes  a  life  interest  only.  In  cases 
where  the  wife  takes  an  absolute  interest  the  provision  is  for  her 
and  her  children.  But  where  her  interest  is  only  for  life  the 
provision  is  for  her  separate  benefit  alone ;  and  it  is  impossible  in 
such  cases  to  make  any  provision  for  children ;  the  question  conse- 
quently is  one  between  the  husband  and  wife  simply.  So,  too, 
where  the  wife's  interest  is  absolute,  her  right  to  a  provision  for 
herself  and  children  is  independent  of  the  conduct  of  her  husband  ,• 
but  where  she  takes  a  mere  life  interest,  her  right  arises  from  the 
non-fulfilment  of  his  obligations.  Finally,  where  the  wife  has  an 
absolute  interest,  the  purchaser  takes  subject  to  a  settled  equity; 
but  where  the  wife  takes  for  life  only,  such  equity  may  not  exist.** 
This  reasoning,  however,  which  is  somewhat  artificial,  does  not 
commend  itself  to  the  latest  authorities ;   for  it  is  recently  held  in 

44.  Davis    v.     Newton,     6     Mete.       (Va.)    363 ;  Barron  v.  Barron,  24  Vt. 
(Mass.)    537;    Hinckley   v.   Phelps,   2       375. 

Allen  (Mass.),  77;  Gardner  v.  Hoop-  48.  Tidd.  v.  Lister,  on  Appeal,  3  De 

cr,   3    Gray    (Mass.),   398;    James  v.  G.,  M.  &  G.  857;  s.  c.  10  Hare,  152; 

Gibbs,  1  Pat.  &  H.    (Va.)   277.  Peachey,   Mar.   Settl.,   162-164;    cases 

45.  Barnard  v.  Ford,  L.  E.  4  Ch.  of  Stanton  v.  Hall,  2  Russ.  &  M.  175, 
247.  and  other  cases,  commented  upon  in 

46.  Sims  V.  Spalding:,  2  Duv.  121.  Tidd  v.  Lister,  ib. 

47.  Poindexter  v.  Jeffries,  15  Grat. 


201  WIFE^S  PERSONAL  PKOPEKTY.  §  184 

the  English  Chancery  that  the  wife  is  entitled  to  her  equity  to  a 
settlement  out  of  property  in  which  she  has  only  a  life  interest,  as 
out  of  property  to  which  she  has  an  absolute  interest,  and  that  no 
distinction  between  the  two  cases  is  tenable/'' 

Wliere  the  fund  is  payable  in  terms  for  the  benefit  of  husband 
and  wife  during  their  joint  lives,  it  is  inconsistent  with  such  a  trust 
to  allow  the  wife  an  equity  therein.^" 

The  wife's  equity  to  a  settlement  does  not  extend  to  a  reversion- 
ary interest.  The  settlement  of  such  a  fund  cannot  be  asked  for 
until  it  falls  into  possession ;  that  is,  until  the  husband  has  a  right, 
subject  to  the  wife's  equity,  to  receive  it.°^  Where  part  of  a  rever- 
sionary fund  falls  into  possession,  the  wife's  equity  may  be  settled 
upon  her  from  such  part,  with  liberty  to  apply  upon  the  remaining 
portion  of  the  fund  falling  into  possession.®^ 

§  184.  As  to  Property  in  Litigation. 

Where  the  interest  claimed  by  the  husband  in  right  of  his  wife 
is  merely  equitable,  or  where,  though  in  its  nature  legal,  it  becomes 
from  collateral  circumstances  the  subject  of  a  suit  in  equity,  the 
wife  has  a  right  to  a  provision  out  of  the  fund.  As  where,  for 
example,  it  is  vested  in  trustees  who  have  the  legal  estate,  the  wife, 
or  rather  the  husband  in  her  right,  having  only  the  equitable  or 
beneficial  interest.®^  But  the  wife's  equity  attaches  only  to  such 
property  as  her  husband  was  entitled  to  receive  in  his  marital 
right.^*  The  smallness  of  a  fund  is  no  bar  to  a  settlement.^®  Xor 
matters  it  that  a  fund  is  not  actually  distributable;  for  a  wife  may 
proceed  for  her  equity  pending  administration;  and  the  more  so 
if  reasons  press,  such  as  her  delicate  health  and  her  husband's 
insolvency.®' 

Equity  courts  will  generally  preserve  the  wife's  portion  from  the 

49.  Taunton  v.  Morris,  L.  E.  8  Ch.  54.  Knight  v.  Knight,  L.  E.  18  Eq. 
D.  453,  and  cases  cited;  L,  E.  11  Ch.  487.  Here  an  executor,  who  was  hus- 
D.  779.  band  of  a  legatee,  was  indebted  to  the 

50.  Ward  v.  Ward,  L.  E.  14  Ch.  D.  testator,  and  was  unable  to  discharge 
506.  his  indebtedness;  and  it  was  held  that 

51.  Osborn  v.  Morgan,  8  E.  L.  &  Eq.  the  wife  had  no  equity. 

192;  9  Hare,  432.  55.  In  re  Kincaid's  Trusts,  17  E.  L. 

52.  Marshall  v.  Fowler,  15  E.  L.  &  &  Eq.  396.  A  strong  instance  of  the 
Eq.  430.  liberality  of  the  court  of  equity  is  af- 

53.  Macq.,  Hus.  &  Wife,  69;  Ex  forded  in  Scott  v.  Spashett,  16  Jur. 
parte  Blagden,  2  Eose,  251;  Oswell  v.      157,  9  E.  L.  &  Eq.  265. 

Probert,   2    Ves.   Jr.   680;    Sturgis   v.  56.  Eobinson  v.  Eobinson,  L.  E.  12 

Champneys,  5  M.  &  C.  103.  Ch.  H.  D.  188. 


§  185  HUSBAND  AND  WIFE.  202 

capital  of  the  fund  which  is  made  the  subject  of  equity  proceedings, 
and  the  husband  will  be  allowed  to  appropriate  the  income  of  the 
fund  without  hindrance."  But  a  liberal  discretion  is  exercised  by 
the  court,  according  to  the  circumstances ;  even,  it  may  be,  to  the 
disadvantage  of  the  husband's  creditors.^* 

§  185.  Amount  of  Settlement. 

There  is  no  definite  rule  fixed  as  to  the  proportion  which  the 
wife  should  receive  for  her  equity,  but  such  settlement  should  be 
reasonable  and  equitable  in  amount,  either  the  whole  or  part  of 
the  property,  in  the  discretion  of  the  court^^  Where  a  husband 
lives  with  and  supports  his  wife,  her  settlement  may  be  made  to 
take  effect  at  his  death  or  when  he  ceases  to  support  her,  but  where 
he  is  insolvent  or  unable  to  furnish  support,  it  may  be  made  to  take 
effect  at  once.^" 

Such  awards  regard  both  wife  and  children.  The  amount  is 
regulated  at  discretion  and  will  depend  upon  a  variety  of  circum- 
stances, such  as  the  extent  of  the  fund,  the  husband's  income  from 
other  sources,  the  funds  he  may  have  already  received  through  his 
wife,  the  extent  of  former  settlements,  the  size  of  his  dependent 
family,  and  the  marital  conduct  of  both  parti es.^^  Where  the 
husband  is  shown  to  be  cruel,  dissolute,  or  improvident,  or  where 
he  has  abandoned  his  family  and  neglected  to  provide  for  their 
support,  a  court  of  chancery  will  not  hesitate  to  set  apart  at  least 
the  greater  part  of  the  fund  for  the  benefit  of  the  wife  and  chil- 
dren.®^ So,  if  he  be  insolvent,  tbe  wife  is  favored,  to  the  exclusion, 
if  necessary,  of  his  creditors.  In  one  case  it  was  observed  by 
Alderson,  B.,  that  the  wife  and  children  ought  to  have  the  whole 
fund  as  against  the  husband's  assignee  in  insolvency,  and  he  said 
that  if  he  was  bonnd  by  the  practice  of  the  court  to  take  out  any 
part  of  it,  he  would  take  out  one  shilling.®^    In  later  instances  the 

57.  Bond  v.  Simmons,  3  Atk.  20;  El-  11  Jur.  447;  Gardner  v.  Marshall,  14 
liott  V.  Cordell,  5  Madd.  136;  Vaughan  Sim.  575;  Green  v.  Otte,  per  Sir  J. 
V.  Buck,  13  Sim.  404.  Leach,  1  S.  &  S.  254 ;  Farrar  v.  Bes- 

58.  Seigel  v.  Quigley,  119  Mo.  76,  scy,  24  Vt.  89;  Bagshaw  v.  Winter,  11 
24  S.  W.  742;  Montefiore  v.  Behrens,  E.  L.  &  Eq.  272;  Cutler's  Trust,  6  E. 
Ii,  E.  1  Eq.  171.  L.  &  Eq.  97;  MeVey  v.  Boggs,  3  Md. 

59.  Poindexter  v.  Jeffries,  15  Gratt.  Ch.  94;  Beeman  v.  Cowser,  22  Ark. 
(Va.)   363.  429. 

60.  Poindexter  v.  Jeffries,  15  Grat.  62.  Coster  v.  Coster,  9  Sim.  597. 
(Va.)  363.  63.  Brett  v.  Greenwell,  3   Y.  &  C. 

61.  2  Bright,  Hus.  &  Wife,  240,  241,  Eq.  Ex.  230.  But  see  Pugh,  Ex  parte, 
and  cases  ctied;   Freeman  v.  Fairlee,  12  E.  L.  &  Eq.  350. 


203 


WIFE  S    PERSONAL    PROf-ERTY. 


§  ISO 


whole  of  a  small  fund  has  been  set  apart  for  wife  and  children 
where  the  husband  was  insolvent  or  guilty  of  gross  misconduct. 


64 


64.  Most  frequently  one  half  has 
been  allowed  the  wife  as  her  equity 
under  ordinary  circumstances.  2 
Bright,  Hub.  &  Wife,  241,  and  cases 
cited;  Peachey,  Mar.  Settl.,  176,  177. 
Where  the  wife  has  been  allowed  a  di- 
vorce for  adultery,  the  whole  fund 
was  settled  upon  her,  the  court  justly 
observing  that  if  adultery  of  the  wife 
barred  her  from  receiving,  adultery  of 
the  husband  ought  to  bar  him  equally. 
Burrows  v.  Burrows,  12  E.  L.  &  Eq. 
268.  See  rule  as  stated  ijP-Ee  Suggitt's 
Trusts,  L.  E.  3  Ch.  215;  White  v. 
Gouldin,    27    Gratt.    (Va.)    491.     In 


Spirett  V.  Willows,  L.  R.  1  Ch.  520,  L. 
R.  4  Ch.  407,  three  fourths  of  th» 
fund  were  settled  on  wife  and  chil- 
dren, the  husband  being  a  bankrupt. 
See  form  of  settlement  there  i)re- 
scribed.  The  whole  fund  was  settled 
on  the  wife  and  children  in  White  v. 
Cordwell,  L.  E.  20  Eq.  644,  the  hus- 
band being  insolvent  and  destitute. 
And  see  Taunton  v.  Morris,  L.  R.  8 
Ch.  D.  453;  L.  E.  11  Ch.  D.  779, 
where  it  is  held  that  as  between  life 
estate  and  absolute  interest  there 
ought  to  be  no  distinction  concerning 
the  amount  of  property  to  be  settled. 


§186  HUSBAND    AND    WIFE.  204: 


CHAPTEE  XI. 

EFFECT  OF  COVERTUKE   UPON   WIFe's   CHATTELS 
EEAL  AND  REAL,  ESTATE. 

Section  186.  Wife's  Chattels  Eeal;  In  General. 

187.  Nature  of  Husband's  Interest. 

188.  Husband's  Eight  to  Alienate. 

189.  What  will  bar  Wife 's  Eights. 

190.  Effect  of  Deed  to  Wife. 

191.  Husband's  Eight  in  Eeal  Estate  of  Wife;  General  Eule  Stated. 
19^.  What  Law  Governs. 

193.  As  to  Estate  in  Expectancy. 

194.  As  to  Life  Estates  and  Joint  Tenancies. 

195.  As  to  Property  in  Possession  of  Third  Person. 

196.  Eights  of  Husband 's  Creditors. 

197.  Husband's  Power  to  Alienate  Fee. 

198.  Husband's  Power  to  Mortgage  Fee. 
199'.  Husband's  Power  to  Lease  Fee. 

200.  Effect  of  Husband's  Contract  to  Convey  Fee. 

201.  Husband's  Eight  to  Dissent  from  Purchase,  Gift  or  Devise  to 

Wife. 

202.  Effect  of  Conversion. 

203.  Effect  of  Alienage  or  Attainder  of  Husband,  and  Statute  of 

Limitation. 

204.  Effect  of  Divorce. 

205.  Hus"band's  Liability  for  Waste. 

206.  Effect  of  Statute. 

207.  Effect  of  Adverse  Possession;  Generally. 

208.  By  Husband. 

209.  Effect  of  Wife 's  Agreement  to  Convey  or  Purchase. 

210.  Effect  of  Wife's  Power  of  Attorney  to  Convey. 

211.  Form  of  Eequisites  of  Wife's  Conveyance  in  General. 

212.  Joinder  of  Husband. 

213.  Acknowledgment. 

214.  Privy  Examination  of  Wife. 

215.  Effect  of  Abandonment. 

216.  Effect  of  English  Statute. 

217.  Validity  of  Wife's  Mortgage. 

218.  Wife's  Liability  on  Covenants. 

219.  Effect  of  Fraud  or  Duress. 

220.  Effect  of  Estoppel. 

221.  Avoidance. 

222.  Actions. 

§  186.  Wife's  Chattels  Real;   In  General. 

Chattels  real,  such  as  leases  and  terms  for  years,  have  many  of 
the  incidents  of  personal  property.  But  as  between  husband  and 
wife  they  differ  from  personal  chattels.     The  title  acquired  therein 


205  wife's  real  estate.  §  187 

by  the  husband  is  of  a  somewliat  anomalous  nature;  for  upon  them 
marriage  operates  an  executory  gift,  as  it  were,  the  husband's  title 
being  imperfect  unless  he  does  some  act  to  appropriate  them  before 
the  wife's  death.  He  may  sell,  assign,  mortgage,  or  otherwise 
dispose  of  his  wife's  chattels  real  without  her  consent  or  concur- 
rence,^^ excepting  always  such  property  as  she  may  hold  by  way  of 
settlement  or  otherwise  as  her  separate  estate.^°  Chattels  real, 
unappropriated  during  coverture,  vest  in  the  wife  absolutely,  if 
she  be  the  survivor.  In  all  these  respects  they  resemble  clioses  in 
action.  But  if  the  husband  be  the  survivor,  such  chattels  will 
belong  to  him  jure  mariti,  and  not  as  representing  his  wife.  And 
in  this  respect  they  resemble  cJioses  in  possession. 

As  to  the  wife's  chattels  real,  therefore,  husband  and  wife  are 
in  possession  during  coverture  by  a  kind  of  joint  tenancy,  with  the 
right  of  sui*vivorship  each  to  the  other;  not,  however,  like  joint 
tenants  in  general,  but  rather  under  the  title  of  husband  and  wife ; 
since  husband  and  wife  are,  in  contemplation  of  law,  but  one 
person,  and  incapable  of  holding  either  as  joint  tenants  or  tenants 
in  common.*^ 

§  187.  Nature  of  Husband's  Interest. 

They  may  also  be  bequeathed  by  the  husband  by  will  executed 
during  marriage,  or  by  other  instrument  to  take  effect  after  his 
death;  with,  however,  this  result:  that  if  the  wife  dies  first  the 
bequest  will  be  effectual,  not  having  been  subsequently  revoked  by 
the  husband ;  while,  if  the  husband  dies  first,  the  wife  will  take 
the  chattel  in  her  own  right,  unaffected  by  any  will  which  he  may 
have  made,  or  by  any  charge  he  may  have  created.®* 

It  would  appear  that  any  assignment  of  a  chattel  real  by  the 
husband  will  completely  appropriate  it,  even  though  made  without 
consideration.^®  And  if  a  single  woman  has  a  decree  to  hold  and 
enjoy  lands  until  a  debt  due  her  has  been  paid, —  known  at  the  old 
law  as  an  estate  by  elegit, —  and  she  afterwards  mames,  her  hus- 
band may  make  a  voluntary  assignment  so  as  to  bind  her.''"     The 

65.  Co.  Litt.  46c;  2  Kent.  Com.  134;  Butler's  note  304  to  Co.  Litt.  lib.  3; 
Sir   Edward   Turner's   Case,    i   Vern,       351a. 

7;    Whitmarsh   v.   Eobertson,   1    Coll.  68.  Co.  Litt.  351a,  466;   Roberts  v. 

New  Cases,  570.    As  to  what  are  chat-  Polfn'ean,  1  H.  Bl.  535. 

tels  real,  see  1  Schouler  Pers.  Prop.  29,  69.  Cateret  v.  Paschall,  3  P.  Wms. 

45-73.  200.     But  see  note  to  1  P.  Wms.  3S0. 

66.  Tullett  V.  Armstrong,  4  M.  &  C.  70.  Merriweathor  v.  Brookor,  5  Litt. 
395;  Draper's  Case,  2  Freem.  29;  Bui-  256;  Paschall  v.  Thurston,  2  Bro.  P. 
lock  V.  Knight,  Ch.  Ca.  266.  C.  10. 

67.  2  Kent  Com.  135;  Co.  Litt.  351b; 


§  187  *    HUSBAND  AND  WIFE.  206 

right  of  appropriating  the  wife's  chattels  real  is,  therefore,  to  be 
distinguished  from  the  right  of  reducing  things  in  action  into 
possession.  The  husband's  interest  in  his  wife's  chattels  real  maj 
be  called  an  interest  in  his  wife's  right,  with  a  power  of  alienation 
during  coverture ;  and  an  interest  in  possession,  since  such  chattels 
are  already  in  possession,  but  lying  in  action.'^^ 

As  the  husband  is  entitled  to  administer  in  his  wife's  right  when 
she  is  executrix  or  administratrix,  he  may  release  or  assign  terms 
for  years  or  other  chattels  real  vested  in  her  as  such."  But  if  he 
be  entitled  to  a  term  of  years  in  his  wife's  right  as  executrix  or 
administratrix,  and  have  the  reversion  in  fee  in  himself,  the  term 
will  not  be  merged;  for,  to  constitute  a  merger,  both  the  term  and 
the  freehold  should  vest  in  a  person  in  one  and  the  same  right.'^^ 

An  exception  to  the  husband's  right  by  survivorship  to  his  wife's 
chattels  real  occurs  in  case  of  joint  tenancy.  If  a  single  woman  be 
joint  tenant  with  another,  then  marries  and  dies,  the  other  joint 
tenant  takes  to  the  exclusion  of  her  husband  surviving  her ;  for  the 
husband's  title  is  the  newer  and  inferior  one.'* 

Where,  during  coverture,  a  lease  for  years  is  granted  to  the  wife, 
adverse  possession,  which  commences  during  coverture,  may  be 
treated  as  adverse  either  to  the  wife  or  to  the  husband.'^^ 

When  the  husband  succeeds  to  his  wife's  chattel  real  upon  sur- 
viving her,  or  appropriates  it  during  coverture,  he  takes  it  subject 
to  all  the  equities  which  would  have  attached  against  her.  In  other 
words,  being  not  a  purchaser  for  a  valuable  consideration,  he  can 
claim  no  greater  interest  than  she  had.  Thus,  where  the  wife's 
chattel  interest  is  subject  to  the  payment  of  an  annuity,  the  hus- 
band must  continue  to  make  payment  so  long  as  the  incumbrance 
lasts.  And  though  he  may  not  in  all  cases  be  bound  on  her  cov- 
enant to  make  new  leases,  yet  if  he  does  so  the  equity  of  the 
annuity  will  attach  upon  them  successively.'* 

The  wife's  chattels  real  may  be  taken  on  execution  for  the  debts 
of  the  husband  while  coverture  lasts,  by  which  means  the  title 
becomes  transferred  by  operation  of  law  to  the  creditor,  and  the 
wife's  right,  even  though  she  should  survive  her  husband,  is  gone." 

71.  Mitford  v.  Mitford,  9  Ves.  98.  76.  Moody  v.  Matthews,  7  Ves.  183; 

72.  Arnold    v.    Bidwood,   Cro.    Jac.  Eowe  v.  Chichester,  Amb.  719.    On  the 
318;  Thrustout  v.  Coppin,  W.  Bl.  801.  question  of  contribution  by  annuitants, 

73.  Co.  Litt.  338b;  1  Bright,  Hus.  &  see   Winslowe  v.   Tighe,  2   Ball  &  B. 
Wife,  97,  and  cases  cited.  204;  Hubbs  v.  Bath,  2  ib.  553. 

74.  Co.  Litt.  isr,b.  77.  2    Kent    Com.    134;     Miller    v. 

75.  Doe  V.   Wilkins,    5  Nev.   &   M.  Williams,  1  P.  Wms.  258. 
435. 


207  wife's  real  estate.  §  189 

§  188.  Husband's  Right  to  Alienate. 

The  law  enables  the  husband  during  coverture  to  defeat  his 
wife's  interest  by  survivorship  by  an  absolute  alienation  or  dis- 
position of  the  whole  term,  either  with  or  without  consideration.'* 
And  the  same  rule  applies  to  the  wife's  trust  terms  as  to  her  legal 
terms.^^  In  order  to  make  it  effectual,  the  right  of  the  party  in 
whose  favor  the  disposition  is  made  must  commence  in  interest 
during  the  life  of  the  husband ;  but  it  is  not  necessary  that  it 
should  commence  in  possession  during  that  period.  Thus  the 
husband,  though  he  cannot  bequeath  these  chattels  by  will,  as 
against  the  wife's  right  by  survivorship,  may  grant  an  underlease 
for  a  term  not  to  commence  until  after  his  death ;  and  this  act  will 
divest  the  right  of  the  wife  under  the  original  lease  so  far  as  the 
underlease  is  prejudicial  to  such  right.^°  jSTor  need  his  disposition 
cover  the  whole  chattel,  since  the  disposition  necessarily  operates 
pro  tanto.^^  iSTor  need  it  be  absolute,  since  a  conditional  disposi- 
tion is  good  if  the  condition  subsequently  takes  effect.*^  And  the 
law  enables  the  husband  to  dispose  not  only  of  the  wife's  interest 
in  possession,  but  also  of  her  possibility  or  contingent  interest  in 
a  term,  unless  where  the  contingency  is  of  such  a  nature  that  it 
cannot  happen  during  his  life.*^ 

A  distinction  is,  however,  made  between  cases  where  the  dis- 
position is  intended  of  the  whole  or  of  part  of  the  property,  and 
where  it  is  intended  as  a  collateral  grant  of  something  out  of  it. 
In  the  latter  case  the  transaction  will  not  bind  the  wife;  for  if  she 
survive  her  husband,  her  right  being  paramount,  and  her  interest 
in  the  chattel  not  having  been  displaced,  she  will  be  entitled  to  it 
absolutely  free  from  such  incumbrance. 


84 


§  189.  What  will  bar  Wife's  Rights. 

The  husband  may  by  other  acts  than  express  alienation  divest  his 
wife's  title,  and  defeat  her  rights  by  survivorship  in  her  chattels 
real.     Thus,  if  the  husband,  holding  a  term  in  right  of  his  wife, 

78.  1  Bright,  Hus.  &  "Wife,  98  ;  Grute  ris's  Case,  ib.  276;   Riley  v.  Riley,  4 
V.  Locroft,  Cro.  Eliz.  287;  Jackson  v.  C.  E.  Green   (N.  J.)   22fr. 
MeConnell,  19  Wend.  (N.  Y.)  175.  82.  Co.  Litt,  46b.     But  see  4  Vin. 

79.  Tudor  v.  Samyne,  2   Yern.  270  Abr.  50,  pi.  14. 

(incorrectly    reported,     according    to  83.  Doe  d.  Shaw  v.  Steward,  1  Ad. 

note,  1  Bright,  Hus.  &  Wife,  99)  ;  Sir  &  El.  300;  1  Bright,  Hus.  &  Wife,  100. 

Edward  Turner's  Case,  1  Ch.  Ca.  307;  And  see  Donne  v.  Hart,  2  Buss.  &  My. 

Packer  v.  Windham,  Free,  in  Ch.  412.  3G0. 

80.  Grute  V.  Locroft,  Cro.  Eliz.  287;  84.  Co.  Litt.   lS4b;    1  Bright,  Hus. 
Bell,  Hus.  &  Wife,  104,  105.  &  Wife,  103. 

81.  Sym's  Case,  Cro.  Eliz.  33;  Loft- 


§    189  HUSBAISTD    AND    WIFE.  208 

grant  a  lease  of  the  lands  covered  by  the  term,  for  the  lives  of 
himself  and  his  wife,  the  wife's  term  will  thereby  merge,  and  her 
right  in  it  be  defeated.®^  Or  if,  while  in  possession,  under  a  lease 
to  himself  and  the  wife,  the  husband  should  accept  from  the  lessor 
a  feoffment  of  the  lands  leased,  the  term  would  be  extinguished 
and  the  wife's  right  along  with  it;  for  the  livery  would  amount 
to  a  surrender  of  the  term.®^ 

On  the  other  hand,  there  are  acts  by  the  hus>band,  which, 
although  they  amount  to  the  exercise  of  an  act  of  ownership,  yet, 
as  they  do  not  pass  the  title,  will  not  defeat  the  wife's  right  by 
survivorship.  An  instance  of  the  latter  is  that  of  the  husband's 
mortgage  of  his  wife's  chattels  real ;  or,  what  is  the  same  thing  in 
equity,  a  covenant  to  mortgage.  This  is  in  reality  a  disposition 
as  security,  and  until  breach  of  condition  the  mortgagee  has  no 
further  title.  But,  in  order  to  protect  the  mortgagee's  rights, 
equity  treats  the  mortgage  or  covenant  as  good  against  the  wife  to 
the  extent  of  the  money  borrowed;  that  once  paid,  the  chattels 
will  continue  hers.*^  After  breach  of  condition,  the  mortgagee's 
estate  becomes  absolute;  or,  at  least,  he  can  make  it  so  by  fore- 
closure; and  the  alienation  of  the  term  being  then  completed  at 
law,  the  wife's  legal  right  by  survivorship  is  defeated;  subject, 
however,  to  the  equity  of  redemption,  where  the  husband  has  not 
otherwise  disposed  of  that  likewise.^®  So,  too,  transactions,  not 
constituting  mortgages  in  the  ordinary  sense  of  the  term,  may  yet 
be  so  construed  in  equity  where  such  was  their  substantial  purport. 
And  while  the  intention  of  the  husband  to  work  a  more  complete 
appropriation  will  be  justly  regarded  by  the  court,  the  mere  cir- 
cumstance of  a  proviso  in  the  conveyance  for  redemption,  pointing 
to  a  mode  of  reconveyance  not  in  conformity  with  the  original  title, 
will  not,  it  seems,  debar  the  wife  from  asserting  her  rights  by 
survivorship.*® 

As  to  the  wife's  equity  for  a  settlement,  however,  it  is  held  that 
where  a  husband  mortgages  the  legal  interest  in  a  term  of  years 
belonging  to  him  in  right  of  his  wife,  no  such  equity  arises  on  a 

85.  2  Roll.  Abr.  495,  pi.  50.  88.  See  Pitt.  v.  Pitt,  T.  &  R.  180; 

86.  DowTiing  v.  Seymour,  Cro.  Eliz.       1  Prest.  on  Estates,  345. 

912.     And  see  Lawes  v.  Lumpkin,  18  89.  Clark  v.  Burgh,  9  Jur.  679.   And 

Md.  334.  see    In  re  Betton  's  Trust  Estates,  L. 

87.  Bates   v.    Dandy,    2    Atk.    207;  R.  12  Eq.  553;  Pigott  v.  Pigott,  L.  R. 
Bell,  Hus.  &  Wife,  107 ;   1  Bright,  Hus.  4  Eq.  549. 

&  Wife,  106. 


209  wife's  real  estate.  §  190 

claim  to  foreclose  this  mortgage  against  the  husband  and  wife  as 
defendants.®" 

Among  the  miscellaneous  acts  of  the  husband,  which  will  defeat 
the  wife's  survivorship  to  her  chattels  real,  are  the  following:  A 
disseverance  of  his  wife's  joint  tenancy  during  coverture.^^  An 
award  of  the  term  to  the  husband,  if  carried  into  effect.*^  The 
husband's  criminal  acts;  such  as  attainder.®^  So,  too,  his  alien- 
age.®* Lord  Coke  considered  that  ejectment  recovered  by  the  hus- 
band in  his  own  name  would  work  appropriation;  but  he  was 
probably  in  error.®^  Waste  operates  as  a  forfeiture  of  a  term.®* 
And  finally,  the  husband's  creditors  may  sell  the  wife's  chattels  real 
on  execution,  and  by  their  own  act  determine  her  interest  alto- 
gether.®^ But  it  is  held  that  the  wife's  survivorship  is  not  defeated 
by  such  acts  of  her  husband  as  erecting  buildings  on  the  leasehold 
premises ;  and  making  a  mortgage,  sale,  or  lease  of  part  bars  the 
wife  only  so  far.®* 

§  190.  Effect  of  Deed  to  Wife. 

Independently  of  statute,  a  wife  may  take  by  gift,  grant  or 
devise,®®  or  by  descent.^  In  Xew  Hampshire  it  is  held  that  a  deed 
to  a  feme  covert,  made  with  her  own  and  her  husband's  assent,  vests 
the  title  legally  in  her.^  In  Pennsylvania,  if  land  conveyed  to  her 
be  incumbered,  it  passes  to  her  subject  to  that  incumbrance.^  And 
in  Vermont  it  has  been  held  that  a  deed  of  gift  to  a  wife  during 
coverture,  if  accepted  by  her  husband,  is  accepted  by  her,  and  that 
her  refusal  apart  from  him  is  of  no  consequence.* 

And  since  in  the  tenure  of  lands  and  the  mode  of  conveyance 
the  law  in  this  country  has  always  varied  considerably  from  that 
of  England,  the  rights  of  married  women  in  other  respects  may  be 

90.  Hill  V.  Edmonds,  15  E.  L.  &  Eq.  98.  Eiley  v.  Eiley,  4  C.  E.  Green 
280.                                                                             (X.  J.)   229. 

91.  Co.  Litt.  185b;  Plow.  Com.  418.  99.  Sanguinett  v.  Webster,  127  Mo. 

92.  Oglander  v.  Baston,  1  Vern.  32,  29  S.  W.  698;  Shoptaw  v.  Kidge- 
396;  note  of  Jacob  to  1  Roper,  Hus.  &  way's  Adm'r,  22  Ky.  Law,  1495,  60 
Wife,  185,  and  cases  commented  upon.       S.  W.   723;    Brunette  v.  Norber,   130 

93.  Co.  Inst.  351a;  4  Bl.  Com.  387;       Wis.  632,  110  N,  W.  785. 

Steed  V.  Cragh,  9  Mod.  43.  1.  Glasgow  v.  Missouri  Car  &  Foun- 

94.  2  Bl.  Com.  421;  4  Bl.  Com.  387.  dry  Co.,  229  Mo.  585,  129  S.  W.  900. 

95.  See  Jacob's  note  to  1  Eoper  2.  Gordon  v.  Haywood,  2  N.  H. 
Hus.  &  Wife,  185;  Co.  Litt.  46b;  4  402.  See  Leach  v.  Noyes,  45  N.  H. 
Vin.  Abr.  50,  pi.  18.  364. 

96.  Co.  Litt.   351.  3.   Cowton   v.    Wickersham,   54   Pa. 

97.  Miles  v.   Williams,    1   P.   Wms.  302. 

258;   Co.  Litt.  351.  4.  Brackett  v.  Wait,  6  Vt.  411. 

14 


§191  HUSBAND   AND    WIFE.  210 

different.  Thus  it  would  &eem  that  the  joint  assent  of  husband 
and  wife  in  accepting  a  title  should  be  as  good  as  in  granting  one.^ 
In  Texas  a  wife  may,  with  the  consent  of  her  husband,  settle  on  and 
purchase  public  land.® 

§191.  Husband's  Right  in  Real  Estate  of  Wife;    General  Rule 
Stated. 

J^ow,  as  to  the  effect  of  coverture  on  the  wife's  real  estate.  By 
marriage,  the  husband  becomes  entitled  to  the  usufruct  of  all  real 
estate  owned  by  the  wife  at  the  time  of  her  marriage,  and  of  all 
such  as  may  come  to  her  during  coverture.  He  is  entitled  to  the 
rents  and  profits  during  coverture.  His  estate  is,  therefore,  a  free- 
hold. But  it  will  depend  upon  the  birth  of  a  child  alive  during 
coverture,  whether  his  estate  shall  last  for  a  longer  term  than  the 
joint  lives  of  himself  and  wife,  or  not ;  that  is  to  say,  whether  he 
acquires  the  right  of  curtesy  initiate,  to  be  consummated  on  the 
death  of  the  wife  leaving  him  surviving.'^  Before  issue  bom  the 
spouses  are  seized  jointly  of  a  freehold  for  life  in  her  land.^  Where 
the  husband  is  tenant  by  the  curtesy  initiate,  her  right  is  that  of 
reversioner,''  or  remainder  man.^°  After  her  death,  if  he  survived 
her,  he  takes  an  estate  for  life,  with  remainder  to  her  heirs.^^ 

In  the  event  of  birth  of  living  issue,  his  interest  lasts  for  his 
own  life,  whether  his  wife  dies  before  him  or  not.  If  there  be  no 
child  bom  alive,  his  interest  lasts  only  so  long  as  his  wife  lives. 
In  either  case,  he  has  not  an  absolute  interest,  but  only  an  estate 
for  life,  and  his  right  is  that  of  beneficial  enjoyment.  When  his 
estate  has  expired,  the  real  estate  vests  absolutely  in  the  wife  or 

5.  1  Washb.  Real  Prop.  280.  L.    R.    A.    1918C,    1009;    Bishop    v. 

6.  McClintic  v.  Midland  Grocery  &  Readsboro  Chair  Mfg.  Co.,  85  Vt.  141, 
Dry  Goods  Co.  (Tex.),  154  S,  W.  81  A.  454.  See  post,  Dissolution  by 
1157;   Barnett  v.  Murray   (Tex.),   54  Death,  as  to  Curtesy. 

S.  W.  784 ;  Lee  v.  Green,  24  Tex.  Civ.  8.  Brooks  v.  Hubble  (Va.),  27  S.  E. 

109,  58  S.  W.  847.  585. 

7.  State  ex  rel.  Armour  Packing  9.  Winestine  v.  Liglatzki-Marks  Co., 
Co.  V.  Dickmann,  146  Mo.  App.  396,  77  Conn.  404,  59  A.  496;  Hudgina  v. 
124  S.  W.  29;  Gale  v.  Oil  Run  Pe-  Chupp,  103  Ga.  484,  30  S.  E.  301; 
troleum  Co.,  6  W,  Va.  200;  Chilton  v.  De  Hatre  v.  Edmunds,  200  Mo.  246, 
Hannah,  107  Va.  661,  GO  S.  E.  87;  98  S.  W.  744;  Breeding  v.  Davis,  77 
Dotson  V.  Dotson,  172  Ky.  641,  189  Va.  639,  46  Am.  R.  740 ;  P.  Ballantine 
S.  W.  89'4;  Wiggins  v.  Johnson,  12  &  Sons  v.  Fenn,  88  Vt.  166,  9'2  A.  3. 
Ky.  Law,  276,  1  S.  W.  643;  Evans  v.  10.  Powell  v.  Bowen  (Mo.),  214 
Kunze,  128   Mo.   670,   31   S.  W.   123;  S.  W.  142. 

Otto    f.   Stifel's   Union   Brewing  Co.  11.  In  re  Riva,  83  N.  J.  Eq.  200, 

V.  Saxy,  273  Mo.  159,  201  S.  W.  67,       90  A.  669. 


211  wife's  real  estate.  §  191 

her  heirs,  and  the  husband's  relatives  have  no  further  concern 
with  it/" 

While,  therefore,  the  husband  has  the  beneficial  enjoyment  of 
his  wife's  freehold  property  during  coverture,  at  the  common  law, 
the  ownership  remains  in  the  wife.  Herein,  her  right  becomes 
suspended,  not  extinguished,  by  her  marriage.  The  inheritance 
is  in  her  and  her  heirs. 

Consequently,  the  husband  may  collect  and  dispose  of  the  rents. 

Besides  the  rents  and  profits  during  coverture,  the  husband,  if 
the  survivor,  is  entitled  to  all  arrears  accrued  up  to  the  time  of  his 
wife's  death.  Such  property  is  not  treated  like  the  wife's  choses 
in  action,  not  reduced  to  possession.  Accordingly,  he  may  main- 
tain suit  after  coverture  to  recover  all  rents  and  profits  which  had 
accrued  while  coverture  lasted.  And  where  the  wife  joins  her 
husband  in  a  lease,  the  covenant  for  payment  of  rent  is  for  the 
husband's  benefit  alone  while  the  usufruct  continues.^^  But  it 
would  appear  to  be  otherwise  where  rent  is  reserved  to  husband 
and  wife,  and  her  heirs  and  assigns.^* 

In  all  cases,  emblements  or  growing  crops  go  to  the  husband  or 
his  representatives  at  the  termination  of  his  estate.^^  Where 
spouses  occupy  her  land  jointly,  he  is  not  liable  for  rent  in  the 
absence  of  a  special  agreement,^®  since  in  such  case  he  occupies  as 
tenant  as  distinctly  as  though  a  lessee.^^  The  same  is  true  where 
he  continues  to  occupy  after  her  death,  being  then  tenant  in  common 
with  her  heirs.^* 

The  freehold  which  the  husband  acquires  in  his  own.  right  in  the 
real  estate  of  his  wife  during  her  coverture  is  a  subject  upon  which 

12.  Co.  Litt.  351a;  2  Kent  Com.  The  wife  need  not  be  joined  in  such 
130;  1  Bac.  Abr.  286;  Junction  Eail-  suits  for  rent.  Clapp  v.  Houghton, 
road  Co.  v.  Harris,  9  Ind.  184;  10  Pick.  (Mass.)  463 ;  Beaver  v.  Lane, 
Clarke's  Appeal,  79  Pa.  376;  Eogers  2  Mod.  217;  8haw  v.  Partridge,  17 
V.  Brooks,  30  Ark.  612.  The  hus-  Vt.  626;  Edrington  v.  Harper,  3  J.  J. 
band's  rights  and  liabilities  attach  Marsh.  (Ky.)  360;  Bailey  v,  Duncan, 
to   property    bought    by    himself   and  4  Mon.   (Ky.)   260. 

held   in   his   name   as   trustee   for  his  15.  Eeeve  Dom.  Eel.  28,  and  cases 

wife.      Pharis   v.   Leachman,   20   Ala.  cited;  Weems  v.  Bryan,  21  Ala.  302; 

662.     But  not,  as  will  be   seen  here-  Spencer  v.  Lewis,  1  Houst.  (Del.)  223. 

after,  to  his  wife's  separate  real  es-  16.   Davis   v.   Watts,  90   Ind.   372; 

tate.  Coleman  v.  Dallam,  7  B.  Mon.   (Ky.) 

13.  1    Washb.   Eeal    Prop.    44;    Co.  323. 

Litt.    351b;    Jones    v.    Patterson,    11  17.  Eowe  v.  Kellogg,  54  Mich.  206, 

Barb.  (N.  Y.)  572;  Matthews  v.  Cope-  19  N.  W.  957. 

land,  79  N.  C.  493.  18.  Kirchgassner     v.     Eodick,     170 

14.  Hill  V.  Saunders,  4  B.  &  C.  529.  Mass.  543,  49  N.  E.  1015. 


§    194  HUSBA2s'D    AXD    WIFE.  212 

the  wife's  devise  camiot  operate,  more  than  iier  conveyance,  inde- 
pendently of  his  permission.^^ 

§  192.  What  Law  Governs. 

A  Married  Vv'omen's  Act  cannot  take  away  or  impair  marital 
rights  of  a  husband  which  vested  before  its  enactment.^''  The 
courts  of  Missouri  will  enforce  the  vested  rights  of  a  spouse  in  the 
estate  of  the  other  acquired  under  the  law  of  another  State  where 
the  spouses  resided  before  coming  to  Missouri,  though  such  rights 
could  not  have  been  acquired  under  its  law.^^ 

§  193.  As  to  Estates  in  Expectancy. 

At  common  law  the  marital  rights  of  the  husband  do  not  attach 
to  realty  in  which  the  wife  has  only  a  remainder  or  reversion  ex- 
pectant upon  the  termination  of  a  precedent  life  estate.^^  Mere 
contingencies  of  the  wife,  which  cannot  happen  before  the  death  of 
either  spouse,  cannot  be  attached,  therefore,  by  creditors  of  the 
husband ;  ^^  nor  landed  expectancies  in  general  while  continuing 
expectant.^* 

§  194.  As  to  Life  Estates  and  Joint  Tenancies. 

If  the  wife  at  the  time  of  her  marriage  has  a  life  estate  in  lands, 
her  husband  becomes  seised  of  such  estate  in  the  right  of  his  wife, 
and  he  is  entitled  to  the  profits  during  coverture.  So  if  it  were 
granted  to  a  trustee  for  her  own  use.  And  the  same  rule  applies 
whether  the  estate  be  for  the  life  of  the  wife  or  of  some  other  per- 
son. If  the  estate  be  for  the  wife's  own  life  it  terminates  at  her 
death,  and  the  hus/band  has  no  further  interest  in  it.  But  if  it  bo 
an  estate  for  the  life  of  another  person  who  survives  her,  the  hus- 
band takes  the  profits  during  the  remainder  of  such  person's  life  as 
a  special  occupant  of  the  land.  The  husband's  representatives  in 
either  case  take  crops  growing  on  the  land  at  the  time  of  his  death."^ 
But  the  husband  might,  at  common  law,  take  a  release  or  confirma- 
tion to  enlarge  his  life  estate.^' 

19.  Clarke's  Appeal,  79  Pa.  376.  23.  Shores  v.  Carey,  8  Allen  (Mass.) 
Murray  v.  Murray,  102  Kan.  184,  170  425;  Baker  v.  Floumoy,  58  Ala.  650; 
P.  393;  Dietrich  v.  Deavitt,  81  Vt.  Hornsby  v.  Lee,  2  Madd.  Ch.  16; 
160,  69  A.  661.  Allen  v.  Scurry,  1  Yerg.   (Tenn.)   36; 

20.  Eutledge  v.  Eutledge  (Mo.),  119       Sale  v.  Saunders,  24  Miss.  24. 

S.  W.  489.  24.  Osborne  v.   Edwards,   3   Stockt. 

21.  Eice  V.  Shipley,  159  Mo.  399,  (X.  J.)  73;  Baker  v.  Floumoy,  58 
60  S.  W.  740.  Ala.  650. 

22.  Doane  v.  Black,  132  Ga.  451,  64  25.  Kent  Com.  134;  1  Bright,  Hus. 
S.  E.  646.  &  Wife,  112,  113. 

26.  Co.  Litt.  299. 


213  wife's  eeal  estate.  §  196 


A  husband  acquires,  bj  his  marriage,  the  right  to  use  and  occupy, 
during  coverture,  lands  held  by  his  wife  in  joint  tenancy.^^ 

§  195.  As  to  Property  in  Possession  of  Third  Person. 

The  rule  seems  to  be  general  that  the  husband's  marital  rights 
do  not  attach  to  property  which  is  in  the  actual  and  rightful  posses- 
sion of  another,  and  of  which  he  cannot  obtain  possession  during 
coverture  without  becoming  a  trespasser ;  notwithstanding  the  wife 
may  have  rights  therein  after  his  death,'^  nor,  if  she  was  a  widow 
when  married  to  him,  to  her  dower  under  a  former  marriage  till  it 
was  allotted."^  Lands  continuing  undisposed  of,  and  belonging  to 
an  unsettled  estate  in  which  the  wife  acquires  an  undivided  interest, 
the  husband  cannot  reduce  to  possession  to  his  wife's  exclusion. 


30 


§  196.  Rights  of  Husband's  Creditors. 

The  husband's  interest  in  his  wife's  real  estate  is  liable  for  his 
debts,  and  may  be  taken  on  execution  against  him.  But  nothing 
more  than  the  husband's  usufruct  is  thereby  affected ;  nor  can  the 
attachment  or  sale  affect  the  wife's  ultimate  title.^^  The  rule  in 
Massachusetts  is  to  allow  the  purchaser  to  take  the  rents  and  profits 
for  a  definite  period,  or  the  whole  life  estate,  at  an  appraisal  of  the 
value  founded  on  a  proper  estimate  of  the  probability  of  human 
life.  But  where  the  whole  life  estate  is  of  more  value  than  the 
amount  of  the  execution,  the  more  proper,  and  perhaps  the  only 
mode,  is  the  former.^'  It  has  been  held  that  the  husband,  under  a 
bona  fide  deed  of  separation,  without  trustees,  executed  before 
judgment,  may  relinquish  to  his  wife  all  interest  in  her  lands,  and 
thus  avoid  the  demands  of  his  creditors  upon  the  property,  even 
though  an  annuity  be  reserved  to  himself.^'     And  it  is  certain  that 

27.  Bishop  V.  Blair,  36  Ala.  80;  Montgomery  v.  Tate,  12  Ind.  615; 
Eoyston  v.  Eoyston,  21  Ga.  161.  Lucas   v.   Eickerich,    1   Lea    (Tenn.), 

28.  Doane  v.  Black,  132  Ga.  451,  726;  Sale  v.  Saunders,  24  Miss.  24; 
64  A.  646;  Arnold  v.  Limeburger,  Cheek  v.  Waldrum,  25  Ala.  152; 
122  Ga.  72,  49  S.  E.  812 ;  Hair  v.  Schneider  v.  Starke,  20  Mo.  269.  But 
Avery,  28  Ala.  267.  Bee    Jackson    v.    Suffern,    19    Wend. 

29.  Smith  v.  Cunningham,  79  Miss.  (N".  Y.)  175.  And  see  Eice  v,  Hoff- 
425,  30  So.  652   (second  husband).  man,  35  Md.  344,  as  to  the  liability 

30.  Hooper  v.  Howell,  50  Ga.  165.  extending   to   the   husband's   interest 

31.  2  Kent  Com.  131;  Babb  v.  Per-  as  tenant  by  the  curtesy. 

ley,  1  Me.  6;  Mattocks  v.  Stearns,  9  32.  Litchfield  v.  Cadworth,  15  Pick. 

Vt.  326;  Perkins  v.  Cottrell,  15  Barb.       (Mass.)   23. 


(N.  Y.)  446;  Brown  v.  Gale,  5  N.  H 
416;  Canby  v.  Porter,  12  Ohio,  79 
Williams  v.  ;Morgan,  1  Litt.  168 ;  Nich 
ols  V.  O'Neill,  2  Stockt.   (N.  J.)    88; 


33.  Bonslaugh  v.  Bonslaugh,  17  S. 
&  E.  (Pa.)  361.  But  see  Bowyer's 
Appeal,  21  Pa.  210. 


§    197  HUSBAND    AND    WIFE.  214r 

the  sheriff's  deed  cannot  convey  a  greater  interest  than  the  defen- 
dant has  at  the  time  of  attachment  or  of  levy  and  sale.^*  Such  a 
sale  will  pass  only  the  husband's  possessory  right.^'  Therefore, 
Where  a  statute  allows  the  husband  a  distinctive  share  in  his  wife's 
lands  in  the  event  of  his  survivorship,  no  such  interest  passes  to 
the  purchaser  of  lands  sold  on  execution  for  his  debts  during  her 
life.^^  Since  the  husband's  life  interest  is  liable  for  his  own  debts, 
it  is  liable  for  the  debts  of  the  wife  dum  soJa.^'  And  it  is  held  in 
Pennsylvania  that  where  a  husband  has  conveyed  his  life  estate  in 
fraud  of  his  creditors,  they  may  levy  upon  the  growing  crops.^* 
It  is  held  that  land  purchased  by  a  married  woman  with  the  pro- 
ceeds of  a  legacy  which  the  husband  has  declined  to  reduce  into 
possession,  is  not  liable  for  the  husband's  debts.^® 

§  197.  Husband's  Power  to  Alienate  Fee. 

The  husband  alone  has  power  at  common  law  to  bind  or  alienate 
the  wife's  lands  during  coverture.  This  right  lasts,  at  any  rate, 
during  their  joint  lives  (provided  the  parties  are  not  in  the  mean- 
time divorced)  ;  and  if  the  husband  becomes  a  tenant  by  curtesy, 
it  lasts  during  his  whole  life.  But  the  husband's  power  is  com- 
mensurate with  his  estate.  He  cannot  incumber  the  property 
beyond  the  period  of  his  life  interest,  nor  prevent  his  wife,  if  she 
survives  him,  or  her  heirs  after  his  death,  from  enjoying  the  prop- 
erty free  from  all  incumbrances  which  he  may  have  created/" 
Under  the  ancient  law  of  tenures  the  husband  could  transfer  the 
property  so  as  to  vest  it  in  the  grantee,  subject  to  the  wife's  entry 
by  writ  sui  in  vita;  for  his  act  amounted  to  a  discontinuance. 
Statute  32  Hen.  VIII.  c.  28,  was  remedial  in  its  effect,  so  far  as 
to  give  the  wife  her  writ  of  entry,  notwithstanding  her  husband's 
conveyance.  Copyhold  lands  followed  a  different  rule,  not  being 
considered  within  the  letter  or  the  equity  of  this  statute.  But  by 
the  more  recent  statutes  of  3  &  4  Will.  IV.  c.  27,  and  c.  74,  and 
8  &  9  Vict.  c.  106,  fines  and  recoveries  have  been  abolished  and 
feoffments  deprived  of  their  tortious  operation ;    and  it  is  enacted 

34.  Williams   v.    Amory,    14    Mass.  37.    Moore   v.    Eichardson,    37    Me. 
20;  Johnson  v.  Payne,  1  Hill  (N.  Y.)       438. 

Ill;  Rabb  v.  Aiken,  2  McC.  Ch.   (S.          38.  Stehman  v.  Huber,  21  Pa.  260. 

(^_)   119,  39.  Coffin  V.  Morrill,  2  Post.  (N.  H.) 

35.  Hall   V.   French,  165   Mo.   430,       352.   And  see  Sims  v.  Spalding,  2  Duv. 
65  S.  W.  769.  121. 

36.  Starke    v.    Harrison,    5    Rich.  40.  Boyle   v.    Graham,   32    Mo.   66; 
(S.  C.)  7.                                                           2  Kent  Com.  133. 


215  wife's  real  estate.  §  199 

that  no  discontinuance  or  warranty  made  after  the  31st  day  of 
December,  1833,  shall  defeat  any  right  of  entry  or  action  for  the 
recovery  of  land.  At  the  present  day  there  is,  therefore,  no  mode 
of  conveyance  in  the  English  law  by  which  the  husband  can  convey 
more  than  his  own  estate  in  his  wife's  lands.^^ 

These  latter  statutes  are  not,  per  se,  of  force  in  this  country,  for 
they  were  passed  in  England  after  the  colonization  of  America. 
But  the  same  result  has  been  very  generally  reached  in  this  country 
through  a  different  process.  In  Massachusetts,  the  statute  of  32 
Hen.  VIII.  is  still  in  force  as  a  modification  and  amendment  to 
the  common  law.*^  In  other  States,  ejectment  or  other  summary 
process  may  be  resorted  to.*^  The  Universal  doctrine,  whatever 
may  be  the  form  of  remedy,  prevails,  that  the  husband  can  do  no 
act  nor  make  any  default  to  prejudice  his  wife's  inheritance.  And 
while  his  own  alienation  passes  his  life  estate,  it  can  do  no  more ; 
and  the  wife,  notwithstanding,  may  enter  after  his  death  and  hold 
possession.** 

§  198.  Husband's  Power  to  Mortgage  Fee. 

The  husband's  mortgage  of  his  wife's  real  estate  is  effectual  to 
the  same  extent  as  his  absolute  conveyance;  that  is  to  say,  it  will 
operate  upon  his  life  estate  or  the  joint  life  estate  of  himself  and 
his  wife,  as  the  case  may  be,  and  no  further.  And  his  lease  of  the 
wife's  lands  for  a  term  of  years,  for  the  purpose  of  creating  an 
incumbrance  in  the  nature  of  a  mortgage,  is  treated  in  equity  as  a 
mortgage ;  and  the  wife's  acceptance  of  rent  after  his  death  cannot 
make  such  a  lease  other  than  void  on  the  termination  of  his  life 
estate.*^ 

§  199.  Husband's  Power  to  Lease  Fee. 

So  far  as  the  effect  of  the  husband's  lease  was  concerned,  the 
statute  32  Hen.  VIII.  c.  28,  changed  the  old  common  law.     By 

41.  1  Bright,  Hus.  &  Wife,  1621-168,  3  Ind.  203;  Huff  v.  Price,  50  Mo. 
and  authorities  cited;  Bell,  Hus.  &  228;  Jones  v.  Carter,  73  N.  C.  148. 
Wife,  195;  Eobertson  v.  Norris,  11  45.  Bell,  Hus.  &  Wife,  193,  194; 
Q.  B.  916;  Woodruff  v.  Detheridge,  Goodright  v.  Straphan,  1  Cowp.  201; 
6  J.  J.  Marsh.  (Ky.)  368  (rule  Drybutter  v.  Bartholomews,  2  P.  Wms. 
changed  by  statute).  127.    The  husband's  mortgage,  in  this 

42.  Bruce  v.  Wood,  1  Met.  (Mass.)  country  also,  passes  only  his  life  es- 
542.  tate,    under    the    like    circumstances. 

43.  Miller  v.  Shackleford,  4  Dana  Miller  v.  Shackloford,  3  Dana  (Ky.), 
(Ky.),  264;  N.  Y.  Bev.  Stats.,  4th  ed.,  291 ;  Barber  v.  Harris,  15  Wend.  (N. 
vol.  2,  p.  303;  2  Kent  Com.  133,  n.  Y.)    615;    Railroad   Co.   v.    Harris,   9 

44  2  Kent  Com.  133,  n.;  1  Washb.  Ind.  184;  Kay  v.  Whittaker,  44  N.  Y. 
Real  Prop.   279;  Butterfield  v.  Beall,       565. 


§    199  HUSBAND    AXD    WIFE.  216 

this  statute,  husband  and  wife  are  permitted  to  make  a  joint  lease 
of  the  wife's  real  estate  for  a  term  not  exceeding  three  lives  or 
twenty-one  years.  There  were,  however,  some  restrictions  placed 
upon  the  operation  of  this  statute.  Thus,  it  was  further  declared 
that  things  which  lie  in  grant,  such  as  franchises,  should  be  ex- 
cepted ;  though  tithes  followed  the  general  principle.  And  the  old 
lease  must  have  been  surrendered  either  in  writing  or  by  operation 
of  law  within  one  year  from  making  the  new  lease.  Property  in 
possession  might  be  leased  under  the  statute,  but  not  property  in 
reversion.  The  lease  would  not  exempt  the  tenant  from  responsi- 
bility for  waste.  And  the  rent  reserved  should  not  be  less  than  the 
average  rent  of  the  preceding  twenty  years.  This  statute  has  been 
strictly  construed  both  in  the  common  law  and  equity  courts  of 
England.^' 

But  the  husband's  lease  of  the  wife's  lands,  whether  alone  or 
jointly  with  her,  may  be  good  at  the  common  law,  though  not  made 
in  compliance  with  the  statute.  In  such  case  the  wife  may  affirm 
or  disaffirm  the  lease  at  the  expiration  of  coverture.  And  the  same 
right  may  be  exercised  by  her  issue,  or  by  others  claiming  under 
her  or  in  privity  with  her.  So,  too,  where  she  marries  again  after 
her  husband's  death,  her  second  husband  has  the  privilege  of  elec- 
tion in  her  stead.  But  one  who  claims  by  paramount  title  to  the 
wife,  as,  for  instance,  a  joint  tenant  surviving  her,  cannot  exercise 
this  right,*^  though  on  general  principle  it  is  hard  to  see  why,  save 
for  her  coverture,  she  should  not  have  been. 

Some  acts  of  the  wife,  on  being  released  from  coverture,  will 
amount  to  an  affirmance  of  her  husband's  informal  lease.  Thus 
acceptance  of  rent  from  the  tenant,  after  her  husband's  death,  will 
confirm  the  lease.**  But  parol  leases  of  the  wife's  real  estate  are 
affected  by  the  statute  of  frauds ;  and  not  even  acceptance  of  rent 
can  bind  the  wife  surviving:  the  lease  will  be  treated  as  utterly 
void  at  the  husband's  death,  and  not  voidable  only.*^  Whedier 
acceptance  of  rent  by  the  wife  after  the  husband's  death  wouid 

46.  Bell,  Hus.  &  Wife,  17&-181;  1  rent.  Tnder  the  Texas  statute,  a 
Bright,  Hus.  &  Wife,  193-219;  Dar-  husband  cannot  lease  his  vrife's  land 
lington  V.  Pulteny,  Cowp.  267.  for  more  than  a  year.     Dority  v.  Dor- 

47.  Bell,  Hus.  &  Wife,  175,  177;  ity,  96  Tex.  215,  71  S.  W.  950,  60 
Jeffrey  v.  Guy,  Yelv.  78;  Smalman  v.  L.  E.  A.  941. 

Agborow,    Cro.    Jac.    417;    Anon.,    2  48.  Doe  v.  Weller,  7  T.  R.  478. 

Dyer,  159.     See  also  Toler  v.  Slater,  49.    Bell,    Hus.    Wife,    178.      And 

L.  R.  3  Q.  B.  42,  where  the  lessee  was  see  Winstell  v.  Hehl,   6  Bush    (Ky.), 

held  bound   on   his  covenant  to   pay  58. 


217 


WIFE  S    REAL    ESTATE. 


§    200 


confirm  a  lease  in  writing,  made  by  the  husband  alone,  is  a  question 
on  which  the  authorities  are  not  agreed.^" 

A  distinction,  however,  is  sometimes  made  between  leases  for 
life  and  leases  for  terms  of  years,  when  made  by  the  husband  alone. 
The  former,  it  is  said,  being  freehold  estates  and  commencing  by 
livery  of  seisin,  could  only  be  avoided  by  entry;  while  the  latter 
became  void  absolutely  on  the  husband's  death.  But  according  to 
the  better  authority  both  kinds  of  leases  follow  the  same  principle, 
and  are  not  void  but  voidable  at  the  husband's  death.^^  The  hus- 
band's lease  in  right  of  his  wife  operates  so  far  in  the  tenant's 
favor  as  to  entitle  the  latter  to  emblements.^^  The  rule  is  the 
same  whether  the  husband  be  tenant  by  the  curtesy  or  not.  No 
action,  therefore,  can  be  maintained  by  the  wife  in  such  cases. 

§  200.  Effect  of  Husband's  Contract  to  Convey  Fee. 

By  the  old  law  of  England  it  appears  that  if  a  husband  agreed 
to  convey  real  estate  belonging  to  his  wife,  he  might  be  compelled 
to  execute  the  contract  by  getting  her  to  levy  a  fine.^^  This  rule 
no  longer  holds  good  in  that  country.^*  Even  where  the  agreement 
has  been  made,  not  by  the  husband,  but  by  the  wife  herself  before 
her  marriage,  the  agreement  cannot  now  be  enforced  against  the 
wif e.^^  But  it  is  nevertheless  binding  upon  the  husband ;  though 
where  the  purchaser  has  not  been  misled,  the  husband  cannot  be 
made  to  convey  his  partial  interest  and  submit  to  an  abatement  of 
the  price,  because  of  the  wife's  refusal  to  convey  her  real  estate 
which  he  and  she  had  promised  to  convey. 


56 


50.  Bell,  Hus.  &  Wife,  177,  and  cases  53.  2  Bright  Hus.  &  Wife,  47 ;  Macq. 


cited;  Preamble  to  Stat.,  32  Hen. 
VIII.,  eh.  28;  Jordan  v.  Wikes,  Cro. 
Jae.  332;  Bac.  Abr.  Leases,  C.  1.  See 
Wolton  V.  Hele,  2  Saund.  180,  n.  10; 
Bro.  Abr.  Acceptance,  1 ;  Dixon  v. 
Harrison,  Vaugh.  40;  Goodright  v. 
Straphan,  1  Cowp.  201 ;  Perry  v.  Hin- 
dle,  2  Taunt.  180;  Hill  v.  Saunders, 
2  Bing.  112. 

51.  Bell,  Hus.  &  Wife,  177,  178,  and 
cases  cited;  contra,  notes  to  2  Kent 
Com.  133,  and  authorities  referred  to, 
including  note  of  Sergt.  Williams  to 
Wolton  V,  Hele,  2  Saund.  180. 

52.  Eowney's  Case,  2  Vern.  322; 
Gould  V.  Webster,  1  Vt.  409. 


Hus.  &  Wife,  32. 

54.  Frederick  v.  Coxwell,  3  Y.  &  J. 
514;  Emery  v.  Ware,  8  Ves.  505;  Sug. 
V.  &  P.,  4th  ed.,  231;  2  Story  Eq. 
Juris.  49-53;  Martin  v.  Mitchell,  2 
Jac.  &  W.  413;  Thayer  v.  Gould,  1 
Atk.  617;  Daniel  v.  Adams,  1  Amb. 
495.  But  see  Davis  v.  Jones,  4  B.  P. 
267;  Betcher  v.  Einehart,  106  Minn. 
380,  118  N.  W.   1026. 

55.  Per  Lord  Ch.  Cottenham,  Jor- 
dan V.  Jones,  2  Phill.  170.  See  Row- 
ley V.  Adams,  6  E.  L.  &  Eq.  124. 

56.  Griffin  v.  Taylor,  Tothill,  106; 
Hall  V.  Hardy,  3  P.  Wms.  187;  Mor- 
ris V.  Stephenson,  7  Ves.  474;  Castle 
V.  Wilkinson,  L.  R.  5  Ch.  534. 


§  202 


HUSBAND    AND    WIFE. 


218 


§  201.  Husband's  Right  to  Dissent  from  Purchase,  Gift  or  Devise 
to  Wife. 

Nor  on  principle  should  he  be  permitted  to  dissent  to  any  pur- 
chase, gift,  or  devise  to  the  wife's  separate  use,  by  the  terms  of 
which  his  own  interest  as  life  tenant  is  legally  excluded.  Subject 
to  the  husband's  dissent  and  the  wife's  disagreement  after  her 
coverture  ends,  a  conveyance  to  the  wife  in  fee  is  always  good.^^ 

Th^  husband  may  dissent  from  a  purchase,  gift,  or  devise  of  real 
estate  to  his  wife  during  coverture ;  since  otherwise  he  might  be 
made  a  life  tenant  to  his  own  disadvantage.  But  by  such  dissent 
he  cannot  and  ought  not  to  defeat  her  ultimate  title  as  heir.^^ 

§  202.  Effect  of  Conversion. 

If  the  real  estate  of  the  wife  be  converted  into  personalty  during 
her  life  by  a  voluntary  act  of  the  parties,  the  proceeds  become 
pei*sonal  estate,  and  the  husband  may  reduce  into  his  own  possession 
or  other\vise  take  the  proceeds.  This  principle  has  already  been 
noticed."^  But  where  conversion  takes  place  by  act  of  law,  inde- 
pendently of  husband  and  wife,  the  rule  is  not  so  clear.  In  New 
York,  however,  it  is  held  ^^  that  where  the  real  estate  of  a  married 
woman  has  been  converted  into  personalty  by  operation  of  law 
during  her  lifetime,  it  will  be  disposed  of  by  a  court  of  equity, 
after  her  death,  in  the  same  manner  as  if  she  had  lierself  converted 
it  into  personal  property  previous  to  her  death.®'-  So,  too,  in  some 
States,  conversion  of  real  estate,  under  partition  proceedings,  into 
personalty  has  been  held  complete  where  equity  decreed  partition, 
and  the  wife  died  after  a  final  confirmation  of  the  sale  in  court,  all 
terms  of  sale  having  been  complied  with,  and  all  formalities  duly 
observed.®^ 


57.  Co.  Litt.  3a,  356b;  2  Bl.  Com. 
292,  293;  2  Kent  Com.  150.  The 
wife's  privilege  of  disagreement  to 
purchase  extended  to  her  heirs.     76. 

58.  Co.  Litt.  3a;  1  Dane  Abr. 
(Mass.)  388;  4  ih.  397;  1  Washb.  Eeal 
Prop.  280. 

59.  Supra,  §  156;  Hamlin  v.  Jones, 
20  Wis.  536;  Watson  v.  Robertson,  4 
Bush  (Ky.),  37;  Tillman  v.  Tillman, 
50  Mo.  40;  Sabel  v.  Slingluff,  52  Md. 
132 ;  Humphries  v.  Harrison,  30  Ark. 
79. 

60.  Graham  v.  Dickinson,  3  Barb. 
Ch.  (N.  Y.)  170.    In  this  case,  Flana- 


gan V.  Flanagan,   1   Bro.   C.  C.   50n 
appears  to  have  been  disapproved. 

61.  Graham  v.  Dickinson,  3  Barb. 
Ch.   (N.  Y.)   170. 

62.  Jones  v.  Plummer,  20  Md.  416; 
Cowden  v.  Pitts,  2  Baxt.  (Tenn.)  59. 
Where  an  administrator's  sale  of  the 
wife's  land  is  irregular,  the  husband 
cannot,  apart  from  the  wife,  confirm 
it,  even  though  he  has  received  the 
purchase-money.  Kempe  v.  Pintard, 
32  Miss.  324.  See  also  Ellsworth  v. 
Hinds,  5  Wis.  613;  Osborne  v.  Ed- 
wards, 3  Stockt.  (N.  J.)  73.  But  a 
husband  may  demand  and  reduce  into 


31&  wife's  eeal  estate.  §  204 

On  the  other  hand,  the  rule  is  announced  that  where  a  married 
woman  is  entitled  to  a  legacy,  and  land  is  given  her  in  lieu  thereof, 
the  husband  having  effected  no  prior  reduction  of  the  legacy,  it  is 
to  be  held  as  hers  and  for  her  sole  benefit.  A  case  of  this  sort  was 
lately  decided  in  Pennsylvania.®^ 

§  203.  Effect  of  Alienage  or  Attainder  of  Husband,  and  Statute 
of  Limitation. 

A  husband's  life  estate  may  be  ban-ed  by  a  statute  of  limitations 
like  other  freehold  interests.®*  At  the  common  law,  attainder  of 
treason  or  other  felony  worked  a  forfeiture  or  escheat  of  real  estate 
to  the  government.  And  corruption  of  blood  affected  the  inherit- 
ance in  such  cases.  But  as  regarded  the  wife's  real  estate,  nothing 
more  could  be  taken  than  the  husband's  life  interest :  the  freehold 
continued  in  the  wife  as  before.  For  the  same  reason,  where  the 
wife  was  at  common  law  attainted  of  felony,  the  lord  might  enter 
to  the  lands  by  escheat,  and  eject  the  husband  whenever  the  crown 
had  had  its  prerogative  forfeiture  of  a  year  and  a  day's  waste.*^ 
The  common  law  of  attainder  is  of  no  force  in  this  country  so  far 
as  forfeiture  and  corruption  of  blood  is  concerned ;  but  it  probably 
applies  to  the  husband's  life  interest  in  his  wife's  lands.®® 

Where  the  husband  was  an  alien  he  could  not  acquire  an  interest 
in  his  wife's  real  estate  at  the  common  law.®^  But  the  disability 
is  now  removed  in  great  measure  by  statute.®* 

§  204.  Effect  of  Divorce. 

The  rule  that  emblements  or  growing  crops  go  to  the  husband  or 
his  representatives  at  the  termination  of  his  estate  was  extended 

possession    his    wife's    legacy,    even  64.  Kibbie  v.  Williams,  58  111.  30. 

though   it  be   made   payable,   by   the  65.   Bell,   Hus.   &  Wife,   149,    150; 

terms  of  a  will,  from  proceeds  of  the  2  Bl.  Com.  253,  254.    As  to  the  wife's 

sale    of    the    testator's    real    estate.  right   of  dower  in  such  cases,  see  2 

Thomas  v.  Wood,  1  Md.  Ch.  296.    Con-  Bl.  Com.  253,  and  notes  by  Chitty  and 

version  takes  place  where  husband  and  others. 

wife  convey  to  trustees  to  sell  and  dis-  66.  See  Const.  U.  S.,  Art.  III.,  §  3. 

pose  for  payment  of  debts,  balance  to  67.  Washb.     Real     Prop.     48,    and 

be  paid  them  as  they  shall  direct  or  cases  cited;   Bell,  Hus.  &  Wife,  151; 

appoint.     Siter     v.     McClanachan,     2  Co.  Litt.  31b;   Menvill's  Case,  13  Co. 

Gratt.  (Va.)  80.  293;    2   Bl.   Com.  293;    2   Kent  Com. 

63.  Davis  v.  Da\as,  46  Pa.  342.    But  39-75. 

see  Davis'  Appeal,  60  Pa.  118,  as  to  68.  See  note  to  1  Washb.  Real  Prop, 

female  ward's  real  estate   treated   as  49,  giving  statutory  changes.    And  see 

personalty,      the      guardian's      mere  Bell,  Hus.  &  Wife,  151,  241.     Stat.  7 

change  of  investment  having  effected  &  8  Vict.,  ch.  66,  removes  disabilities 

no  conversion  of  the  fund.  as  to  dower  for  the  most  part. 


206 


HUSBAA'D    AND    WIFE. 


220 


at  the  common  law  to  cases  of  divorce  causa  precontractus.^^  But 
it  does  not  apply  to  divorce  for  the  husband's  misconduct  under 
modem  statutes.^" 

§  205.  Husband's  Liability  for  Waste. 

The  wife's  remedy  for  waste  deserves  a  passing  notice.  Waste 
consists  in  such  acts  done  by  a  tenant  for  life  or  years  to  the  estate 
he  holds,  as  injure  or  impair  the  inheritance.  Since  the  husband 
holds  his  wife's  real  estate  as  a  life  tenant  onlv,  it  would  seem  on 
principle  that  he  ought  to  be  held  liable  for  waste  like  other  life 
tenants.  A  difficulty  occurs,  however,  in  applying  the  remedy ; 
and  since  the  common-law  action  of  waste  is  founded  on  the  privity 
of  parties  competent  to  sue  one  another,  no  such  suit  can  be  tech- 
nically maintained  as  between  husband  and  wife.'^^  But  if  the 
husband  conveys  to  a  third  party,  and  such  third  party  commits 
waste,  the  action  will  lie.  So  when  waste  is  committed  by  the 
husband's  creditor  who  has  taken  his  freehold  interest  on  execu- 
tion.'" As  the  husband  cannot  commit  waste,  it  follows  that  he 
cannot  sell  growing  timber  on  her  land  except  to  a  very  limited 
extent."^  The  heir  of  the  wife  can  sue  the  husband  for  waste ; 
though  it  would  seem  that  he  cannot  sue  the  husband's  assignee  for 
want  of  privity.^*  The  wife  is  not  without  remedy  against  her 
husband,  however,  for  chancery  will  interfere  on  her  behalf  by 
injunction,  and  stop  him  from  committing  waste  upon  her  land ; 
and  this  is  now  the  usual  remedy  against  life  tenants."^  And  at 
the  common  law  the  husband  was  said  to  forfeit  his  term  by  such 
misconduct.'^* 

§  206.  Effect  of  Statute. 

In  manv  States  the  jus  mariti  in  the  wife's  lands  has  been 
abolished  by  statute.'^^     The  Ehode  Island  Married  Women's  Act 


69.  Orland's  Case,  5  Coke,  116a. 

70.  See  Vincent  v.  Parker,  7  Paige 
(N.  Y.),  65,  per  Chancellor  Walworth; 
Jenney  v.  Gray,  5  Ohio  St.  45. 

71.  2  Kent  Com.  131,  132;  1  Washb. 
Real  Prop.  118-124;  1  Bright,  Hus.  & 
"Wife,  110. 

712.  Babb  v.  Perley,  1  Me.  6 ;  Mat- 
tocks V.  Stearns,  9  Vt.  326. 

73.  Stroebe  v.  Fehl,  22  Wis.  337; 
Porch  V.  Fries,  3  C.  E.  Green  (N.  J.), 
204. 

74.  Walker's    Case,    3    Coke,    59; 


Bates  V.  Shraeder,  13  Johns.  (N.  Y.) 
260. 

75.  See  1  Washb.  Eeal  Prop.  125; 
ib.  281. 

76.  Co.  Litt.  351;  1  Bright,  Hus.  & 
Wife,  110,  169. 

77.  Davis  v.  Clark,  26  Ind.  424,  89 
Am.  Dec.  471;  Harris  v.  Whiteley,  98 
Md.  430,  56  A.  823 ;  Lancaster  v.  Lan- 
caster (X.  C),  100  S.  E.  120;  Deutsch 
V.  Eohlfiuor,  22  Colo.  App.  543,  126  P. 
1123;  Humbird  Lumber  Co.  v.  Doran, 
24    Ida.    507,    135    P.    66;    Bums    v. 


221 


WIFE  S    REAL    ESTATE. 


§  207 


is  not  retroactive  so  as  to  take  away  a  husband's  vested  right  jure 
mariti  to  the  rents  and  profits  of  her  real  estate  till  she  has  term- 
inated those  rights  by  a  previous  statute." 

Under  the  Xew  York  Married  Women's  Act  the  wife  retains 
complete  possession  of  her  separate  real  estate  as  though  sole, 
though  her  husband  lives  with  her  on  it,  pays  taxes  and  keeps  it  in 
repair.'^^  But  he  is  not  an  "  intruder  or  squatter,"  whom  she  may 
eject  under  another  statute.®"  Under  the  Vermont  statute  in  force 
in  1853  the  husband  could  not,  without  her  joinder,  convey  the 
rents  and  profits  of  her  land,  which  the  statute  provided  should  be 
secured  to  her.®^ 

§  207.  Effect  of  Adverse  Possession ;   Generally. 

Though  there  can  be  no  adverse  public  user  against  a  wife,*^  title 
by  adverse  possession  may  be  obtained  against  her  at  common  law,*^ 
and  when  the  statute  has  once  begun  to  run,  coverture  will  not 
interrupt  it.®*  Where  a  sale  of  a  wife's  land  is  by  the  husband 
alone,  the  statute  will  not  run  against  her  during  coverture.®^ 
She  may  also  acquire  title  by  adverse  possession,*®  but  while  she 


Bangert,  92  Mo.  167,  4  S.  W.  677; 
Howard  v.  Tenny,  87  Ky.  52,  10  Ky. 
Law,  94,  7  S.  W.  547 ;  Euckel  v.  Auer 
(Ind.),  120  N.  E.  437;  Sipe  v.  Her- 
man, 161  N.  C.  107;  76  S.  E.  556; 
Nelson  v.  Nelson  (N.  C),  96  S.  E. 
986;  Pocomoke  Guano  Co.  v.  Colwell 
(N.  C),  98  S.  E.  535;  Teckenbrock  v. 
McLaughlin,  246  Mo.  711,  152  S.  W. 
38;  King  v.  Davis,  137  F.  222  (affd., 
157  F.  676,  85  C.  C.  A.  348 ;  McGuire 
V.  Cook,  98  Ark.  118,  135  S,  W.  840; 
Woodard  v.  Woodard,  148  Mo.  241, 
49  S.  W.  1001;  Bowen  v.  Bettis 
(Tenn.),  48  S.  W.  292;  Henderson 
Grocery  Co.  v.  Johnson  (Tenn.),  207 
S.  W.  723;  Vance  v.  Eichards'  Adm'r, 
39  W.  Va.  578,  20  S.  E.  603 ;  Maxwell 
V.  Jurney,  151  C.  C.  A.  502,  238  F. 
566 ;  Turner  v.  Heinburgh,  30  Ind. 
App.  615,  65  N.  E.  294;  Kichardson 
V.  Richardson,  150  N.  C.  549',  64  S.  E. 
510.  Under  the  Tennessee  statute 
the  husband  has  now  only  a  bare 
right  to  rent  the  wife  's  land  and  col- 
lect rents  for  the  benefit  of  the  fam- 
ily as  its  head  and  not  for  himself 
individually.     Henderson  Grocery  Co. 


V.   Johnson    (Tenn.),  207   S.  W.   723. 

78.  Cranston  v.  Cranston,  24  E.  I. 
297,  53  A.  44. 

79.  Mygatt  v.  Coe,  152  N.  Y.  457, 
46  N.  E.  949,  57  Am.  St.  E.  521. 

80.  Cipperly  v.  Cipperly,  172  N.  Y. 
S.  351. 

81.  Peck  v.  Walton,  26  Vt.  82. 

82.  School  Dist.  No.  84  v.  Tooloose 
(Mo.),  195  S.  W.  1023. 

83.  Medlock  v.  Suter,  80  Ky.  101, 
3  Ky.  Law,  587;  Mounts  v.  Mounts, 
155  Ky.  363,  159  S.  W.  818;  Covey 
V.  Porter,  22  "W.  Va.  120;  Whittaker 
V.  Thayer  (Tex.),  123  S.  W.  1137; 
Sabine  Valley  Timber  &  Lumber  Co. 
V.  Cagle  (Tex.),  149  S.  W.  697; 
Parker  v.  Smith,  6  Ky.  Law,  301. 

84.  Hoencke  v.  Lomax  (Tex.),  118 
S.  W.  817  (wTit  of  error  den.,  102 
Tex.  487,  119  S.  W.  842). 

85.  Webber  v.  Gibson,  8  Ky.  Law, 
125;  Garrett  v.  Weinberg,  48  S.  C.  28, 
26  S.  E.  3. 

86.  Hitt  v.  Carr  (Ind.),  109  N.  E. 
456;  Big  Blaine  0:1  &  Gas  Co.  v. 
Yates  (Ky.),  206  S.  W.  2 ;  Holton  v. 
Jackson  (Ky.),  212  S.  W.  587. 


HUSBAND    AND    WIFE. 


222 


§  208 

lives  with  her  husband  and  has  no  claim  in  her  own  right  to  land, 
she  cannot  acquire  title  to  it  as  her  separate  estate  by  adverse 
possession."  The  Arkansas  and  Texas  statutes  of  limitation  do 
not  run  against  a  wife  during  coverture  in  regard  to  real  estate.^* 
The  same  was  true  in  [N'orth  Carolina  prior  to  1899.®^ 

§  208.  By  Husband. 

Spouses  in  joint  occupation  of  land  are  presumed  so  to  occupy  in. 
subordination  to  the  title  under  which  possession  was  acquired, 
and  not  in  hostility  to  each  other.^°  The  presumption  may  be  re- 
butted.^^  In  Georgia,  where  spouses  are  in  joint  occupation  of 
land,  the  possession  is  presumed  to  be  that  of  the  husband.®^  It  is 
generally  held  that  a  husband  cannot  hold  adversely  to  his  wife  so 
as  to  get  title  by  prescription.®^  Therefore,  where  he  buys  a  tax 
title  against  her  land,  he  cannot  hold  adversely  under  it,'*  nor  is 
his  possession  adverse  where  he  holds  her  land  jure  maritis,^^  or 
by  paying  taxes  on  it.®®  Therefore  an  easement  cannot  be  acquired 
by  prescription  by  a  spouse  who  owns  premises  adjoining  that  of 
the  other  spouse.®^     Where  a  wife  elected  to  take  land  instead  of 


87.  Madden  v.  Hall,  21  Cal.  App. 
541,  132  P.  291;  Mattes  v.  Hall,  21 
Cal.  App.  552,  132  P.  295;  Wills  v. 
E.  K.  Wood  Lumber  &  Mill  Co.,  29 
Cal.  App.  97,  154  P.  613. 

88.  Taylor  v.  Leonard,  94  Ark.  122, 
126  S.  W.  387;  People's  v.  Aydelott, 
125  Ark.  50,  187  S.  W.  671;  Hays  v. 
Hinkle  (Tex.),  193  S.  W.  153;  Sibley 
V.  Sibley,  88  S.  C.  184,  70  S.  E.  615. 

89.  Norcum  v.  Savage,  140  N.  C. 
472,  53  S.  E.  289;  Berry  v.  W.  M. 
Bitter  Lumber  Co.,  141  N.  C.  386, 
54  S.  E.  278;  Bond  v.  Beverly,  152 
N.  C.  56,  67  S.  E.  55. 

90.  Evans  v.  Euss,  131  Ark.  335, 
198  S.  W.  518 ;  Doherty  v.  Eussell,  116 
Me.  269,  101  A.  305;  Garrison  v.  Taff 
(Mo.),  197  S.  W.  271;  McPherson  v. 
McPherson,  75  Neb.  830,  106  N.  W. 
991;  Noble  v.  Noble,  151  la.  698,  130 
N.  W.  114. 

91.  Grantham  v.  Wester,  136  Ga. 
17,  70  S.  E.  790. 

92.  Coursey  v.  Coursey,  141  Ga.  65, 
80  S.  E.  462. 

93.  Tumlin  v.  Tumlin  (Ala.),  70 
So.  254;  First  Nat.  Bank  v.  Guerra, 
61   Cal.  109;   Bias  v.  Eeed,  169  Cal. 


33,  145  P.  516;  Skinner  v.  Hale,  76 
Conn.  223,  56  A.  524;  Carpenter  v. 
Booker,  131  Ga.  546,  62  S.  E.  983; 
Hays  V.  Marsh,  123  la.  81,  9^8  N,  W. 
604;  Bader  v.  Dyer,  106  la.  715.  77 
N.  W.  469,  68  Am.  St.  R.  332;  Bowl- 
ing V.  Little  (Ky.),  206  S.  W.  1; 
Gambrell  v.  Gambrell,  167  Ky.  734, 
181  S.  W.  328;  Green  v.  Jones,  16& 
Ky.  146,  183  S.  W.  488;  McPherson 
V.  McPherson,  75  Neb.  830,  106  N.  W. 
991,  121  Am.  St.  E.  835;  Hovorka  v. 
Havlik,  68  Neb.  14,  93  N.  W.  9^0; 
Battle  V.  Claiborne  (Tenn.),  180  S.  W. 
584;  Hay-worth  v.  Williams,  102  Tex. 
308,  116  S.  W.  43;  Smith  v.  Cross,  125 
Tenn.  159,  140  S.  W.  1060;  Anderson 
V.  Cercone  (Utah),  180  P.  586. 

94.  Biggins  v.  Dufficy,  262  111.  26, 
104  N.  E.  ISO;  Blair  v.  Johnson,  215 
111.  552,  74  N.  E.  747;  Ward  v.  Nestell, 
113  Mich.  185,  71  N.  W.  593,  4.  Det. 
Leg.  N.  279. 

95.  Watkins  v.  Watkins  (Tex.),  119 
S.  W.  145. 

96.  Eeagle  v.  Eeagle,  179  Pa.  89, 
36  A.  191 

97.  Graves  v.  Broughton,  185  Mass. 
174,  69  N.  E.  1083. 


223  wife's  real  estate.   '  §  209 

money,  in  presence  of  the  husband  and  with  his  assent,  his  subse- 
quent entry  into  possession  of  the  land  must  be  regarded  as  an  entry 
under  the  wife's  title  and  not  adverse  to  it."*  Where  a  husband 
conveys  his  homestead  to  his  wife  for  a  consideration,  his  possession 
of  it  thereafter  is  not  adverse  to  her.®^  A  husband's  possession 
cannot  become  adverse  until  the  death  of  the  wife,^""  or  until  after 
divorce.^  Where  a  party  claiming  adverse  possession  is  the  hus- 
band of  the  person  against  whom  the  possession  is  held,  a  degree  of 
proof  of  such  adverse  possession  will  be  required  stricter  than  in 
the  usual  case.^ 

Where  a  husband  is  in  possession  of  land  with  a  claim  of  title, 
his  title  will  not  be  affected  by  the  act  of  a  third  person  who  pre- 
tends to  put  his  wife  into  possession.^ 

§  209.  Effect  of  Wife's  Agreement  to  Convey  or  Purchase. 

An  agreement  by  a  feme  covert  for  the  sale  of  her  real  estate, 
the  same  not  being  her  separate  property,  cannot  be  enforced  at 
law  or  in  equity  against  her.*  And  Sugden  considers  it  doubtful 
whether  a  married  woman,  having  a  power  of  appointment,  can 
thus  bind  herself.^ 

But  following  the  English  doctrine,  the  wife's  executory  agree- 
ment to  convey  real  estate,  whether  expressed  by  bond  or  simple 
instrument,  is  in  this  country  held  void  in  the  absence  of  enabling 
statutes,  like  her  general  contracts,  though  made  with  her  husband's 
assent ;    and  specific  performance  cannot  be  enforced  against  her.* 

98.  Shallenberger  v.  Ashworth,  25  certainly  cannot  in  some  States.  Ken- 
Pa.  152.  nedy  v.  Ten  Broeck,  11  Bush    (Ky.), 

99.  Hunter  v.  Magee,  31  Tex.  Civ.  241.  But  the  wife  cannot  use  her 
304,  72  S.  W.  230.  privilege     in     this     respect    unfairly, 

100.  Horn  v.  Hetzger,  234  111.  240,  where  the  purchaser  has  become  bound 
84  N.  E.  893 ;  Watt  v.  Watt,  19  Ky.  on  his  part.  See  Cross  v.  Noble,  67 
Law,  25,  39  S.  W.  48;   Timmermann       Pa.  74. 

V.  Cohn,  70  Misc.  327,  128  N.  Y.  S.  6.  2  Kent  Com.  168 ;  Butler  v.  Buck- 

770.  ingham,  5  Day  (Conn.),  492;   Dankel 

1.  Kenady  v.  Gilkey,  81  Ark.  147,  v.  Hunter,  61  Pa.  382;  Stidham  v. 
98  S.  W,  969;  Madden  V.  Hall,  21  Cal.  Matthews,  29  Ark.  650;  Moseby  v. 
App,  541,  132  P.  291;  Fcrring  v.  Partee,  5  Heisk.  (Tenn.)  26;  Holmes 
Fleischman   (Tenn.),  39  S.  W.  19.  v.  Thorpe,  1  Halst.  Ch.  (N.  J.)   415; 

2.  Shermer  v.  Dobbins  (N.  C),  97  Lane  v.  McKeen,  15  Me.  304.  We 
S.  E.  510.  make,  of  course,  no  reference  here  to 

3.  Powell  V.  Felton,  11  Ired.  (N.  C.)  the  wife 's  separate  property,  or  to  her 
469,  rights  under   the   "married   women's 

4.  Macq.  Hus.  &  Wife,  32;  Emery  acts,"  to  be  considered  pnat.  6  247 
V,  Ware,  5  Ves.  84G;  Sug.  V.  &  P.,  et  seq.  See  Blake  v.  Blake,  7  Ta. 
11th  ed.,  230.  46.      A  contract  to  convey,  made  by 

5.  Sug.  V.  &  P.,  11th  ed.,  231.    She  husband     and     wife,     may     be    good 


§  210 


HUSBAiSTD    AND    WIFE. 


224 


And  as  she  cannot  bind  herself  to  convej,  neither  can  she  be  bound 
by  her  agreement  to  purchase/  Xor  will  the  law  coerce  her  into 
fulfilling  her  agreement  by  granting  exemplary  damages  against 
her  husband.^ 

§  210.  Effect  of  Wife's  Power  of  Attorney  to  Convey. 

At  common  law  a  wife's  power  of  attorney  was  void.^  So  it  has 
been  held  in  Vermont  that  the  wife  cannot.,  either  separately  or 
jointly  with  her  husband,  execute  a  valid  power  of  attorney  to 
convey  her  lands.^°  Under  the  Kentucky  statute  only  a  non-resi- 
dent wife  may  so  bind  herself.^^  This  rule  was  altered  by  an  early 
statute  in  South  Carolina.^"  A  joint  power  of  attorney  granted  by 
spouses  to  a  third  person  to  mortgage  her  separate  estate  is  valid  as 
her  power  of  attorney  as  well  as  his.^^  Thus  where  attorneys 
authorized  by  such  a  joint  power  convey  only  in  the  name  of  the 
wife,  without  inserting  or  subscribing  the  name  of  the  husband  in 
the  deed,  the  act  is  valid  even  where  the  statute  requires  the 
joinder  of  the  husband  in  the  deed,  where  the  intent  to  execute  the 
power  is  apparent,  and  where  the  consideration  is  paid  to  and 
retained  by  the  spouses.^* 

Under  the  Minnesota  statute  a  power  of  attorney  from  either 
spouse  to  the  other  to  sell  such  spouse's  land  is  void,  but  a  person 
making  such  a  contract  with  a  wife  through  her  husband  as  agent 
cannot  evade  the  contract  on  the  statutory  ground  where  she  is 


against  the  husband,  though  void  as  to 
the  wife.  Steffey  v.  Steffey,  19  Md. 
5;  Johnston  v.  Jones,  12  B.  Mon. 
(Ky.)  326;  2  Kent  Com.  168.  Upon 
the  strict  assent  of  husband  aJttd  wife, 
equity  has  sometimes  decreed  a  sale 
under  the  wife 's  title  bond.  Moseby 
T.  Partee,  5  Heisk.  (Tenn.)  26.  As 
to  the  wife's  ratification  of  the  hus- 
band's unauthorized  contract  for  the 
sale  of  her  land,  see  Ladd  v.  Hilde- 
brandt,  27  Wis.  135. 

7.  Kobinson  v.  Robinson,  11  Bush 
(Ky.),  174.  But  though  coverture  is 
a  good  defence  to  a  suit  for  specific 
performance  the  wife  will  not  be  per- 
mitted to  refuse  a  deferred  payment 
of  purchase-money  and  at  the  same 
time  retain  the  land.  Staton  v.  New, 
49  Miss.  307. 

8.  Burk  V.  Serrill,  80  Pft.  413. 


9.  McCreary  v.  ilcCorkle  (Tenn.), 
54  S.  W.  53;  Jenkins  v.  Crofton's 
Adm'r,  10  Ky.  Law,  456;  State  v. 
Clay,  100  Mo.  571,  13  S.  W.  827; 
Shanks  &  March  v.  Michael,  4  Cal. 
App.  553,  88  P.  596;  Duffy  v.  Cur- 
rence,  66  W.  Va.  252,  66  S.  E.  755; 
Wright  v.  Begley,  31  Ky.  Law  Eep. 
53,  101  S.  W.  342. 

10.  Sumner  v.  Conant,  10  Vt.  1; 
Gillespie  v.  Worford,  2  Cold.  (Tenn.) 
632 ;  Hardenburgh  v.  Lakin,  47  N.  Y. 
109. 

11.  Swafford  v.  Herd's  Adm'r,  23 
Ky.  Law,  1556,  65  S.  W.  803. 

12.  Guphill  V.  Isbell,  2  Bailey  (S. 
C),  349. 

13.  Linton  v.  National  Life  Ins.  Co., 
104  F.  584,  44  C.  C.  A.  54. 

14.  Ellison  v.  Branstrator,  153  Ind. 
146,  54  N.  E.   433. 


225  wife's  keal  estate.  §  211 

ready  to  perform.^^  Under  the  Iowa  statute  providing  that 
neither  spouse  shall  have  an  interest  in  the  estate  of  the  other 
which  may  be  the  subject  of  contract  between  them,  it  was  held 
that  her  power  of  attorney  to  sign  for  her  conveyance  of  real  estate 
allotted  to  him  under  their  separation  agreement  was  void/" 

§  211.  Form  and  Requisites  of  Wife's  Conveyance  in  General. 

In  some  States  the  separate  conveyance  of  a  married  woman, 
or  her  execution  jointly  with  her  husband,  but  without  observance 
of  the  full  statute  formalities,  is  void."  But  in  others  such  irregu- 
larities are  not  held  fatal  to  the  instrument,  and  she  is  furthermore 
bound  on  the  usual  principles,  even  though  her  deed  be  separate 
from  that  of  her  husband  and  executed  at  a  different  time.^^  The 
question  in  such  cases  is  mainly  one  of  statute  construction,  and  as 
to  formalities  a  distinction  may  be  taken  between  mere  errors  of 
description,  or  literal  informalities  of  execution  or  acknowledgment 
on  the  one  hand,  and,  on  the  other,  the  disregard  of  some  statutory 
requirement,  so  as  to  substantially  violate  public  policy,  such,  for 
instance,  as  her  separate  acknowledgment,  or  her  declaration  before 
the  magistrate  that  she  executed  freely  and  understandingly  for  the 
purpose  specified.^* 

It  is  held  a  good  deed  of  husband  and  wife  where  they  are  both 
named  at  the  commencement  of  the  deed  as  parties  of  the  first  part, 
and  afterwards  the  parties  of  the  first  part  are  named  as  grantors.^" 

15.  Stromme  v.  Rieck,  107  Minn.  not  execute  until  years  later,  when  it 
177,  119  N.  W.  948.  will  take  effect.     Stiles  v.  Probst,  69 

16.  Sawyer  v.  Briggart,  114  la.  489,      111.  382. 

87  N.  W.  426.  As  to  barring  an  estate  tail  in  case 

17.  Trimmer  v.  Heagy,  16  Pa.  484;  of  a  married  woman,  see  Lippitt  v. 
Scarborough  v.  Watkins,  9  B.  Mon.  Huston,  8  R.  I.  415.  The  wife's  title 
(Ky.)  540;  Dow  v.  Jewell,  18  N.  H.  to  lands  vested  in  her  under  an  un- 
340;  Kerns  v.  Peeler,  4  Jones  (N.  C),  recorded  deed  cannot  be  divested  by 
226;  Wentworth  v.  Clark,  33  Ark.  432;  her  parol  consent  to  its  cancellation, 
Cincinnati  v.  Newell,  7  Ohio  St.  37;  and  a  new  deed  to  her  husband.  Wil- 
Pratt  V.  Battles,  28  Vt.  685;  Boyle  v.  son  v.  Hill,  2  Beasl.  (N.  J.)  143. 
Chambers,  32  Mo.  46;  Berry  v.  Don-  19.  See  Hamar  Medsker,  60  Ind. 
ley,  26  Tex.  737;  Jewett  v.  Davis,  10  413;  Little  v.  Dodge,  32  Ark.  453; 
Allen  (Mass.),  68;  Baxter  v.  Bodkin,  Laughlin  v.  Fream,  14  W.  Va.  322; 
25  Ind.  172;  Bressler  v.  Kent,  61  111.  Staton  v.  New,  49  Miss.  307;  Rice  v. 
426  Peacock,     37     Tex.     392 ;     Marsh     v. 

18.  Albany  Fire  Ins.  Co.  v.  Bay,  4  Mitchell,  26  N.  J.  Eq.  497;  Wannell 
Comst.  (N.  Y.)  9;  Card  v.  Patterson,  v.  Kem.  57  Mo.  478;  Thayer  v.  Tor- 
5  Ohio,  319;  Smith  v.  Perry,  26  Vt.  rey,  37  N.  J.  L.  339;  Smith  v.  Elliott, 
279;  Strickland  v.  Bartlntt,  51  Me.  39  Tex.  201 ;  Allen  v.  Lenoir,  53  Miss. 
355;    Hornbeck   v.   Building   Associa-  321. 

tion,  88  Pa.  64.     In  some  States  the  20.  Thornton  v.  National  Exchange 

wife  must  join,  it  is  said,  but  she  need      Bank,  71  Mo.  221. 

15 


§  211 


HUSBAND    AND    WIFE. 


226 


But  a  deed  of  the  hu&band  only  where  both  execute  and  the  husband 
alone  is  named  as  grantor  in  the  body  of  the  deed  is  invalid(  ?)'^ 

Usually  a  conveyance  of  land  owned  by  the  husband  in  fee  should 
be  made  separated  from  that  of  land  owned  by  the  wife  in  fee. 
But  under  the  statutes  of  some  States  it  is  held  that  lands  of  both 
descriptions  may  be  embraced  in  a  single  conveyance ;  the  wife 
making  but  one  acknowledgment  for  the  combined  purpose  of  re- 
leasing dower  in  her  husband's  lands  and  conveying  title  in  her 
own.^^  Where  both  spouses  have  undivided  interests  in  the  same 
property,  her  mere  signature  to  his  deed  purporting  to  convey  his 
property  will  not  pass  her  interest,  where  her  name  does  not 
appear  in  the  body  of  the  deed.^^  The  conveyance  of  the  wife's 
life  estate  follows  the  usual  statute  rule  as  to  her  conveyances.^* 

As  concerns  the  wife's  life  estate  in  her  real  or  personal  prop- 
erty, the  English  chancery  courts  have  followed  out  exceptions  to 
the  doctrines  of  equitable  assignment  already  noticed,  with  their 
limitations.^* 

The  deed  of  a  married  woman  as  trustee  is  good  against  her 
heirs,  claiming  adversely  to  the  trust,  even  though  given  without 
the  assent  of  her  husband.  And  a  like  deed  executed  under  a 
power  of  attorney,  granted  by  her  alone,  is  equally  valid.^®  And 
a  deed,  in  order  to  bind  the  wife's  heirs,  must  have  been  delivered 
as  well  as  executed,  during  her  lifetime,^^  but  a  wife's  deed  exe- 
cuted before  majority,  but  delivered  after  majority  and  marriage, 
is  valid.^®  A  husband  cannot,  after  his  wife's  decease,  as  against 
her  heirs,  confirm  a  conveyance  which  was  fat^ally  irregular  on  her 
part.'* 

Alteration  of  the  deed,  after  execution,  without  the  wife's  con- 
sent, vitiates  it  as  to  those  chargeable  with  knowledge  of  the  fact.^° 
In  the  absence  of  statute  the  assignment  by  a  wife  of  a  certificate 
of  purchase  issued  by  the  receiver  of  the  land  office  is  void,  and 


21.  McFadden    v.    Eogers,    70    Mo. 
421 ;  Heaton  v.  Fryberger,  38  la.  185. 
28.  Barker  v.  Circle,  60  Mo.  258, 

23.  Cordano  v.  Wright,  159  Cal.  610, 
115  P.  227. 

24.  Henning   v.   Harrison,    13   Bush 

(Ky.),  723. 

25.  See  Purdew  v.  Jackson,  1  Kuss.  1. 

26.  Gridley  v.  Wynant,  23  How.  (U. 
S.)  500;  Holleman  v.  De  Nyse,  51 
Ala.   95;    Lew.  Trusts  and  Trustees, 


89,  90;  Sug.  Pow.  192,  196;  Eeeee  v. 
Cochran,  10  Ind.  195. 

27.  Thoenberger  v.  Zook,  34  Pa.  24. 
But  see  Ackert  v.  Pults,  7  Barb.  (N. 
Y.)  386;  Somers  v.  Pumphrey,  24  Ind. 
231. 

28.  Sims  V.  Smith,  99  Ind.  469,  50 
Am.  E.  657. 

29.  Dow  V.  Jewell,  1  Post.  (N,  H.) 
470. 

30.  Stone  v.  Lord,  80  N.  Y.  60. 


227 


WIFE  S    REAL    ESTATE. 


§  212 


any  person  interested   in   the   title   may   take    advantage   of   its 
invaliditj.^^ 

§  212.  Joinder  of  Husband. 

In  tJiis  country  the  custom  of  a  wife's  joining  her  husband  in  a 
•deed  of  conveyance  of  her  lands  has  prevailed  from  a  very  early 
period.  In  most,  if  not  all,  of  the  States,  there  are  statutes  exist- 
ing as  to  the  mode  of  execution,  which  contemplate  the  joinder  of 
husband  and  wife  in  the  conveyance,  and  an  acknowledgment  by 
■one  or  both  of  the  parties,^^  where  he  does  not  renounce  his  marital 
rights,^^  even  though  he  is  an  infant.'*  The  rule  was  the  same 
where  the  property  was  derived  from  a  former  husband,  where  she 
sought  to  convey  it  during  a  second  coverture.'^  At  common  law 
a  wife  could  not  convey  her  land  without  her  husband's  consent 
and  joinder  in  the  deed  as  grantor.^®  The  assent  or  joinder  of  the 
husband  is  in  some  States  permitted  to  be  subsequent  instead  of 
concurrent,  the  wife  not  having  sought  to  invalidate  the  deed  mean- 
time.'^ And  even  where  the  deed  of  the  wife's  land  is  expressed 
as  hers  alone,  the  husband's  solemn  execution  and  acknowledgment 
is  held  to  fulfil  requirements  if  her  execution  be  in  due  form.'® 


31.  Bland  v.  Windsor  &  Cathcart, 
187  Mo.  108,  86  S.  W.  162. 

32.  Kentucky  Stave  Co.  v.  Page 
(Ky.),  125  S.  W.  170;  McAnulty  v. 
Ellison  (Tex.),  71  S.  W.  670;  Kellett 
V.  Trice,  95  Tex.  160,  66  S.  W.  51; 
Davis  V.  Bowman  (Tenn.),  46  S.  W. 
1039';  Dreseher  v.  Benika,  20  Ky.  Law, 
344,  46  S.  W.  irj;  Bohannon  v.  Travis, 
94  Ky.  59,  14  Ky,  Law,  912,  21  S.  W. 
354;  Mounts  v.  Mounts,  155  Ky.  363, 
159  S,  W.  818;  Slmmaker  v.  Johnson, 
35  Ind.  33;  1  Washb.  Real  Prop.  281, 
and  cases  cited;  Davey  v.  Turner,  1 
Ball.  15;  Jackson  v.  Gilchrist,  15 
Johns.  (N.  Y.)  109;  Page  v.  Page, 
6  Cush.  (Mass.)  196;  2  Kent  Com. 
151-155,  and  notes,  showing  custom  in 
different  States;  Albany  Fire  Ins.  Co. 
V.  Bay,  4  Const.  (N.  Y.)  9;  Ford  v. 
Teal,  7  Bush  (Ky.),  156;  Mount  v. 
Kesterson,  6  Cold.  (Tenn.)  452;  Tour- 
ville  V.  Pierson,  39  111.  446;  Deery  v. 
Cray,  5  Wall.  (U.  S.)  795;  Alabama, 
etc.,  Ins.  Co.  v.  Boykin,  38  Ala.  510; 
Lindley  v.  Smith,  46  Til.  523;  Tubbs 
v.  Gatowood,  26  Ark.  128.  The  privy 
examination  of  a  wife  for  ascertaining 
that  she  executes  the  deed  freely  and 


without  undue  influence  or  compulsion 
of  her  husband  is  a  feature  of  the 
legislation  in  many  States;  and  the 
validity  of  her  conveyance  often  turns 
upon  a  compliance  with  such  a  rquiree 
ment.  Tubbs  v.  Gatewood,  supra; 
Richardson  v.  Hittle,  31  Ind.  119; 
McCandless  v.  Engle,  51  Pa.  309;  Tap- 
ley  v.  Tapley,  10  Minn.  448 ;  Andola 
V.  Picott,  5  Ida.  27,  46  P.  928  Vicroy 
V.  Vicroy,  20  Ky.  Law,  47;  Camp  v. 
Carpenter,  52  Mich.  375,  18  N.  W. 
113;  Comings  v.  Leedy,  114  Mo.  454, 
21  S.  W.  804. 

33.  Blondin  v.  Brooks,  83  Vt.  472, 
76  A.  184. 

34.  Zimpleman.  v.  Port  wood,  48  Tex. 
Civ.  438,  107  S.  W.  584;  Tippett  v. 
Brooks,  95  Tex.  335,  67  S.  W.  512. 

35.  Griner  v.  Butler,  61  Ind.  362, 
28  Am.  R.  675. 

36.  Reese  v.  Cochran,  10  Ind.  105; 
Kennedy  v.  Ten  Broeck,  74  Ky.  11 
Bush    (ky.),  241. 

37.  Wing  V.  Schramm,  7ff  N.  Y. 
619;  Call  v.  Perkins,  65  Me.  439. 

38.  Thompson  v.  Lovrein,  82  Pa. 
432. 


213 


HUSBAND    AXD    WIFE. 


228 


Although  estoppel  may  prevail  against  a  husband  in  so  many 
instances  where  the  wife  is  not  bound,  his  assent  or  joinder  is  of 
such  importance  in  conveyances  of  the  wife's  land,  where  statutes 
do  not  permit  her  sole  conveyance,  that  a  deed  by  a  man  and  wife 
of  the  wife's  land,  made  when  the  husband  is  insane,  is  absolutely 
void.'" 

Where  husband  and  wife  do  not  execute  the  deed  of  the  wife's 
lands  simultaneously,  and  simultaneous  execution  of  their  joint 
deed  is  not  requisite,  the  deed  cannot  be  regarded  as  delivered  until 
after  the  wife  has  executed.*"  A  deed  which  is  void  because  of  the 
failure  of  the  husband  to  join  can  be  ratified  after  his  death  only  by 
a  second  deed  executed  as  required  by  law,  and  no  informal  acts  or 
words  will  be  sufficient.*^  In  Vermont  by  statute  a  court  of  chan- 
cery has  power  to  confirm  the  deed  of  a  wife  in  which  the  husband 
does  not  join  and  compel  the  husband  to  execute  confirmatory 
instruments.*^ 

§  213.  Acknowledgment. 

If  a  certificate  of  acknowledgment  be  defective,  the  magistrate 
should  have  the  deed  reacknowlede;ed.*^  But  contrarv  to  the  strict 
rule  of  most  acts  concerning  the  wife's  acknowledgment,  it  is  now 
permitted  in  some  States,  in  case  of  a  defective  certificate,  to  prove 
due  execution  otherwise  on  her  part.**  Where  the  official  certificate 
shows  that  the  wife  acknowledged  her  execution  after  the  statutory 
form,  this  is  held  to  be  in  the  nature  of  judicial  evidence,*^  and 
again  it  is  pronounced  only  prima  facie  evidence  of  the  separate 
examination  and  explanation  requisite,*®  but  from  either  aspect  it  is 
not  readily  to  be  impeached  by  extraneous  evidence,  especially  after 
the  lapse  of  time,  nor  can  the  certificate  be  contradicted  by  parol 


39.  Leggate  v.  Clark,  111  Mass.  308. 

40.  Stiles  V.  Probst,  69  HI.  382. 

41.  Buford's  Adm'r  v.  Guthrie,  14 
Bush  (Ky.),  677;  McReynolds  v. 
Grubb,  150  Mo.  352,  51  S.  W.  822, 
73  Am.  St.  E.  448. 

42.  Dietrich  v.  Hutchinson,  73  Vt. 
134,  50  A.  810,  87  Am.  St.  K.  698. 

43.  Merritt  v.  Yates,  71  111.  636; 
Cahall  V.  Building  Association,  60 
Ala.  232.  Proceedings  for  amending 
an  officer's  omission  in  the  acknowl- 
edgment is  permitted  under  some  stat- 
utes. Kilboum  v.  Pury,  26  Ohio  St. 
153. 


44.  Terry  v.  Eureka  College,  70  111. 
236. 

45.  Kerr  v.  Eussell,  69  111.  666; 
Pribble   v.  Hall,  13   Bush   (Ky.),  61. 

46.  Hughes  v.  Coleman,  10  Bush 
(Ky.),  246;  Marsh  v.  Mitchell,  26  N. 
J.  Eq.  497.  Contents  may  be  com- 
municated by  the  magistrate  through 
an  interpreter.  Norton  v.  Meader, 
4  Sawyer  (H.  S.),  603.  The  wife  may 
be  examined  privily  and  apart,  even 
though  the  door  was  not  shut.  Kava- 
naugh  V.  Day,  10  E.  I.  393. 


229  WIFE  S  REAL  ESTATE.  §  214 

testimony/^  And  even  if  the  deed  be  defectively  acknowledged,  a 
married  woman  who  has  received  consideration  for  the  sale  and 
dealt  with  the  property  has  been  estopped  from  availing  herself  of 
the  defect  af tenvards ;  so  that  a  bill  in  the  nature  of  a  bill  to  quiet 
title  was  entertained/* 

So  where  the  acknowledgment  omitted  the  statement,  which  the 
statute  required,  that  the  grantor  wished  not  to  retract,  the  acknowl- 
edgment is  still  binding  after  fifty  years,  and  a  stranger  to  the  deed, 
a  trespasser,  cannot  attack  it  where  the  grantor  had  lived  near  the 
land  for  a  long  time  and  had  never  objected  to  the  validity  of  the 
conveyance.*" 

A  statute  requiring  a  deed  by  a  husband  and  wife  to  contain  an 
acknowledgment  certifying  the  marital  relation  is  directory  merely 
and  its  omission  does  not  vitiate  the  deed  of  a  married  woman  in 
which  her  husband  has  actually  joined.  So  where  a  husband  is 
trustee  holding  the  legal  title  to  land  in  trust  for  his  wife,  and  joins 
her  in  the  execution  of  a  deed  therefor,  it  will  be  presumed  that  he 
thereby  consented  as  husband  to  her  making  the  deed.  Being  both 
trustee  and  husband,  it  is  inconceivable  that  he  should  have  joined 
his  wife  as  trustee  for  the  purpose  of  conveying  land  in  which  his 
wife  had  the  complete  equity  and  not  thereby  have  intended  to  ex- 
press his  consent  in  the  latter  capacity,  which  was  indispensable  to 
the  validity  of  the  wife's  conveyance.  It  was  not  necessary  for  him 
to  designate  the  capacity  in  which  he  signed  in  order  to  give  effect 
to  his  signature  in  whatever  capacity  it  was  necessary  for  him 
to  act.^** 

§  214.  Privy  Examination  of  Wife. 

Some  of  the  States  require  a  separate  acknowledgment  of  the 
wife  apart  from  her  husband,  and  even  a  privy  examination  by  the 
magistrate,  so  as  to  make  sure  that  she  is  acquainted  with  the 
contents  of  the  deed  and  acts  freely  and  understandingly ;  but  in 
this  and  other  respects  the  laws  are  not  uniform.  There  is  less 
formality  in  general  than  under  the  English  statute.  Thus,  then, 
does  the  wife  pass  title  to  her  real  estate. 

47.  Willis  V.  Gattman,  53  Miss.  721;  tceted.      Harmon  v.  Mag-ee,   57   Miss. 

Lcftwieh    v.    Neal,    7    W.    Ya.    569.  410. 

An   officer  -who  has  properly  taken  a  48.    Shivers   v.    Simmons,    54    Miss, 

married       woman 's       acknowldgment  520. 

may  make  the   certificate   nut  at  any  49.  Rpi\'y  v.  March    (Tex.),   151   S. 

time  while  he  remains  in  office;  inter-  "W.   lOHT,  45  L,  R.  A.    (N.  S.)    1109. 

vening    rights,    however,    being    pro-  50.   Wohrle  v.  Price    (W.  Va.),  94 

S.  E.  477. 


§    214  HUSBAND    AND    WIFE.  230 

Where  the  statute  requires  a  privj  examination  of  the  wife  to 
make  her  deed  good,  and  a  certificate  of  that  fact  by  the  notary,  the 
examination  is  not  complete  until  these  mandatory  requirements 
are  complied  with.  So  where  the  wife,  after  signing  a  deed  and 
being  examined  by  the  notary,  cancels  her  signature  before  he  has 
made  his  certificate  or  her  husband  has  signed,  the  deed  is  void.°^ 

The  statutory  requirement  of  a  privy  examination  of  the  wife  to 
give  validity  to  her  deed  is  not  dispensed  with  by  Married  Women's 
Acts  emancipating  her  from  all  disabilities  and  allowing  her  to 
dispose  of  her  property  as  if  sole.  The  privy  examination  is  a  part 
of  the  execution  of  the  deed.  It  is  the  wife's  examination,  and  not 
her  signature,  which  gives  it  validity.^^  A  separate  examination 
is,  under  some  codes,  more  insisted  upon  than  a  separate  acknowl- 
edgment.^' 

Where  the  statute  provides  that  the  officer  taking  the  wife's 
acknowledgment  shall  examine  her  privily  and  apart  from  her 
husband  as  to  her  voluntary  execution  of  the  deed,  and  satisfy  him- 
self that  she  signed  it  voluntarily  and  shall  so  satisfy,  this  contem- 
plates an  examination  in  his  presence  and  cannot  be  done  by  tele- 
phone, especially  where  the  statute  was  passed  before  telephones 
were  invented.  This  officer  cannot  determine  the  matter  judicially 
out  of  her  presence,  because  her  appearance,  manner,  and  demeanor 
may  bcome  more  potent  factors  in  ascertaining  the  truth  of  this 
than  mere  formal  answers  to  questions.^* 

In  Virginia  it  is  held  that  such  a  certificate  cannot  be  attacked 
collaterally  or  directly,  except  in  equity  for  fraud."^  Where  a  deed 
of  a  wife  is  declared  void  because  not  acknowledged  after  a  privy 
examination  as  required  by  the  !N^orth  Carolina  statute,  it  is  held 
that  the  wife  is  not  liable  personally  for  the  consideration,  which 
can  only  be  recovered  in  rem  against  the  specific  money  received, 
or  any  property  into  which  it  can  be  traced."®  A  substantial  com- 
pliance with  the  Virginia  statute  requiring  a  privy  examination  of 
a  wife  as  a  part  of  her  acknowledgment  of  her  deed  will  suffice  if 
all  the  requirements  are  substantially  complied  with,  none  being 
omitted." 

51.  Elflridge  V.  Hunter  (Tenn.),  143  54.  Eoach   v.   Francisco,   1.38   Tenn. 
R.  W.   89'2,  40  L.  R.  A.   (X.  S.)    628.       .357,  197  S.  W.  1099,  1  A.  L.  R.  1074. 

52.  Roach  v.   Francisco,   138   Tenn.  55.  Murrell   v.   Diggs,    84   Va.   900. 
357,  197  S.  W.  1099,  1  A.  L.  R.  1074.           56.   Smith   v.   Ingraham,   130  N.  C. 

53.  Kenneday  v.  Price,  57  Miss.  100,  40  S.  E.  9-84,  61  L.  R.  A.  878. 
771.  57.  Hockman    v.    McClanaham,    87 

Va.  33,  12  S.  E.  230. 


231  wife's  eeal  estate.  §  217 

§  215.  Effect  of  Abandonment. 

Where  a  wife  is  abandoned  her  husband's  joinder  in  her  deed  is 
not  necessary  to  validate  it/*  no  matter  what  was  the  cause  of  the 
separation.^^  This  rule  is  established  by  statute  in  North  Caro- 
lina.^" Temporary  separations  of  the  spouses  do  not  amount  to  an 
abandonment  within  the  meaning  of  the  rule/^  nor  is  a  separation 
by  consent  s'uch  an  abandonment.®^ 

§  216.  Effect  of  English  Statute. 

Modem  statutes  which  permit  the  wife  to  convey  with  the  observ- 
ance of  certain  formalities  often  permit  her  generally  to  contract, 
to  convey,  and  to  incumber  her  lands. 

Under  the  modern  statute  of  3  &  4  Will.  IV.  c.  74,  which  took 
effect  in  England  from  the  end  of  the  year  1833,  married  women 
are  permitted  to  alienate  or  incumber  their  real  estate  by  convey- 
ances executed  with  their  husbands  pursuant  to  its  provisions. 
This  important  law,  with  its  later  modifications,  unfettered  prop- 
erty which  had  long  been  fast  bound.®^  The  statute  requires  the 
concurrence  of  the  husband  in  such  conveyances :  also  that  the  wife 
shall  make  an  acknowledgment  before  certain  judicial  officers  desig- 
nated by  the  act,  apart  from  her  husband,  to  the  effect  that  her 
own  consent  is  freely  and  voluntarily  given.®* 

§  217.  Validity  of  Wife's  Mortgage. 

In  this  country,  a  married  woman  may  mortgage  as  well  as 
alienate  her  real  estate  by  joining  her  husband  in  the  conveyance 

58.  Buford  v.  Adair,  43  W.  Va.  211,  ib.  Appendix,  1-47,  where  the  pro- 
27  S.  E.  260,  64  Am.  St.  E.  854;  Witty  visions  of  this  act,  the  rules  of  court 
T.  Barham,  147  N.  C.  479,  61  S.  E.  made  in  pursuance,  and  leading  de- 
372;  Therriault  v.  Compere  (Tex.),  cisions  on  the  construction  of  different 
47  S.  W.  750;  Fairchild  v.  Creswell,  sections,  are  fully  given.  And  see  In 
109  Mo.  29,  18  S.  W.  1073;  Kadford  re  Bowling,  18  C.  B.  (N.  S.)  233.  We 
V.  Carwile,  13  W.  Va.  572;  Bieler  v.  have  not  thought  it  worth  while  to 
Dreher,  129  Ala.  384,  30  So.  22;  embody  them  in  this  work,  as  they 
Bachelor  v,  Norris,  166  N.  C.  506,  82  have  only  a  local  application.  There 
S.  E.  839;  Heagy  v.  Kastner  (Tex.),  are  many  cases  constanly  arising  in 
138  S.  W.  788;  Stewart  v.  Profit  the  English  courts  as  to  the  interpre- 
(Tex.),  146  S.  W,  563.  tation  of  this  statute,  with  its  amend- 

59.  Spangler  v.  Vermillion,  80  W.  ments;  but  they  seem  chiefly  confined 
Va.  75,  92  S.  E,  449,  to  the  effect  of  the  wife's  acknowl- 

60.  Pardon  v.  Paschall,  142  N.  C.  edgmcnt.  Previous  to  the  statute  of 
538,  55  S.  E.  365.  3  &  4  Will.  IV.,  ch.  74,  the  wife  could 

61.  Nelson  v.  Brown  (Ter.),  Ill  convey  her  interest  only  by  levying 
S.  W.  1106.  a  fine,  which,  as  well  as  suffering  re- 

62.  Witty  V.  Barham,  147  N.  C.  coveries,  is  abolished  bv  that  statute. 
479,  61  S.  E.  372.  1    Washb.    Real   Prop.   230;    1    Wms. 

68.  See  8  &  9  Vict.,  ch.  106.  Real  Prop.  88. 

64.  See  Macq.  Hus.  &  Wife,  28-32; 


217 


HUSBAND    AND    WIFE. 


232 


and  making  due  acknowledgment ;  and  this,  too,  though  no  consid- 
eration pass  to  her  therebj.^^  Where  the  wife  joins  her  husband 
in  a  conveyance  in  the  nature  of  a  mortgage,  she  subjects  her  real 
estate  to  the  risk  of  complete  alienation  by  foreclosure  for  her 
husband's  debt,  or  by  sale  under  a  power  of  sale  thereby  conferred. 
She  is  estopped  by  her  own  acts  from  denying  the  validity  of  the 
mortgage.^^  She  may  covenant  that  scire  facias  may  issue  in 
default  of  payment."  She  may  create  a  valid  power  in  the  mort- 
gage to  sell  in  default  of  payment.^^  And  in  general  she  may 
convey  upon  condition  and  prescribe  the  terms.^'  But  independ- 
ently of  an  express  statute  permission,  and  as  our  statutes  generally 
run,  the  wife's  mortgage  without  her  husband's  joinder  or  assent 
is  void.'^°  And  so  is  her  assignment  of  a  mortgage."  The  prop- 
erty actually  mortgaged  by  her,  and  not  her  property  in  general, 
is  thus  subjected  to  the  payment  of  her  hus'band's  note;  and  she 
cannot  be  held  personally  liable  for  any  deficiency  under  the  fore- 
closure sale.^^ 


65.  Eaton  v.  Nason,  47  Me.  132; 
Swan  V.  Wiswall,  15  Pick.  (Mass.) 
126;  Whiting  v.  Stevens,  4  Conn.  44; 

1  Hill.  Mort.  272;  Demarest  v.  Wyn- 
koop,  3  Johns.  Ch.  (N.  Y.)  144;  2 
Kent  Com.  167;  Siter  v.  McClanachan, 

2  Gratt.  (Va.)  280;  Philbrooks  v. 
McEwen,  29  Ind.  347;  Moore  v.  Tit- 
man,  33  111.  358;  McFerrin  v.  White, 
6  Cold.  (Tenn.)  499;  American,  etc., 
Ins.  Co.  V.  Owen,  15  Gray  (Mass.) 
49'1;  Newhart  v.  Peters,  80  N.  C.  186. 

66.  McCullough  V.  Wilson,  21  Pa. 
436. 

67.  Black  v.  Galway,  24  Pa.  18. 

68.  2  Kent  Com.  167;  Vartie  v.  Un- 
derwood, 18  Barb.  (N,  Y.)  561; 
Barnes  v.  Ehrman,  74  111.  402. 

69.  Demarest  v.  Wynkoop,  3  Johns. 
Ch.  (N.  Y.)  129;  2  Kent  Com.  167. 
So,  too,  in  England.  Pybus  v.  Smith, 
1  Ves.  Jr.  189;  Essex  v.  Atkins,  14 
ib.  542.  See  Gilbert  v.  Mayford,  21 
111.  471;  Ruscombe  v.  Hare,  2  Bligh, 
192;  Bird  v.  Davis,  1  MeCart.  467. 

70.  Weed  Sewing  Machine  Co.  v. 
Emerson,  115  Mass.  554;  Bressler  v. 
Kent,  61  111.  426;  Yager  v.  Merkle,  26 


Minn.  429;  Herdman  v.  Pace,  85  111. 
345. 

71.  Moore  v.  Cornell  68  Pa.  320. 

72.  See  Wolf  v.  Van  Metre,  23  la. 
397;  Logan  v.  Thrift,  20  Ohio  St.  62; 
Howe  V.  Lemon,  37  Mich.  164;  Hob- 
son  V.  Hobson,  8  Bush  (Ky.),  665. 
Her  equity  will  be  barred  by  regular 
sale  under  a  power  of  sale  mortgage, 
as  under  a  sale  by  decree  of  chancery. 
Strother  v.  Law,  54  111.  413.  Deed 
with  certain  simultaneous  agreements 
may  create,  as  against  the  wife,  the 
relation  of  mortgagor  and  mortgagee, 
on  the  usual  principles.  Eagan  v. 
Simpson,  27  Wis.  355.  A  mortgage 
executed  in  blank  by  the  wife  was 
held  to  be  invalid  in  Simms  v.  Hervey, 
19  la.  273.  And  in  general  the  statute 
formalities  relating  to  conveyances 
must  have  been  complied  with.  Halt 
v.  Houle,  19  Wis.  472.  As  to  agree- 
meenta  for  extension,  see  Belloc  v. 
Davis,  38  Cal.  242.  See  further. 
Holmes  v.  McGinty,  44  Miss.  94.  And 
as  to  the  wife's  equities  in  such  mort- 
gage, see  also  Dissolution  of  Marriage 
by  Death,  post,  Vol.  II. 


233 


WIFE  S    KEAL    ESTATE. 


§  218 


§  218.  Wife's  Liability  on  Covenants. 

The  rights  of  the  wife  are  treated  with  great  consideration  in 
our  courts.^^  In  all  cases  the  wife,  who  joins  her  husband  in  a 
mortgage  of  her  own  property  to  secure  his  debts  or  the  payment 
of  money  loaned  to  him,  is  merely  the  surety  of  her  husband,  and 
is  entitled  to  all  the  rights  and  privileges  of  a  survey.  This  rule 
is  well  settled.^*  And  the  fact  that,  by  the  terms  of  a  mortgage, 
the  surplus  is  to  be  paid  to  the  husband  after  satisfying  the  mort- 
gage debt,  and  not  to  the  wife  or  to  the  mortgagors  jointly,  will  not 
repel  the  idea  that  the  wife  was  or  intended  to  be  a  surety." 

A  wife  is  not  bound  by  her  warranty  in  a  deed  which  she  exe- 
cutes. Xor  by  any  covenants  contained  therein.  This  is  the 
general  common-law  rule  in  England  and  America.^^  For  this 
accords  with  the  principle  that  married  women  are  incapable  of 
binding  themselves  by  contract ;  and  the  effect  of  her  conveyance 
under  the  statute  is  simply  that  she  passes  whatever  title  she  had  in 
the  lands  conveyed.  Yet  the  husband  may  be  bound  on  his  part, 
where  he  joins  her,  notwithstanding.'^^  In  England,  where  the 
wife  formerly  passed  her  real  estate  by  suffering  a  fine,  it  was  held 
long  ago  that  if  the  grantee  were  evicted  by  a  paramount  title,  the 
wife  could  be  sued  on  her  covenant  of  warranty  after  her  husband's 
death."*  So,  too,  it  was  formerly  said  that  the  wife  should  be  held 
bound  on  the  covenants  contained  in  a  lease  of  her  lands  executed 
during  coverture,  with  her  husband,  and  affirmed  by  herself  after 
his  death,  by  such  acts  as  the  acceptance  of  rent ;  '^  and  this  doc- 
trine is  certainly  not  unreasonable  so  far  as  a  subsequent  breach  of 


73.  See  Bayler  v.  Commonwealth,  40 
Pa.  37.  "  Will  a  court  of  equity  in- 
terfere in  favor  of  one  who  is  an  as- 
signee or  covenantee,  but  not  for  value, 
to  enforce  a  wife's  engagement  to 
pay  an  old  debt  of  her  husband?  The 
answer  is  plain.  If  it  will  not  decree 
the  performance  of  an  ordinary  agree- 
ment, not  founded  on  a  valuable  con- 
sideration much  less  will  it  enforce 
such  a  contract  against  a  feme 
covert.'*     Per  Strong,  J.;  ib.,  p.  44. 

74.  Neimcewicz  v.  Gahn,  3  Paige 
(X.  Y.),  614;  Hawley  v.  Bradford,  9 
Paige  (N.  Y.),  200;  Vartie  v.  Under- 
wood, 18  Barb.    (N.  Y.)    561. 

75.  Vartie  v.  Underwood,  18  Barb. 


(N.  Y.)   561.     But  see  Dean  v.  Phil- 
lips, 17  Ind.  406. 

76.  2  Kent  Com.  167,  168;  Fowler 
V.  Shearer,  7  Mass.  21,  per  Parsons, 
C.  J.;  Falmouth  Bridge  Co.  v.  Tib- 
betts,  16  B.  Mon.  (Ky.)  637;  Den  v. 
Demarest,  1  Zab.  (X.  J.)  525;  Rawle 
Gov.  573,  574;  Botsford  v.  Wilson,  75 
111.  133. 

77.  Buell  V.  Shuman,  28  Ind.  464; 
Griner  v.  Butler,  61  Ind.  362. 

78.  Wotton  V.  Hele,  2  Saund.  177; 
1  Mod.  290.  Chancellor  Kent  justly 
observes  that  this  was  a  very  strong 
case  to  show  that  she  might  deal  with 
her  land  by  fine  as  a  feme  sole,  2 
Kent  Com.   167. 

79.  2    Saund.   80,  note   9. 


§    220  HUSBAND    AND    WIFE.  234 

covenant  is  concerned.  But  further  than  this  courts  would  not 
probably  go  at  this  day.*°  And  in  this  country  the  wife's  covenants 
in  a  conveyance  executed  jointly  with  her  husband  are  considered 
binding  upon  her  only  by  way  of  estoppel ;  and  not  so  as  to  subject 
her  to  suit  for  damages.*^  And  as  she  is  not  answerable  for  a  breach 
of  covenant,  neither  are  her  heirs  or  devicees.*^  Indeed,  in  I^ew 
York,  the  wife's  privilege  in  this  respect  is  carried  much  further, 
for  she  is  permitted  to  execute  a  conveyance  of  land  with  her  hus- 
band, containing  a  covenant  of  warranty  on  her  part,  and  then  to 
defeat  the  title  by  acquiring  an  adverse  interest  afterwards.*^ 

§  219.  Effect  of  Fraud  or  Duress. 

Fraud  and  deception  used  by  the  husband  in  procuring  the  wife's 
signature,  or  the  failure  of  the  officer  to  perform  his  duty  accord- 
ing to  the  statute  form  of  the  acknowledgment  and  his  own  certifi- 
cate, will  not  vitiate  the  deed  as  to  the  grantee  and  those  claiming 
under  him,  in  the  absence  of  evidence  tending  to  charge  with 
seasonable  notice  thereof.^* 

A  husband  who  stands  by  and  deceives  a  grantee  of  his  wife  so 
that  such  grantee  believes  that  the  husband  has  no  interest  in  the 
land  cannot  afterward  attack  the  validity  of  the  deed,  nor  can  his 
heirs  do  so.*^  But  duress  is  of  course  good  ground  for  avoiding 
the  wife's  deed,  as  against  all  who  are  chargeable  with  complicity 
or  seasonable  notice ;  such  duress  being  established  as  to  the  par- 
ticular execution.*® 

§  220.  Effect  of  Estoppel. 

We  may  observe,  on  the  whole,  that,  while  modem  statutes 
greatly  vary  in  this  country,  as  to  the  requisites  attending  a  married 

80.  Her  covenant  for  quiet  enjoy-  Johns.  (N.  Y.)  167;  Carpenter  v. 
ment  in  the  lease  of  her  lands  will  not  Sehermerhorn,  2  Barb.  Ch.  (N.  Y.) 
bind  her.  Foster  v.  Wilcox,  10  R.  I.  314.  And  see  Shumaker  v.  Johnson, 
143.  35  Ind.  33.    Canira,  Colcord  v.  Swan, 

81.  Nash  V.  Spofford,  10  Met.  7  Mass.  291;  Hill  v.  West,  8  Ohio, 
(Mass.)  192;  Jackson  v.  Vanderhey-  225;  Massie  v.  Sebastian,  4  Bibb 
den,  17  Johns.  (N.  Y.)  167;  Dean  v.  (Ky,),  436;  Nash  v.  Spofford,  10  Met. 
Shelly,  57  Pa.  426;  Hyde  v.  Warren,  (Mass.)  192.  And  see  4  Com.  Dig. 
46  Miss.  13.  79b. 

One's  subsequent  promise  as  widow  84.    Pool    v.    Chase,    46    Tex.    207; 

to  be  answerable  for  a  breach  of  cove-  White  v.  Graves,  107  Mass.  325. 

nant  committed  during  her  coverture  85.   Stewart   v.   Profit    (Tex.),   146 

is  without  consideration.     State  Nat.  S.  W.  563. 

Bank  v.  Robidoux,  57  Mo.  446.  86.    Freeman    v.    Wilson,    51    Miss. 

82.  Foster  v.  Wilcox,  10  R.  I.  443.  329;  Kennedy  v.  Ten  Broeck,  11  Bush 

83.  Jackson    v.    Vanderheyden,    17  (Ky.)  241. 


235  wife's  keal  estate.  §  221 

woman's  conveyance  of  her  lands,  anJ,  as  we  shall  notice  hereafter, 
concerning  her  legal  dominion  over  her  lands,  the  disposition  is  to 
construe  those  requisites  more  strictly  in  the  case  of  her  general  or 
common-law  real  estate  than  where  she  owns  land  as  her  statutory 
separate  estate.  Hence  a  distinction,  which  modern  legislation 
tends  all  the  while  to  obliterate,  between  the  conveyance  of  the 
wife's  general  land  and  of  her  separate  land.  As  to  the  latter, 
estoppel  in  pais  is  sometimes  applicable;  but  not  so,  usually,  with 
the  former.  In  the  one  case  the  wife's  own  conduct  during  cover- 
ture, by  way  of  affirmance  or  receiving  benefits,  may  bind  her  in. 
spite  of  some  defective  method  of  conveyance;  in  the  other  and 
present  case  it  does  not." 

Where  the  general  disabilities  of  a  married  woman  have  not  yet 
been  removed,  and  the  statute  only  confers  the  power  to  make 
certain  specific  contracts  or  conveyances,  and  requires  certain  for- 
malities in  the  making  of  these  contracts  or  conveyances,  a  married 
woman  cannot  be  estopped  at  least  in  the  absence  of  positive  fraud ; 
but  where  her  general  disabilities  as  a  married  woman  have  been 
removed  she  can  be  estopped  by  her  conduct,  though  as  to  the  par- 
ticular matter  the  law  may  require  a  contract  or  conveyance  to  be 
evidenced  by  certain  formalities.  In  the  one  case  the  right  to 
contract  by  observing  the  formalities  is  to  create  a  right  the  woman 
would  not  othei-^'ise  have  had ;  in  the  other  the  requirement  of  the 
formality  is  a  restriction  on  her  general  power.*^ 

§  221.  Avoidance. 

The  wife's  irregular  deed,  if  fatally  defective,  under  the  statute, 
on  the  face  of  it,  should  as  a  rule,  like  the  deed  of  her  land  in  the 
absence  of  statutes,  be  treated  as  a  nullity,  incapable  of  confirma- 
tion, and  unenforceable  against  her  either  in  law  or  equity  ;  *®  while 
she  on  her  part,  during  coverture,  or  within  a  reasonable  time 
after,  may  institute  proceedings  to  regain  possession,^"  this  rule 
having  reference  to  the  wife's  lands  held  under  common-law  tenure, 
and  not  by  way  of  the  modern  separate  estate. 

87.  Wood  V.   Terry,  30  Ark.   385;  The  informal  deed  of  her  land  cannot 
Oglesby    Coal    Co.    v.    Pasco,    79    Til.  be  enforced  as  an  equitable  mortgage. 
164 ;    Sims  v.   Everhardt,    102    U.    S.  Whiteley  v.  Stewart,  63  Mo.  360. 
300,  opinion  of  court.  90,  She  may  sue  during  overture  by 

88.  Brusha  v.  Board  of  Education,  next  friend;  though  independently  of 
■41  Okla.  595,  139  Pac.  298,  L.  R.  A.  statute  she  ought  not  to  sue  without 
191 6C  233.  her  husband.     McCallum  v.  Petigrew, 

89.  See  Trimmer    v.    Heagy,    and  10  Heisk.  (Tcnn.)  394. 
other  cases  cited  in  this  section,  supra. 


§  222  HUSBAND  AND  WIFE.  236 

If  her  conveyance  be  void,  a  note  given  in  part-payment  of  the 
price  is  necessarily  without  consideration.®^ 

A  deed  of  the  wife's  real  estate,  executed  by  husband  and  wife 
while  the  latter  is  under  age,  may  be  avoided  by  the  wife  within 
reasonable  time  after  discoverture,  though  more  than  twenty  years 
have  elapsed,®^  for  this  is  analogous  to  the  conveyance  of  an  infant 
feme  sole  in  respect  of  validity."^  But  not,  as  it  is  held,  where 
the  wife,  being  apparently  of  full  age,  made  oath  that  she  was 
of  age.***  As  to  the  lapse  of  time  permitted  a  wife  for  disaffirming 
the  deed  executed  by  her  during  infancy,  the  rule  appears  to  be 
that  a  reasonable  time  should  be  allowed  her  after  coverture  has 
terminated  by  the  death  of  her  husband  or  their  complete  divorce, 
even  though  twenty  or  thirty  years  may  meantime  have  elapsed 
since  her  attainment  to  majority.®^  Under  the  Louisiana  statute 
proceedings  to  avoid  a  wife's  purchase  of  land  for  invalidity  can 
be  instituted  only  by  the  husband  or  wife  or  their  heirs.^ 


96 


§  222.  Actions. 

The  husband  may  sue  in  his  own  name  for  injury  to  the  profits 
of  his  wife's  real  estate ;  as  where  growing  crops  are  destroyed  or 
carried  off ;  for  this  relates  to  his  usufructuary  interest.  But  for 
injuries  to  the  inheritance,  such  as  trespass,  by  cutting  trees,  burn- 
ing fences,  and  pulling  do"v\Ti  houses,  and  generally  in  actions  for 
waste,  the  wife  must  be  joined;  and  if  the  husband  dies  before 
recovering  damages,  the  right  of  action  survives  to  the  wife.  And 
if  the  wife  sur^dves  her  husband,  she  may  commence  such  suits 
without  joining  his  personal  representatives." 

It  is  held  that  the  husband  can  sue  intruders  alone  for  digging 

91.  Warner  v.  Crouch,  14  Allen  In  re  Sheehy,  119  La.  608,  44  So. 
(Mass.),  163.  315. 

92.  Yourse  v.  Norcross,  12  Mo.  549.  97.  Jones  v.  Ducktown  Sulphur  Cop- 
And  see  Porch  v.  Fries,  3  C.  E.  Green  per  &  Iron  Co.,  109  Tenn.  375,  71 
(N.  J.),  204;  Dodd  v.  Benthal,  4  S.  W.  821;  Hux  v.  Eussell,  138  Tenn. 
Heisk.  (Tenn.)  601;  Williams  v.  272,  197  S.  W.  865;  Bishop  v.  Reads- 
Baker,  71  Pa.  476.  boro  Chair  Manufacturing  Co.   (Vt.), 

93.  Dixon  V.  Merrett,  21  Minn.  196.  81  Atl.  454,  36  L.  R.  A.  (N.  S.)  1171; 

94.  Schmitheimer  v.  Eiseman,  7  2  Kent  Com.  131;  Weller  v.  Baker, 
Bush  (Ky.),  298.  Sed  qu.,  where  the  2  Wils.  423,  424;  Beaver  v.  Lane,  2 
lond  belongs  to  the  wife's  general.  Mod.  217;  Bac.  Abr.,  tit.  Baron  & 
and  not  her  separate,  estate.  Sims  v.  Feme,  K.;  1  Chit.  PI.  (6th  Am.  ed.) 
Everhardt,  102  U.  S.  300,  commenting  85;  1  Bl.  Com.  362;  Illinois,  etc.,  R. 
upon  Scranton  v.  Stewart,  52  Ind.  68.  R.  Co.  v.  Grable,  46  111.  445;  Thacher 

95.  Sims  V.   Everhardt,   102   U.  S.      v.  Phmney,  7  Allen   (Mass.),  146. 
300.     And  see  Harrer  v.  Wallner,  80 

111.  197. 


237  wife's  real  estate.  §  222 

up  tie  soil  and  carrying  it  away/  or  generally  for  forcibly  entering 
the  premises.-  The  wife  cannot,  during  coverture,  maintain  such 
an  action  alone.^  She  is  a  proper  party  only  where  she  has  the 
meritorious  cause  of  action,  or  where  the  right  of  action  survives  to 
her  if  he  dies  before  the  damages  are  received.*  But  the  husband 
cannot  prosecute  such  an  action  alone  after  his  wife's  death  during 
the  pendency  of  the  suit.^  The  husband  is  the  proper  plaintiff 
even  where  the  estate  was  held  by  the  entirety.®  Husband  and 
wife  are  properly  joined  as  plaintiffs  in  a  bill  to  protect  and  secure 
the  permanent  rights  and  interests  to  her  real  estate.''  At  common 
law  only  the  husband  could  maintain  ejectment  for  the  wife's  land.' 

Where,  pending  an  action  of  ejectment  brought  by  husband  and 
wife  to  recover  possession  of  land  to  which  they  were  entitled  in. 
right  of  the  wife,  the  husband  dies,  the  right  to  the  rent  current 
and  in  arrear,  and  also  to  damages  for  waste,  survives  to  the  wife; 
and  as  to  rents  accruing  after  the  wife  dies  also,  these  go  to  her 
heirs  and  devisees.® 

^Tiere  land  vests  in  a  wife  before  the  Married  Women's  Acts, 
she  cannot  maintain  an  action  against  a  third  person  for  possession 
during  her  husband's  lifetime,^"  nor  can  she  recover  her  land  from 
him  in  his  lifetime  in  ejectment,  he  being  entitled  to  possession,^^ 
and  where  after  his  death  she  brings  ejectment,  she  cannot  recover 
damages  for  its  detention  during  his  lifetime.^^ 

In  Vermont,  where  spouses  are  jointly  seized  of  the  wife's  land 
not  held  to  her  separate  use,  she  must,  to  maintain  ejectment,  join 
him  as  a  party,  but  her  failure  to  do  so  will  not  defeat  the  action 

1.  Tallmadge  v.  Grannis,  20  Conn.  sent.  Cox  v.  St.  Louis,  M.  &  S.  E. 
296.  Ry.  Co.,  123  Mo.  App.  356,  100  S.  W. 

2.  Alexander    v.    Hard,    64    N.    Y.      1096. 

228.  7.  Wyatt  v.  Simpson,  8  W.  Va.  394. 

3.  Bishop  V.  Eeadsboro  Chair  Mfg.  8.  Harris  v.  Sconce,  66  Mo.  App. 
Co.,  85  Vt.  141,  81  A.  454.  345;    Evans   v.    Kunze,    128   Mo.    670, 

4.  City  of  Wheeling  v.  Trowbridge,  31  8.  W.  123 ;  Bryant  v.  Freeman 
5  W.  Va.  353.  (Tenn.),  173   S.  W.   863. 

5.  Buck  V.  Goodrich,  33  Conn.  37.  9.  King  v.  Little,  77  N.  C.  138. 

6.  Niagara  Oil  Co.  v.  Jackson,  48  10.  Powell  v.  Bowen  (Mo.),  214  S. 
Ind.  App.  238,  91  N.  E.  825;  Sharp  W.  142;  Westlake  v.  City  of  Youngs- 
V.  Baker,  51  Ind.  App.  547,  96  N.  E.  town,  63  Ohio  St.  249,  56  N.  E.  873; 
627;  West  v.  Aberdeen  &  E.  E.  Co.,  Vanata  v.  Johnson,  170  Mo.  269,  70 
140  N.  C.  620,  53  S.  E.  477.     Under  S.  W.  687. 

the  Married  Women's  Act  in  Missouri  11.  Smith  v.  White,  165  Mo.  590,  65 

it  is  hold  that  a  wife  may  maintain  S.  W.  1013. 

an  action  for  the  whole  damage  done  12.  Smith  v.  White,  165  Mo.  590,  65 

to  an  estate  by  the  entirety  by  a  tres-  S.  W.  1013. 

passer  who  entered  without  her  con- 


§  222 


HUSBAND    AND    WIFE. 


238 


where  the  error  is  not  seasonably  objected  to/^  Under  statute  a 
wife  may  now  maintain  action  for  damages  to  her  real  estate  with- 
out joining  her  husband/*  and  the  husband  can  no  longer  maintain 
such  actions/"  In  Virginia  a  wife  may  maintain  ejectment  even 
where  the  legal  title  is  in  her  husband,  if  she  has  the  equitable 
title/' 


13.  Keynolds  v.  Bean  (Vt.),  99  A. 
1013. 

14.  Independence  Sash,  Door  & 
Lumber  Co.  v.  Bradfield,  153  Mo. 
App.  527,  134  S.  W.  118;  McKenzie 
V.  Ohio  Eiver  B.  Co.,  27  W.  Va.  306  j 


Quinn  v.  Van  Eaalte  (Mo.),  205  S.  W. 
59. 

15.  Anderson  v.  Todesca,  214  Mass. 
102,  100  N.  E.  1068. 

16.  Lynchburg  Cotton  Mills  v.  Bives, 
112  Va.  137,  70  S.  K  542. 


239  wife's    COiiTKACTS.  §    22o 


CHAPTER  XII. 

EFFECT  OF  COVERTUEE  ON  WIFe's  CONTRACTS  IN  GENERAL. 

Section  223.  Wife's  Disability  to  Contract  —  Common-Law  Eule  Stated. 

224.  What   Law   Governs. 

225.  Exceptions   to   Kule. 

226.  Extent  of   Disability. 

227.  Eemoval  of  Disability. 

228.  Effect  of  Ratification. 

229.  Effect  of  Married  Women's  Acts. 

§  223.  Wife's  Disability  to  Contract  —  Common-Law  Rule 
Stated. 

In  respect  to  her  disability  to  contract,  the  wife  may  be  consid- 
ered, as  Mr.  Bingham  has  remarked,  worse  off  at  the  common  law 
than  infants ;  for  the  contracts  of  an  infant  are  for  the  most  part 
voidable  only,  while  those  of  married  women  are,  with  few  excep- 
tions, absolutely  void.  But  the  disabilities  incident  to  these  two 
conditions  rest  upon  different  grounds.  For  the  disabilities 
attached  to  infancy  are  designed  as  a  protection  for  the  inexperi- 
enced against  the  fraudulent ;  while  those  incident  to  coverture  are 
the  simple  consequence  of  that  sole  or  paramount  authority  which 
the  law  vests  in  the  husband.^''  Common  sense  teaches  that  mar- 
ried women  have  sufficient  discretion  to  act  for  themselves,  and 
stand  on  a  different  footing  from  young  children;  this  the  English 
law  fully  recognizes,  irrespective  of  equity  rules,  by  empowering 
all  women  to  contract  up  to  the  very  moment  of  their  marriage  and 
from  the  time  when  coverture  ceases.  At  most  it  could  only  be 
said  that  a  woman,  while  living  in  the  married  state,  was  peculiarly 
subject  to  influence  from  the  other  sex,  which  might  be  exerted  to 
her  disadvantage. 

The  husband  may  make  in  his  own  right  such  contracts  as  he 
pleases,  as  well  during  coverture  as  before.  He  is  never  presumed 
to  act  under  the  wife's  influence.^'  But  with  certain  exceptions 
her  incapacity  at  the  common  law  is  total,^®  whether  she  contracts 

17.  See  Bing.  Inf.  &  Gov.  181,  182,  261,  262;  Hall  v.  Johns,  17  Ida.  224, 
Am.  ed.;  2  Kent.  Com.  150;  Schouler  105  P.  71;  Eberwine  v.  State,  79  Tml. 
Dom.  Rel.  Infancy.  266;  Candy  v.  Coppock,  85  Tnd.  504; 

18.  City  Council  v.  Van  Roven,  2  Warner  v.  Warner,  2:^5  III.  448.  sr. 
McCord  (S.  C),  465.  N".  E.  630;  Forsyth  v.  Barnes,  228  Til. 

19.  1   Selw.  N.  P.  298;   Bing.  Inf.      326,  81  N.  E.  1028;  McKee  v.  Sypert, 


§  224 


HUSBAND    AND    WIFE. 


240 


solely  or  as  joint  principal,^"  especially  where  the  contract  is  execu- 
tory.^'" She  is  permitted  to  pass  her  real  estate  by  joining  in  a 
deed  with  her  husband;  but  her  separate  conveyance  (except  by 
some  matter  of  record)  was  of  no  effect  whatsoever.^" 

On  the  same  principle  it  is  held  that  a  married  woman  cannot 
bind  herself  by  her  contract  to  convey  estate  which  is  devised  to 
her  in  trust  for  sale.^^  Such  contracts  are  also  void  as  to  the  other 
contractor,^*  and  will  not  be  enforced  even  in  equity.^^ 

The  executory  and  unacknowledged  contract  of  a  married  woman, 
being  void  as  a  contract,  cannot  be  supported  as  against  her  on  the 
ground  of  estoppel.^"  A  sheriff's  sale  of  her  land  upon  her  judg- 
ment note,  given  as  security  for  her  husband,  may  be  set  aside  as 
void.^^  In  all  these  cases  the  wife  is  considered  as  under  the 
husband's  dominion,  and  unable  to  act  for  herself.^* 

§  224.  What  Law  Governs. 

A  wife's  contract  is  governed  by  the  law  in  force  when  it  was 
made.^*     Therefore  Married  Women's  Acts  giving  the  wife  a  right 

6  Ky.  Law,  518;  Lyell  v.  Walbach, 
113  Md.  574,  77  A.  1111;  Taylor  v. 
Swafford,  122  Tenn.  303,  123  S.  W. 
350;  Major  v.  Holmes,  124  Mass.  108; 
In  re  Carroll's  Estate,  219  Pa.  440, 
€&  A.  1038;  Blakely  v.  Kanaman 
(Tex.),  168  S.  W.  447  Crockett  v. 
Doriot,  85  Va.  240,  3  S.  E.  128;  Stew- 
art V.  Conrad's  Adm'r,  100  Va.  128, 
4  Va.  Sup.  Ct.  R.  49,  40  S.  E.  624. 
A  wife  cannot  bind  herself  by  a  pur- 
chase of  land  at  a  trustee's  sale, 
though  she  consented  in  court  to  its 
confirmation.  Robinson  v.  Robinson, 
11  Bush  (Ky.),  174;  Caldwell  v. 
Scott  Bros.    (Tex.),  143   S.  W.   1192. 

20.  Cole  V.  Temple,  142  Ind.  498, 
41  N.  E.  942. 

21.  Graham  v.  Graham,  22  Ky.  Law, 
123,  56  S.  W.  708;  Cunningham  v. 
Fischer,  20  Ky.  Law,  1167,  48  S.  W. 
993;  Crawford  v.  Hazelrigg,  117  Ind. 
63,  18  N.  E.  603,  2  L.  R.  A.  139; 
"Wilson  V.  Dearborn  (Tex.),  17?  S.  W. 
1102. 

22.  2  Bl.  Com.  293,  351,  364,  and 
notes  by  Chitty  and  others;  Robin- 
son V.  Robinson,  11  Bush  (Ky.),  174; 
Ferguson  v.  Reed,  45  Tex.  574;  Bots- 
ford  V.   Wilson,  75   111.   133;    2   Kent 


Com.  150-154;  lb.  167,  168.  Rule  ap- 
plied to  a  land  patent  signed  by  hus- 
band and  wife.  Shartzer  v.  Love,  49 
Cal.  93. 

23.  Avery  v.  Griffin,  L.  R.  6  Eq. 
606. 

24.  Shirk  v.  Stafford,  31  Ind.  App. 
247,  67  N.  E.  542. 

25.  Atkins  v.  Atkins,  195  Mass.  124, 
80  N.  E.  806. 

26.  Wood  v.  Terry,  30  Ark.  385; 
Oglesby  Coal  Co.  v.  Pasco,  79  111.  164. 
But  cf.  Norton  v.  Nichols,  35  Mich. 
148 ;  Bishop  v.  Bourgeois,  58  N.  J.  Eq.. 
417,-  43  A.  655. 

27.  Doyle  v.  Kelly,  75  111.  574. 

28.  Marshall  v.  Rutton,  8  T.  R.  545 ; 
11  East,  301;  2  B.  &  P.  226;  3  B.  & 
C.  291;  Jackson  v.  Vanderheyden,  17 
Johns.  (N.  Y.)  167;  Benjamin  v.  Ben- 
jamin, 15  Conn.  347;  Ayer  v.  Warren, 
47  Me.  217;  Young  v.  Paul,  2  Stockt. 
(N.  J.)  401;  Stillwell  V.  Adams,  29 
Ark.  346;  Stockton  v.  Farley,  10  W. 
Va.  171;  Savage  v.  Davis,  18  Wis. 
608;  Williams  v.  Coward,  1  Grant  Cas. 
21. 

29.  Campbell  v.  Virginia  Iron,  Coal 
&  Coke  Co.,  31  Ky.  Law,  1110,  104  S. 
W.    770 ;     Levis    Lukoski    Mercantile- 


241 


WIFE  S    CO>'TKACTS. 


§   224 


to  contract  are  prospective  only  and  cannot  validate  contracts  made 
before  their  enactment.^^  Where  a  wife's  contract  is  void  where 
made,  it  is  not  enforceable  anywhere.^^  It  is  generally  held  that  a 
wife  is  liable  on  a  contract  which  is  valid  by  the  law  of  the  State 
where  it  is  made,  though  void  by  the  law  of  her  domicile.^"  Such 
a  contract  may  be  generally  enforced  in  another  State  even  though 
its  public  policy  prohibits  such  contracts,^^  but  not  in  Louisiana." 
The  law  of  the  place  of  performance  does  not  affect  the  contract  of 
a  wife  if  such  contract  was  valid  where  made,  unless  it  appears, 
from  the  contract  that  the  parties  intended  to  contract  according  to 
the  law  of  the  place  of  performance.^^  Promissory  notes  made  by 
a  wife  in  a  State  where  such  notes  were  void  is  not  liable  thereon 
though  payable  in  a  State  where  they  would  have  been  valid.^* 
The  same  is  true  as  to  accommodation  indorsements  by  a  wife.^^ 
It  is  otherwise  where  the  note  is  delivered  and  consummated  in  a 
State  where  the  wife  may  validly  contract,  in  which  case  it  is  a 
contract  of  that  State.^®     In  Kentuctv  it  is  held  that  an  intention 


Co.  V,  Bowers,  105  Tenn.  138,  58  S.  W. 
287;  Clark  v.  Eltinge,  38  Wash.  376, 
80  P.  556,  107  Am.  St.  E.  858. 

30.  Stephens  v.  Hicks,  156  N,  C. 
239,  72  S.  E.  313,  36  L.  R.  A.  (N.  S.) 
354. 

31.  Nichols  &  Shepard  Co.  v.  Mar- 
shall, 108  Iowa,  518,  79  N.  W.  282 
(suretyship). 

32.  Burr  v.  Beckler,  264  111.  230, 106 
N.  E.  206;  Mayer  v.  Eoche,  77  N.  J. 
Law,  681,  75  A.  235;  Bowles  v.  Field, 
78  F.  742;  Law  v.  Smith,  68  N.  J.  Eq. 
81,  59  A.  327;  Poole  v.  Perkins  (Va.), 
101  S.  E.  240 ;  Alexander  v,  Shillaber, 
64  How.  Prac.  (X.  Y.)  530;  Young  v. 
Hart,  101  Va.  480,  44  S.  E.  703. 

33.  Bowles  v.  Feld,  78  F.  742;  Meier 
&  Frank  Co.  v.  Bruce,  30  Ida.  732,  168 
P.  5;  Robison  v.  Pease,  28  Ind.  App. 
610,  63  X.  E.  479 ;  Garrigue  v.  Keller, 
164  Ind.  676,  74  X.  E.  523,  108  Am. 
St.  R.  324,  69  L.  R.  A.  870;  Young's 
Trustee  v.  Bullen,  Ky.  Law,  1561,  43 
S.  W.  687;  Marks  v.  Germania,  «S:c., 
Bank,  110  La.  659,  34  S.  725;  Baer  v. 
Terry,  105  La.  479,  29  So.  886;  Far 
mers'  State  Bank  v.  Burtler  (Xev.), 
164  Pac.  562;  International  Harvester 
Co.  of  America  v.  McAdam,  142  Wis. 
114,  124  N.  W.  1042. 

16 


34.  Xational  City  Bank  v.  Barringer 
(La.),  78  So.  134;  Freret  v.  Taylor, 
119  La.  307,  44  So.  26;  First  Nat. 
Bank  v.  Hinton,  123  La.  1018;  49  So. 
692. 

35.  Burr  v.  Tobey,  182  111.  App.  228; 
F.  B.  Hauck,  &c.,  Co.  v.  Sharpe,  83 
Mo.  App.  385. 

36.  Appeal  of  Freeman,  68  Conn. 
533,  37  A.  420,  57  Am.  St.  R.  112,  37 
L.  B.  A.  452 ;  Hager  v.  National  Ger- 
man American  Bank,  105  Ga.  116,  31 
S.  E.  141;  Thompson  v.  Taylor,  65  X. 
J.  Law,  107,  46  A.  567;  Union  Xat. 
Bank  v.  Chapman,  169  N.  Y.  538,  62 
X.  E.  672,  88  Am.  St.  R.  614,  57  L.  R. 
A.  513.  Putting  a  note  in  the  mail, 
thus  parting  with  its  control,  has  been 
held  such  a  delivery  as  to  make  it  a 
contract  of  the  State  where  it  was 
mailed.  Burr  v.  Beckler,  264  111.  230, 
106  X.  E.  206,  L.  R.  A.  1916A,  1049. 

37.  Chemical  Xat.  Bank  v.  Kellogg, 
183  X.  Y.  92,  75  X.  E.  1103,  111  Am. 
St.  R.  717,  2  L.  R.  A.   (X.  S.)  299. 

38.  Walker  v.  Arkansas  Xat.  Bank, 
256  F.  1;  R.  S.  Barbee  &  Co.  v. 
Bevins,  Hopkins  &  Co.,  176  Ky.  113, 
195  S.  W.  154;  First  Xat.  Bank  v. 
Shaw,  109  Tenn.  237,  70  S.  W.  807,  97 
Am.  St.  R.  840,  59  L.  R.  A.  498. 


§  226 


HUSBAND    AND    WIFE. 


242 


of  a  wife  to  remove  to  another  State,  followed  hj  such  removal,  will 
render  her  property  subject  to  the  law  of  such  other  State.^*  The 
courts  of  States  other  than  Illinois  will  not  enforce  against  a  wife 
a  contract  made  by  her  husband  in  Illinois  while  the  spouses  were 
temporarily  residing  there,  and  without  her  knowledge,  though  the 
goods  purchased  were  of  a  kind  for  which  she  would  have  been 
liable  under  the  law  of  that  State  as  family  expenses.*" 

§  225.  Exceptions  to  Rule. 

The  wife  may  contract  as  though  sole,  even  at  common  law, 
where  her  husband  is  civiliter  mortuiLs,  and  in  certain  localities 
where  the  separate  trade  custom  applied.  The  same  is  true  where 
her  husband  is  an  alien  or  has  never  been  in  the  United  States,*^ 
and  where  he  abandons  her  and  abjures  the  realm,*^  and  where 
there  is  a  total  renunciation  of  the  marriage  relation  by  the  hus- 
band, or  facts  from  which  such  renunciation  can  be  inferred.*' 
The  absence  of  a  husband  in  a  distant  State  may  capacitate  a  wife 
to  contract,  whether  he  has  abandoned  her  or  not 


44 


§  226.  Extent  of  Disability. 

So  far  is  this  doctrine  of  the  wife's  contract  disability  carried, 
that  the  agreement  of  a  widow,  after  her  husband's  death,  to  pay  a 
debt  which  she  had  contracted  during  coverture,  and  which  conse- 
quently was  not  binding  upon  herself,  but,  if  at  all,  upon  her 
husband,  has  been  treated  as  void,  on  the  ground  that  the  promise 
was  without  consideration  and  only  morally  binding.*^  But  in 
another  case  it  was  held  a  sufficient  consideration  to  support  a 
widow's  promissory  note  that  it  had  been  given  by  her,  out  of 
respect  for  her  late  husband's  memory,  to  secure  a  debt  due  by 
him.**     As  a  rule,  of  course,  the  widow  cannot  be  compelled  to 


39.  Lee  v.  Belknap,  163  Ky.  418, 
173  S.  W.  1129. 

40.  Mandcll  Bros.  v.  Fogg,  182 
Mass.  582,  66  N.  E.  198,  94  Am.  St.  E. 
667. 

41.  Levi  V.  Marsha,  122  N.  C.  565, 
29  S.  E.  832. 

42.  Sanborn  v.  Sanborn,  104  Mich. 
180,  62  N.  W.  371. 

43.  Gregory  v.  Pierce,  4  Mete. 
(Mass.)   478. 

44.  Golden  v.  City  of  Galveston,  20 
Tex.  Civ.  584,  50  S.  W.  416. 


45.  Virginia-Carolina  Chemical  Co. 
V.  Fisher,  58  Fla.  377,  50  So.  504; 
Robinson  v.  Robinson,  11  Bush  (Ky.), 
174;  HoUoway's  Assignee  v.  Rudy,  22 
Ky.  Law,  1406,  60  S.  W.  650;  Wea- 
thers v.  Borders,  121  N.  C.  387,  28  S. 
E.  524;  Saulsbury  v.  Corwin,  40  Mo. 
App.  373 ;  Meyer  v.  Haworth,  8  Ad.  & 
El.  467;  Waul  v.  Kirkman,  25  Miss. 
609 ;  Lennox  v.  Eldred,  1  Thomp.  &  C. 
140. 

46.  Ridout  v.  Bristow,  1  Cr.  &  J. 
231;  Tyr.  84.  See  also  Nelson  v. 
Searle,  3  Jur.  290. 


243 


WIFE  S    CONTRACTS. 


§  227 


make  good  an  eugagement  or  fulfil  a  contract  which  she  entered 
into  while  under  the  disability  of  coverture.*^ 

Lord  iSTottingham,  in  a  case  mentioned  in  the  old  reports,  once 
refused  to  absolve  a  husband,  after  his  wife's  death,  from  payment 
for  goods  which  she  had  purchased  prior  to  the  marriage,  but  never 
paid  for,  there  being  proof  that  he  had  actually  received  the  goods, 
the  debt  being  antenuptial.  His  lordship  declared  with  earnest- 
ness that  he  would  change  the  law  on  that  point.*^  But  in  this  case 
it  appears  that  the  goods  did  not  actually  come  to  the  husband's 
hands  until  after  the  wife's  death.  And  the  authority  of  this 
decision  has  since  been  greatly  impaired,*®  In  equity  the  creditors 
of  the  first  husband  may,  where  his  wife  was  administratrix,  follow 
the  assets  in  the  hands  of  a  second  husband,  although  the  wife  be 
dead ;   and  at  law  during  her  life.^° 

The  contract  of  a  married  woman,  being  void,  is  likewise  unen- 
forceable against  her  after  divorce,  notwithstanding  her  subsequent 
promise,  when  once  more  sui  juris;  for  such  promise  is  without 
consideration.''^  The  same  is  true  where  her  disability  has  been 
removed  by  a  Married  Women's  Act.^^  But  after  the  death  of  her 
spouse,  or  her  divorce  from  him,  her  promise,  founded  on  a  new 
consideration,  may  be  enforced  against  her.^^  A  complete  accept- 
ance of  all  the  benefits  of  such  a  contract  after  the  disability  has 
been  removed  will  suffice  to  bind  her.°* 

§  227.  Removal  of  Disability. 

In  some  States  chancery  has  the  power  to  remove  a  wife's  com- 
mon-law disability  to  contract."^^  The  Married  Women's  Act  in 
Kentucky  by  implication  repealed  the  earlier  statute  of  this  nature 
in  that  State.'® 


47.  Putnam  v.  Tennyson,  50  Ind. 
456;  Ross  v.  Singleton,  1  Del.  Ch.  149. 

48.  Freeman  v.  Goodham,  Cha.  Ca. 
295. 

4i.  Cha.  Ca.  295;  1  Eq.  Cas.  Abr. 
60. 

50.  Cha.  Ca.  SO;  1  Vern.  309;  2 
Vern.  61,  118;  1  Eq.  Cas.  Abr.  60,  61; 
Cro.  Car.  603;  1  Roll.  Abr.  35.  See 
Magruder  v.  "Darnell,  6  Gill  (Md.), 
269. 

51.  Putnam  v.  Tennyson,  50  Ind. 
456. 

52.  Thompson  v.  Miunich,  227  111. 
430,  81  N.  E.  336;  Bragg  v.  Israel, 
86  Mo.  App.  338;  Dempsey  v.  Wells, 
109    Mo.    App.    470,   84    S.   W.    1015; 


Horton   v.   Troll,   183   Mo.   App.   677, 
167  S.  W.  1081. 

53.  Ruppel  V.  Kissel,  24  Ky.  Law, 
2371,  74  S.  W.  220;  Cheves  v.  Glover, 
4  Ky.  Law,  360;  Bagby  v.  Bagby,  10 
Ky.  Law,  540;  Lyell  v.  Walbach,  113 
Md.  574,  77  A.  1111. 

54.  Warner  v,  Warner,  235  111.  448, 
85  X,  E.  630. 

55.  Troy  Fertilizer  Co.  v.  Lachry, 
114  Ala.  177,  21  So.  471;  Reich  v. 
Rosselin,  26  La.  Ann.  418;  Lane  v. 
Traders  Deposit  Bank,  19  Ky.  Law, 
1357,  -13  S.  W.  442. 

56.  Fowler  v.  Fowler,  138  Ky.  326, 
127  S.  W.  1014. 


229 


HUSBAND    AND    WIFE. 


244 


§  228.  Effect  of  Ratification. 

A  wife's  liability  on  a  contract  which  she  has  power  to  make  is 
governed  by  the  ordinary  law  of  contraets.^^  In  such  case  she 
may  be  bound  by  an  adoption  of  a  contract  she  does  not  sign. 


58 


§  229.  Effect  of  Married  Women's  Acts. 

The  Married  Women's  Acts  in  some  States  now  permit  a  wife  to 
contract  to  the  same  extent  as  a  single  woman,^''  even  though  she 
has  no  separate  estate  or  business.^"  And  even  though  the  contract 
is  in  the  name  of  the  husiband,^^  except  where  expressly  restrained 
by  the  statute.^^  And,  in  Missouri  and  Vermont,  except  with  her 
husband.^^  The  Indiana  and  Pennsvlvania  Married  Women's  Acts 
permit  a  wife  to  contract  as  sole,  with  the  exception  that  they  re- 
strain her  right  to  convey  or  mortgage  her  land  and  prohibit  her 
becoming  a  surety.®*  The  New  Jersey  Married  Women's  Acts 
permit  a  wife  to  make  all  contracts  except  those  of  suretyship  and 
accommodation  indorser.®^ 


57.  McKell  v.  Merchants'  Nat. 
Bank,  62  Neb.  608,  87  N.  W.  317. 

58.  McBride  v.  Seney,  1?2  111.  App. 
18. 

59.  Granath  v.  Johnson,  90  111.  App. 
308;  Augusta's  Nat.  Bank  v.  Beard's 
Ex'r,  100  Va.  687,  42  S.  E.  694;  Far- 
mers' State  Bank  v.  Keen  (Okla.),  167 
P.  207;  Busch  v.  Klein,  38  App.  Div. 
624,  55  N.  Y.  S.  917;  Commonwealth 
V.  Abbott,  168  Mass.  471,  47  N.  E. 
112 ;  Voss  V.  Sylvester,  203  Mass.  233, 
89  N.  E.  241 ;  Ames  v.  Foster,  3  Allen 
(Mass.),  541;  Chapman  v.  Foster,  6 
Allen  (Mass.),  136;  Stewart  v.  Jen- 
kins, 6  Allen  (Mass.),  300;  Freeman 
V.  Fowler,  6  Allen  (Mass.),  303,  note; 
Easterbrook  v.  Earle,  97  Mass.  302; 
Laboree  v.  Colby,  99  Mass.  559 ;  Fiske 
V.  Melntosh,  101  Mass.  66;  Gordon  v. 
Dix,  106  Mass.  305 ;  Faucett  v.  Currier, 
109  Mass.  79;  id.,  115  Mass.  20;  Ellis 
V.  Cribb,  55  S.  C.  328,  33  S.  E.  484. 
The  husband  may  thus  become  in 
legal  contemplation  the  wife's  agent 
in  such  transactions.  See  Wilder 
V.  Richie,  117  Mass.  382;  Miller  v. 
Brown,  47  Mo.  505;  Hinkson  v.  Wil- 
liams, 41  N.  J.  L.  35;  Taylor  v. 
Shelton,  30  Conn.  122;  Gilbert  v. 
Plant,     18     Ind.     308;      Herrington 


V.  Robertson,  71  N.  Y.  280;  Adams  v. 
Charter,  46  Conn.  551. 

60.  Minners  v.  Smith,  40  Misc.  648, 
83  N.  Y.  S.  117;  Wyeth  v.  Sorchan,  38 
Misc.  173,  77  N.  Y.  S.  263;  Harring- 
ton V.  Lowe,  73  Kan.  11,  84  P.  570,  4 
L.  R.  A.  (N.  S.)  547;  Peck  v.  Marl- 
ing's  Adm'r,  22  W.  Va.  708. 

61.  Wuertz  v.  Braun,  113  App.  Div. 
459,  99  N.  Y.  S.  340. 

62.  Bogie  v.  Nelson,  151  Ky.  443, 
152  S.  W.  250. 

63.  Niemeyer  v.  Niemeyer,  70  Mo. 
App.  609;  Huss  v.  Culver,  70  Mo. 
App.  514;  Barron  v.  Dugan's  Estate 
(Vt),  92  A.  927;  Buck  v.  Troy  Aque- 
duct Co.,  76  Vt.  75,  56  A.  285;  Seaver 
V.Lang  (Vt.),  104  A.  877. 

64.  Druckamiller  v.  Coy,  42  Ind. 
App.  500,  85  N.  E.  1028;  Anderson  v. 
Citizens'  Nat.  Bank,  38  Ind.  App.  190, 
76  N.  E.  811;  Tuell  v.  Homann  (Ind), 
108  N.  E.  596;  Townsend  v.  Hunt- 
zingcr,  41  Ind.  App.  223,  83  N.  E. 
619;  Peter  Adams  Paper  Co.  v.  Cas- 
sard,  206  Pa.  179,  55  A.  949;  Scott  v. 
Collier  (Ind.),  77  N.  E.  666,  affd.,  166 
Ind.  644,  78  N.  E.  184. 

65.  First  Nat.  Bank  v.  Rutter,  91 
N.  J.  Law,  424,  106  A.  371. 


245 


WIFE  S    CONTEACTS. 


§    229 


Legislative  changes  in  England  and  America,  as  well  as  modem 
equity  decisions,  apply  more  universally  to  contracts  beneficial  to 
herself,  or  to  such  as  were  made  with  reference  to  her  separate 
trade,  or  involving  liabilities  expressly  charged  by  her  upon  her 
separate  property.®'' 

In  Nebraska  a  wife  can  only  contract  solely  with  reference  to 
and  on  the  faith  of  her  separate  estate,®^  and  with  reference  to 
property  owned  at  the  time  of  contract.**  Her  contract  can  be 
enforced  only  against  such  property.** 

In  Alabama,  North  Carolina  and  Pennsylvania  the  husband's 
consent  is  required  in  some  cases  to  validate  the  wife's  contract.'" 


66.  Bank  of  Commerce  v.  Baldwin, 
12  Ida.  202,  85  P.  497;  Cooper  v. 
Burel,  129  Ark.  261,  195  S.  W.  356; 
Meier  v.  Frank  Co.,  30  Ida.  732,  168 
P.  5 ;  June  v.  Labardie,  132  Mich.  135, 
92  N.  W.  937,  9  Det.  Leg.  N.  541; 
Jenne  v.  Marbel,  37  Mich.  319;  Ken- 
ton Ins.  Co.  of  Ken.  v.  McClellan,  43 
Mich.  564,  6  N.  W.  88;  Edwards  v. 
McEnhill,  51  Mich.  160,  16  N.  W.  322; 
Mat.  Benefit  Life  Ins.  Co.  v.  Wayne 
Co.  Sav.  Bank,  68  Mich.  116;  35  N. 
W.  853;  Hirth  v.  Hirth,  98  Va.  121, 
34  S.  E.  964;  Kriz  v.  Peege,  119  Wis. 
105,  95  N.  W.  108;  Slack  v.  Norton, 
111  Mich.  213,  69  N.  W.  497,  3  Det. 
Leg.  N.  629;  Agar  v.  Streeter  (Mich.), 
150  N.  W,  160;  Orr  &  Rolfe  Co.  v. 
Merrill  (N.  H.),  98  A.  303.  Thus  it 
was  held  in  Wisconsin  that  she  could 
not  bind  herself  by  a  contract  to  pay 
an  annuity  for  life  to  her  husband's 
parents.  Ludwig  v.  Ludwig  (Wis.), 
172  N.  W.  726,  Under  that  statute  it 
was  held  that  she  could  enforce  a  con- 
tract made  with  her  in  consideration 
of  her  executed  release  of  dower. 
Lyttle  V.  Goldberg,  131  Wis.  613,  111 
N.  W.  718.  Where  a  wife  receives  no 
benefit  from  a  contract  made  during 
coverature,  her  promise  to  pay,  made 
after  coverature  has  ceased,  will  not 
bind  her.  Thompson  v.  Hudgins,  116 
Ala.  93,  22  So.  632.  Liability  for  the 
wife 's  debts  is  confined  chiefly  to 
cases  where  the  wife  intended  to  deal 
with  her  separate  estate  and  the  con- 
tract was  reasonably  adapted  to  bet- 


ter such  estate.  Kantrowitz  v.  Pra- 
ther,  31  Ind.  92;  Hasheagan  v. 
Specker,  36  Ind.  413;  McCormick  v. 
Holbrook,  22  Iowa,  487;  Stilwell  v. 
Adams,  29  Ark.  346.  And  so  with 
protection  of  the  property  against  the 
husband's  creditors.  Seeds  v.  Kahler, 
76  Penn.  St.  262. 

67.  Grand  Island,  &c.,  Co.  v.  Wright, 
53  Nebr.  574,  74  N.  W.  82;  Stenger, 
&c.,  Assn.  v.  Stenger,  54  Nebr.  427, 
74  N.  W.  846;  Westervelt  v.  Baker, 
56  Nebr.  63,  76  N.  W.  440;  Citizens', 
&c..  Bank  v.  Smout,  62  Nebr.  223,  86 
N.  W.  1068;  Burns  v.  Cooper,  72  C. 
C.  A.  25,  140  F.  273;  Farmers'  Bank 
V.  Boyd,  67  Nebr.  497,  93  N.  W.  676; 
Union  State  Bank  v.  McKelvie,  91 
Nebr.  728,  136  N.  W.  1021. 

68.  Parratt  v.  HartsufF,  75  Nebr. 
706,  106  N.  W.  966.  The  authority 
granted  to  a  wife  by  the  Nebraska 
Married  Women's  Act  to  contract  as 
to  her  separate  estate  does  not  in- 
clude the  right  to  contract  as  to 
property  which  she  expects  to  inherit, 
as  such  a  mere  hope  of  succession  is 
not  property.  Kocher  v.  Cornell,  59 
Nebr.  315,  80  N.  W.  911. 

69.  Parratt  v.  Hartsuff,  75  Nebr. 
706,  106  N.  W.  966. 

70.  State  v.  Robinson,  143  N.  C. 
620,  56  S.  E.  918;  Wood  v.  Potts  & 
Potts,  140  Ala.  425,  37  So.  253;  Vann 
V.  Edwards,  135  N.  C.  661,  47  S.  E. 
784,  67  L.  R.  A.  461 ;  Bartholomew  v. 
Allontown  Nat.  Bank,  250  Pa.  509, 
103  A.  954. 


§  :^29 


HUSBAND   AND    WIFE. 


24e 


But  his  making  a  contract  as  her  agent  for  the  sale  of  her  land  has 
been  held  a  sufficient  consent'^  In  North  Carolina  she  must  also 
acknowledge  the  contract,  after  a  privj  examination/^  In  the 
same  State  his  assent  is  not  necessary  where  he  has  abandoned 
her/^  or  where  he  has  been  declared  an  idiot  or  a  lunatic."*  The 
North  Carolina  statute  as  to  contracts  between  spouses  does  not 
apply  to  a  contract  between  a  wife  and  a  third  person.^''  Under 
such  statutes  contracts  not  within  them  are  void,'®  so  that  one 
seeking  to  hold  a  wife  on  a  contract  must  plead  and  affirmatively 
show  that  the  contract  sued  on  is  within  the  statute/'  Although 
under  the  Virginia  Married  Women's  Act  a  personal  judgment 
may  be  had  against  a  wife  on  her  contract,  the  judgment  can  affect 
only  that  part  of  property  owmed  at  the  time  of  contract  which  is 
still  owned  at  the  time  the  lien  of  the  judgment  and  execution 
attaches/^ 


71.  Bell  V.  Jones,  151  N.  C.  »5,  65 
S.  E.  646. 

72.  Ball  &  Sheppard  v.  Paquin,  140 
X.  C.  83,  52  S.  E.  410. 

73.  Vandiford  v.  Humphrey,  139  N. 
C.  65,  51  S.  E.  893. 

74.  Lancaster  v.  Lancaster,  —  N. 
C.  — ,  100  S.  E.  120. 

75.  Jackson  v.  Beard,  1&2  N.  C.  105, 
78  S.  E.  6. 

76.  Green   v.   Page,  80   Ky.   368,   4 
Ky.  Law,  192 ;  Foxworth  v.  Magee,  44 


Miss.  430;  Mercantile  Nat.  Bank  v. 
Benbow,  150  N.  C.  781,  64  S.  E.  891; 
Thompson  v.  Morrow  (Tex.),  147  S. 
W.  706;  Lilly  v.  Yeary  (Tex.),  152  S. 
W.  823;  Thompson  v.  Stark,  25  Ky. 
Law,  1882,  79  S.  W.  202. 

77.  Warner  v.  Hess,  66  Ark.  113, 
49  S.  W.  489;  Bott  v.  Wright,  Tex. 
Civ.   App.   1910,    132    S.   W.   960. 

78.  Duval  V.  Chelf,  92  Va.  489,  22 
S.  E.   893. 


247  PABTICULAB    CONTRACTS    OF    WIFE.  §    230 


CHAPTER  XIII. 

EFFECT  OF  COVERTURE  ON  PARTICULAR  CONTRACTS  OF  WIFB. 

Sbction  230.  Promissory  Notes  —  As  Maker  or  Indorser. 

231.  As  Accommodation  Party. 

232.  For  Husband's  Debt. 

233.  What  Law  Governs. 

234.  Suretyship  —  In    GeneraL 

235.  For  Her  Husband. 

236.  Guaranty. 

237.  Contracts  for  Services. 

238.  Confession  of  Judgment. 

239.  Contracts  for  Sale  of  Land. 

240.  Sealed  Instruments. 

241.  Keleases. 

242.  Covenants. 

§  230.  Promissory  Notes  —  As  Maker  or  Indorser. 

At  common  law  a  wife  could  not,  either  jointly  with  her  husband 
or  alone,  make  or  indorse  a  promissory  note,  so  as  to  bind  herself.'^ 
A  wife's  note  is  still  void  in  Florida,®"  unless  she  has  been  made  a 
free  dealer.®^  Tinder  the  Texas  statute  a  wife's  note  is  void  where 
the  husband  does  not  join.*^  In  Louisiana  a  certificate  from  a 
judge,  after  statutory  proceedings,  will  alone  validate  a  wife's 
note.®^  Where  the  statute  makes  a  wife's  notes  as  surety  void, 
they  are  void  even  in  the  hands  of  a  holder  for  value  without 
notice.**  Renewals  of  such  a  note  did  not  affect  defences  as  to  the 
original  note.®^ 

79.  Mason  v.  Morgan,  2  Ad.  &  El.  B.  Newton  &  Sons  v.  Peunte   (Tex.), 

30;   Snider  v.  Ridgeway,  49  111.   522;  131    S.    W.    1161;    Hall    v.    Decherd 

O 'Daily  v.  Morris,  31  Ind.  Ill;  Doll-  (Tex.),   121   S.   W.   1133;    First  Nat. 

ner  v.  Snow,  16  Fla.  86;  Robertson  v.  Bank   of  Bertoli,   8S   Vt.   421,   92   A. 

Wilburn,  1  Lea   (Tenn.),  633;  Brown  970;   Red  River  Nat.  Bank  v.  Fergu- 

■V.  Orr,  29  Cal.  120;   Tracy  v.  Keith,  son   (Tex.),  1?2  S.  W.  1088. 

11  Allen  (Mass.),  214;  Gunn  v.  A.  L.  80.   Virginia-Carolina  Chemical  Co. 

Wilson  Co.,  19  Ga.  App.  701,  92  S.  E.  v.  Fisher,  58  Fla.  377,  50  So.  504. 

232;   Heiney  v.  Lontz,   147   Ind.  417,  81.    First   Nat.   Bank   v.    Hirschko- 

46  N.  E.  665;  Underhill  v.  Mayer,  174  witz,  46  Fla.  588,  35  So.  22. 

Ky.    229,    1?2    S.    W.    14;    Cheves   v.  82.  Shaw  v.  Proctor  (Tex.),  193  S. 

Glover,  4  Ky.  Law,  360;  Boughncr  v.  W.  1104. 

Laughlin's  Ex'x,  23   Ky.  Law,   1166,  83.  Dayries  v.  Lindsly,  128  La.  259, 

64  S.  W.  8.-6   (affd.,  25  Ky.  Law,  869,  54  So.  791. 

76   S.   W.    519)  ;    Heburn   v.   Warner,  84.  Leschen  v.  Guy,  149  Ind.  17,  48 

112  Mass.  271,  17  Am.  R.  86;  Nourse  N.  E.  344. 

v.  Henshaw,  123  INfass.  96;  Harrington  85.  Lackey  v.  Boruff,  152  Ind.  371, 

v.    Thompson,    9    Gray    (Mass.),    65;  53  N.  E.  412 ;  First  Nat.  Bank  v.  Ber- 

Foxworth  V.  Magee,  44  Miss.  430;   J.  toli,  87  Vt.  297,  89  A.  359;  Gilbert  v. 


§  230 


HUSBAND    AND    WIFE. 


248 


Wiere  a  wife's  note  for  her  husband's  debt  was  merely  voidable 
when  given,  a  note  to  renew  such  note,  given  after  the  enactment  of 
a  statute  enabling  the  wife  to  be  a  surety,  binds  her.^*  Generally 
a  wife  is  now  liable  on  her  note,*^  especially  one  given  before  mar- 
riage,** even  though  given  for  a  community  debt,*^  even  where  the 
loan  is  negotiated  by  her  husband,  if  the  lender  in  good  faith 
intends  to  give  credit  to  the  wife,^°  and  even  if  she  intends  to  pay 
her  husband's  debt  with  the  proceeds,®'  even  though  the  lender 
knows  that  such  is  her  intention.®' 

In  several  States  a  wife  is  not  liable  on  her  note  where  the  money 
obtained  was  obtained  for  her  benefit,  or  for  the  use  and  benefit  of 
her  separate  estate.®*  In  Nebraska,  in  order  to  bind  a  wife  on  her 
note,  it  must  appear  that  she  had  a  separate  estate  at  the  time  of 
giving  the  note,®*  and  that  the  note  was  made  with  reference  to  or 
on  the  faith  of  such  estate.®"  She  is  not  relieved  from  paying  her 
part  of  a  note  by  the  fact  that  it  is  usurious  and  that  the  other  part 


Brown,  123  Ky.  703,  29  Ky.  Law, 
1248,  7  L.  E.  A.  (N.  S.)  1053,  97  S. 
W.  40. 

86.  Walker  v.  Arkansas  Nat.  Bank, 
256  F.  1. 

87.  Bowles  v.  Field,  83  F.  886 ;  Ma- 
hana  v.  Van  Alstyne  (Cal.),  178  P. 
853;  Swearingen's  Executor  &  Trus- 
tee V.  Tyler,  132  Ky.  458,  116  S.  W. 
331;  Dennis  v.  Grove,  4  Pa.  Super. 
480;  McKinney  v.  Peters  (S.  D.),  170 
N.  W.  132 ;  Cummings  v.  Irvin 
(Tenn.),  59  S.  W.  153;  Northern 
Bank  &  Trust  Co.  v.  Graves,  79  Wash. 
411,  140  P.  32'8;  Kennedy  v,  Harris, 
3  Ind.  T.  487,  58  S.  W.  567;  City 
Bank  &  Trust  Co.  v.  Atwood  (Mich.), 
163  N.  W.  941;  Security  Sav.  Bank  v. 
Smith,  38  Ore.  72,  62  P.  794,  84  Am. 
St.  E.  756;  Becker  v.  Noegel  (Wis.), 
160  N.  W.  1055 ;  Siemers  v.  Kleeburg, 
56  Mo.  196 ;  Colonial  Building  &  Loan 
Ass'n  V.  Griffin,  85  N.  J.  Eq,  455,  96 
A.  901 ;  Italo-French  Produce  Co.  v. 
Thomas,  31  Pa.  Super.  503. 

88.  Conrad  v.  Howard,  89  Mo.  217, 
1.  S.  W.  212. 

89.  Churchill   v.   Miller,    90    Wash. 
694,  156  P.  851. 

90.  Longley  v.  Bank  of  Parrott,  19 
Ga.  App.  701,  92  S.  E.  232. 


91.  Cline  v.  Milledgeville  Banking 
Co.,  131  Ga.  611,  62  S.  E.  984;  lona 
Sav.  Bank  v.  Boynton,  69  N.  H.  77, 
39  A.  522. 

92.  Eood  V.  Wright,  124  Ga.  849,  53 
S.  E.  390. 

93.  Parvis  v.  Williams  Co.,  1  Marv. 
(Del.)  325,  40  A.  1123;  Scott  v.  Col- 
lier, 166  Ind.  644,  78  N.  E.  184;  Coats 
V.  McKee,  26  Ind,  223;  Standard 
Brewery  v.  Lacanski  (Ind.),  Ill  N. 
E.  80;  McDaniel  v.  Jonesboro  Trust 
Co.,  127  Ark.  61,  191  S.  W.  916;  Dut- 
ton  V.  Million  (Ark.),  169  S.  W. 
1183;  Vandeventer  v.  Davis,  92  Ark. 
604,  123  S.  W.  766;  Sehlatterer  v. 
Nichodemus,  51  Mich.  626,  17  N.  W. 
210;  National  Lumberman's  Bank  v. 
Miller,  131  Mich.  564,  91  N.  W.  1024, 
9  Det.  Leg.  N.  435,  100  Am.  St.  R. 
623;  Crampton  v.  Newton's  Estate, 
132  Mich.  149,  93  N.  W.  250,  9  Det. 
Leg.  570;  First  Sav.  Bank  &  Trust 
Co.  V.  Flournoy  (N.  M.),  171  P.  793; 
Fisher  v.  Scherer  (Tex.),  169  S.  W. 
1133;  Noel  v.  Clark,  25  Tex,  Civ.  136, 
60  S.  W.  356. 

94.  McKell  v.  Merchants  Nat.  Bank, 
62  Nebr.  608,  87  N.  W.  317. 

95.  T.  G.  Northwall  Co.  v.  Osgood, 
80  Nebr.  764,  115  N.  W.  308. 


249  PARTICULAR    CONTRACTS    OF    WIFE.  §  230 

is  that  of  her  husband.""  Under  such  statutes  the  holder  has  the 
burden  of  showing  that  the  consideration  passed  to  her,"''  and  was 
for  the  benefit  of  her  separate  estate.^^ 

In  Michigan,  where  a  wife  can  contract  only  as  to  her  separate 
estate,  it  was  held  that  a  holder  of  a  joint  note  against  spouses  for 
goods  used  by  both  in  their  business  could  not  be  enforced  except  on 
proof  that  the  holder  believed  that  the  wife  was  the  sole  owner  of 
the  property,  and  had  good  reason  for  the  belief,  based  on  her  state- 
ments, and  that  he  looked  to  her  for  payment.''®  One  taking  a  note 
from  a  woman  known  to  be  married  is  chargeable  with  knowledge  of 
the  statutory  limitations  on  her  power  to  contract,^  there  being  no 
presumption  that  she  intended  to  bind  her  separate  estate  by  the 
note."  Such  a  note  can  be  enforced  against  her  only  to  the  extent 
to  which  it  is  for  her  benefit.^  In  Connecticut  it  has  been  held 
that  a  wife's  note  given  to  induce  the  payee  not  to  sue  the  husband 
was  binding.*  In  Louisiana  a  note  given  for  fees  for  legal  services 
was  held  not  enforceable  where  the  maker  was  a  wife  and  where  part 
of  the  services  were  rendered  to  the  husband,  who  retained  the 
attorney.^  In  Massachusetts,  where  a  wife  may  contract  as  sole, 
she  is  bound  by  the  provisions  of  a  statute  providing  parties  appear- 
ing on  a  note  are  prima  facie  such  for  value.®  In  Michigan  a  wife 
is  not  bound  on  a  joint  note  with  her  husband  for  the  price  of  a  horse 
purchased  jointly.'^     She  is  not  liable  on  a  note  secured  by  mortgage 

96.  Lanier  v.  OUiff,  117  Ga.  397,  43  98.  Hallock  v.  De  Munn,  2  Thomp. 
S.  E.  711.  &  C.    (N.  Y.)    350. 

97.  Culberhouse  v.  Hawthorne,  107  99.  Chamberlain  v.  Murrin,  92  Mich. 
Ark.  462,  156  S.  W.  421;  Pyles  v.  Far-  361,  52  N.  W.  640. 

mers'  Bank    (Ark.),  176  S.  W.  141;  1.  First  Nat.  Bank  v.  Short,  15  Pa. 

Jaeckel  v.   Pease,   6   Ida.   131,   53   P.  Super.  64. 

399;  Ensign  v.  Dunn,  181  Mich.  456,  2.  Dodge  v.  Healey  (Xebr.),  170  N. 

148   N.  W.   34'3;    Eussell  v.   People's  W.  828;  Grand  Island  Banking  Co.  v. 

Sav.  Bank,  39  Mich.  671,  33  Am.  R.  Wright,  53  Nebr.  574,  74  N.  W.  82; 

444;    Buhler    v.    Jennings,    49    Mich.  State  Nat.  Bank  v.  Smith,  55  Nebr. 

538,  14  N.  W.   488;   Marx.  v.  Bellel,  54,  75  N.  W.  51. 

114  Mich.  631,  72  N.  W.  620,  4  Det.  3.   Equitable   Trust   Co.  v.   Torphy, 

Leg.   N.    723;    Harris   v.    Gates,    121  37  Ind.  App.  220,  76  N.  E.  63^. 

Mich.  163,  79  N.  W.  1098,  6  Det.  Leg.  4.  Markel  v.  De  Francesco  (Conn.), 

N.  406;  Whittier  v.  Wcnner,  96  Nebr.  105  A.  703. 

228,  147  N.  W.  460;  Bishop  v.  Bour-  5.  Eawlings  v.  Brandon,  Man.  Un- 

geois,  58  N.  J.  Eq.  417,  43  A.  655;  rep.  (La.)  Cas.  178. 

First  State  Bank  v.  Tinkham   (Tex.),  6.  Harvey  v.  Squire,  217  Mass.  411, 

195  S.  W.  880;  Citizens'  State  Bank  105  N.  E.  355;  Wilder  v.  Ritchie,  117 

of  Shawano  v.  Cayouette  (Wis.),  172  Mass.  382;  Stewart  v.  Jenkins,  6  Alien 

N.  W.  320;   Fisk  v.  Mills,  104  Mich.  (Mass.),  300;    Freeman  v.  Fowler,   6 

433,    62    N.    W.    559;    Benjamin    v.  Allen   (Mass.),  300. 

Toungblood  (Tex.),  207  S.  W.  687.  7.  Caldwell  v.  Jones,  115  Mich.  129, 

73  N.  W.  129,  4  Det.  Leg.  N.  795. 


§  232 


HUSBAND    AND    WIFE. 


250 


where  she  joins  in  the  note  and  mortgage  merely  to  release  dower 
and  homestead.*  Under  the  Missouri  statute  a  wife  giving  a  note 
and  mortgage  of  real  estate  of  which  she  is  seized  in  her  own  right, 
she  is  not  liable  for  the  debt,  but  her  land  is  bound,  and  the  d'ebt 
may  be  collected  by  foreclosure.®  Under  the  North  Carolina  stat- 
ute a  note  signed  by  a  wife  with  her  husband  without  privy  exam- 
ination is  not  enforceable  against  her  separate  estate. ^° 

§  231.  As  Accommodation  Party. 

In  Kansas,  Massachusetts  and  New  Mexico  a  wife  may  now  bind 
herself  as  an  accommodation  party  on  a  note.^^  In  New  Jersey  a 
wife  is  not  bound  by  her  accommodation  note,^^  whether  payable 
to  the  order  of  the  husband  or  to  hers  and  indorsed  by  her  before 
delivery,^^  unless  she  receives  a  benefit  to  herself  or  her  separate 
estate  thereby."  In  several  States  the  statute  forbids  a  wife  to 
become  accommodation  indorser  or  surety  on  a  note.^^  Even  where 
such  a  statute  exists,  she  may  validly  bind  herself  by  a  renewal  of 
a  note  given  before  the  enactment  where  it  appears  that  parties 
intended  a  mere  continuation  of  the  original  obligation.^®  In  Dela- 
ware a  wife  is  not  liable  as  accommodation  indorser  of  her  hus- 
band's note  where  she  received  no  benefit  from  the  transaction.^^ 

§  232.  For  Husband's  Debt. 

In  Massachusetts  a  wife's  note  for  her  husband's  debt  is  valid.^' 
In  Pennsylvania  such  a  note  is  valid  when  given  as  an  original 


8.  Simons  v.  McDonnell,  120  Mich. 
621,  79  N.  W.  916,  6  Det.  Leg.  N.  309. 

9.  Hagerman  v.  Sutton,  9'1  Mo.  519, 
4  S.  W.  73. 

10.  Harvey  Blair  &  Co.  v.  Johnson, 
133  N.  C,  352,  45  S.  E.  644. 

11.  State  Bank  v.  Maxson,  123  Mich. 
250,  82  N.  W.  31,  6  Det.  Leg.  N.  1034, 
81  Am.  St.  R.  196;  First  Sav.  Bank  & 
Trust  Co.  V.  Fournoy  (N,  M.),  171  P. 
793;  Middleborough  Nat.  Bank  v. 
Cole,  191  Mass.  168,  77  N.  E.  781. 

12.  Eastburn  v.  Vliet,  64  N.  J.  Law, 
627,  46  A.  735,  1061;  People's  Nat. 
Bank  v.  Schepflin,  73  N.  J.  Law,  29. 

13.  People 's  Nat.  Bank  v.  Schepflin, 
73  N.  J.  Law,  29,  62  A.  333. 

14.  Newark  Trust  Co.  v.  Curtiss,  85 
N.  J.  Law,  491,  S9  A.  990;  Central 
Sav.  Bank  Co.  v.  Barber  (N.  J.),  105 
A.  22;  First  Nat.  Bank  v.  Shumard 
(N.    J.),    103    A.    1001;    Eastburn   v. 


Vliet,  64  N.  J.  Law,  627,  46  A.  735, 
1061. 

15.  Maekintyre  v.  Jones,  9  Pa. 
Super.  543 ;  Henry  v.  Bigley,  5  Pa. 
Super.  503;  In  re  Good's  Estate,  150 
Pa.  307,  24  Atl.  623 ;  Class,  &c.,  Co.  v. 
Rago,  240  Pa.  470,  87  Atl.  704;  Na- 
tional Bank  of  Tifton  v.  Smith,  142 
Ga.  663,  83  S.  E.  526,  L,  E.  A.  1915B, 
1116;  Warden  v.  Middleton,  110  Ark. 
215,  161  S.  W.  151;  Wright  v.  Parker 
&  Williams,  2  Hardesty  (Del.),  66; 
John  C.  Groub  Co.  v.  Smith,  31  Ind. 
App.  685,  68  N.  E.  1030. 

16.  Harrisburg  Nat.  Bank  v.  Brad- 
shaw,  178  Pa.  180,  35  A.  629,  34  L.  R. 
A.  597. 

17.  Schmid  v.  Spicer  (Del.),  92  A. 
99'1. 

18.  Willard  v.  Greenwood,  228  Masa. 
549,  117  N.  E.  823. 


251 


PARTICULAR    CONTRACTS    OF    WIFE. 


§234 


undertaking  and  for  a  valuable  consideration  passing  directly  to 
iier/®  In  Georgia  a  wife's  note  for  her  husband's  debt  is  not 
illegal,  but  voidable  against  the  Original  pajee.^"  In  Arkansas, 
Michigan,  New  York  and  Texas  such  a  note  is  void,^*  even  in  the 
hands  of  a  holder  for  value,^"  in  the  absence  of  representations  by 
her  that  it  was  for  her  benefit.^* 

§  233.  What  Law  Governs. 

Where  a  wife  domiciled  in  one  State  gives  a  note  to  pay  for 
goods  purchased  in  another,  where  such  note  is  valid,  it  cannot  be 
presumed  that  the  note  was  void  in  the  State  of  the  domicile.^* 
A  note  made  by  the  husband  payable  to  the  wife  and  indorsed  by 
her  for  accommodation  in  New  Jersey,  is  presumed  to  be  a  New 
Jersey  contract  where  there  is  no  evidence  of  authority  to  deliver 
it  in  another  State,"^  but  where  it  is  discounted  in  good  faith  in  a 
State  where  it  would  have  been  valid  if  made  there,  she  is  estopped 
to  get  up  its  invalidity  where  the  holder  had  no  notice  of  that  fact.^* 
In  Kentucky  if  the  consideration  of  a  joint  note  of  spouses  moves  to 
the  wife  she  is  liable,  even  though  she  intends  to  act  merely  as  a 
surety  in  a  State  where  her  acts  as  a  surety  are  not  binding. 


27 


§  234.  Suretyship  —  In  General. 

At  common  law  a  wife  cannot  bind  herself  as  surety  for  an- 
other.'^ In  some  states  she  is  still  without  power  to  bind  herself 
by  such  a  contract,^^  no  matter  what  form  the  transaction  may 


19.  Joseph  McGarrity  &  Co.  v. 
McMahon,  240  Pa.  553,  87  A.  781. 

20.  Jones  v.  Harrell,  110  Ga.  373, 
35  S.  E.  690 ;  Booth  v.  F.  Mayer  Boot 
&  Shoe  Co.,  18  Ga.  App.  247,  89  S.  E. 
186. 

21.  Burnham-Hanna-Munger  Dry 
Goods  Co.  V.  Carter,  52  Tex.  Civ.  29-4, 
113  S.  W.  782;  Johnson  v.  Holland 
(Tex.),  204  S.  W,  494;  Waterbury  v. 
Andrews,  67  Mich.  281,  34  N.  W.  575; 
McCarthy  v.  People's  Savings  Bank, 
108  Ark.  151,  156  8.  W.  1023;  Hover 
T.  Magley,  48  Misc.  430,  96  N.  Y.  S. 
925. 

22.  Ensign  v.  Dunn,  181  Mich.  456, 
148  N.  W.  343. 

23.  Schmidt  v.  Spencer,  87  Mich. 
121,  49  N.  W.  479. 

24.  Wheeler  v.  Constantine,  39  Mich. 
es,  33  Am.  Eep.  355. 


25.  Basilea  v.  Spagnuolo  (N.  J.)  77 
A.  531. 

26.  Chemical  Nat.  Bank  v.  Kellogg, 
183  N.  Y.  92,  75  N.  E.  1103. 

27.  Longnecker  v.  Bondurant,  173 
Ky.  427,  191  S.  W.  286. 

28.  Swing  V.  Woodruff,  41  N.  J.  L. 
469;  Gosman  v.  Kruger,  69  N.  Y. 
87;  Westervelt  v.  Baker,  56  Nebr.  63, 
76  N.  W.  440;  Shores-Mueller  Co.  v. 
Bell,  21  Ga.  App.  194,  94  S.  E.  83. 

29.  Coffee  v.  Kamey,  111  Ga.  817, 
35  S.  E.  641;  Fisk  Rubber  Co.  v. 
Muller,  42  App.  D.  C.  49;  Milton  v. 
Setze,  146  Ga.  26,  90  S.  E.  469;  Union 
Nat.  Bank  v.  Finley,  180  Ind.  470, 
103  N.  E.  110;  Columbia  Bldg.  Loan 
&  Savings  Ass  'n  's  Assignee  v.  Greg- 
ory, 129  Ky.  489,  33  Ky.  Law,  1011, 
112  S.  W.  608;  Wiltbank  v.  Tobler, 
181  Pa.  103,  37  A.  183:  In  re  Good's 


235 


HUSBA^'D    AND    WIFE. 


252 


take,^°  but  if  she  voluntarily  pays  such,  an  obligation  she  cannot 
recover  back  the  monej.^^  The  Indiana  statute  prohibiting  a  wife 
from  binding  herself  as  surety  intends  to  avoid  every  such  contract, 
in  whatever  form,  and  whether  operating  in  her  real  or  personal 
property.^"  By  statute  in  some  States  she  may  now  validly  make 
such  a  contract.^^  Under  the  Kentucky  statute  she  may  bind  her- 
self as  surety  if  the  estate  sought  to  be  bound  shall  have  been  set 
apart  for  the  purpose  by  mortgage  or  other  conveyance.^*  In. 
Louisiana  a  wife  can  bind  herself  as  surety  only  with  the  authority 
of  her  husband  or  the  court.^^  In  ^Nebraska  a  wife  may  bind  her- 
self as  a  surety  within  her  general  contractural  powers,^*^  but 
such  a  contract  is  void  if  not  in  reference  to  and  on  the  faith  of  her 
S'eparate  estate,  or  if  she  has  no  separate  estate.^^ 

§  235.  For  Her  Husband. 

At  common  law  a  wife  could  not  bind  herself  as  surety  for  her 
husband.^*    In  several  States  the  wife  is  still  without  power  to  bind 


Estate,  150  Pa.  307,  24  Atl.  623; 
Bank  of  Commerce  v.  Baldwin,  14  Ida. 
75,  93  P.  504;  Harley  v,  Leonard,  4 
Pa.  Super.  431,  40  W.  N.  C,  225; 
Hazelton  Nat.  Bank  v.  Kintz,  24  Pa. 
Super.  456;  Hester  v.  Dreyer  &  Hin- 
son,  19  Ga.  App.  816,  &2  S.  E.  299; 
Hill  Bros.  V.  Bazemore  (Ga.),  86  S. 
E.  397 ;  Thompson  v.  Wilkinson,  9  Ga. 
App.  367,  71  S.  E.  678;  Patterson  v. 
Bank  of  Lennox,  11  Ga.  App.  235,  75 
S.  E.  15;  Weil  v.  Waterhouse,  46  Ind. 
App.  690,  91  X.  E.  746;  Neighbors  v. 
Davis,  34  Ind.  App.  441,  73  N.  E.  151; 
Ft.  Wayne  Trust  Co.  v.  Sihler,  34  Ind. 
App.  140,  72  N.  E.  494;  Daviess 
County  Bank  &  Trust  Co.  v.  Wright, 
129  Ky.  21,  33  Ky.  Law,  457,  110  S. 
W.  361 ;  H.  C.  Hines  &  Co.  v.  Hays,  26 
Ky.  Law,  967,  82  S.  W.  1007;  Yeany 
V.  Shannon,  256  Pa.  135,  100  A.  527; 
Goldsleger  v.  Carracciolo,  63  Pa. 
Super.  72;  Class  &  Nachod  Brewing 
Co.  V.  Eago,  240  Pa.  470,  87  A.  704. 

30.  Third  Xat.  Bank  v.  Tierney,  128 
Ky.  836,  33  Ky.  Law,  418,  110  S.  W. 
293. 

31.  Booth  V.  Merchants'  Bank  of 
Valdosta,  9  Ga.  App.  650,  72  S.  E.  44. 


32.  Goff  V.  Hankins,  11  Ind.  App. 
456,  39  N.  E.  294. 

33.  Warder,  Bushnell  &  Glessner  Co. 
V.  Stewart,  2  Marv.  (Del.)  275,  36  A. 
88;  Temple  v.  State  (Okla.),  178  P. 
113 ;  Nat.  Exeh.  Bank  v.  Cumberland 
Lumber  Co.,  100  Tenn.  479,  47  S.  W. 
85;  Browning 'c  Ex'r  v.  Browning 
(Va.),  36  S.  E.  108  (afP.  36  S.  E. 
525;  Kittitas  County  v.  Travers,  16 
Wash.  528,  48  P.  340;  Patton  v.  Mer- 
chants' Bank  of  Charleston,  12  W.  Va. 
587;  Barrett  v.  Davis,  104  Mo.  549, 
16  S.  W.  377. 

34.  Third  Xat.  Bank  v.  Tierney,  128 
Ky.  836;  33  Ky.  Law,  418;  110  S.  W. 
293;  Travers  v.  Wood,  30  Ky.  Law, 
1819,  50  S.  W.  60. 

35.  State  Ex  rel.  Mt.  Calvary  M.  E. 
Church  V.  St.  Paul,  111  La.  71,  35  So. 
389. 

36.  First  Nat.  Bank  v.  Stoll,  57 
Nebr.   758,  78   N.  W.  254. 

37.  McKell  v.  Merchants'  Nat. 
Bank,  62  Nebr.  608,  87  N.  W.  317; 
Smith  V.  Bond,  56  Nebr.  529,  76  N. 
W.  1062 ;  Kershaw  v.  Barrett,  3  Nebr. 
(rnof.)   36,  90  N.  W.  764. 

38.  Barlow  Bros.  Co.  v.  Parsons,  73 
Conn.  696,  49  A.  205. 


253 


PAETICULAE    CONTRACTS    OF    WIFE. 


§235 


herself  by  such  a  contract,^"  even  though  the  money  borrowed  is 
used  to  improve  her  land.*°  The  statute  will  avoid  the  transaction 
no  matter  what  form  it  takes,  if  colorable,*^  looking  always  at  its 
real  substance,*^  even  if  there  is  nothing  in  the  obligation  to  show 
that  she  is  a  surety,*^  even  if  her  name  appears  first  on  the  obliga- 


39.  Vinegar  Bend  Lumber  Co.  v. 
Leftwich  (Ala.),  72  So.  538;  People's 
Bank  v.  Steinhart  (Ala.),  65  So.  60; 
Staples  V.  City  Bank  &  Trust 
Co.  (Ala.),  70  So.  115;  Price 
V.  Cooper,  123  Ala.  392,  26 
So.  238;  Elkins  v.  Bank  of  Henry, 
180  Ala.  18,  60  So.  96;  Spencer  v. 
Leland,  178  Ala.  282,  59^  So.  593;  Wa- 
ters V.  Pearson,  39  App.  D.  C.  10; 
Bank  of  Eufaula  v.  Johnson,  146  Ga. 
791,  92  S.  E.  631;  McLeod  v.  Poe, 
142  Ga.  254,  82  S.  E.  663;  McDaniel 
V.  Akridge,  5  Ga.  App.  208,  62  S.  E. 
1010;  Kelley  v.  York,  183  Ind.  628, 
109  N.  E.  772;  Hall  v.  Hall,  118  Ky. 
656,  82  S.  W.  269,  26  Ky.  Law,  553; 
Kentucky  Title  Savings  Bank  &  Trust 
Co.  V.  Langan,  144  Ky.  46,  137  S.  W. 
846;  Brady  v.  Equitable  Trust  Co.  of 
Dover,  178  Ky.  693,  199^  S,  W.  1082; 
Skinner  v.  Lynn,  21  Ky.  Law,  185;  51 
S.  W.  167;  Magoffin  v.  Boyle  Nat. 
Bank,  24  Ky.  Law,  585,  69  S.  W.  702; 
Planters'  Bank  &  Trust  Co.  v.  Major, 
25  Ky.  Law,  702,  76  S.  W.  331  (reh. 
den.,  26  Ky.  Law,  234,  80  S,  W. 
1089)  ;  Bowron  v.  Curd,  28  Ky.  Law, 
58,  88  S.  W.  1106;  People's  State 
Bank  v.  Francis,  8  N.  D.  369,  79  N. 
W.  853;  First  Nat.  Bank  v.  Hunton, 
69  N.  H.  509,  45  A.  351;  Stewart  v. 
Stewart,  207  Pa.  59,  56  A.  323 ;  Stahr 
V.  Brewer,  186  Pa.  623,  40  A.  1016, 
65  Am.  St.  K.  883,  42  W'kly  Notes 
Cas,  356;  McCrea  v.  Sisler,  17  Pa. 
Super.  175;  First  Nat.  Bank  v.  Short, 
15  Pa.  Super.  64;  Collins  v.  Hall,  55  S. 
C.  336,  33  S.  E.  466;  Red  River  Nat. 
Bank  v.  Ferguson  (Tex.),  192  S.  W. 
1088;  Union  Trust  Co.  v,  Grosman, 
245  U.  S.  412,  38  S.  Ct.  147,  62  L. 
Ed.  368;  Horton  v.  Hill,  138  Ala.  625, 
36  So.  465 ;  Goldsmith  Bros.  Smelting 
&  Refining  Co.  v.  Moore,  108  Ark.  362, 
157  S.  W.  733;  Wright  v.  Parvis  & 
Williams  Co.,  1  Marv.   (Del.)   325,  40 


A.  1123;  Lewis  v.  Howell,  98  Ga. 
428;  Exchange  Bank  of  Valdosta  v. 
Newton  (Ga.),  99  S.  E.  705;  Mer- 
chants' &  Laborers'  Bldg.  Ass'n  v. 
Scanlan,  144  Ind.  11,  42  N.  E.  1008; 
Smith  v.  McDonald,  49  Ind.  App.  464, 
97  N.  E.  556;  Pabst  Brewing  Co.  v. 
Schuster,  55  Ind.  App.  375,  103  N.  E. 
950;  Cook  v.  Landrum,  26  Ky.  Law, 
813,  82  S.  W.  585;  Bowron  v.  Curd,  28 
Ky.  Law,  58,  88  S.  W.  1106;  Milburn 
v.  Jackson,  21  Ky.  Law,  700,  52  S.  W. 
949;  Hall  v.  Johnson,  41  Mich.  286, 
2  N.  W.  55;  First  Nat.  Bank  v.  Hun- 
ton, 70  N.  H,  224,  46  A.  1049;  Bauer 
V.  Ambs,  128  N.  Y.  S.  1024;  Sibley 
V.  Robertson,  212  Pa.  24,  61  A.  426; 
Riland  v.  Schaeffer,  45  Pa.  Super. 
636;  Red  River  Nat.  Bank  v.  Fergu- 
son (Tex.),  206  S.  W.  923;  Seaver  v. 
Lang  (Vt.),  104  A.  877;  In  re  Skill- 
man's  Estate,  146  la.  601,  125  N.  W. 
343;  Farmers'  &  Merchants'  Bank  v. 
Shorb,  137  Cal.  685,  70  P.  771;  Craw- 
ford V.  Hazelrigg,  117  Ind.  63,  18  N. 
E,  603,  2  L.  R.  A.  139;  Lingenfelter 
Bros,  V.  Bowman,  156  la.  649',  137  N. 
W.  946;  Mitchell  v.  Wheeler,  122  la. 

368,  98  N.  W,  152;  In  re  Succession 
of  Maloney,  124  La.  672,  50  So.  647; 
Richards  v.  Prober,  44  Mich.  96,  6  N. 
W.  115;  Walton  v.  Bristol,  125  N.  C. 
413,  34  S.  E.  544;  Maas  v.  Rettke 
(N.  D.),  170  N.  W.  309. 

40.  Richardson  v.  Stevens,  114  Ala. 
238,  21  So.  949. 

41.  Ginsberg  v.  People's  Bank,  145 
Ga.  815,  89  S.  E.  1086;  Johnson  v.  A. 
Leffler  Co.,  122  Ga.  670,  50  S.  E.  488; 
Third  Nat.  Bank  v.  Tierney,  128  Ky. 
836,  110  S.  W.  293,  33  Ky,  Law,  418; 
Byerley  v.  Walker,  118  La,  265,  42  So, 
931. 

42.  Lucas    v.    Hagedorn,    158    Ky. 

369,  164  S.  W.  978. 

43.  T.aylor  v.  Acom,  1  Ind.  T.  436, 
4-  P.  W.  130. 


§  237  HUSBAXD  AXD  WIFE.  254 

tion/*  and  even  if  she  expressly  describes  herself  as  principal.*^"** 
Married  Women's  Acts  in  Arkansas,  Missouri,  Xorth  Carolina, 
Oklahoma  and  West  Virginia,  and  the  law  of  Mexico  now  permit 
her  to  bind  herself  as  surety  for  him,*^  but  until  the  enactment  of 
a  recent  statute  the  law  was  otherwise  in  Arkansas.*^  In  New 
Jersey  such  a  contract  is  not  binding  unless  the  wife  received  some- 
thing of  value  to  herself  or  to  her  separate  estate,  as  a  consideration 
for  making  the  obligation.*^ 

§  236.  Guaranty. 

Where  a  wife  is  still  under  the  disability  of  coverture  her  con- 
tract of  guaranty  will  not  bind  her.^°  A  wife  who  is  a  stockholder 
in  a  corporation  cannot  bind  herself  to  pay  its  debts.^^  In  Ne- 
braska a  wife  is  liable  on  her  guaranty  of  a  note  payable  to  her 
order,  though  the  purchaser  does  not  inquire  as  to  her  purpose  in 
disposing  of  the  procedds.^"  The  New  Jersey  Married  Women's 
Act,  which  does  not  enable  a  wife  to  guarantee  the  debt  of  an- 
other without  consideration,  applies  to  and  invalidates  a  contract 
made  in  that  State  by  a  non-resident  wife."  Under  the  Pennsyl- 
vania statute  a  wife  cannot  bind  herself  as  guarantor.^* 

§  237.  Contracts  for  Services. 

At  common  law  a  wife  cannot  earn  money  for  herself. °^  Under 
most  Married  Women's  Acts  a  viiie  may  now  make  and  in  her  own 

44.  Farmers'  Bank  v.  Beck   (Ky.),  632,  46  P.  475;  Duty  v.  Sprinkle,  64 

114   S.   W.    1189;    Planters'   Bank   &  W.  Va.  33,  60  S.  E.  882. 

Trust  Co.  V.  Major,  25  Ky.  Law,  702,  48.  Chittim  v.  Armour  Co.,  125  Ark. 

76  S.  W.  331   (reh.  den.,  26  Ky.  Law,  408,  IBS  S.  W.  809;   Goldsmith  Bros. 

234,  80  S.  W.  1089).  Smelting  &  Eefining  Co.  v.  Moore,  108 

45-46.  Postell  v.  Crumbaugh,  23  Ky.  Ark.  362,  157  S.  W.  733. 

Law,  2193,  66  S.  W.  2193;  Crumbaugh  49.  Mawhinney  v.  Cassio,  63  N.  J. 

V.  PosteU,  20  Ky.  Law,  1366,  49  S.  W.  Law,  412,  43  A.  676. 

334;  Foster  v.  Davis,  175  N.  C.  541,  50.  Wagner  v.  Mutual  Life  Ins.  Co., 

95  S.  E.  917.  88   Conn.   536,   91   A.   1012;    Klotz   v. 

47.  "Walker  v.  Arkansas  Nat.  Bank,  Bates,  83  Mo.  App.  332. 

256  F.  1;  Holland  v.  Bond,  125  Ark.  51.  Allen  v.  Beebe,  63  X.  J.  Law, 

526,   189    S.   W.    165;    United   States  377,  43  A.  681. 

Banking  Co.  v.   Veale,   84   Kan.   385,  52.    Kitchen    v.    Chapin,    64    Nebr, 

114   P.   229;    McCollum  v.   Boughton,  144,   89   N.   W.    632,   97   Am.    St.    R. 

132  Mo.  601,  30  S.  W.  1028,  33  S.  W.  637,  57  L.  E.  A.  914. 

476,  34  S.  W.  480,  35  L.  R.  480;  James  53.  Union  Trust  Co.  of  New  Jersey 

W.  Scudder  &  Co.  v.  Morris,  107  Mo.  v.  Knabe,  122  :Md.  584,  89  A.  1106. 

App.  634,  82  S.  W.  217;   Bruegge  v.  54.   In   re   Good's   Estate,   150   Pa. 

Bedard,  89  Mo.  App.  543;   Grandy  v.  307,   24   Atl.    623;    Class,   &c.,   Co.   v. 

Campbell,  78  Mo.  App.  502;  Eoyal  v.  Eago,  240  Pa.  470,  87  Atl.  904. 

Southerland,  168  N.  C.  405,  84  S.  E.  55.  Offley  v.  Clay,  2  Man.  &  Gr.  172. 
708;  Cooper  v.  Bank  of  T.  T.,  4  Okla. 


255  PARTICULAR    CONTHACTS    OF    WIFE.  §  239 

name  enforce  contracts  to  render  services  to  a  third  perison,^*  if  the 
contractor  is  not  a  member  of  her  familj,^^  as  well  as  to  furnish 
board,^^  and  to  act  as  broker  in  the  sale  of  real  estate  for  a  com- 
mission/® Under  the  Michigan  statute  the  husband's  consent  is 
necessary  to  validate  such  contracts,®"  but  when  given,  it  need  not 
be  known  to  the  party  contracting  for  such  services  by  the  wife.®^ 

§  238.  Confession  of  Judgment. 

In  the  absence  of  statute,  a  wife  has  no  power  to  confess  judg- 
ment.'^ She  may  now  do  so  where  she  may  validly  make  the 
contract  to  which  the  warrant  of  attorney  is  attached.®^  In  Penn- 
sylvania a  wife's  confession  of  judgment  is  pnma  facia  valid,  the 
binder  to  show  its  invalidity  being  on  the  party  asserting  such 
invalidity.**  In  Louisiana  the  consent  of  the  husband  or  a  court  is 
required.'^  In  J^ebraska,  where  given  in  a  note  whereon  she  is 
surety,  such  contract  is  invalid,  not  being  for  the  benefit  of  her 
separate  estate.*® 

§  239.  Contracts  for  Sale  of  Land. 

At  common  law  a  wife  could  not  bind  herself  by  a  title  bond,  or 
executory  contract  to  convey  land.®^  By  statute  in  some  states 
such  a  contract  is  now  binding,  even  without  the  husband's  assent,®* 

56.  Eandall  v.  Daniel,  12  Ga.  App.  Law,  494,  49  A.  455;  Stephan  v. 
550,  77  S.  E.  832 ;  Jones  v.  Adams,  Hudock,  4  Pa.  Super.  474 ;  Good  Hope 
81  111.  App.  183;  Kennedy  V.  Swisher,  Building  Assn.  v.  Amweg,  22  Pa. 
34  Ind.  App.  676,  73  N.  E,  724;  Baker  Super.  143, 

V.  Jewel  Tea  Co.,  152  la,  72,  131  N.  64.  Jaquett   v.    Allabaugh,    16    Pa. 

W.    674;    Trogdon    v.    Hanson    Sheep  Super.  557;   Wilson  v,  Fitzgerald,  25 

Co.  49  Mont.  1,  139  P.  792 ;  Von  Car-  Pa,   Super.   633 ;    Atkins  v.   Grist,   44 

lowitz   V.   Bernstein,   28    Tex,   Civ.    8,  Pa.  Super.   310;   Hirsehlau  v,  Krech- 

66  S.  W.  464.  man,  20  Pa.  Super,  227, 

57.  Lodge  v.  Fraim,  5  Pen.  (Del.)  65.  Mulling  v.  Jones  (La.),  76  So. 
352,  63  A.  233.  720. 

58.  Gerdes  v.  Niemeyer,  193  111.  66.  Kershaw  v.  Barrett,  3  Neb. 
App.  574;  EUiott  v,  Atkinson,  45  Ind.       (Unof.)   36,  90  N.  W.  764, 

App,  290,  90  N,  E.   779;   Lindsey  v.  67,   Stidman   v.   Matthews,   29   Ark. 

Lindsey,  116  la.  480,  89  N.  W.  1096.  650;    Oglesby   Coal  Co.   v.  Pasco,  79 

59.  Garver  v,  Thoman,  13  Ariz,  38,  111.  164;  Nalle  v.  Farrish,  98  Va.  130, 
135  P,  724.  34  S.  E.  985. 

60.  Benson  v.  Morgan,  50  Mich.  77,  68.  Dunn  v,  Stowers,  104  Va.  290, 
14  N.  W.  705.  51  S.  E,  366;  Everett  v,  Ballard,  174 

61.  In  re  Smith's  Estate,  152  Mich,  N,  C,  16,  93  S,  E.  385;  Warren  v. 
197,  115  N.  W.  1052,  15  Det.  Leg.  N.  Dail,  87  S.  E.  126;  Wolff  v,  Meyer 
146.  (X.  J.),  70  A.  1103;  Jenkins  v.  Pitts- 

62.  Henchman  v.  Roberts,  2  Har.  burg  &  0.  E.  Co.,  210  Pa.  134,  59  A. 
(Del.)   74.  823. 

63.  Crosby  v.  Washburn,   66  N.   J. 


§  239  HUSBAND  AND  WIFE.  256 

but  in  others  such  assent  is  required  to  validate  it.^®  But  must  be 
given  by  signing  the  contract.^"  In  some  states  acknowledgement  is 
necessary  to  validitate  her  contract  to  convey  land/^  In  West 
Virginia  such  a  contract  cannot  be  specifically  enforced  unless 
the  husband  joins  and  acknowledges,  or  unless  she  is  separated  from 
him.'^  In  that  State  a  wife  can  only  bind  herself  by  a  contract 
executed  and  acknowledged  as  required  by  the  statute/^  Where 
the  statute  prescribes  the  manner  in  which  a  wife  may  convey  land, 
a  title  bond  not  executed  in  accordance  with  it  is  not  binding/*  In 
Kentucky  a  wife's  contract  to  sell  real  estate,  followed  by  a  deed 
in  pursuance  of  the  contract,  the  husband  joining  in  the  deed,  is 
valid/^  Under  the  Alabama  statute  requiring  the  husband's 
joinder  as  grantor  to  validate  his  wife's  deed,  it  was  held  that  a 
deed  which  he  merely  signed  and  acknowledged  was  a  valid  contract 
to  convey,  vesting  an  equitable  title  in  the  grantees/^  In  New 
Jersey  it  is  held  that  a  contract  to  establish  a  wife's  title  to  real 
estate  for  a  reasonable  compensation  to  secure  which  an  assignment 
of  an  interest  in  the  recovery  is  provided,  though  not  executed  by 
the  husband,  or  by  her  separate  and  apart  from  him,  has  the  effect, 
in  connection  with  the  establishment  of  the  title,  to  invest  the 
beneficiary  with  an  equity,  by  reason  of  which  equity  will  create 
a  lien  in  his  favor.'^^  In  Virginia  specific  performance  may  be 
had  of  a  wife's  contract  to  sell  land/®  Where  a  wife's  contract  to 
convey  land  is  not  binding  because  of  failure  to  execute  it  as  re- 
quired by  the  statute,  the  contractee  cannot  enforce  it  even  against 
one  who  takes  the  land  with  notice  of  the  contract/® 

69.  Fortier  v,  Barry,  111  La.  776,  W.  Va.  76,  79  S.  E.  1024;  Shumate 
35  So.  900;  Bartlett  v.  Williams,  27  v.  Shumate,  78  W.  Va.  576,  90  S.  E. 
Ind.  App.  637,  60  N.  E.  715;  Shirk  v.       824. 

Stafford,  31  Ind.  App.  247,  67  N.  E.  73.  Wiseman  v.  Crislip,  72  W.  Va. 

542;    Davis  v.  Watson,   89   Mo.   App.  340,  78  S.  E.  107. 

15;    Connell    v.    Nickey    (Tex.),    167  74.  Kidd  v.  Bell  (Ky.),  122  S.  W. 

S.    W.     313;     Blakely    v.     Kanaman  232. 

(Tex.),    168    S.   W.    447;    Blakely    v.  75.  Hoffman  v.  Colgan,  25  Ky.  Law, 

Kanaman     (Tex.),    175    S.    W.    674;  98,  74  S.  W.  724. 

Isphording  v.  Wolf,  36  Ind.  App.  250,  76.  Kushton  v.  Davis,  127  Ala.  279, 

75  N.  E.  598.  28  So.  476;   Wood  v.  Lett,  195  Ala. 

70.  Knepper  v.  Eggiman,  177  Ind.  601,  71  So.  177. 

56,  97  N.  E.  161.  77.  Adams  v.  Schmidtt,  68  N.  J.  Eq. 

71.  Gilbough  V.  Stahl  Bldg.  Co.,  16      168  A.  345. 

Tex.  Civ.  448,  41  S.  W.  535 ;  Ten  Eyck  78.  Dunn  v.  Stowers,  104  Va.  290, 

V.  Saville,  64  N.  J.  Eq.  611,  54  A.  810.  51  S.  E.  366. 

72.  Rosenour  v.  Roscnour,  47  W.  Va.  79.  Ten  Eyck  v.  Saville,  64  N.  J. 
554,  35  S.  E.  918;  Slaven  v.  Riley,  73  Eq.  611,  54  A.  810. 


257  PARTICULAB    CONTRACTS    OF    WIFE.  §    242 

§  240.  Sealed  Instruments. 

At  common  law  a  wife  could  not  bind  herself  by  a  bond  or 
other  instrument  under  seal.*"  Under  the  Delaware  statute  a  wife 
may  now  bind  hersielf  by  a  bond.*^  In  Pennsylvania  her  bond  is 
valid  though  the  mortgage  securing  it  is  void  for  the  non-joinder 
of  the  husband.^"  Under  the  Indiana  Married  Women's  Act  a 
wife  may  bind  herself  by  a  recognizance  of  replevin  bail  for  a  stay 
of  execution  and  for  payment  thereof,^^  and  in  Texas  by  a  replevy 
found  in  sequestration  proceedings.** 

§  241.  Releases. 

A  wife's  release  was  void  at  common  law.®^  Under  the  Rhode 
Island  Married  Women's  Act  a  wife  may  release  a  cause  of  action 
for  personal  injuries,  though  action  therefor  could  not  have  been 
maintained  without  the  joinder  of  the  husband  as  a  party  plain- 
tiff.*^ WTiere  a  wife  taking  up  a  note  on  which  she  was  accom- 
modation indorser,  contracted  to  release  a  prior  party,  she  was  held 
bound  although  the  consideration  passed  to  a  third  person,  such 
contract  being  not  forbidden  by  the  New  Jersey  Married  Women's 
Act.*^ 

§  242.  Covenants. 

At  common  law  a  wife  was  not  bound  by  her  covenants  in  a 
mortgage  of  her  husband's  property,**  nor  in  his  deed,  in  which 
she  joins,*®  nor  by  her  covenants  in  deeds  generally.^"  Where  she 
has  power  to  convey  her  separte  estate  she  is  now  generally  bound 

80.  Whitworth  v.  Carter,  43  Miss.  88.  Kitchell  v.  Mudgett,  37  Mich.  81, 
61;  Huntley  v,  Whitner,  77  N.  C.  392.  89.  Couch  v.  Palmer,  57  Fla.  57,  48 

81.  Warder  Bushnell  &  Glessner  Co.  So.  995;  Webb  v.  Holt,  113  Mich.  338, 
v.  Stewart,  36  A.  88,  2  Marv.   (Del.)  71  N.  W.  637,  4  Det.  Leg.  N.  309, 
275  (holding  that  a  sealed  writing  re-  90.  French  v.  Slack,  96  A.  6 ;  John- 
quiring  the  obligees  to  pay  money  was  son  v.  Blum,  28  Tex.  Civ.  10,  66  S.  W. 
within  the  statute).  461;  State  Nat.  Bank  v.  Robidoux,  57 

82.  Eandal  V.  Gould,  225  Pa.  42,  73  Mo.  446;  Niehol  v.  Hays,  20  Ind. 
A.  986.  264      111.      219,      106      N.      E.      262; 

83.  Eberwine  v.  State,  79  Ind.  266.  Menard     v.      Campbell,      180      Mich. 

84.  Wandelohr  v.  Grayson  County  ^83,  147  N.  W.  556;  Vineyard 
Nat.  Bank,  102  Tex.  20,  112  S.  W.  v.  Heard  (Tex.),  167  S.  W.  22;  Wing 
1046.  V.   Deans,  214   Mass.   546,   102   N.   E. 

85.  Stewart  v.  Conrad's  Adm'r,  100  313;  Bell  v.  Bair,  28  Ky.  Law  614, 
Va.  128,  4  Va.  Sup.  Ct.  49,  40  S.  E.  89  S.  W.  732;  Sorrells  v.  Sorrells,  105 
624.  Ga.  36,  31  S.  E.  119;  White  v.  Grand 

86.  Cooney  v.  Lincoln,  20  R.  I.  183,  Rapids  &  I.  Ry.  Co.  (Mich.),  155 
37  A.  1031.  N.  W.  719. 

87.  Headley  v.  Leavitt,  64  N.  J.  Eq. 
748,    55   A.   731. 

17 


§  242  HUSBAND  AND  WIFE.  258 

by  covenants  in  her  deed,®^  or  lease  of  such  estate,®*  as  well  as  in 
her  husband's  deed,  in  which  she  joins. ®^  In  Maryland  she  is 
liable  on  covenants  only  when  the  deed  relates  to  her  separate 
estate,®*  and  in  Indiana  her  liability  is  limited  to  covenants  of 
title.®^  In  Nebraska  her  liability  on  such  covenants  is  limited  to 
the  property  conveyed  and  will  not  pass  after  acquired  property.®' 
Under  the  Idaho  Married  Women's  Act  she  is  not  liable  on  such 
covenants  in  a  deed  which  she  joins  merely  to  release  dower  and 
homestead.®^  In  Michigan  it  is  held  that  she  will  be  liable  on  the 
covenants  in  a  joint  deed  where  she  receives  the  consideration,  the 
covenants  being  joint  in  that  case.®*  In  Massachusetts  the  wife  is 
not  liable  on  covenants  in  a  joint  deed  conveying  her  property, 
except  where  the  covenants  operate  as  an  estoppel.^  In  Utah  she 
is  liable  on  such  covenants  to  the  immediate  grantee  only,  her  cove- 
nants being  personal,  and  not  running  with  the  land.^  The  liability 
of  a  wife  on  covenants  in  a  deed  which  she  joins  to  release  dower 
or  homestead  is  governed  by  the  law  of  the  State  where  the  land 
lies  though  the  deed  is  executed  in  another  State.^ 

91.  McGuigan   v.   Gaines,   71    Ark,  96.  Decree  (C.  C;  Burns  v.  Cooper, 
614,  77  S.  W.  52.  140  F.  273. 

92.  Winestine    v.    Liglatski-Marks  97.  Humbird  Lumber  Co,  v.  Doran, 
Co.,  77  Conn.  404,  59  A.  496,  24   Ida,    507,   135   P,   66;    Village   of 

93.  Fisher   v.   Clark,   8    Kan.   App,  Western  Springs   v,  Collins,  98  F,  933, 
483,  54  P,  511;  Bolinger  v.  Brake,  4  40  C,  C.  A.  33, 

Kan.  App.   180,  45  P.   950   (affd.,  57  98.   Agar   v.   Streeter    (Mich.),   150 

Kan.  663,  47  P,  537)  ;  Security  Bank  N,  W,  160. 

of  Minnesota  v.  Holmes,  68  Minn.  538,  1.   Wing  v.   Deans,   214   Mass.   546, 

71  N.  W.  699^;  Wasserman  v,  Carroll,  102  N.  E.  313. 

2  Pa.  Super.  551.  2,  H.   T,   &   C,   Co,   v,   Whitehouse 

94.  Pyle  v.  Gross,  92  Md.  132,  4?  (Utah),  154  P,  950. 

A,  713,  3,  Village    of    Western    Springs   v. 

95.  Miller  v.  Miller,  140  Ind,  174,      Collins,   98   F.   933,  40  C,  C.  A,  33; 
89  N,  E.  547.  Hunter  v,  Conrad,  94  F.  11. 


259  PIN-MONEY.  §    24 


CHAPTER  XIV. 


THE   WIFE  S   PIN-MONEY. 


Section  243.  The  Wife's  Pin-Money;  Nature  and  Origin. 

244.  Separate   Estate  and  paraphernalia  distinguished. 

245.  Arrears. 

246.  Housekeeping  Allowance. 

§  243.  The  Wife's  Pin-Money;  Nature  and  Origin. 

The  wife's  pin-money  constitutes  a  feature  of  Englisli  marriage 
settlements  in  modern  times.  Pin-money  may  be  defined  as  a  cer- 
tain provision  for  the  wife's  dress  and  pocket,  to  which  there  is 
annexed  the  duty  of  expending  it  in  her  "  personal  apparel,  deco- 
ration, or  ornament."* 

Upon  a  somewhat  enlarged  construction,  pin-money  is  in  the 
nature  of  an  annuity  to  pay  the  wife's  ordinary  personal  expenses ; 
and  is  ratiier  the  privilege  of  the  wealthy  than  the  poor.  A  person 
in  an  humble  station  of  life  pays  his  wife's  bills  as  he  pays  his 
own.  A  person  in  a  station  rather  higher  is  accustomed  to  make, 
for  common  convenience,  an  allowance  to  his  wife  of  so  much  for 
housekeeping  expenses,  if  she  takes  charge  of  them,  and  so  much 
over  for  her  own  dress  and  the  dress  of  children.  A  person  in  a 
still  higher  station  makes  a  general  arrangement,  which  probably 
extends  over  years,  if  not  over  the  whole  coverture.  But  a  person 
in  a  yet  more  elevated  station  makes  a  special  stipulation  by  the 
marriage  settlement,  which  is,  as  it  were,  saying,  "  You,  the  wife, 
shall  not  be  reduced  to  the  somewhat  humiliating  necessity  of  dis- 
closing to  me  every  want  of  a  pound  to  keep  in  your  pocket,  or  of 
taking  my  pleasure  and  obtaining  my  consent  every  time  you  want 
to  go  to  tbe  milliner's  shop  to  order  your  dress ;  but  you  shall  have 
so  much,  consistent  with  my  estate  and  my  income,  which  you  shall 
retain  apart  from  me  and  exempt  from  my  control."  ^Vnd  this 
supply,  as  Lord  Brougham  remarks,  is  the  wife's  pin-money.'^ 

The  exact  period  when  pin-money  was  first  introduced  into  Eng- 
land is  not  known.  Lord  Brougham  inclines  to  ascribe  it  to  the 
feudal  times.^  But  there  is  equally  good  authority  for  fixing  the 
date   at    the   Restoration ;    and   the   lawyers   resort   to   Addison's 

4.    Per   Lord   Langdale,   Jodrell   v.  6.  Howard  v.  Digby,  2  CI.  &  Fin. 

Jodrell,  9  Beav.  45;  Howard  v.  Digby,       654. 
2  CI.  &  Fin.  &54.  6.  Ih.  676. 


§    246  HUSBAND    AND    WIFE.  260 


i( 


Spectator"  in  proof  of  the  latter  supposition.'^  The  popular 
name  of  this  provision  scarcely  suggests  its  real  significance;  for, 
so  far  from  being  a  petty  allowance,  it  is  often  of  the  most  liberal 
amount  imaginable.^  The  subject  of  the  wife's  pin-money  seems 
to  have  received  little  attention  in  this  country.®  And  in  England 
few  cases  of  the  sort  have  ever  arisen.  It  is  found  more  convenient 
in  marriage  contracts  to  setle  a  cerain  allowance  upon  the  wife 
by  way  of  separate  estate,  which  allowance  is  subject  to  the  usual 
incidents  of  separate  property.  Decisions  as  to  pin-money  and 
separate  estate  are  frequently  confounded.^" 

§  244.  Separate  Estate  and  paraphernalia  distinguished. 

The  wife's  pin-money  differs  from  her  separate  estate  in  being 
a  gift  subject  to  conditions,  and  not  at  her  absolute  disposal.  It 
differs  from  her  paraphernalia  in  being  subject  to  her  control  dur- 
ing marriage,  and  not  awaiting  the  husband's  death.^^ 

§  245.  Arrears. 

The  leading  English  case  on  this  subject  is  Howard  v.  Dighy, 
^hich  went  to  the  House  of  Lords  in  1834,  and  whose  main  de- 
cision was  to  the  effect  that  the  personal  representatives  of  the  wife 
could  not  recover  arrears.^^  The  correctness  of  its  principle  has 
been  questioned  by  some  writers."  In  general,  the  usual  equity 
rule  against  claiming  more  than  one  year's  arrears  appears  to 
apply  to  separate  estate  and  pin-money  alike,"  In  other  ways, 
too,  the  wife's  claim  may  be  barred.^^ 

§  246.  Housekeeping  Allowance. 

The  wife  was  formerly  supposed  also  to  gain  a  title  to  savings 
out  of  her  housekeeping  allowance.^''  So  where  the  husband  allowed 
the  wife  to  make  profit  of  butter,  eggs,  poultry,  and  other  farm 
produce,  which  allowance  he  called  her  pin-money,  it  was  held  that 

7.  Spectator,  SO^o.  See  Peachey  11.  Macq.  Hus,  &  Wife,  318; 
Mar.  Settl.  300 ;  Sugd.  Law  Prop.  165.       Peachey,  Mar,  Settl.  298. 

8.  In  one  reported  English  case,  by  12.  2  CI.  &  Fin.  670. 

no  means  recent,  £13,000  a  year  was  13.    Sugd.     Law    Prop.     170.       See 

secured  to  the  wife  as  her  pin-money.  Peachey,  Mar.  Settl.  307;  Macq.  Hus, 

See  2  Kuss.  1,  and  n,  to  Macq.  Hus.  &  Wife,  319,  n. 

&  Wife,  318.  14.    Sec   Peachey,  Mar,   Settl.    303, 

9.  But  see  Miller  v.  Williamson,  5  and  cases  cited. 

Md.  219.  15.  Arthur  v.  Arthur,  11  Ir.  Eq.  511, 

10.  See  Lord  Brougham,  in  Howard  16.  Paul  Neal's  Case,  Prec.  in  Ch, 
V.  Digby,  2  CI.  &  Fin.  670,  comment-  44,  297.  But  see  Tyrrell's  Case, 
ing  upon  2  Roper,  Hus.  &  Wife,  133.  Freem.  304. 

In  this  case  the  whole  subject  receives 
ample  discussion. 


261  PIN-MONET.  §    246 

she  acquired  a  separate  ownership  therein."  But  these  cases  rest 
upon  questionable  authoritj.^^  And  more  recently  it  has  been 
decided  that,  where  the  wife  of  a  farmer,  with  his  knowledge  and 
sanction,  deposited  the  produce  of  the  surplus  butter,  eggs,  and 
poultry  with  a  firm  in  her  own  name,  and  he  called  it  "  her  money," 
and  on  his  death-bed  gave  his  executor  directions  to  remove  the 
money,  and  do  the  best  he  could  with  it  for  his  wife,  such  evidence 
was  insufficient  to  establish  a  gift  between  them,  and  that  the  hus- 
band had  made  neither  the  firm  nor  himself  trustee  for  his  wife.^' 
In  all  cases  of  this  sort  the  husband's  permission,  he  not  having 
deserted  her,  constitutes  an  important  element  of  the  wife's  title. 
And  the  mere  fact  that  a  wife  is  in  the  use  and  enjoyment  of 
clothing,  or  other  personal  property,  is  held  insufficient  to  es- 
tablish her  right  to  a  separate  estate  therein. 


20 


17.  Slanning  v.   Style,   3   P.   Wms.  cited  herein  with  approval.     And  see 
337.  Bider  v.  Hulse,  33  Barb.  (N.  Y.)  264, 

18.  See  Macq.  Hus.  &  Wife,  320.  for  a  similar  American  decision. 

19.  Mews  V.  Mews,   15   Beav.   529.  20.   State  v.   Pitts,   12   S.  C.    180; 
See  McLean  v.  Longlands,  5  Yes.  78,  Paraphernalia,  post,  Vol.  II. 


§  247  HUSBAND  AND  WIFE.  262 


CHAPTER  XV 


> 


WIFE  S  EQUITABLE  SEPARATE  ESTATE. 

Section  247.  Origin,  Nature  and  History;  In  England. 

248.  In  the  United  States. 

249f.  Statutory  Separate  Estate  Distinguished. 

250.  When  Separate  Estate  Cognizable  in  Courts  of  Law. 

251.  Effect  of  Eenunciation  by  Wife. 

252.  Effect  of  Fraud,  Insolvency  or  Bankruptcy. 

253.  When  Separate  Estate  may  be  Ambulatory. 

254.  Creation  in  General. 

255.  By  Parol  Gift. 

256.  By  Contract. 

257.  By  Instrument  Vesting  Power  of  Appointment  in  Wife. 

258.  Gift  of  Income  of  Fund  as  Gift  of  Capital. 

259.  Savings  from  Wife's  Income. 

260.  Necessity  of  Trustee. 

261.  Construction  of  Instrument  Creating  Estate. 

262.  What  Words  are  Sufficient  to  Create  Estate;  In  England. 

263.  In  the  United  States. 

264.  What  Words  are  Insufficient  to  Create  Estate;  In  England. 

265.  In  the  United  States. 

266.  Necessity  of  Preserving  Identity  of  Estate. 

267.  Separate  Estate  as  Trust  Fund  for  Payment  of  Wife's  Debts. 

268.  Duration  of  Estate. 

269.  Husband's  Rights  on  Wife's  Decease. 

270.  What  Will  Bar  Husband 's  Eights. 

271.  Effect  of  Estate  on  Husband's  Marital  Obligations. 

272.  Rights  of  Bona  Fide  Purchasers  from  Husband. 

273.  Restraint  on  Anticipation  or  Alienation. 

274.  Wife 's   Power    to    Dispose    of   or   Charge   Separate   Estate   in 

General;   In  England. 

275.  In  the  United  States. 

276.  Necessity  of  Concurrence  of  Trustees. 

277.  Form  and  Requisites  of  Deed. 

278.  Of  Real  Estate. 

279.  Of  Income  or  Profits. 

280.  Contracts  Relating  to  Separate  Estate  in  General. 

281.  Contracts  not  Beneficial  to  Wife. 

282.  Mortgage  or  Pledge  to  Secure  Husband's  Debts. 

283.  Gifts  and  Transfers  to  Husband. 

284.  Enforcement. 

285.  Estoppel  to  Claim  Property. 

§  247.  Origin,  Nature  and  History ;  In  England. 

Emerging  from  coverture  and  the  common  law,  we  come  out 
into  the  light  of  equity ;  and  here  all  things  assume  a  new  aspect. 
The  married  woman  is  no  longer  buried  under  legal  fictions.     She 


263  EQUITABLE    SEPARATE    ESTATE.  §    247 

ceases  to  hold  the  strange  position  of  a  being  without  an  existence, 
one  whose  identity  is  suspended  or  sunk  in  the  status  of  her  hus- 
band ;  she  becomes  a  distinct  person,  with  her  own  property  rights 
and  liabilities.  Her  condition  is  not  as  independent  as  before 
marriage;  this  the  very  idea  of  the  marriage  relation  and  the  dis- 
abilities of  her  sex  forbid.  But  she  is  dependent  only  so  far  as 
the  laws  of  nature  and  the  forms  of  society  make  her  so ;  while  her 
comparative  feebleness  renders  her  the  special  object  of  chancery 
protection,  whenever  the  interests  of  herself  and  her  husband  clash 
together.  She  may  contract  on  her  own  behalf;  she  may  sue  and 
be  sued  in  her  own  name ;  she  may  hold  lands,  goods,  and  chattels 
in  her  own  right,  which  property  is  known  as  the  wife's  separate 
estate,  or  estate  limited  to  the  wife's  separate  use. 

The  doctrine  of  the  wife's  separate  estate  originated  in  the 
spreading  conviction  that  it  was  expedient  for  the  interests  of 
society  that  means  should  exist  by  which,  upon  marriage,  either  the 
parties  themselves  by  contract,  or  those  who  intended  to  give  bounty 
to  a  family,  might  secure  property  without  that  property  being 
subject  to  the  control  of  the  husband.^^  Therefore,  the  equitable 
doctrince  of  a  separate  estate  was  devised  to  prevent  the  acquisi- 
tion of  the  wife's  personal  property  by  the  husband  and  the  rents 
and  profits  of  her  real  estate  during  coverture,^^  and  to  protcet  her 
from  the  harsh  and  unjust  dogmas  of  the  common  law  as  to  the 
marital  rights  of  her  husband."^  In  England  that  doctrine  was 
established  more  than  a  century  ago,  and  to  the  equity  courts 
belong  the  credit  of  the  invention.^*  The  equity  to  a  settlement, 
which  we  have  fully  discussed,  is  part  of  that  doctrine.^^  While 
at  common  law  the  separate  existence  of  the  wife  was  neither 
known  nor  contemplated,  equity  considered  that  a  married  woman 
was  capable  of  possessing  property  to  her  own  use,  independently 
of  her  husband ;  and  the  courts  gradually  widened  and  developed 
this  principle  until  it  became  fully  settled  that,  however  the  wife's 
property  might  be  acquired,  whether  through  contract  with  her 
husband  before  marriage,  or  by  gift  from  him  or  from  any  stranger 
independently  of  such  contract,  equity  would  protect  it,  if  duly  set 

21.  Rennie  v.  Ritchie,  12  CI.  &  Fin.  23.  Littleton  v.  Sain  (Tenn.),  150 
234;  Peachey,  Mar.  Settl.  259;  Hatch  S.  W.  423,  41  L.  R.  A.  (N.  S.)  IIIS. 
V.  Hatch  (Utah),  148  P.  1096;  Willi-  24.  Harvey  v.  Harvey,  1  P.  Wms. 
ford  V.  Phelan,  120  Tenn.  589,  113  124;  Woodmeston  v.  Walker,  2  R.  & 
S.  W.  365.  M.  205 ;  Tullett  v.  Armstrong,  1  Beav. 

22.  Radford  v.  Carwile,  13  W.  Va.  21. 

572.  25.  Supra,  §  175. 


§    248  HUSBAND    AND    WIFE.  264r 

apart  as  her  separate  estate,  no  matter  though  the  husband  himself 
must  be  held  as  the  trustee  to  support  it.^'^ 

This  great  change  in  the  jurisprudence  of  England  was  effected 
by  a  few  great  men  without  any  help  from  the  legislature.  The 
court  of  chancery  in  this  as  in  other  respects  recognized  its  true 
function  of  making  the  law  work  justice  by  accommodating  its 
operation  to  the  altered  circumstances  of  society."^  Obscure  and 
doubtful  indications  of  the  wife's  separate  estate  are  found  as  early 
as  the  reign  of  Queen  Elizabeth.  It  seems  to  have  been  plainly 
recognized  by  Lord  Nottingham,  Lord  Somers,  and  Lord  Cowper. 
In  Lord  Hardwicke's  time  is  was  perfectly  established; 
and  Lord  Thurlow,  in  sanctioning  the  clause  against  anticipation, 
prevented  the  wife  herself  from  destroying  the  fabric  which  had 
been  reared  for  her  benefit.^* 

§  248.  In  the  United  States. 

The  doctrine  of  the  wife's  separate  estate  is  one  of  peculiar 
growth  and  development  in  this  country,  though  doubtless  origin- 
ating in  the  maxims  of  the  English  chancery,  and  deriving  much  of 
its  strength  from  the  splendid  accomplishments  of  Langdale,  Thur- 
low, and  Eldon,  in  their  own  land.  What  such  men  and  their  suc- 
cessors effected  by  judicial  policy  we  have  carried  into  our  statutes ; 
nay,  we  have  gone  further.  In  England  the  equitable  rights  of 
married  women  are  the  triumph  of  the  bench;  with  us  the  early 
efforts  of  the  bench  have  been  eclipsed  by  the  later  achievements  of 
the  legislature,  and  the  judge  follows  the  lawgiver  to  restrain  rather 
than  enlarge.  There,  in  historical  sequence,  it  was  proper  to  study 
first  the  equitable  doctrine  of  separate  property;  here  the  statutory 
doctrine  may  well  take  precedence. 

When  this  country  was  first  settled,  the  separate  use  was  but 
little  understood  in  England.  Its  development  there  was  gradual, 
and  its  final  establishment  of  a  later  date.  Our  ancestors  brought 
over  the  common  law  with  them ;  but  for  equity  they  had  little 
respect.  True,  it  cannot  be  said  that,  by  the  jurisprudence  of  a 
single  State,  property  bestowed  upon  a  married  woman  to  her 
separate  use,  free  from  the  control  and  interference  of  her  husband, 
would  remain  subject,  notwithstanding,  to  his  marital  dominion; 
but  prior  to  the  late  Married  Women's  Acts  there  were,  in  many 

26.  Tullett  V.  Armstrong,  1  Beav.  28.  See  Pybus  v.  Smith,  4  Bro.  C.  C. 
21 ;  Peachey,  Mar  Settl.  260,  and  cases  485 ;  Tullett  v.  Armstrong,  per  Lord 
cited.                                                                   Langdale,  1  Beav.  22 ;  Macq.  Hus.  & 

27.  Macq.  Hus.  &  Wife,  284.  Wife,  285. 


265  EQUITABLE    SEPARATE    ESTATE.  §    248 

States,  no  judicial  precedents  to  combat  such  an  assumption.  That 
such  trusts  might  be  created  was  not  denied;  but  whether  there 
were  courts  with  authority  to  enforce  them  appeared  frequently 
doubtful.""  In  the  New  England  States  scarcely  a  vestige  of  the 
separate  use  was  to  be  found.^"  New  York,  with  such  eminent 
chancellors  as  Kent  and  Walworth,  took  the  lead  in  building  up  an 
equity  system  parallel  with  that  of  England ;  and  in  the  reports  of 
this  State  are  to  be  found  most  of  the  leading  cases  and  the  ablest 
discussions  of  what  may  be  termed  American  chancery  doctrines. 
New  Jersey  recognized  the  separate  use,  and  her  chancery  court  ex- 
ercised liberal  powers.  In  Pennsylvania  the  doctrine  was  recognized 
to  some  extent.  The  courts  of  Maryland,  Virginia,  and  the  South- 
ern States  generally,  had  frequent  occasion  to  apply  the  separate- 
use  doctrine;  none  more  so  than  those  of  North  and  South  Caro- 
lina. And  it  may  be  remarked  that  the  aristocratic  element  of 
society  in  that  section  of  the  country,  also  a  prevalent  disposition 
for  family  entails,  marriage  settlements  and  fetters  upon  the  trans- 
mission of  landed  property,  aided  much  in  developing  therein  the 
English  chancery  system.  So  was  it  in  Kentucky  and  Tennessee, 
States  founded  upon  like  institutions.  But  as  to  Ohio,  Indiana, 
Illinois,  and  the  other  States  erected  from  what  was  formerly 
known  as  the  Northwest  Territory,  society  was  modelled  more  after 
New  England,  and  we  find  no  clear  recognition  of  the  wife's  equit- 
able separate  use.  Louisiana,  and  such  contiguous  States  as  were 
originally  governed  by  French  and  Spanish  laws,  had  more  or 
less  of  the  civil  or  community  system ;  and  to  these  States  English 
equity  maxims  had  at  best  only  a  limited  application.  Such,  then, 
is  the  wife's  separate  use,  viewed  in  the  light  of  judicial  precedents, 
as  known  in  the  United  States  until  very  nearly  the  middle  of  the 

29.  It  is  true  that  the  general  recog-  dence.  The  want  of  a  general  recog- 
nition here  of  the  wife 's  separate  use  nition  of  the  wife 's  separate  use,  as 
has  been  presumed  by  our  text-writers.  unfolded  in  England,  aids  in  explain- 
See  2  Kent,  Com.  162;  Reeve  Dom.  ing  the  curious  fact  that  our  States 
Rel.  162;  2  Story  Eq.  Juris.,  §  1378  e<  were  legislated  into  a  system  which 
3eq.  We  confine  our  observations  to  the  English  chancery  had  felt  compe- 
judicial  precedents.  What  Chancellor  tent  to  rear  unaided. 
Kent  has  to  say  on  the  American  30.  Jones  v.  .lEtna  Ins.  Co.,  14  Conn, 
equity  doctrines  in  hia  work  must  be  501,  intimated  that  the  married  wo- 
taken  by  the  general  student  with  some  man  could  not,  in  Connecticut,  be  the 
qualifications,  inasmuch  as  the  learned  independent  owner  of  property.  But 
writer  draws  largely  upon  his  judicial  see  Pinney  v.  Fellows,  15  Vt.  525 
opinions  rendered  in  a  State  which  (1843). 
especially  favored  chancery  jurispru- 


HUSBAND   AND    WIFE. 


266 


§  250 

nineteentli  century.^^  Wheii  recognized  and  enforced  at  all,  the 
strict  American  rule  was  borrowed  from  that  of  England,  and 
6uch,  too,  has  been  the  later  development,  as  we  shall  show  here- 
after/^ Equitable  separate  estates  are  still  possible  in  the  United 
States  even  where  there  is  a  Married  Women's  Act,*^ 

§  249.  Statutory  Separate  Estate  Distinguished. 

We  may  observe  that  there  is  an  equitable  doctrine  on  the  sub- 
ject of  the  wife's  separate  property  and  a  statutory  doctrine.  The 
equitable  doctrine  is  the  prior  in  point  of  time,  and  is  chiefly  the 
work  of  English  chancery  courts;  while  the  statutory  doctrine, 
which  is  of  later  date,  is  founded  in  the  Married  Women's  Acts, 
now  familiar  in  our  several  States,  and  their  judicial  construction. 
The  equitable  doctrine  is  more  purely  English;  the  statutory  doc- 
trine more  purely  American, —  though  each  country  has  come,  ere 
this  day,  to  borrow  in  this  respect  from  the  other.  American 
cases  frequently  distinguish  still  between  an  equitable  separate 
estate  and  a  statutory  separate  estate  in  favor  of  a  wife;  but  so 
sweeping  is  the  latest  legislation  in  most  States  that  such  a  dis- 
tinction becomes  of  comparatively  little  consequence. 

In  the  present  chapter,  and  with  reference  to  Great  Britain,  our 
concern  is  almost  exclusively  with  the  remarkable  development  of 
an  equitable  doctrine  of  separate  property.  A  conveyance  or  trust 
duly  created  for  a  married  woman's  separate  benefit  and  duly  ex- 
pressed, is  to  be  regarded  as  her  equitable  rather  than  her  statutory 
-estate.^* 

§  250.  When  Separate  Estate  Cognizable  in  Courts  of  Law. 

Although  the  wife's  separate  use  is  the  creature  of  equity,  and 
specially  consigned  to  its  watchful  keeping,  courts  of  law  will  some- 
times afford  it  protection.  This  seems  to  be,  however,  only  in  cases 
where  a  trustee  is  interposed  to  hold  the  legal  estate;  for,  since 


31.  See  U.  S.  Eq.  Dig.  Hus.  &  Wife, 
12;  Eeade  v.  Livington,  3  Johns.  Ch. 
(N.  T.)  481;  Meth.  Ep.  Church  v. 
Jaques,  1  Johns.  Ch.  (N.  T.)  65; 
Rogers  v.  Rogers,  4  Paige  (N.  Y.) 
.'ilC;  Vernon  v.  Marsh,  2  Green  Ch. 
(N.  Y.)  502;  Steel  v.  Steel,  1  Ired. 
Eq.  (N.  C.)  452;  Jackson  v.  McAliley, 
Speers  Eq.  303;  Boykin  v.  Ciples,  2 
Hill  Ch.  (N.  Y.)  200,  204;  Hunt  v. 
Booth,  1  Freem.  Ch.  215;  Warren  v. 
Haley,  1  S.  &  M.  Ch.    (Miss.)    647; 


Hamilton  v.  Bishop,  8  Yerg.  (Tenn.) 
33;  Griffith  v.  Griffith,  5  B.  Mon. 
(Ky.)  113;  McKennnn  v.  Phillips,  6 
Whart.  571;  Gray  v.  Crook,  12  Gill 
&  J.  (Md.)  236;  Howard  v.  Menifee, 
5   Pike,  668. 

32.  See  post,  as  to  equitable  separ- 
ate property,  §  263. 

33.  Travis  v.  Sitz   (Tenn.),  185  S. 
W.  1075. 

34.  Pepper  v.  Lee,  53  Ala.  33 ;  Mus- 
son  V.   Trigg,   51   Miss.   172. 


267  EQUITABLE  SEPAUATE  ESTATE.  §  253 

the  common-law  courts  maintain  their  own  maxims,  there  should  be 
some  person  designated  to  hold  the  fund  for  the  wife;  and  such 
person  will  be  considered  as  the  legal  owmer  so  as  to  save  the  prop- 
erty from  attachment  and  sale  for  the  husband's  debts.^'' 

§  251.  Effect  of  Renunciation  by  Wife. 

A  single  woman,  having  a  gift  expressed  to  be  to  her  separate  use, 
may  renounce  such  separate  use  upon  her  marriage.  This  will  be 
readily  admitted.  Yet  the  courts  construe  an  act  of  this  sort 
strictly.^"  The  evidence  must  be  clear  in  all  cases,  that  a  single 
woman  marrying  has  renounced  her  separate  use ;  for  it  will  not  be 
presumed  that  she  means,  by  the  mere  fact  of  matrimony,  to  relin- 
quish her  control  of  the  property.  But  antenuptial  settlements 
may  be  made  on  reasonable  terms  by  the  parties  contemplating 
marriage.  And  there  is  nothing  to  prevent  the  operation  of  a  trust 
for  separate  use  from  being  confined  to  a  particular  coverture, 
where  all  concerned  are  so  minded.  In  such  cases,  however,  the 
wife  marrying  again  can  alwa^^s  stipulate  for  her  separate  use.' 

§  252.  Effect  of  Fraud,  Insolvency  or  Bankruptcy. 

The  wife  cannot  be  debarred  of  her  separate  estate  through  the 
fraud  of  others ;  it  must  be  a  fraud  to  which  she  is  a  party,  that 
will  bar  her  beneficial  title.^^  Xor  will  the  insolvency  of  her  hus- 
band affect  her  acquisition  through  a  third  party.'^  ISTor  can  the 
bankruptcy  of  the  husband,  although  it  suspends  the  legal  remedy 
against  the  wife  during  coverture,  afford  any  ground  for  proceed- 
ing in  equity  to  charge  her  separate  estate.'*" 

§  253.  When  Separate  Estate  may  be  Ambulatory. 

An  equitable  separate  estate  cannot  exist  until  the  wife  is  mar- 
ried,*^ but  it  does  not  depend  on  her  living  with  her  husband." 
But  it  may  sometimes  have  an  ambulatory  operation,  so  as  to  be 

35.  See  Izod  v.  Lamb,  1  Cr.  &  J.  439.  It  is  not  essential  that  the  words 
35;  Davison  v.  Atkinson,  5  T.  R.  434;  in  a  deed  designed  to  create  a  sepa- 
Dean  v.  Brown,  2  Car.  &  P.  62 ;  Maeq.  rate  estate  for  a  married  woman  ap- 
Hus.  &  "Wife,  291.  pear   in    the    granting   clause    or   the 

36.  Johnson  v.  Johnson,  1  Keen,  Mhcndum  clause.  Morrison  v.  Thistle, 
648 ;  Macq.,  Hus.  &  Wife,  306.  67  Mo.  596. 

37.  Macq.  Hus.  &  Wife,  307.  See  40.  Ih.;  Peace  v.  Spicrin,  2  Desaus. 
Knight  V.  Knight,  6  Sim.  121;  Brad-  (S.  C.)  460. 

ley  V.  Hughes,  8  Sim.  149;  Benson  v.  41.  Travis  v.  Sitz    (Tenn.),  1S5  S. 

Benson,  6  Sim.  126.  W.    1075. 

38.  Jackson  v.  McAliley,  Speers  Eq.  42.  Woodward  v.  Woodward,  148 
303.  ^'o.  241,  49  S.  W.  1001. 

39.  Holthaus  v.  Hornbostle,  60  Mo. 


§    253  HUSBAND   AND    WIFE.  268 

effectual  according  as  the  woman  happens  at  the  time  to  be 
covert  or  sole.  Supposing,  then,  a  gift  be  made  to  the  separate 
use  of  a  woman  who  is  single  at  the  time  the  gift  takes  effect,  it 
is  clear  that  she  shall  enjoy  the  gift  absolutely  and  without 
restraint.  But  if  she  afterwards  man-ies,  will  the  separate  use 
operate  ?  It  will,  unless  by  the  terms  of  her  marriage  settlement 
she  expressly  renounces  it."  Supposing,  however,  she  outlives 
her  husband,  the  separate  use  ceases  as  in  other  cases,  since  it  can 
only  be  effectual  during  coverture.  But  if  she  marries  again, 
the  separate  use,  consistently  with  its  intention,  revives  once 
more;  and  so  onward,  from  time  to  time,  ceasing  and  reviving 
alternately,  upon  each  alteration  of  her  personal  condition,"  with, 
however,  this  reservation,  that  if  confined  by  intendment  to  a 
particular  husband  or  a  particular  coverture,  the  separate  use 
ceases  to  operate  when  that  marriage  ends.*' 

As  in  England,  our  courts  permit  an  estate  to  be  so  settled  on 
an  unmarried  female  as  to  exclude  the  marital  rights  of  any 
future  husband.*"  Consistently  with  its  intent,  the  separate  use 
may  have  an  ambulatory  operation,  ceasing  when  the  wife  be- 
comes a  widow,  and,  if  left  undisposed  of,  reviving,  supposing  she 
marries  again. "^  ^Miere  the  trust  for  a  wife's  sole  benefit  is  ex- 
pressed to  be  free  from  the  control  of  "  any  present  or  future  hus- 
band," equity  will  not  set  the  trust  aside  on  the  death  of  a  hus- 
band.*^ And  where,  by  a  will,  personal  estate  was  given  to  a  trus- 
tee, in  trust,  to  pay  over  the  profits  to  a  daughter  of  the  testator, 
a  married  woman,  semi-annually,  for  her  sole  benefit  during  her 
life,  the  will  containing  no  provision  for  a  second  marriage  of  the 
daughter,  it  has  been  held  in  i^orth  Carolina  that  upon  the  death 
of  the  husband  the  separate  use  ends,  and  does  not  revive  upon  the 
remarriage  of  the  beneficiary;  but  that  on  the  contrary  the  sec- 
ond husband's  marital  rights  attach  upon  the  property.^ 


49 


43.  Tullett  V.  Armstrong,  1  Beav.  46.  Beaufort  v.  Collier,  6  Humph. 
1 ;  Anderson  V.  Anderson,  2  Myl.  &  K.  (Tenn.)  487;  O'Kill  v.  Campbell,  3 
427;  Macq.  Hus.  &  Wife,  305;  Duke's  Green  Ch.  (N.  J.)  13.  As  to  a  settle- 
Heirs  V.  Duke's  Devisees,  81  Ky.  308,  ment  upon  several  daughters  free  from 
4  Ky.  Law  Eep.  293.  the  liabilities  and  control  of  their  re- 

44.  Macq.  Hus.  &  Wife,  306;  Tullett  spective     husbands,     see     Ordway    v. 
V.  Armstrong,  1  Beav.  1,  affd.  by  Lord  Bright,  7  Heisk.   (Tenn.)  681. 
Cottenham,  4  Myl,  &  Cr.  377 ;  Hawkes  47.  Post,  §  268. 

V.  Hubback,  L.  R.  11  Eq.  5.  48.  O  'Kill  v.  Campbell,  3  Green  Ch. 

45.  2  Perry  Trusts,  §§  652,  653,  and  (N.  J.)   13. 

cases  cited;  Benson  v.  Benson,  6  Sim.  49.  Miller  v.  Bingham,  1  Ired.  Eq. 

26;   1  Ch.  Ca.  307;  Newcomb  v.  Bon-  (N.  C.)   423. 
ham,  1  Vern.  7 ;   Moore  v.  Harris,  4 
Dr.  33. 


269 


EQUITABLE    SEPARATE    ESTATE. 


§  254 


Conforniablj  to  Pennsylvania  precedents,  it  is  also  held  in  tkat 
State  that,  unless  at  the  time  the  trust  was  created  the  woman  was 
married,  or  unless  in  direct  contemplation  of  marriage,  a  separate 
use  for  her  benefit  cannot  be  created,  iSo  as  to  take  effect  if  she 
marries  subsequently.^'^  But,  as  we  have  seen,  the  English  rule 
is  to  the  contrary ;  or  in  other  words  that  a  trust  for  separate  use 
may  be  effectually  created,  notwithstanding  the  woman  is  unmar- 
ried, and  contemplates  no  particular  marriage,  and  that  the  trust, 
meantime  remaining  suspended,  will  assert  itself  on  her  mar- 
riage,^^  no  disposition  thereof  having  taken  place.  This  same  am- 
bulatory operation  appears  to  prevail  usually  in  the  United 
States." 

§  254.  Creation  in  General. 

Prima  facie  the  legal  ownership  of  property  which  is  in  his 
wife  at  the  time  of  marriage,  or  comes  to  her  during  coverture, 
vests  in  the  husband  under  his  marital  right.  It  is  therefore 
necessary  that  the  intention  to  establish  a  separate  use  be  clearly 
manifested,  else  courts  of  equity  will  not  interpose  against  him. 
Xo  technical  formalities  or  expressions  are  required ;  but  the  pur- 
pose must  appear  beyond  the  reach  of  reasonable  controversy,  in 
order  to  entitle  the  wife  to  claim  the  property  as  her  own  in  dero- 
gation of  the  common  law.^^  An  intention  clearly  manifested  to 
create  a  separate  estate  has  always  been  deemed  necessary  in  our 
courts,  in  order  to  exclude  the  husband's  marital  rights.  The  mere 
intervention  of  a  trustee  is  insufficient^*  Our  courts  of  equity  will 
sometimes  overlook  informalities  in  order  to  give  eifect  to  the 
wife's  separate  use.    As  where  a  deed  of  trust  to  a  commissioner 


50.  Snyder's  Appeal,  92  Pa.  504, 
and  cases  cited  in  opinion. 

51.  Tullett  V.  Armstrong,  1  BeaT.  1. 

52.  Bercy  v.  Lavretta,  63  Ala.  374 ; 
2  Perry  Trusts,  §§  652,  653,  and  cases 
cited. 

53.  Haymond  v.  Jones,  33  Grat. 
(Va.)  317;  Duke  v.  Duke,  81  Ky. 
308;  Bank  of  Louisville  v.  Gray,  84 
Ky.  565,  2  S.  W.  168;  Gatzwuler  v. 
MacGrew,  46  Mo.  94;  Hart  v.  Tate, 
104  Mo.  315,  15  S.  W.  976;Coatney  v. 
Hopkins,  14  W.  Va.  338;  Richardson 
V.  De  Giverville,  107  Mo.  422,  17  S. 
W.  974,  28  Am.  St.  R.  426;  Macq. 
Has.  &  Wife,  307;   Tyler  v.  Lake,  2 


Euss.  &  M.  183;  Kensington  v,  Dol- 
lond,  2  M.  &  K.  184;  Moore  v.  Mor- 
ris, 4  Drew.  37;  Peachey,  Mar.  Settl. 
279. 

54,  Hunt  V.  Booth,  1  Freem.  Ch. 
215;  Evans  v.  Knorr,  4  Rawle  (Pa.), 
66 ;  Graham  v.  Graham,  Riley,  142 ; 
Taylor  v.  Stone,  13  S.  &  M.  (Miss.) 
653;  Lenoir  v.  Binney,  15  Ala.  667. 
In  Georgia  a  husband  may  be  held 
liable  in  equity  as  a  trustee  suh  modo, 
where  he  recognized  the  property  as 
the  separate  property  of  his  wife,  even 
though  the  language  was  insufficient 
per  se.    Mounger  v.  Duke,  53  Ga.  277. 


§  255  HUSBAND  AND  WIFE.  270 

has  been  ordered  by  the  court,  but  never  executed,  and  the  com- 
missioner gives  possession  to  the  husband  in  the  meantime.'^°  Or 
where  a  deed  has  not  been  recorded  in  compliance  with  the 
statute.*'''  So  a  trust  may  be  enforced,  although  the  details  of  the 
arrangement  cannot  be  ascertained  by  the  most  stringent  proof." 
As  a  wife  is  only  made  a  party  to  a  suit  instituted  by  her  husband 
on  the  alleged  ground  of  her  having  separate  estate,  in  regard  to 
which  she  is  a  feme  sole,  the  husband,  by  making  her  a  party,  ad- 
mits it  to  be  her  separate  estate.^^  Provisions  for  the  sole  and 
separate  use,  support,  and  maintenance  of  a  wife  and  children  are 
frequently  sustained,  though  the  trust  does  not  vest  their  respective 
interests  consecutively.^"  Prior  to  the  Married  Women's  Acts  a 
conveyance  by  the  husband  to  the  wife  created  an  equitable  separ- 
ate estate  in  her.''" 

§  255.  By  Parol  Gift. 

In  Vermont,  it  is  decided  that  a  third  person  may  create  a  parol 
trust  for  a  married  woman's  exclusive  benefit ;  except  as  to  landed 
property,  which  falls  within  the  statute  of  frauds.  Thus  in  a 
case  where  it  appeared  that  the  father  of  a  married  woman  had 
intimated  to  her  and  her  husband,  in  conversation,  that  he  was 
about  to  make  her  an  advance  in  money,  which  he  wished  to  have 
invested  for  the  benefit  of  herself  and  her  children,  and  that  he  had 
subsequently  enclosed  in  a  letter  to  her  husiband,  a  check  for  $1,000, 
payable  to  his  daughter,  or  brearer,  expressing  in  the  letter  a  wish 
that  the  money  might  be  invested  for  the  mutual  benefit  of  his 
daughter  and  her  heirs,  leaving  the  mode  to  be  determined  by  her 
and  her  husband,  on  consultation  between  them ;  also,  that  she  had 
at  the  time  of  the  suit  three  children;  the  court  considered  that 
there  had  been  a  trust  created  for  the  exclusive  benefit  of  the 
donor's  daughter  and  her  children ;  and  the  husband  was  taken  to 
be  the  trustee,  as  against  his  owti  creditors  who  had  attached  cer- 
tain bank  stock  which  he  purchased  in  his  own  name  with  such 
funds ;  the  evidence  showing  that  the  creditors  had  received  notice 
that  the  stock  was  held  in  trust.*^ 

55.  Jackson  v.  McAliley,  Speers  Eq.  (Tenn.)  33;  Anderson  v.  Brooks,  11 
303.  Ala.  953. 

56.  Hamilton  v.  Bishop,  8  Yerg.  60.  Neville  v.  Cheshire,  163  Ala.  390, 
(Tcnn.)   33.  50  So.  1005. 

57.  Sledge  v.  Clopton,  6  Ala.  589.  61.  Porter  v.  Bank  of  'Rutland,   10 

58.  Earl  v.  Ferris,  19  Beav.  69.  Vt.  410.     Mr.  Macqueen  suggests  the 

59.  Good  V.  Harris,  2  Ired.  Eq,  (N.  opinion  that  a  parol  trust  would  be 
C.)  630;  Hamilton  v.  Bishop,  8  Yerg.  good   in    England,    though   admitting 


271  EQUITABLE    SEP  ABATE    ESTATE.  §    257 

There  are  other  American  decisions  in  which  (independently  of 
gifts  or  settlements  from  the  husband  himself)  a  separate  estate 
in  personal  property  is  held  to  be  created  in  a  married  woman  by  a 
parol  gift,  where  evidence  to  establish  it  is  clear  and  satisfactory."" 

§  256.  By  Contract. 

A  married  woman  cannot  by  contract  acquire  any  property  to 
her  separate  use;  but  the  benefit  of  her  contract,  if  any,  enures  to 
her  husband.®^  Where,  however,  a  married  woman,  with  her  hus- 
band's consent,  purchases  lands  which  she  was  the  meritorious 
cause  of  acquiring,  and  takes  a  deed  to  another,  it  is  held  in  Ver- 
mont that  a  trust  results  in  her  favor.**  On  the  other  hand,  if  a 
testator  gives  a  legacy  to  trustees  for  the  use  of  a  daughter,  and 
directs  that  it  may  be  invested  in  real  estate  for  her  use,  if  she 
should  desire  it,  and  that  the  trustees  should  take  the  title  in  the 
name  of  the  daughter  only,  though  married,  the  trustees  must  fol- 
low his  directions,  and  they  cannot  take  a  title  in  any  other  name, 
though  by  taking  it  in  the  name  of  the  daughter,  the  property 
might  be  subjected  to  the  husband's  debts.®^ 

§  257,  By  Instrument  Vesting  Power  of  Appointment  in  Wife. 

Property  limited  to  such  uses  as  a  married  woman  shall  appoint 
is  not  separate  estate.  There  is  a  difference  between  property  sub- 
ject merely  to  her  power  of  appointment,  and  property  settled  to 
her  sole  and  separate  use.  In  the  former  instance  she  may  dis- 
pose of  the  estate  by  executing  an  instrument  according  to  the  strict 
letter  of  her  authority.  In  the  latter,  she  is  invested  with  a  bene- 
ficial interest  and  enjoyment,  however  restricted  may  be  the  do- 
minion allowed  her  by  the  donee.  A  power  of  appointment  is 
much  the  same  as  any  other  special  power,  and  on  such  a  prin- 
ciple, not  upon  the  ground  that  she  is  a  feme  sole  as  to  the  property, 
the  courts  both  of  equity  and  of  law  recognize  her  right  to  execute 
without  joining  her  husband.  And  indeed  in  some  cases,  under 
her  trust,  she  may  pass  the  absolute  property  in  a  chattel  by  gift 
and  manual  deliverv  without  writing  at  all,  because  she  has  been 

that  he  finds  no  decision  of  the  ques-  63.  Lansier  v.  Ross,  1  Dcv.  &  Bat. 

lion.     Marriage  settlements,  however,  Eq.   (N.  C.)   39. 

may    be    affected    by    the    statute    of  64.  Pinncy  v.   Fellows,   15  Vt.   525. 

frauds.     Macq.  Hus.  &  Wife,  293.  And  see  Pulliam  v.  Pulliam,  1  Frcom. 

62.    Betts    V.    Betts,    IS    Ala.    787;  Ch.  348. 

Watson   V.  Broaddus,   6   Bush    (Ky.),  65.   Vernon  v.  Marsh,  2  Green  Ch. 

328;     Spaulding    v.     Day,     10     Allen  (N.  J.)    502. 
(Mass.),  96. 


§  258  HUSBAND  AND  WIFE.  272 

SO  empowered.  She  cannot,  by  virtue  of  a  mere  power  of  appoint- 
ment as  to  a  certain  fund,  charge  the  property  with  her  debts  or 
affect  it  by  her  general  contracts,  any  more  than  she  can  other 
property  which  is  not  hers.®®  On  the  other  hand,  the  wife's  dis- 
position of  her  separate  estate  does  not  arise  from  the  exercise  of  a 
power,  but  it  is  the  exercise  of  a  dominion  over  that  estate,  un- 
known to  the  common  law  and  created  by  a  court  of  equity,  whose 
rules  provide  not  only  for  her  dominion  over  it,  but  also  for  the 
rights  of  those  in  favor  of  whom  that  dominian  shall  be  exercised.®'^ 
A  power  of  appointment  given  to  a  married  woman,  and  a  trust 
for  her  separate  use,  are  then  perfectly  distinct,  even  when  they 
affect  succeeding  interests  in  the  same  property. 

A  married  woman  may,  however,  be  expressly  authorized  to 
appoint  by  will  and  not  by  deed,  and  the  exercise  of  such  power  in 
favor  of  volunteers  may  render  the  appointed  funds  assets  for  the 
satisfaction  of  debts  properly  chargeable  against  her  separate  es- 
tate.®* In  general,  equity  permits  a  married  woman  to  dispose  of 
property  according  to  the  mode,  if  any,  prescribed  by  the  instru- 
ment under  which  the  separate  use  is  created.®^  And  it  is  held 
by  the  English  chancery  that  if  a  power  be  given  to  a  married 
woman  to  be  exercised  in  relation  to  the  separate  fund,  an  absolute 
interest  therein  being  given  her  in  default  of  the  exercise  of  the 
power,  she  may  decline  to  exercise  the  power,  and  tJiereby  acquire 

the  right  to  sell  it  as  a  single  woman.''® 

§  258.  Gift  of  Income  of  Fund  as  Gift  of  Capital. 

A  gift  of  the  produce  of  a  fund  is  to  be  considered  a  gift  of  that 
produce  in  perpetuity ;  hence,  it  is  a  gift  of  the  fund  itself,  nothing 
appearing  to  show  a  different  intention.  Therefore,  a  bequest  of 
a  fund  to  a  woman,  with  the  interest  thereon,  to  be  vested  in  trus- 
tees,—  the  income  arising  therefrom  to  be  for  her  separate  use  and 
benefit, —  vests  the  capital  for  her  separate  use.^^  Where  a  tes- 
tator simply  directs  the  investment  of  a  fund  in  trustees,  for  the 

66.  Vaughan  v.  Vanterstegen,  2  (Va.)  393;  Knowles  v.  Knowles,  86 
Drew.  378.  See  Farrington  v.  Parker,  111.  1 ;  Jaques  v.  Methodist  Episcopal 
L.  E.  4  Eq.  116.  Church,  17  Johns.  (N.  Y.)   548.     And 

67.  Digby  v.  Irvine,  6  Ir.  Ch.  149.       see  post. 

See  Peachey,  Mar.  Settl.  276;  Brown  70.  Barrymore  v.  Ellis,  8  Sim.  1;  1 

V.   Bamford,   1   Ph.   620;    Shattock  v.  Bro.  Ch.  532. 

Shattock,  L.  E.  2  Eq.  182;   Hanchett  71.  Adamson  v.  Armitage,   19  Ves. 

•V.  Briscoe,  22  Beav.  496.  416;  Maeq  Hus.  &  Wife,  311;  Trout- 

68.  Ee  Harvey,  28  W.  E.  73.  beck  v.  Boughey,  L.  E.  2  Eq.  534. 

69.  McChesney  v.  Brown,  25  Gratt. 


273  EQUITABLE    SEPARATE    ESTATE.  §    259 

benefit  of  a  married  woman,  independent  of  the  control  of  her  hus- 
band, this  is  enough  to  carry  the  whole  fund  to  her  separate  use.'" 
So  it  is  held  that  where  stock  was  given  to  trustee  upon  trnst,  to 
pay  the  dividends  to  a  married  woman  for  her  separate  use,  and 
there  was  no  limitation  of  a  life  interest,  an  absolute  interest  in 
the  capital  passed  to  her,  which  she  could  dispose  of  as  a  feme 
sole.'^ 

It  is  fair  to  suppose  that  in  equity  the  wife's  separate  use  binds 
the  produce  of  the  fund  as  well  as  the  fund  itself.  There  are 
some  cases  decided  in  the  courts  of  common  law  where  the  con- 
trary has  been  maintained,  and  to  this  effect,  that,  although 
a  wife  may  be  entitled  to  separate  property,  the  dividends  arising 
therefrom  vest  in  her  husband.'*  This  is  no  reason,  however, 
why  the  equity  doctrine  should  not  be  as  we  have  stated ;  indeed, 
if  it  were  otherwise,  as  an  English  writer  has  observed,  the  ob- 
ject of  separate  use  would  be  in  many  instances  frustrated.'^  It 
must  only  be  observed  that  income  or  produce  of  the  fund,  if  once 
in  the  husband's  hands,  may  readily  be  presumed  to  have  been  be- 
stowed upon  him  by  the  wife  either  for  himself  or  the  family  ex- 
penses. 

§  259.  Savings  from  Wife's  Income. 

What  the  wife  saves  out  of  her  separate  income,  too,  if  its  iden- 
tity be  properly  preserved,  is  in  equity  her  separate  estate."  And 
property  purchased  with  such  savings  belongs  to  her  continues  sub- 
ject to  tbe  same  rules."  But  furniture  purchased  by  the  wife  with 
the  income  of  her  separate  estate,  and  mixed  with  the  furniture  of 
the  husband,  becomes  presumably  the  property  of  the  husband,  un- 
less it  was  understood  between  them,  at  the  time  of  the  purchase, 
that  the  property  should  be  kept  by  him  as  her  trustee  merely  ;"  for 

72.  Simons  v.  Howard,  1  Keen,  7,  bin,  3  Sim.  447,  n.  Contra,  Peachey, 
per  Lord  Langdale.  Mar.  Settl.  263,  where  cases  are  cited 

73.  Elton  V.  Shephard,  1  Bro.  C.  C.  which  do  not  support  the  statement 
532;   Haig  v.  Swiney,  1  Sim.  &  Stu.  in  the  text. 

487.  76.  Barrack  v.  McCulloch,  3  Kay  & 

74.  Tugman  v.  Hopkins,  4  Man.  &  J.  HO;  Brooke  v,  Brooke,  4  Jur.  (N. 
Gr.  389;   Came  v.  Brice,  7  M.  &  W.       S.)    472. 

183.  77.   Merritt   v.   Lyon,   3   Barb.    (N. 

75.  See  Macq.  Hus.  &  Wife,  291,  Y.)  110;  Hort  v.  Sorrell,  11  Ala.  386. 
and  71 .  And  see  dictum  of  Sir  Lance-  See  Kee  v.  Vasser,  2  Ired.  Eq.  (N.  C.) 
lot  Shadwell,  in   Molony  v.   Kennedy,  553. 

10  Sim.  254   (quoted  ih.),  which  inti-  78.  Shirley  v.  Shirley,  9  Paige   (N. 

mates  that  this  is  the  equity  doctrine;       Y.),  363. 
per  Lord  Hardwicke,  Churchill  v.  Dib- 

18 


260 


HUSBAND    AND    WIFE. 


274 


it  is  both  natural  and  proper  that  the  wife  should  bestow  her 
income  so  as  to  follow  the  common-law  rule,  thus  helping  to  defray 
the  family  expenses  and  maintain  the  household  establishment. 

§  260,  Necessity  of  Trustee. 

In  England,  where  property  comes  to  the  wife's  separate  use,  it 
is  treated  in  equity  as  trust  estate,  of  which  she  is  cestui  que  trust. 
Yet  it  is  not  actually  necessary  that  the  instrument  constituting 
the  separate  use  should  itself  make  an  appointment  of  trustees. 
Formerly  the  rule  was  otherwise;  but  at  the  present  day  equity 
makes  the  husband  a  trustee  where  no  other  holds  possession,  and 
thus  supports  the  trust.^**  And  where  a  trustee,  regularly  ap- 
pointed, in  breach  of  his  duty,  and  without  the  privity  of  the  wife, 
pays  the  trust-money  over  to  the  husband,  equity  follows  the  money 
into  the  husband's  hands,  and  makes  him  likewise  accountable  as 
his  wife's  trustee.^"  It  impresses  a  trust  upon  the  wife's  separate 
estate  wherever  such  estate  may  be  found.  But  while  the  appoint- 
ment of  third  persons  as  trustees  is  not  essential  to  give  the  wife 
a  separate  estate,  or  a  separate  interest  in  any  particular  estate,  it 
is  certainly  desirable  on  many  accounts,  and  there  is  in  it  this 
marked  advantage,  that  the  property  is  made  thereby  more  secure, 
because  such  influence  of  the  husband  over  the  wife  is  prevented 
as  might  induce  her  to  abandon  the  property  to  him.®^ 

Doubtless  the  American  Married  Women's  Acts  have  given  a 
fresh  impulse  to  the  equitable  protection  of  married  women's  prop- 
erty, which,  as  we  have  stated,  had  been  quite  sparingly  exercised 
in  the  United  States  prior  to  the  first  legislative  enactments  on  this 
subject.  Where  the  separate  use  has  been  recognized  and  enforced 
at  all,  the  strict  American  rule  was  always  borrowed  from  that  of 
England.  And  the  cases  show  an  increasing  liberality  to  the  wife 
in  our  courts  of  equity.  Thus  it  has  been  frequently  said  that 
the  wife's  separate  estate  requires  no  trustee  to  S'ustain  it.*^     For 


79.  Evans  v.  Bethune,  99  Ga.  582, 
27  S.  E.  277;  Brandau  v.  MeCurley, 
124  Md.  243,  92  A.  540,  L.  K.  A. 
1915C,  767;  Bennett  v.  Davis,  2  P. 
Wms.  316;  Davison  v.  Atkinson,  5  T. 
E.  435;  Messenger  v.  Clarke,  5  Exch. 
393;  Pcachey,  Mar.  Settl.  260;  Fox  v. 
Hawks,  L.  E.  13  Ch.  D.  822. 

80.  Eich  v.  Cockell,  9"  Ves.  375.  See 
also  Izod  v.  Lamb,  1  Cr.  &  J.  35. 

81.  Newlands  v.   Paynter,  10   Sim. 


377;  s.  c.  on  appeal,  4  M.  &  Cr.  408; 
Humphrey  v.  Eichards,  25  L.  J.  Eq. 
444;  s.  c.  2  Jur.  433;  Peachey,  Mar. 
Settl.  260;  Macq.  Hus.  &  Wife,  291. 
Equity  can  sanction,  on  behalf  of  a 
married  woman,  the  compromise  of  a 
suit  to  make  a  trustee  liable  for 
breach  of  trust  in  the  fund.  Wall  v. 
Eogers,  L.  E.  9  Eq.  58, 

82.  McKennan  v.  Phillips,  6  Whart. 
571;      Thompson     v.     McKusick,     3 


275 


EQUITABLE    SEPARATE    ESTATE. 


§  261 


when  no  other  trustee  is  interposed  the  courts  of  chancery  are 
prepared  to  treat  the  husband  as  such  by  virtue  of  his  possession 
and  control  of  the  f  und.^^  And  one  may,  by  his  acts,  make  him- 
self a  trustee  sub  modo  to  support  the  wife's  separate  use.**  Even 
a  purchaser,  still  more  a  volunteer,  taking  possession  of  the  trust 
property,  with  a  notice  of  the  trust,  will  be  made  a  trustee  in 
chancery.*^  Xo  informality  as  to  trustee  need,  of  course, 
injuriously  affect  the  wife's  interest.*® 

Upon  a  bill  by  husband  and  wife  to  recover  her  separate  prop- 
erty, the  court  may  decline  to  make  the  husband  trustee,  and  order 
payment  to  be  made  to  some  third  person  as  trustee  for  her." 
And  where  real  estate  is  conveyed  in  trust  for  a  married  woman, 
and  to  such  person  as  she  shall  appoint,  it  is  not  necessary  that  the 
husband  should  join  in  the  appointment.** 

§  261.  Construction  of  Instrument  Creating  Estate. 

On  the  whole,  it  is  apparent  that  there  is  much  contrariety  in 
the  decisions,  so  far  as  relates  to  technical  expression.  Courts  of 
equity,  as  such,  will  not  deprive  the  husband  of  his  legal  rights 


Humph.  (Tenn.)  631;  Fellows  v. 
Tann,  9  Ala.  990;  Trenton  Banking 
Co.  V.  Woodruff,  1  Green  Ch.  (N.  J.) 
117 ;  Dezendorf  v.  Humphreys,  95  Va. 
473,  28  S.  E.  880. 

83.  Boykin  v.  Ciples,  2  Hill  Ch.  (N. 
Y.)  200;  Hamilton  v.  Bishop,  8  Yerg. 
(Tenn.)  33;  Wallingsford  v.  Allen, 
10  Pet.  (U.  S.)  583;  Porter  v.  Bank 
of  Rutland,  19"  Vt.  410;  Pepper  v. 
Lee,  53  Ala.  33;  Richardson  v.  Stod- 
der,  100  Mass.  528;  Wilkinson  v. 
Cheatham,  45  Ala.  337.  And  see 
Wood  V.  Wood,  83  N.  Y.  575;  Ee 
O'Brien,  11  R.  I.  419;  Harkins,  v. 
Coalter,  2  Port.  463 ;  Franklin  v.  Cre- 
yon,  1  Harp.  Ch.  243;  Freeman  v. 
Freeman,  9  Mo.  763;  Holthaus  v. 
Hornbostle,  60  Mo.  439.  A  court  of 
general  equity  jurisdiction  has  power 
to  appoint  a  husband  to  be  trustee 
in  a  trust  for  the  wife's  separate 
benefit,  and  such  appointment  is  valid. 
Ely  V.  Burgess,  11  R.  T.  115.  But  in 
ordinary  cases  there  are  reasons 
against  selecting  the  husband.     11). 

84.  Sledge  v.  Clopton,  6  Ala.  589. 

85.  Jackson  v.  McAliley,  Speers  Eq. 


303;  Fry  v.  Fry,  7  Paige  Ch.  (N.  Y.), 
461. 

86.  Jackson  v.  McAliley,  Speers  Eq. 
303,  And  as  to  estopping  a  husband 
by  his  admissions  of  a  separate  use, 
though  the  language  was  insufficient, 
see  Mounger  v.  Duke,  53  Ga,  277 ;  Fry 
V,  Fry,  7  Paige  Ch.  (N.  Y.)  461; 
Sledge  V.  Clopton,  6  Ala.  589. 

87.  Boykin  v,  Ciples,  2  Hill  Ch,  (N. 
Y.)  200, 

88.  Thompson  v.  Murray,  2  Hill  Ch. 
(N,  Y.)   204;   4  Kent  Com.  318. 

See  Wallace  v.  Holmes,  9  Blatchf, 
67;  supra,  Humphrey  v.  Buisson,  Iff 
Minn.  221.  A  guardian  cannot,  in 
South  Carolina,  sell  and  assign  his 
ward's  bond  and  mortgage  of  real 
estate  without  judicial  sanction.  Mc- 
Duffie  V.  McTntyre,  11  S.  C.  551. 
JJiter,  probably,  in  many  States; 
though  the  right  to  assign  real  estate 
security  is  more  doubtful  than  that 
of  assigning  a  simple  note  or  bond 
upon  personal  security  or  without  se- 
curity. See  preceding  section;  Mack 
V.  Brammer,  28  Ohio  St.  508.  Gen- 
eral guardians  do  not  represent  their 


§  261  HUSBAXD  AND  WIFE.  276 

upon  any  doubtful  construction  of  language,^^  nor  unless  tlie  words 
of  themselves  leave  no  doubt  of  the  intention  to  exclude  him.®° 
But  the  question  relates  rather  to  intention,  to  substance,  and  not 
literal  expression ;  and  any  language  is  now  deemed  usually  suffi- 
cient, whatever  the  technical  words,  which  clearly  expresses  the 
intent  to  create  a  separate  estate  for  the  wife,  independent  of  her 
husband's  control.®^ 

The  form  of  expression  will  go  far  towards  determining  whether 
property  is  or  is  not  limited  to  the  wife's  separate  use.  Vice-Chan- 
cellor  Wigram,  in  a  case  before  him  not  many  years  ago,  was  forced 
to  admit  that  while  ruling  out  certain  property  from  the  wife's 
separate  use,  on  account  of  the  testator's  insufficient  language,  he 
had  a  strong  opinion  that  he  decided  against  the  real  intention  of 
the  testator.^^  The  limitation  to  separate  use  may  either  be  in 
express  words,®'  or  may  appear  by  necessary  implication.®*  It 
must,  however,  be  gathered  from  a  construction  of  the  whole  instru- 
ment if  there  is  one.®^  Some  courts  hold  that  the  intention  may 
be  shown  by  evidence  aliunde  the  writing.®®  The  intention  of 
excluding  the  husband's  marital  rights  may  be  inferred  from  the 
nature  of  the  provisions  attached  to  the  gift ;  as  where,  for  example, 
the  direction  is  that  the  property  shall  be  at  the  wife's  disposal,  or 
there  is  some  other  clear  indication  that  such  was  the  donor's 
intention.®^ 

In  the  courts  of  this  country,  moreover,  the  sitatute  policy  is 
found  to  supplement  equity.  As  a  general  rule  an  equitable  trust 
by  instrument  requires  the  construction  of  that  instrument  to 
operate.  But  this  does  not  necessarily  conclude  the  wife.  For, 
while  an  equitable  separate  estate  is  created,  where  the  intent  to 
exclude  the  marital  rights  of  the  husband  clearly  and  unequivocally 

infant  wards  in  foreclosure  proceed-  92.  Blacklow  v.  Laws,  2  Hare,  49. 

ings.    Sheahan  v.  Wayne,  42  Mich.  69.  93.  Coquard  v.  Pearce,  68  Ark.  93, 

89.  Buck  V.  Wroten,  24  Gratt.  (Va.)  56  S.  W.  641;  Campbell  v.  Galbreath, 
250;  Bowen  v.  Lebree,  2  Bush  (K7.),  12  Bush  (Ky.),  459. 

112.  94.  Hart  v.  Leete,  104  Mo.  315,  15 

90.  Peachey,  Mar.  Settl.  281 ;  Tyler  S,  W.  976 ;  Coatney  v.  Hopkins,  14  W. 
V.  Lake,  2  Buss.  &  M.  188;  Massey  v.      Va.  338. 

Parker,  2  M.  &  K.  181;  Macq.  Hus.  &  95.  Miller  v.  Miller's  Adm'r,  92  Va. 

Wife,  309.  510,  23  S.  E.  891. 

91.  Travis  v.  Sitz  (Tenn.),  185  S.  96.  Wagner  v.  Mutual  Life  Ins.  Co. 
W,  1075,  L.  R.  1917A  671;  Holiday  v.  of  New  York,  88  Conn.  536,  91  A. 
Hively,  198  Pa.  St.  335,  47  A.  988.  1012;  Bank  of  Louisville  v.  Gray,  84 
See  Prout  v.  Roby,  15  Wall.  (TJ.  S.)  Ky.  565,  8  Ky.  Law,  664,  2  S.  W.  168. 
471 ;  Gaines  v.  Poor,  3  Met.  (Ky.)  97.  Prichard  v.  Ames,  Turn.  &  Buss. 
503.  223;  Peachey,  Mar.  Settl.  279. 


277  EQUITABUE    SEPARATE    ESTATE.  §    262 

appears  from  the  force  and  certainty  of  the  terms  employed,  the 
local  statute  may  intervene  where  the  intent  is  doubtful,  equivocal, 
or  open  to  speculation,  and  fix  the  character  of  the  estate  as  the 
wife's  separate  statutory  and  legal  estate.^*  A  legacy  added  by  a 
codicil  to  the  legacy  given  by  a  will  is  subject  to  the  incidents  of 
the  original  legacy ;  and  the  separate  use  may  be  extended  by  con- 
struction from  the  will  to  the  codicil.®^  "Where  an  instrument 
intended  to  create  a  statutory  separate  estate,  but  grants  powers  or 
imposes  restrictions  not  consonant  with  the  statute,  the  courts  will 
construe  the  instrument  as  creating  an  equitable  separate  estate 
where  its  terms  are  consonant  with  equity/ 

§  262.  What  Words  are  Sufficient  to  Create  Estate ;  In  England. 

As  to  the  words  which  in  themselves  indicate  the  intention  of 
creating  a  separate  use,  there  have  been  numerous  decisions  in 
England.  Among  them  the  following  expressions  are  held  suffi- 
cient :  "  For  her  full  and  sole  use  and  benefit,"  ^  "  her  own  sole 
use  and  benefit,"  ^  "  for  her  sole  use,"  *  ''  for  her  sole  and  separate 
use  and  benefit,"  '"  ^'  for  her  sole  and  separate  use,"  *  "  for  her 
sole  use  and  benefit,"  '^  "  for  her  own  sole  use,  benefit,  and  dis- 
position," ®  "  for  her  sole  and  absolute  use,"  °  "  for  her  own  use, 
and  at  her  own  disposal,"  ^°  "  to  be  at  her  disposal,  and  to  do 
therewith  as  she  shall  think  fit,"  ^^  *''  solely  and  entirelv  for  her 
own  use  and  benefit,"  ^~  "  for  her  own  use,  independent  of  any 
husband,"  ^^  "  not  subjected  to  the  control  of  her  husband,"  "  "  for 
her  own  use  and  benefit,  independent  of  any  other  person,"  "  "  foi 
her  livelihood,"  "  '^  as  her  separate  estate,"  "  "  to  receive  the  rents 
while  she  lives,   whether  married  or  single."  ^*     Lord   Thurlow 

98.  Short  V.  Battle,  52  Ala.  456.  11.  Kirk  v.  Paulin,  9  Vin.  Abr.  96, 

99.  Day  v.  Croft,  4  Beav.  561.  pi.  43. 

1.  Jones  V.  Jones' Ex 'r,  96  Va.  749,  12.    Inglefield    v.    Coghlan,    2    Coll. 
32   S.  E.   463;    Ellison   v.  Straw,   116       247. 

Wis.  207,  92  X.  W.  1094.  13.  Wagstaff  v.  Smith,  9  Yes.  520. 

2.  Arthur  v.  Artliur,  11  Ir.  Eq.  511.  14.  Bain  v.  Lescher,  11  Sim.  397. 

3.  Ex  parte  Killick,  3  Mon.  D.  &  De  15.   Margetts  v.   Barringer,   7   Sim. 
G.   480.  482. 

4.  Lindsell  v.  Thacker,  12  Sim.  178.  16.    Darley   v.   Darley,   3   Atk.   399. 

5.  Archer  v.  Rorke,  7  Ir.  Eq.  478,  And  see  Peachey,  Mar.  Settl.  279,  280; 

6.  Parker   v.   Brooke,   9   Ves.    583;       Macq.  Hus.  &  Wife,  308,  309. 
Adamson  v.  Armitage,  19  Ves.  415.  17.  Fox  v.  Hawks,  L.  R.  13  Ch.  D. 

7. V.  Lyne,  Younge,  562.  822. 

8.  Ex  parte  Ray,  1  Madd.  199.  18.  Goulder  v.  Camm,  De  G.  P.  & 

9.  Davis  V.  Prout,  7  Beav.  288.  J.  146. 

10.  Prichard  v.  Ames,  Turn  &  Russ. 
222. 


§    263  HUSBA]\^D    AND    WIFE.  278 

once  decided  that  a  direction  "  that  the  interest  and  profits  be  paid 
to  her,  and  the  principal  to  her  or  to  her  order  bj  note,  or  writing 
under  her  hand,"  created  a  trust  for  the  wife's  separate  use/®  So 
in  the  judgment  of  Sir  William  Fortescue,  Master  of  the  Rolls, 
did  the  words  "  that  she  should  enjoy  and  receive  the  issues  and 
profits  of  the  estate.^"  And  Lord  Loughborough  gave  a  like  effect 
to  a  direction  that  certain  property  should  be  delivered  up  to  a 
married  woman  "  whenever  she  should  demand  or  require  the 
same."  "^  A  similar  construction  has  also  been  applied  to  the 
words,  "  to  be  laid  out  in  what  she  (the  wife)  shall  think  fit."  '^ 
And  a  legacy  to  a  married  woman,  "  her  receipt  to  be  a  suSicient 
discharge  to  the  executors,"  has  been  held  sufficient.^^  It  has  been 
held  that  a  gift  to  the  wife's  separate  use  was  good,  although  the 
support  and  education  of  children  was  annexed  as  a  charge  upon 
it.^*  The  expression  "  her  intended  husband  "  may  apply  to  a 
second  husband,  where  there  are  words  limiting  income  to  the 
wife's  separate  use  during  her  life,  for  this  latter  expression 
controls  the  former.'^ 

§  263.  In  the  United  States. 

In  the  United  States  it  is  held  that  the  language  employed,  if 
language  be  necessarily  relied  on,  must  be  suitable.  Thus  in 
N'orth  Carolina,  the  words,  "  for  her  use,"  have  been  held  sufficient 
to  exclude  the  husband't  dominion.^®  So,  too,  the  words,  "  for  the 
entire  use,  benefit,  profit,  and  advantage."  ^^  In  Kentucky,  the 
words,  "  for  her  own  proper  use  and  benefit,"  are  held  sufficient.^* 
Such,  too,  seems  to  have  been  the  rule  in  Mississippi.'^  The 
words,  "  to  the  use  and  benefit,"  are  held  sufficient  in  Tennessee.^'* 
So    in    Alabama,    words    importing    enjoyment,    "  without    let, 

19.  Hulme  v.  Tenant,  1  Bro.  C.  C.       Exch.  543.    And  see  7i.  to  Macq.  Hus. 
16.  &  Wife,  310. 

20.  Tyrrell    v.    Hope,    2    Atk.    561.  25.   Hawkes  v.   Hubback,  L.   R.   11 
* '  For  to  what  end  should  she  receive      Eq.  5. 

it,"    says   this  judge,   "if  it  is   the  26.  Steel  v.  Steel,  1  Ired.  Eq.  (N.  C.) 

property    of    the    husband    the    next  452;  Good  v.  Harris,  2  Ired.  Eq.   (N. 

moment?"  C.)   630. 

21.  Dixon  V.  Olmius,  2  Cox,  414.  27.  Heathman  v.  Hall,  3   Ired.  Eq. 

22.  Atcherley   v.   Vernon,    10   Mod.  (N.  C.)    414. 

518.     See  Blacklow  v.  Laws,  2  Hare,  28.   Griffith   t.   Griffith,    5   B.    Mon. 

52.  (Ky.)    113. 

23.  Warwick  v,  Hawkins,  13  E.  L.  29.  Warren  v.  Halsey,  1  S.  &  M. 
&  Eq.  174.  Ch.  (Miss.)  647. 

24.  Cape   v.   Cape,   2   You.  &  Coll.  30.    Hamilton    v.    Bishop,    8    Yerg. 

(Tenn.)  33. 


279 


EQUITABLE    SEPARATE    ESTATE. 


§  263 


hindrance,  or  molestation  whatever."  ^^  And  where  one  clause  of 
a  will  applies  the  words,  *'  in  trust  for  the  separate  use,"  to  certain 
property,  and  another  applies  to  certain  property  the  words  "  in 
trust  "  only,  the  separate  use  may  by  construction  embrace  the 
whole.^-  The  word  "  exclusively  "  in  the  wife's  favor  is  held  to 
exclude  the  husband.^^  So,  too,  "  to  be  hers  and  hers  only."  '*  A 
trust,  to  pay  income  to  a  wife  '^  "  for  and  during  the  joint  lives  of 
her  and  her  husband,  taking  her  receipt  therefor,"  is  held  to  give 
her  a  sole  and  separate  estate  in  the  income,'®  and  a  trust  to  the 
"  exclusive  use,  benefit,  and  behoof,"  is  held  sufficient  to  create 
a  separate  use.'^  So,  too,  "  for  her  own  use  and  benefit,  inde- 
pendent of  any  other  person."  '^  So,  too,  "  absolutely,"  in  a 
suitable  connection.^®  So,  too,  "  to  be  for  her  own  and  her  family's 
use  during  her  natural  life."  *°  Or,  "  for  the  use  and  benefit  of 
the  vnfe  and  her  heirs."  *^  Or,  "  not  to  be  sold,  bartered,  or 
traded  by  the  husband."  *^ 

The  words,  to  the  wife's  "  sole  and  separate  use,"  are  most 
commonly  applied.^^  Or,  "  solely  for  her  own  use."  **  Or,  "  for' 
the  sole  use  and  benefit  of."  *^  And  "  to  have  for  her  sole  and 
separate  use  during  life,"  *^  or  by  a  will  providing  that  a  daughter 
and  her  husband  should  reside  on  testator's  estate  until  other  real 


31.  Newman  v.  James,  12  Ala.  29. 
And  see  Clarke  t.  Windham,  ib.  798. 

32.  Davis  v.  Cain,  1  Ired.  Eq.  (N. 
C.)  304.  See  further,  as  to  words 
which  constitute  a  separate  estate, 
Wilson  T.  Bailer,  3  Strobh.  Eq.  (S.  C.) 
258;  Clark  v.  Magruire,  16  Mo.  302; 
Goodrum  v.  Goodrum,  8  Ired.  Eq.  (N. 
C.)  313;  Denson  v.  Patton,  19  Ga. 
577;  Bradford  v.  Greenway,  17  Ala. 
797. 

33.  Gould  V.  Hill,  18  Ala.  84. 

34.  Ellis  V.  Woods,  9  Kich.  Eq. 
(S.  C.)  19;  Ozley  v.  Ikelheimer,  26 
Ala.  332. 

35.  As  to  income,  increase,  and 
profits,  see  supra,  §  258. 

36.  Charles  v.  Coker,  2  S.  C.  (N.  S.) 
122 

37.  Williams  v.  Avery,  38  Ala.  115. 

38.  Williams  v.  Maull,  20  Ala.  721 ; 
Ashcraft  v.  Little,  4  Ired.  Eq.  (N.  C.) 
236. 

39.  Brown  v.  Johnson,  17  Ala.  232; 
Short  v.  Battle,  53  Ala.  456. 


40.  Heck  V.  Clippenger,  5  Pa.  385; 
Hamilton  v.  Bishop,  8  Yerg.  (Tenn.) 
33. 

41.  Good  V.  Harris,  2  Ired.  Eq. 
(N.  C.)  630. 

42.  Woodrum  v.  Kirkpatrick,  2 
Swan,  218;  Clarke  v.  Windham,  12 
Ala.  79«. 

43.  See  §  319  et  seq.;  Robinson 
V.  O'Xeal,  56  Ala.  541;  Swain  v. 
Duane,  48  Cal.  358;  Short  v.  Battle, 
52  Ala.  456. 

44.  76.;  Snyder  v.  Snyder,  10  Pa. 
423;  Jarvis  v.  Prentice,  19  Conn.  273; 
Goodrum  v.  Goodrum,  8  Ired.  Eq.  (X. 
C.)  313;  Griffith  v.  Griffith,  5  B.  Mon. 
(Ky.)  113;  Stuart  v.  Kissam,  3  Barb. 
(N".  T.)   494. 

45.  Blakeslee  v.  Mobile  Life  Ins. 
Co.,  57  Ala.  205;  Miller  v.  Vose,  62 
Ala.  122. 

46.  Pezendorf  v.  Humphreys,  95  Va. 
473,  28  S.  E.  880. 


§  264  HUSBAND  AND  WIFE.  280 

estate  should  be  purchased  for  them  as  provided  by  the  will.*^  A 
deed  by  a  husband  to  a  trustee  for  a  wife  and  her  children,  with 
power  to  her  to  sell  or  exchange  the  land  with  the  trustee's  consent, 
creates  an  equitable  and  not  a  statutory  separate  estate.*^ 

§  264.  What  Words  are  InsufEcient  to  Create  Estate;   In  Eng- 
land. 

A  mere  trust  to  pay  the  income  of  a  fund  to  a  certain  married 
woman,  or  to  her  and  her  assigns,  is  in  England  held  not  sufficient 
to  prevent  the  marital  rights  from  attaching.*^  Nor  is  a  devise 
to  a  certain  widow's  sole  use  and  benefit  without  reference  to  a 
future  husband.^"  Even  a  gift  to  a  wife  "  for  her  use  "  has  been 
held  not  a  sufficiently  unequivocal  declaration  of  an  intention  to 
create  a  trust  for  the  separate  use  of  the  wife.^^  Some  words  have 
greater  efficacy  than  others.  Thus  it  has  been  said  that  the  word 
*'  enjoy  "  is  very  strong  to  imply  a  separate  use.°^  And  much 
controversy  has  arisen  in  the  English  chancery  courts  over  the  use 
of  the  word  "  own  "  as  synonymous  with  "  sole,"  the  result  of 
which  is  to  establish  that  there  is  a  substantial  distinction  between 
a  gift  to  a  wife  "  for  her  sole  use  "  and  a  gift  "  for  her  own  use," 
or  "  for  her  own  use  and  benefit."  °'  And  it  having  been  decided 
that  the  word  ''  own  "  had  no  exclusive  meaning,  it  was  next  deter- 
mined that  a  trust  to  pay  the  proceeds  of  real  estate  into  the  proper 
hands  of  a  married  woman  for  her  own  use  and  benefit  was  not  a 
gift  to  the  wife's  separate  use,  the  word  "  proper  "  being  the  Latin 
form  of  the  word  "  own,"  and  therefore  payment  into  the  wife's 
proper  hands  signifying  the  same  thing  as  into  her  own  hands." 
Lord  Brougham  thus  in  effect  overruled  a  decision  of  Lord 
Alvanley,  who  had  held  that  the  use  of  the  word  "  proper  "  would 
create  a  separate  use.^*  This  later  construction,  coming  from  a 
jurisdiction  so  conclusive,  has  since  prevailed,  though  not  without 
some  expressions  of  dissatisfaction  in  the  lower  courts.**'     And 


47.  Eussell  v.  Andrews,  120  Ala. 
222,  24  So.  573. 

48.  Jones  v.  Jones'  Exr.,  96  Va. 
749,  32  S.  E.  463;  Kutledge  v.  Eut- 
ledpre   (Mo.),  119  S.  W.  489. 

49.  Lumb  v.  Milnes,  5  Ves.  517; 
Brown  v.  Clark,  3  Ves.  166;  Spirett 
V.  Willows,  11  Jur.   (N.  S.)  70. 

50.  Gilbert  v.  Lewis,  1  De  G.  J. 
&  M.   38. 

51.  .Jacobs  V.  Amyatt,  1  Madd.  376, 
71.;  Wills  V.  Sayers,  4  Madd.  411;  Rob- 
erts V.  Spicer,  5  Madd.  491. 


52.  Sir  William  Fortescue,  in  Tyr- 
rell V.  Hope,  2  Atk.  558. 

53.  See  Lord  Brougham's  judgment 
in  Tyler  v.  Lake,  2  Russ.  &  M.  187; 
Johnes  v.  Lockhart,  3  Bro.  C.  C.  383, 
n.;  Peachey,  Mar.  Scttl.  282. 

54.  Tyler  v.  Lake,  2  Russ.  &  M. 
-!87. 

55.  Hartley  v.  Hurle,  5  Ves.  545. 

56.  See  Vice-Chancellor  Wigram,  in 
Blacklow  V.  Laws,  2  Hare,  49;  Macq. 
Hus.  &  Wife,  309';  Peachey,  Mar. 
Settl.  282. 


281 


EQUITABLE    SEPAJEATE    ESTATE. 


§    265 


again,  language  of  the  douor,  expressive  of  his  intent  to  limit 
property  to  the  wife's  separate  use,  may  be  controlled  by  other 
words  or  provisions  so  as  to  negative  such  a  supposition.  This 
principle  was  applied  to  the  wife's  disadvantage  in  a  case  where 
others  were  made  the  objects  of  the  bounty  with  her.^^ 

Whether  the  word  "  sole "  is  of  itself  sufficient  to  create  a 
separate  use  is  doubtful.  Different  opinions  have  been  expressed 
on  this  point.  But  in  a  case  before  Vice-Chancellor  Kindersley 
the  word  "  sole  "  was  deemed  insufficient,  in  a  devise  of  property 
to  a  female,  her  heirs,  executors,  administrators,  and  assigns,  "  for 
her  and  their  own  sole  and  absolute  use  and  benefit,"  to  create  a 
separate  estate ;  since  the  word  ''  sole,"  as  here  used,  had  reference 
not  only  to  the  female  herself,  but  to  her  heirs,  executors,  admin- 
istrators, and  assigns,  who  certainly  could  not  be  considered 
beneficiaries  under  any  such  trust.^* 

§  265.  In  the  United  States. 

There  is  authority  in  the  United  States  against  permitting  such 
expressions  as  these  to  create  the  separate  use,  and  the  following 
have  been  held  insufficient :  "  For  the  use  and  benefit  of,"  ^°  "  in 
her  own  right,"^°  "  for  the  joint  use  of  husband  and  wife,"  ®^  "  to 
her  and  the  heirs  of  her  bodv  and  to  them  alone,"  and  similar 
expressions,'^  or  where,  instead  of  restraint  of  husband's  right  of 
disposition,  is  stated  a  mere  exemption  from  liability  for  his 
debts,*^  or  where  a  will  provided  that  the  executor  "  can  "  sell 
certain  land  and  divide  it  among  the  testator's  married  daughters, 
his  sons-in-law  not  to  "  interfere  "  in  any  manner  with  the  prop- 
erty,'* or,  to  some  one's  wife,  without  further  exclusive  descrip- 


67.  Wardle  v.  Claxton,  9  Sim.  524. 
And  see  Gilchrist  v.  Cator,  1  De  G. 
&  S.  188. 

58.  Lewis  v.  Mathews,  L.  R.  2  Eq. 
177.  And  see  Troutbeck  v.  Boughey, 
L.  R.  2  Eq.  534.  See  also,  as  to  prop- 
erty to  husband  and  another  in  trust, 
Ex  parte  Beilby,  1  Glyn  &  Jam.  167; 
71.  to  Peachey,  Mar.  Settl.  283. 

59.  Clevestine's  Appeal,  15  Pa.  493; 
Fears  v.  Brooks,  12  Ga.  198;  Tenant 
V.  Stoney,  1  Rich.  Eq.  (S.  C.)  222; 
Prout  V.  Roby,  15  Wall.  (U.  S.)  471; 
Merrill  v.  Bullock,  105  Mass.  486; 
Guishaber  v.  Hairman,  2  Bush  (Ky.), 
320. 


60.  Leete  v.  State  Bank  of  St.  Louis, 
141  Mo.  574,  42  S.  W.  1074. 

61.  Geyer  v.  Branch  Bank,  21  Ala. 
414.  Cf.  Charles  v.  Coker,  2  S.  C. 
(X.  S.)  122.  See  post  as  to  convey- 
ances to  husband  and  wife,  §  564  et 
seq. 

62.  Clevestine's  Appeal,  15  Pa.  499; 
Bryan  v.  Duncan,  11  Ga.  67;  Foster 
V.  Kerr,  4  Rich.  Eq.  (S.  C.)  390. 

63.  Harris  v.  Harbeson,  9  Bush 
(Ky.)  397;  Gillespie  v.  Burlinson,  28 
Ala.  551.  But  see  Young  v.  Young, 
2  Jones  Eq.   (N.  C.)   266. 

64.  Schwarz  v.  Griffith 's  Exr.,  7  Ky. 
Law  Rep.  (abstract)   532. 


§  266 


HUSBAND    AND    WIFE. 


282 


tion.®^  In  South  Carolina,  the  words,  for  "  the  use  of  his  wife," 
are  held  insufficient.®^  A  gift  or  bequest  to  "  a  married  woman 
and  her  children,  bom  and  thereafter  to  be  born,"  does  not  invest 
her  with  an  estate  to  her  sole  and  separate  use,  but  makes  her  a 
tenant  in  common  (joint-tenancy  having  been  abolished)  with  her 
children.®^  And  it  would  appear,  in  general,  that  where  property 
is  given  for  the  use  and  support  of  two  or  more  together,  one  of 
them  being  a  married  woman,  it  cannot  be  considered  as  vesting 
a  separate  estate  in  the  married  woman;  for  exclusiveness  of 
enjoyment  is  an  important  element  in  such  estates.®*  This  doc- 
trine is  not  inconsistent  with  the  well-established  right  of  a  donor 
to  make  a  trust  first  to  the  wife's  separate  use,  then  over  to  some 
one  else,  provided  the  instrument  uses  apt  language  for  that  pur- 
pose.®^ In  Illinois  it  is  held  that  the  disabilities  of  coverture  are 
not  so  far  removed  by  the  separate  property  act  as  to  take  married 
women  out  of  the  .saving  clause  of  the  statute  of  limitations.'" 

§  266.  Necessity  of  Preserving  Identity  of  Estate. 

As  to  mingled  funds  generally,  the  rule  applies  that  equity  will 
not  interfere  where  a  fund  set  apart  for  the  wife's  sole  benefit  has 
become  mixed  with  other  funds  beyond  the  possibility  of  identifi- 
cation.'^ 

But,  on  the  other  hand,  the  proceeds  of  a  transfer  of  the  wife's 
separate  property,  which  it  is  understood  shall  be  the  wife's,  may 
be  followed  by  her  in  equity,  provided  she  can  trace  the  identity, 
and  has  acted  consistently  with  her  claim  of  title,  even  though  the 
husband  takes  the  title  in  himself.'^ 

In  Missouri  it  is  held  that  a  separate  equitable  estate  in  the 
wife  is  created  where  the  title  to  property  bought  with  her  funds  is 
taken  in  the  name  of  the  husband.'^ 


65.  Moore  v.  Jones,  13  Ala.  296; 
Fitch  V.  Ayer,  2  Conn.  143 ;  Shirley  v. 
Shirley,  9  Paige  (N.  Y.),  364. 

66.  Tennant  v.  Stoney,  1  Eich.  Eq. 
(S.  C.)  222;  McDonald  v.  Crockett,  2 
McC.  Ch.  (S.  C.)  130. 

67.  Dunn  v.  Bank  of  Mobile,  2  Ala. 
152. 

68.  Harkins  v.  Coalter,  2  Port.  463 ; 
Clancy,  Hus.  &  Wife,  269;  Inge  v. 
Forrester,  6  Ala.  418.  A  provision 
that  three  daughters  shall  "  enjoy 
their  respective  portions  as  they  see 
fit, ' '  does  not  exclude  their  husbands. 
Wood  V.  Polk,  12  Heisk.  (Tenn.)  220. 


But  cf.  Metropolitan  Bank  v.  Taylor, 
53  Mo.  544. 

69.  See  Warren  v.  Haley,  1  S  &  M. 
Ch.  (Miss.)  647. 

70.  Morrison  v.  Norman,  47  111.  477. 

71.  Buck  V.  Ashbrook,  59  Mo.  200. 

72.  Dula  V.  Young,  70  N.  C.  450; 
Haden  v.  Ivey,  51  Ala.  381. 

73.  Donovan  v.  Griffith,  215  Mo.  149, 
114  S.  W.  621.  Thus,  where  a  hus- 
band so  holds  the  legal  title,  the  title 
held  by  him  merges  in  her  equitable 
title  at  her  death  and  vests  the  title 
in  her  heirs.  Stark  v.  Kirehgraber, 
186  Mo.  633,  85  S.  W.  868,  105  Am. 
St.  629. 


283  EQUITABLE    SEPARATE    ESTATE.  §    26Y 

A  distinction  may  sometimes  be  requisite  between  the  case 
where  a  wife  asserts  her  equitable  title  against  her  husband,  and 
that  where  her  title  is  claimed  against  bona  fide  purchasers  from 
the  husband,  having  neither  actual  nor  constructive  notice  of  her 
title/' 

Where  the  wife's  separate  estate  is  sold  for  a  debt  of  the 
ancestor  from  whom  it  descended,  it  has  been  held  in  New  York 
that  the  surplus  belongs  to  the  husband/^  And  where  a  wife  joins 
with  her  husband  in  the  conveyance  of  her  land,  without  any 
understanding  or  agreement  that  the  proceeds  are  to  be  applied 
to  her  separate  use,  such  proceeds  vest  absolutely  in  him  dis- 
charged of  all  claims  on  her  part/®  For  the  presumption  in  such 
cases  is  that  she  voluntarily  abandons  her  separate  use  in  his  favor; 
though  the  question  after  all  is  one  of  evidence/^ 

§  267.  Separate  Estate  as  Trust  Fund  for  Payment  of  Wife's 
Debts. 

The  separate  estate  of  a  married  woman  is  in  suitable  instances 
to  be  treated  as  a  trust  fund  for  the  payment  of  her  separate  debts. 
How  far  this  doctrine  should  be  carried,  the  authorities  are  not 
agreed."^*  But  it  rests  apparently  upon  the  assumption  that,  by 
virtue  of  her  right  to  dispose  of  such  property  (of  which  we  shall 
speak  more  at  length  in  this  chapter),  she  has  contracted  expressly 
or  by  implication  with  reference  to  her  separate  estate,  the  creditor 
reposing  his  faith  accordingly.  And  hence  it  is  held  that  where 
a  stranger  advanced  moneys  for  the  support  of  a  wife  living 
separate  from  her  husband  and  in  destitute  circumstances,  her 
separate  estate,  after  her  death,  will  be  bound  thereby  and  also 
for  her  needful  burial  and  funeral  expenses.^^  Nor,  in  the  absence 
of  an  intention  on  the  wife's  part  to  make  such  estate  liable,  can 
it  be  subjected  to  her  general  debts  contracted  during  coverture.'** 
But  in  Mississippi  a  disposition  has  been  manifested  to  overturn 

74.  See  post,  %  272.  questions  this  rule,  which  case  in  turn 

75.  Wood  V.  Genet,  8  Paige  (N.  is  disapproved  by  Hodgson  v.  Wil- 
T.),  137.  liamson,  42  L.  T.  676. 

76.  Chester  v.  Greer,  5  Humph.  79.  Hodgson  v,  Williamson,  42  L.  T. 
(Tenn.)    26;    Temple   v.   Williams,    4  676. 

Ired.  Eq.  (N.  C.)  39.  80.   Dickson   v.  Miller,   11   S.  &  M. 

77.  Temple  V.  Williams,  4  Ired.  Eq.  (Miss.)  594;  Knox  v.  Picket,  4 
(N.  C.)   39.  Desaus.  (S.  C.)  92;  Gee  v.  Gee,  2  T)cv. 

78.  2  Story,  Eq.  Jur.,  §  1393,  n. ;  &  Bat.  (N.  C.)  103;  Haygood  v.  Har- 
Norton  v.  Turvill,  2  P.  Wms.  144.  ris.  10  Ala.  291;  Purtis  v.  Engel,  2 
Vaughan    v.   Walker,   8    Ir.    Ch.    458,  Sandf.  Ch.  (N.  Y.)  237. 


§    269  HUSBAND    AND    WIFE.  284 

this  doctrine,  and  to  establish  a  new  and  fairer  ruk  in  equity; 
and  it  is  held  that  the  wife's  separate  property,  owned  before 
marriage,  may  be  thus  subjected  to  the  payment  of  necessaries 
furnished  her  while  sole  and  a  minor,*^  and  a  similar  rule  prevails 
in  some  other  States.®" 

§  268.  Duration  of  Estate. 

In  England  the  quality  of  separate  estate  ceases  on  the  death 
of  the  wife;  and  if  her  husband  survives  her,  he  becomes  entitled 
to  the  property  as  though  it  had  never  been  settled  to  her  separate 
use.  For  the  separate  use  was  created  only  for  the  marriage 
state,  and  was  not  designed  to  extend  beyond  the  dissolution  of 
marriage,  or  when  the  necessity  of  the  trust  should  be  no  longer 
felt.  Thus  choses  in  possession  settled  to  the  wife's  separate  use 
vest  in  the  husband  absolutely  upon  his  survivorship.*^ 

In  the  United  States,  as  in  England,  the  separate  estate  in 
equity  continues  only  during  the  marriage  state,  with  probably 
similar  qualifications.**  The  estate  of  the  trustee,  as  such,  termi- 
nates on  the  wife's  death.*^  Where  a  conveyance  is  made  in  trust 
for  the  separate  use  of  a  married  woman,  or  for  such  person  as 
she  should  direct,  and  she  makes  no  appointment,  it  is  held  in 
Pennsylvania  that  the  trustee  after  her  death  is  entitled  to  recover 
the  property  for  her  representatives.*® 

§  269.  Husband's  Rights  on  Wife's  Decease. 

The  wife's  separate  choses  in  action  may  be  recovered  by  the 
husband  on  her  death  in  his  right  as  her  administrator.*^  So, 
doubtless,  her  separate  chattels  real  go  to  the  husband  as  survivor. 
In  short,  the  wife's  separate  property,  upon  the  wife's  death,  is 
freed  from  its  peculiar  incidents,  and  becomes  like  any  other  estate 

81.  Dickson  v.  Miller,   11   S.   &  M.  coming  indebted  on  behalf  of  his  wife, 

(Miss.)    594.       "  In    marriage,"    ob-  with  no  possibility  of  his  receiving  an 

serves  Mr.  Justice  Thacher,  "  although  amount  even  equal  to  her  debts."    76. 

a  husband  runs  the  hazard  of  becom-  82.    Cater    v.    Eveleigh,    4    Desaus. 

ir»g  liable  for  his  wife  in  an  amount  (S.  C.)   19';  Young  v.  Smith,  9  Bush 

greater  than  the  value  of  the  estate  (Ky.)   421.     Upon  this  subject,  from 

lf\e  receives  by   her,  he   also   has  the  the  statutory  point  of  view,  see  post. 

chance  of  receiving  by  her  an  amount  83.    Molony    v.    Kennedy,    10    Sim. 

far  exceeding  her  debts.     But  where  254. 

the  whole  estate  of  a  wife,  notwith-  84.  Supra,  §  253. 

standing  coverture,  continues  separate  85.  Bercy  v.  Lavretta,  63  Ala.  374. 

to  her,  there  is  no   such  recompense  86.  Dinsmore  v.  Biggert,  9  Pa.  133. 

to  the  husband  for  his  obligation  for  87.  Proudley  v.  Fielder,  2  Myl.  &  K. 

his  wife's  debts,  but  on  the  contrary,  57;  'Dniry  v.  Scott,  4  You.  &  Coll.  Ch. 

there  may  be  a  certainty  of  his  be-  264 ;  Stead  v.  Clay,  1  Sim.  294. 


285 


EQUITABLE    SEPAKATE    ESTATE. 


§    270 


of  hers  which  may  remain  at  her  decease.^*  And  it  seems  clear 
that  the  husband  may  be  tenant  by  the  curtesy,  as  usual,  if  not 
expressly  excluded  from  all  marital  interest.®^  The  husband  sur- 
viving his  wife  has  the  same  rights  in  her  separate  estate,  as  in  her 
other  property,  even  though  another  be  appointed  administrator.®" 
And  yet  if  the  husband,  on  survivorship,  is  entitled  to  his  wife's 
separate  personal  estate  by  virtue  of  his  marital  rights,  he  must, 
in  order  to  obtain  it  from  others,  and  have  a  firm  title  against 
creditors,  take  out  letters  of  administration,  as  American  cases 
hold, —  at  least  where  ante-nuptial  debts  of  the  wife  have  not  been 
recovered  during  marriage 


91 


§  270.  What  Will  Bar  Husband's  Rights. 

The  wife  may  defeat  her  husband's  claim  after  her  death  by 
exercising  her  power  of  disposition  during  her  lifetime, —  a  power 
which  is  recognized  in  a  married  woman  so  far  as  her  separate 
property  is  concerned.®"  So,  too,  by  the  terms  of  the  trust,  the 
husband's  rights  on  her  decease  may  be  prevented  from  attaching. 
Thus,  where  a  wife  entitled  to  separate  property  for  life,  under  a 
settlement  which  directed  that  all  the  trust  property  and  all  the 
income  thereof  "  remaining  unapplied  "  at  her  death  should  go  in 
a  certain  manner,  left  her  husband  some  years  before  her  death; 
and  the  trustees  received  the  income  regularly,  and  paid  it  into  a 
bank  in  their  own  names,  with  her  privity,  making  remittances  to 
her  as  she  required  money ;  and  upon  the  wife's  death  the  sum  of 
£888  M'as  found  among  her  effects,  and  a  balance  of  £2,049 
accumulated  income  stood  to  the  credit  of  the  trustees  in  the  bank ; 
it  was  held  by  the  Vice-Chancellor  of  England  that  the  former 
went  to  the  sur\'iving  husband  by  virtue  of  his  marital  right,  while 
the  latter  was  bound  by  the  trusts  of  the  deed  as  the  result  of 
income  "  remaining  unapplied  "  at  her  death.®^ 


88.  Macq.  Hus.  &  Wife,  285; 
Peachey,  Mar.  Settl.  278;  Sloper  v, 
Cottrell,  6  El.  &  Bl.  501;  Bird  v. 
Pegrum,  13  C.  B.  650;  s.  c,  17  Jur. 
579. 

89.  Lushington  v.  Sewell,  1  Sim. 
548;  Eoberts  v.  Dixwell,  1  Atk.  606, 
per  Lord  Hardwicke;  Macq.  Hus.  & 
Wife,  287;  Appleton  v.  Eowley,  L.  K. 
8  Eq.  139;  Cooper  v.  ^Nracdonald,  L.  R. 
7  CIi.  D.  288.  Otherwise,  where  by  the 
terms  of  the  separate  use  the  husband 


is  excluded  from  curtesy.     Moore  v. 
Webster,  L.  R.  3  Eq.  267. 

90.  Spann  v,  Jennings,  1  Hill  Ch. 
(N.  Y.)  325;  Good  v.  Harris,  2  Ired. 
Eq.  (N.  C.)  630;  McKay  v.  Allen,  6 
Yerg.  (Tenn.)  44.  And  see  Cooney  v. 
Woodbum,  33  Md.  320,  where  wife 
left  no  issue  surviving. 

91.  McKay  v.  Allen,  6  Yerg.  (Tenn.) 
44. 

92.  Macq.  Hus.  &  Wife,  285.  This 
will  presently  be  considered  further. 

93.  Johnstone  v.  Lumb,  15  Sim.  308. 


§  271  HUSBAND  AND  WIFE.  28$ 

§  271.  Effect  of  Estate  on  Husband's  Marital  Obligations. 

It  would  appear  to  be  the  English  doctrine  that  the  marital 
obligations  of  the  husband  are  not  essentially  altered  by  her  right 
to  separate  property.  Thus,  it  is  held  that  the  wife  is  not  bound 
to  maintain  her  husband  out  of  her  separate  fortune,  nor  to  bring 
any  part  of  it  into  contribution  for  family  purposes.^*  And  there 
seems  to  be  no  legal  authority  to  support  the  notion  that  the  hus- 
band's liabilities  on  her  general  debts  are  thereby  altered  during 
their  joint  lives.^^  The  common-law  liabilities  of  the  husband, 
to  be  sure,  rest  in  great  measure  upon  his  right  to  his  wife's 
property;  yet  we  may  admit  that  it  would  be  difficult  to  adjust 
any  new  rule  except  upon  partnership  principles.  If  one  marries 
a  rich  wife,  therefore,  who  chooses  to  hoard  her  savings  by  herself, 
bequeath  all  to  others,  and  compel  him,  a  poor  man,  to  pay  for 
everything  she  or  the  children  need,  all  their  lives,  he  assuming  her 
antenuptial  debts  besides,  it  is  possible  that  even  equity  will  deny 
him  relief.  We  here  suppose  that  neither  legislation  nor  the 
wife's  own  disposition  of  her  separate  property  affects  the  question. 

Moreover,  the  wife  is  not  bound  to  maintain,  educate,  or  provide 
for  her  children  out  of  her  separate  property;  and  even  though 
she  elope  from  her  husband,  equity  will  not  lay  hold  of  her  estate 
for  that  purpose.  This  is  a  settled  point  in  England,  unless  the 
legislature  shall  change  the  law  hereafter ;  for  the  House  of  Lords 
so  decided  in  Hodgden  v.  Hodgden,  on  appeal  from  the  lower  court 
of  chancery,  and  imder  the  advice  of  Lord-Chancellor  Cottenham.®® 

And  yet,  whenever  a  settlement  of  the  wife's  equity  is  decreed, 
where  the  husband  or  his  legal  representative  seeks  to  recover  for 
himself  her  choses  in  action,  the  children  of  the  marriage  are 
included  within  its  benefits ;  though,  to  be  sure,  the  wife  may 
waive  the  claim  altogether  without  reference  to  them.^^ 

The  English  doctrine  that  the  wife's  separate  estate  is  not  neces- 
sarily liable  for  her  own  general  or  antenuptial  debts  is  also 
admitted  in  the  United  States.  Thus  it  is  Jield  in  New  York  that 
the  only  ground  on  which  the  wife's  separate  property  can  be 
reached  for  her  antenuptial  debts  is  that  of  appointment ;  that  is, 
some  act  of  hers  after  marriage  which  indicates  an  intention  to 
charge  the  property.^* 

94.  Lamb  v.  Milnes,  5  Ves,  520.  97.  See  supra,  as  to  the  wife 's  equity 

95.  See   Maeq.   Hus.   &   Wife,   288.       to  a  settlement,  §  175. 

In  re  Baker's  Trusts,  L.  R.   13  Eq.  98.  Vanderheyden     v.     Mallory,     1 

J68.  Comst.  452. 

96.  4  CI,  &  Fin.  323,  reversing  the 
decree  of  the  court  below. 


287  EQUITABLE    SEPARATE    ESTATE.  §    273 

In  general  the  husband's  obligation  to  maintain  his  wife  and 
family  remains  unaffected  by  the  fact  that  the  wife  holds  separate 
property.  This  rule  is  fully  asserted  in  New  York.  For  it  is 
declared  that,  though  by  a  marriage  settlement  the  wife's  whole 
property  is  secured  to  her  separate  use,  her  husband  is  neverthe- 
less bound  to  maintain  her,  and  cannot  make  the  expenses  a  charge 
on  her  separate  estate.  Nor  can  the  admissions  of  the  wife,  dur- 
ing coverture,  that  the  expenses  were  to  be  borne  by  her  separate 
estate,  be  set  up  by  the  husband  to  impair  her  right,  under  the 
settlement.®^  "  The  utmost  I  can  do  in  this  case,"  observed  Chan- 
cellor Kent,  "is  to  allow  the  husband  to  be  credited  with  any 
necessary  reparations  bestowed  by  him  on  any  part  of  her  estate, 
and  with  any  particular  specific  appropriation  of  her  property 
(not  being  for  the  ordinary  maintenance  of  her  or  his  family) 
which  may  have  been  made  by  her  special  assent  and  direction  in 
the  given  case,  and  apparently  for  her  benefit."  ^ 

§  272.  Rights  of  Bona  Fide  Purchasers  from  Husband. 

It  is  possible  that  a  provision  for  the  wife's  separate  use  may 
fail,  as  against  third  parties,  bona  fide  purchasers,  wherever  the 
husband  can  dispose  of  the  property  without  their  having  notice 
of  the  trust.^ 

§  273.  Restraint  on  Anticipation  or  Alienation. 

The  clause  of  restraint  upon  anticipation  is  an  important  ele- 
ment in  the  doctrine  of  the  wife's  separate  use,  as  administered  in 
England.  This  clause  was  sanctioned  by  Lord  Thurlow,^  and  is 
frequently  to  be  met  with  in  modern  conveyances;  and  is  pro- 
nounced by  Mr.  Macqueen,  and  by  eminent  English  jurists,  a 
salutary  clause  which  takes  from  the  wife  the  power  of  bringing 
ruin  upon  herself;  though  it  is  manifestly  in  form  a  fetter  upon 
the  trust  estate,  while  the  wisdom  of  its  establishment  in  any  case 
depends  upon  the  folly  of  the  beneficiary."  With  a  perfect  liberty 
of  disposal,  the  danger  arose  that  tbe  wife  might  be  persuaded  to 
part  with,  or  charge  her  separate  property,  even  against  her  better 

99.  Meth.  Ep.  Church  v.  Jaques,  1  2.   Parker   v.   Brooke,   9   Ves.   583; 

Johns.  Ch.   (N.  Y.)  450.  Macq.  Hus.  &  Wife,  291. 

1.  lb.   It  may  be  said  that  the  above  3.  IVIiss  Watson 's  Case.    See  Pybus 

case  arose  out  of  an  antenuptial  con-  v.  Smith,  3  Bro.  C.  C.  340,  n.     This 

tract  between  husband  and  wife,  and  doctrine    was    afterwards    affirmed    in 

that  the   court  merely   restrained  the  Jackson  v.  Hobhouse,  2  iter.  4S7,  by 

husband   from   setting  aside  his  own  Lord  Eldon. 

bargain.  4-  See  Macq.  Hus.  &  Wife,  312. 


§  273  HUSBAND  AND  WIFE.  288 

judgment,  througli  the  secret  and  subtle  influences  which  her 
husband  might  bring  to  bear  upon  her.  But  by  the  clause  against 
anticipation,  the  wife's  hands  are  tied  up ;  she  has  not  the  power 
of  alienating  or  encumbering  the  property ;  and  the  donor  can 
place  his  gift  beyond  the  possibility  of  matrimonial  contention. 
The  restraint  upon  anticipation  not  only  applies  to  personal  prop- 
erty, but  extends  even  to  landed  property,  notwithstanding  the 
common-law  methods  by  which  the  wife  may  ordinarily  alienate 
and  encumber  such  estate ;  so  that  a  person  may  now  devise  lands 
to  a  married  woman  in  fee-simple  in  such  a  manner  as  to  disable 
her  during  coverture  from  making  any  sale,  mortgage,  charge,  or 
encumbrance  whatever  to  take  effect  against  it.^  It  applies  equally 
to  estates  for  life  or  in  fee.* 

The  name  of  this  important  clause  originates  in  the  circum- 
stances under  which  it  was  first  applied.''  The  general  purport  of 
this  expression  is  that  the  wife  shall  be  prohibited  the  anticipation 
of  the  income  of  her  separate  property  or  the  anticipation  of  the 
capital  of  the  fund.  Yet  the  word  "  anticipation  "  need  not  be 
used  in  clauses  of  this  sort,  nor  is  any  particular  form  of  expres- 
sion necessary.*  This  restraint  will  not  prevent  a  husband  from 
receiving  his  wife's  separate  income,  nor  render  his  estate  liable 
for  more  than  one  year's  income,  nor,  in  general,  interfere  with 
arrears  of  income ;  but  it  prevents  anticipating  income  on  her  part, 
and  subjecting  to  her  dominion  or  her  liabilities  the  capital  or 
income  which  is  not  yet  payable.^ 

Like  the  separate  use  itself,  this  clause  of  restraint  on  anticipa- 
tion exists  only  in  the  marriage  state;  and  property  vested  in  a 
single  woman  she  may  dispose  of  absolutely,  despite  such  limita- 

5.  Bagget  v.  Meux,  1  Phil.  627,  per  Macq.  Hus.  &  Wife,  314,  n.;  Steedman 
Lord  Lyndhurst;  1  Coll.  138;  Macq.  v.  Poole,  6  Hare,  193 ;  Parkes  v.  White, 
Hug.  &  Wife,  312;  Peachey,  Mar.  11  Ves.  222 ;  Clark  v.  Pister,  3  Bro.  C. 
Settl.  284.  Nor  can  she  join  her  hus-  C.  346,  cited  in  Pybus  v.  Smith;  Bar- 
band  in  a  power  of  attorney  to  re-  rymore  v.  Ellis,  8  Sim.  1;  Brown  v. 
ceive  or  sue  for  moneys  tied  up  by  this  Bamford,  1  Phil.  620 ;  Field  v.  Evans, 
clause.  Kendrick  v.  Wood,  L.  R.  9  15  Sim.  375 ;  Baker  v.  Bradley,  2  Jur. 
Eq.  333.  (iSr.  S.)  104;  Peachey,  Mar.  Settl.  287, 

8.  7b.  288,  and  cases  cited;  Harrop  v.  How- 

7.  See  Pybus  v.  Smith,  3  Bro.  C.  C.  ard,  3  Hare,  624 ;  Harnett  v.  Mc- 
340;  Jodrell  v.  Jodrell,  9  Beav.  59.  Dougall,  8  Beav.  187;  Acton  v.  White, 

8.  Per  Lord  Cranworth,  In  re  Ross's  1  Sim.  &  Stu.  429. 

Trust,  1  Sim.  199;  Doolan  v.  Blake,  3  9.  See  Rowley  v.  Unwin,  2  K.  &  J. 

Ir.  Ch.  349;  Peachey,  Mar.  Settl.  287.  138;  i?e  Brettle,  2  De  G.  J.  &  S.  79; 

See  further,  Moore  v.  Moore,  1  Coll.  Lewin  Trusts,  556,  5th  ed. 
57 ;   Tullett  v.  Armstrong,  1  Beav.  1 ; 


289  EQUITABLE    SEPARATE    ESTATE.  §    273 

tion,  so  long  as  she  remains  unmarried;  but  upon  her  coverture, 
while  retaining  such  property,  the  separate  use  and  the  restraint 
upon  anticipation  attach  and  become  effective  together,  cease 
together  upon  her  widowhood,  and  revive  together  upon  her 
remarriage/" 

But  the  restraint  on  anticipation  does  not  exempt  a  married 
woman  from  the  ordinary  consequences  of  lapse  of  time  and  acqui- 
escence.^^ That  fetter  upon  alienation  was  imposed  for  her  pro- 
tection against  her  husband,  but  was  not  intended  to  exonerate 
her  from  the  obligation  of  asserting  her  claim  within  a  reasonable 
period.  Indeed,  it  is  but  reasonable  that,  as  a  court  of  equity 
creates  and  models  the  separate  estate,  the  estate  so  created  and 
modelled  should  be  subject  to  the  ordinary  rules  of  the  court.^^ 
But  the  court  cannot  mould  at  will  the  restraint  upon  anticipation, 
though  the  language  used  by  some  of  the  earlier  judges  would  seem 
to  indicate  otherwise;  nor  get  rid  of  it  even  where  alienation 
would  be  advantageous  for  the  married  woman;  moreover,  while 
the  power  to  impose  restraint  on  anticipation  is  a  mere  creature 
of  the  court,  the  restraint  itself  is  always  imposed  by  the  author, 
the  settlor  of  the  gift.^^  It  is  held  in  this  country  that  if  a  mar- 
ried woman  having  a  separate  estate  survives  her  husband,  the 
restrain'ts  upon  the  disposal  of  the  estate,  inconsistent  with  its 
general  character,  cease  with  the  coverture."  Moreover,  in  Penn- 
sylvania it  is  held  that  they  do  not  revive  on  her  second  marriage,^'' 

10.  Tullett  V.  Armstrong,  1  Beav.  1 ;  stance,  a  wife 's  pension.  Re  Peacock  '3 
4  Myl,  &  Cr.  377 ;  Macq.  Hus.  &  Wife,  Trusts,  L.  R.  10  Ch.  D.  490.  An  in- 
313;  Clarke  v.  Jaques,  1  Beav.  36;  genious  attempt  was  lately  made  in 
Dixon  V,  Dixon,  1  Beav.  40.  English  chancery  to  allow  a  married 

11.  Restraint  on  anticipation  is  bad  woman,  restrained  from  anticipation, 
when  it  tends  to  a  perpetuity.  Buck-  to  anticipate.  Pike  v.  Fitzgibbon,  L. 
ton  V.  Hay,  27  W.  R.  527.  R.  14  Ch.  D.  837.    It  failed  on  appeal, 

12.  Derbyshire  v.  Home,  3  De  G.  M.  and  the  strict  rule  was  reasserted. 
&  G.  113.  s.    c,    app.    29    W.    R.    551.      As    to 

13.  Robinson  v.  Wheelwright,  21  whether  restraint  on  anticipation  may 
Beav.  220;  s.  c.  on  appeal,  6  De  G.  bar  an  entail  and  deprive  husband  of 
M.  &  G.  535;  2  Jur.  (N.  S.)  554.  See  curtesy,  see  Cooper  v.  Macdonald,  L. 
Peaehey,  Mar.  Settl.  289 ;  Fitzgibbon  R,  7  Ch.  D.  288. 

V.  Blake,  3  Ir.  Ch.  328.    Income  which  14.   Smith   v.   Starr,   3   Whart.    62; 

a  wife  is  restrained  from  anticipating  Pooley  v.  Webb,  3  Cold.  (Tenn.)  599; 

will  not  be  applied  to  make  good  the  Thomas  v.  Harkness,  13  Bush  (Ky.), 

consequences  of  her  fraud.    Arnolds  v.  23. 

Woodhams,  L.  R.  16  Eq.  29.  15.  Hamersley  v.  Smith,  4  Whart. 

A  separate  trust  may  be  rendered  (Pa.)  126. 
forfeitable  on  assignment;  as,  for  in- 

19 


§  273  HUSBAND  AND  WIFE.  290 

though  this  is  contrary  to  the  general  rule  of  equity,  unless  the 
trust  was  plainly  confined  to  a  particular  husband  or  particular 
coverture/® 

American  courts  have  seldom  to  consider  clauses  of  restraint 
against  anticipation  or  alienation/^  a  subject  which  the  English 
chancery  courts  have  considered  at  much  length.  Restraining  a 
wife's  power  to  deal  with  her  separate  property  seems,  in  American 
policy,  too  much  like  denying  her  a  separate  property.  Yet  there 
are  good  grounds  for  such  constraint;  and  in  various  instances 
our  State  courts  find  occasion  to  recognize  such  clauses.  The 
restraint  is  held,  as  in  England,  to  apply  equally  to  real  or  per- 
sonal property,  and  to  estates  in  fee  or  for  life.^*  It  will  come 
into  operation,  like  the  separate  use  to  which  it  is  attached,  where 
a  woman  m'arries ;  but  it  exists  only  in  the  marriage  state,  since 
one  sui  juris  is  unrestrainable  by  any  such  means  from  exercising 
the  ordinary  rights  of  ownership,  whether  widow  or  maiden.^* 
And  while  she  may  be  restrained  by  language  of  the  instrument 
under  which  her  title  is  acquired,  amounting  to  a  clause  restrain- 
ing antitcipation,  for  inst/ance,  yet  the  intention  to  restrain  her 
must  be  clearly  expressed ;  or  else  she  may  deal  with  the  property 
as  she  pleases,  either  by  acts  iiiter  vivos  or  by  testamentary 
appointment."" 

The  clause  of  anticipation,  which  is  such  a  favorite  in  English 
chancery,  under  instruments  drawn  for  the  creation  of  a  separate 
use,  is  seldom  applied  in  American  oases ;  ^^  but  in  absence  of  all 
such,  technical  clauses,  our  general  rule  is  that  the  wife,  unless 
specially  restrained  by  the  terms  of  the  trust  under  which  she 
acquired  her  equitable  separate  property,  may  dispose  of  it  at 
pleasure.  Jaques  v.  Methodist  Episcopal  Church  went  so  far  as 
to  rule  that,  though  a  particular  mode  of  disposition  be  specifically 
pointed  out  in  the  instrument,  this  will  not  preclude  the  wife  from 

16.  Shirley  v.  Shirley,  9  Paige  (N.  There  must  be  a  clear  and  unequiv- 
Y.),  364;  Beaufort  v.  Collier,  6  ocal  expression  of  intent  to  restrain 
Humph.  (Tenn.)  487;  Waters  v,  ihe  jus  disponendi.  A  declaration  that 
Tazewell,  9  Md.  291 ;  2  Perry  Trusts,  the  property  shall  not  be  liable  for 
§  652.  her  debts,  etc.,  is  insufficient.    Witsell 

17.  Supra.  v.  Charleston,  7  S.  C.  88;  Eadford  v. 

18.  Freeman  v.  Flood,  16  Ga.  528;  Carwile,  13  W.  Va.  572. 

dicta    in    Wilburn    v.    McCalley,    63  20.    Rich    v.    Cockell,    9    Ves.    639; 

Ala.  436;  Burnett  v.  Hawpe,  25  Gratt.  Moore  v.  Morris,  4  Drew.  38;  Darkin 

(Va.)   481.  V.    Darkin,    17    Beav.    581;    Caton    v. 

19.  Wells  V.   McCall,   64    Pa.    207;  Rideout,  1  Mac.  &  Gord.  601. 
Parker  v.  Converse,  5  Gray   (Mass.),  21.  Post,   §   490  et  seq. 
336. 


291 


EQUITABLE    SEPARATE    ESTATE. 


§  273 


adopting  any  other  mode  of  disposition  unless  she  has  been,  by 
express  language  of  the  trust,  specially  restrained  to  that  particu- 
lar mode.""  In  this  latter  doctrine  Chancellor  Kent  (whose  judg- 
ment in  the  lower  court  had  been  reversed"^)  did  not  concur, — 
adopting  the  more  conservative  view  with  reference  to  such  restric- 
tions. The  distinction  is  rather  a  nice  one,  and  successive 
American  decisions  in  other  States  have  generally  sustained  the 
Chancellor's  views,  which  seem  indeed  most  consonant  to  reason 
and  the  intent  of  such  trusts;  but  the  cases  are,  on  the  whole, 
conflicting,  and  not  very  conclusive.^* 

Both  English  and  American  precedents  agree  in  the  converse 
principle,  that  if,  by  the  terms  of  the  trust,  the  wife  is  expressly 
restrained  to  a  particular  mode  of  dealing  with  the  separate  fund. 


22.  Jaques  v.  Methodist  Episcopal 
Church,  17  Johns.  (N.  Y.)  548;  Meth- 
odist Episcopal  Church  v,  Jaques,  1 
Johns.  Ch.  (N.  Y.)   450;  3  ib.  77. 

23.  3  Johns.  Ch.  (N.  Y.)  77.  The 
point  contended  for  by  the  Chancellor, 
but  disapproved  on  appeal,  was,  that 
if  a  wife  has  power  expressly  con- 
ferred to  dispose  by  deed  in  concur- 
rence with  her  husband,  or  by  will 
without  it,  her  receipt  "  alone  "  to 
be  a  sufficient  discharge  as  to  rents, 
issues,  and  profits;  the  wife  cannot 
appoint  by  deed,  or  charge  the  prop- 
erty by  her  sole  bond,  note,  parol 
promise,  etc. 

Hoar,  J.,  in  Willard  v.  Eastham,  15 
Gray  (Mass.),  328,  observes,  by  way 
of  dictum,  that  "the  general  current 
of  American  authorities  supports  the 
principle  that  a  married  woman  has 
no  power  in  relation  to  her  separate 
estate  but  such  as  is  expressly  con- 
ferred in  the  creation  of  the  estate; 
and  that  her  separate  estate  is  not 
chargeable  with  her  debts  or  obliga- 
tions, unless  where  a  provision  for 
that  purpose  is  contained  in  the  in- 
strument creating  the  separate  es- 
tate." If  by  this  is  meant  that  the 
wife 's  power  of  disposition  must  be 
expressly  conferred  in  order  to  op- 
erate the  statement  appear  very  far 
from  accurate,  and  is  by  no  means 
what  Chnncollor  Kent  contended  for 
in  the  above  case.    In  2  Perry  Trusts, 


§§  655-663,  the  same  idea  is  expressed, 
probably  upon  the  authority  of  the 
Massachusetts  court. 

24.    See    Tullett    v.    Armstrong,    1 
Beav.   1,  at  length,   for  the   English 
doctrine.     For  American  authorities, 
see  2  Kent  Com.  165,  166,  and  cases 
cited  in  last  edition;  also  the  follow- 
ing which  appear  to  favor  Chancellor 
Kent's  rule:   Shipp  v.  Bowmar,  5  B. 
Mon.    (Ky.)    163;    Tarr  v.   Williams, 
4  Md.  Ch.  68 ;  Nix  v.  Bradley,  6  Rich. 
Eq.    (S.   C.)    53;    Wylly  v.  Collins,   9 
Ga.   233;   Doty  v.  Mitchell,  9   Sm.   & 
M.    (Miss.)    435;   Morgan  v.  Elam,  4 
Yerg.  (Tenn.)  375;  MeClintic  v.  Ochil- 
tree,   4    W.    Va.    249^;    Lancaster    v. 
Dolan,  1  Eawle  (Pa.),  231;   Sherman 
V.  Turpin,  7  Cold.  (Tenn.)  382;  Met- 
calf  V.  Cook,  2  R.  I.  355;  Porcher  v. 
E€id,  12  Rich.  Eq.  (S.  C.)   349;  Har- 
ris V.  Harris,  7  Ired.  Eq.  (N.  C.)  Ill; 
Hume  V.  Hord,  5  Gratt.    (Va.)    374; 
Hicks     V.     Johnston,     24     Ga.     194; 
Andrews  v.  Jones,  32  Miss.  274;  Leay- 
craft  V.  Hedden,  3  Green  Ch.  (N.  J.) 
512;  Penn.  Co.  v.  Foster,  35  Pa.  134; 
Chew    V.    Beall,    13    Md.    348.       But 
Kimm    v.    "Weippert,     46     Mo.     532; 
Machir    v.    Burroughs,    14    Ohio    St. 
519,  bear  in   favor   of  the   more  lib- 
eral   rule    of    the    New    York    appel- 
late court.     As  to  a  deed  which  lim- 
its   the    wife's    power    to    mortgage, 
see  Maurer's  Appeal,  86  Pa.  380. 


§  274  HUSBAND  AND  WIFE.  292 

she  oannot,  even  by  proceedings  in  equity,  be  enabled  to  pursue 
any  other  inconsistent  mode.^^ 

§  274.  Wife's  Power  to  Dispose  of  or  Charge  Separate  Estate  in 
General;  In  England. 

The  right  to  enjoy  property  carries  with  it,  universally,  as  a 
necessary  incident,  the  right  of  its  free  disposal.  All  other  things 
then  being  equal,  we  shall  expect  to  find  that  married  women, 
when  allowed  to  hold  estate  to  their  separate  use,  are  permitted 
to  sell,  convey,  give,  grant,  bargain,  or  otherwise  dispose  of  it; 
and  further,  to  encumber  it  with  their  debts  as  they  please.  Pub- 
lic policy  may,  however,  restrain  their  dominion.  We  shall  treat 
of  the  English  equity  rule  on  this  subject,  noting,  as  we  proceed, 
whether  the  American  equity  rule  differs  in  any  respect.  In  short, 
our  first  discussion  relates  to  the  wife's  dominion  over  her  equitable 
separate  property.  The  wife's  dominion  over  statutory  separate 
property,  or  that  held  under  our  Married  Women's  Acts,  will  be 
reserved  for  a  later  chapter. 

The  clause  of  restraint  upon  anticipation  or  alienation,  and  its 
important  effect  upon  the  wife's  power  of  disposal,  we  have  already 
dwelt  upon.  Apart  from  this,  in  England  it  is  the  general  rule, 
so  far  at  least  as  concerns  personal  property,  that  from  the  moment 
the  wife  takes  the  property  to  her  sole  and  separate  use,  from  the 
same  moment  she  has  the  sole  and  separate  right  to  dispose  of  it; 
for,  upon  being  once  permitted  to  take  personal  property  to  her 
separate  use  as  a  feme  sole,  she  takes  it  with  all  its  privileges  and 
incidents,  including  the  jus  disponendi.^^ 

Her  power  of  disposition  is  not  confined  to  interests  vested  in 
possession,  but  extends  to  reversionary  interests  settled  to  her 
separate  use."  While  the  property  continues  to  be  for  her  sole 
and  separate  use,  she  is  entitled  to  the  same  protection  against  her 
busband's  interference  that  a  single  woman  would  have  against  a 
stranger,  and  this  right  passes  to  her  assignee  under  any  assign- 
ment excluding  her  husband's  dominion  which  she  may  have 
rightfully  made.^* 

25.  Ross   V.   Ewer,    2    Atk.    156;    2  Macq.  Hus.  &  Wife,  295;    Sturgis  v. 
Perry  Trusts,  §  655.  Corp,  13  Ves.  192;  Headen  v.  Rosher, 

26.  Fettiplace  v.  Gorges,  1  Ves.  .Jr.  1  McCl.  &  Y.  89;   Donne  v.  Hart,  2 
48;    3   Bro.   C.   C.   9;    Peachey,  Mar.  Russ.  &  M.  360, 

Settl.   261,  262.     See  20  &  21  Vict.,  28.   Allen   v.  Walker,  L.   R.   5  Ex. 

ch.   57,  the  "reversionary  act.'*  187. 

27.  2   Bright,   Hus.   &   Wife,   222; 


293  EQUITABLE    SEPAEATE    ESTATE.  §    275 

§  275.  In  the  United  States. 

In  this  couniry,  whenever  the  wife's  separate  use  has  been 
admitted  as  a  docrrine  of  equity,  independently  of  statute,  her 
right  of  dominion  has  also  been  recognized.  The  celebrated  Xew 
York  case  of  Jaqiies  v.  Methodist  Episcopal  Church,  which  may 
justly  be  placed  foremost  among  the  very  few  important  American 
chancery  decisions  of  this  class,  established  that  a  feme  covert, 
with  respect  to  her  separate  estate,  and  especially  her  personal 
property,  was  to  be  regarded  in  equity  as  a  feme  sole,  so  that  she 
might  dispose  of  it  at  pleasure,  except  so  far  as  expressly  denied 
or  restrained  by  the  terms  of  the  instrument  which  created  the 
trust.^^  ISTumerous  American  cases  also  rule,  comformably  with 
English  precedents,  that  a  married  woman  may,  by  her  contracts 
or  engagements,  bind  her  separate  property,  it  being  sufficient  that 
there  was  an  intention  to  charge  her  separate  estate ;  and  further, 
that  by  contracting  a  debt  during  coverture  she  furnishes  a  pre- 
sumption of  that  intention,  since  otherwise  her  contract  must  have 
been  worthless  to  her  creditor.^"  In  general,  however,  it  is  to  be 
observed  that  the  American  equity  doctrine  of  the  wife's  power  to 
charge  her  separate  estate,  independently  of  the  Married  Women's 
Acts,  has  fluctuated  somewhat,  as  have  likewise  the  English  cases, 
and  that  not  only  do  American  courts  find  difficulty,  like  those  of 
England,  in  encountering  cases  where  the  liability  incurred  was 
disadvantageous  to  the  wife,  and  at  the  same  time  not  clearly 
charged  by  her  on  her  separate  property ;  but  this  further  source 
of  perplexity  appears  moreover,  namely,  that  local  legislation,  in 
these  later  years,  places  the  rights  of  married  women  on  quite  a 
novel  footing.  Some  States  favor  a  stricter  rule;  in  few  States, 
indeed,  did  the  subject  receive  much  development  prior  to  the 
second  half  of  this  century;  while  the  policy  of  the  Married 
Women's  Acts  themselves,  in  most  jurisdictions,  must  be  opposed 
to  making  such  legislation  disadvantageous  to  her  interests.   Hence 

29.  Jaques  v.  Methodist  Episcopal  Ga.    200;    Braford    v.    Greenway,    17 

Church,  17  Johns.  (N.  T.)  54S;  Meth-  Ala.  805;  Shipp  v.  Bowmar,  5  B.  Mon. 

odist  Episcopal  Church  v.  Jaques,  1  (Ky.)    163;    Kirwin  v.  Weippert,  46 

Johns.   Ch.    (N.   Y.)    450;    3   ib.   77;  Mo.  532. 

2    Kent.    Com.    164;     McChesney    v.  30.    2    Kent    Com.    164,   and    cases 

Bro\vn,  25  Gratt.   (Va.)   393;  Patton  cited;  Fire  Ins.  Co.  v.  Bay,  4  Comst. 

V.  Charlestown  Bank,  12  W.  Va.  587;  9;  Vanderheyden  v.  Mallory,  1  Comst. 

Wells    V.    Thorman,    37    Conn.    319;  452;  2  U.  S.  Eq.  Dig.  Hus.  &  Wife, 

Leaycraft  V.  Hedden,  3  Green  Ch.  (N.  19;    Dallas    v.    Heard,    32    Ga.    604; 

J.)  512;  Newlin  v.  Freeman,  4  Ired.  Withers  v.  Sparrow,  66  N.  C.  129. 
Eq.  (N.  C.)  312;  Fears  v.  Brooks,  12 


§    275  HUSBAJfD    AND    WIFE.  294 

a  course  of  precedents,  of  later  years,  hardly  less  abstruse  and 
irreconciliable  than  those  of  the  English  chancery,  but  somewhat 
independent  of  them.  This  doctrine  may  better  be  studied  at 
length  in  a  later  chapter,  in  connection  with  legislative  changes 
affecting  the  wife's  right  of  disposition  in  this  country.  To  this 
extent,  however,  American  courts  occupy  sure  and  uniform  ground, 
namely,  that  while  a  married  woman  may  not  be  bound  personally 
by  her  contract,  the  rule  under  the  statutes  and  independently  of 
them  ^^  is,  that  when  services  are  rendered  her  by  her  procurement, 
or  she  contracts  a  debt  generally,  on  the  credit  and  for  the  benefit 
of  her  separate  estate,  there  is  an  implied  agreement  and  obligation 
springing  from  the  nature  of  the  consideration,  which  the  courts 
will  enforce  by  charging  the  amount  on  her  separate  property  as 
an  equitable  lien.^^ 

In  American  chancery  courts,  in  fact,  the  charging  of  the  wife's 
separate  estate  by  equity  proceedings  is  presented  with  reference 
sometimes  to  her  equitable,  and  sometimes  to  her  statutory,  sep- 
arate estate.  In  some  States  the  complete  jurisdiction  of  trusts 
for  separate  use  is  the  creature  of  recent  statute.^^  In  others,  the 
rule  is  deliberately  admitted,  in  chancery,  to  differ  as  to  statutory 
and  equitable  separate  estate.^*  In  others,  once  more,  chancery 
seeks,  and  with  true  consistency,  to  apply  one  and  the  same  prin- 
ciple where  it  takes  jurisdiction  of  separate  estate  at  all.  The 
discrepancy  of  all  these  American  authorities  relates  chiefly  (1)  to 
determining  the  liability  of  the  wife's  equitable  or  statutory  sep- 
arate estate  for  debts  and  engagements  not  beneficial  to  the  wife 
herself,  or  to  the  estate,  but,  if  at  all,  for  her  husband's  or  a 
stranger's  benefit,  and  (2)  to  fixing  the  nature  of  the  evidence  of 
intention  required  for  such  charges.  The  equitable  rule  in  the 
United  States,  more  common  prior  to  the  Married  Women's  Acts, 
appears  to  have  been,  that  the  wife's  separate  estate  would  be  held 
liable  for  all  debts  which  she,  by  implication  or  expressly,  by 
writing  or  by  parol,  charged  thereon,  even  if  not  contracted  directly 
for  the  benefit  of  the  estate.^'^     But  such  is  by  no  means  the  rule 

31.  Wilson  V.  Jones,  46  Md.  349;  Dale  v.  Eobinson,  51  Vt.  20;  Eliott 
Cozzens  v.  Whitney,  3  R.  I.  79 ;  Harsh-       v.  Gower,  12  R.  I.  79. 

bergor  v.  Alger,  31  Gratt.  (Va.)  52.  33.  See  Hoar,  J.,  in  Willard  v.  East- 

32.  Whitesifles  v.   Cannon,  23   Mo.      ham,  15  Gray  (Mass.),  328. 

457;  Owen  v.  Cawley,  36  N.  Y.  600;  34.  Musson  v.  Trigg,  51  Miss.  172; 

Ballin  v.  Dillaye,  37  N.  Y.  35;  Arm-       Robinson  v.  O'Neal,  56  Ala.  541. 
strong  V.  Ross,  5  C.  E.  Green  (N,  J.)  35.  2  Kent,  Com.  164;  2  Story  Eq. 

109;  Buekner  v.  Davis,  29  Ark.  444;       Juris.,  §§  1398,  1401,  and  cases  cited; 

Ballin  v.  Dillaye,  37  N.  Y.  35. 


295 


EQUITABLE    SEPARATE    ESTATE. 


§  276 


today.  And  her  separate  estate  will  be  bound  by  any  debt  prop- 
erly contracted  by  her,  even  though  her  husband  should  be  the 
creditor.^^  The  estate  may  be  disposed  of  by  the  wife  in  her  will, 
free  from  curtesy  rights. 


37 


§  276.  Necessity  of  Concurrence  of  Trustees. 

Consistently  with  the  wife's  right  of  dominion  over  her  separate 
estate,  the  rule,  both  in  English  and  American  chancery  courts, 
is,  that  the  concurrence  of  the  trustee  of  the  fund  is  not  essential 
to  the  validity  of  her  disposition  thereof,^*  if  the  wife  is  given 
complete  powers  of  control  by  the  instrument  which  creates  the 
estate.^^  On  the  contrary,  if  she  has  the  absolute  beneficial  enjoy- 
ment of  the  fund  by  the  terms  of  the  trust  (there  being  no  clause 
in  restriction  of  her  power),  or  in  such  manner,  if  it  be  real  estate, 
that  the  statute  of  uses  would  execute  the  title  or  use  in  her,  she 
can  compel  the  trustee  to  make  immediate  conveyance  or  transfer 
to  her  of  the  trust  fund,  and  if  they  refuse  they  are  liable  to  costs.*" 
Even  if  the  gift  be  to  her  husband  or  for  his  benefit,  the  trustee 
must  transfer  and  give  legal  effect  to  the  alienation,  as  in  other 
instances  of  disposition  on  her  part,  reserving,  of  course,  the  right 
to  show  bad  faith  or  undue  influence  affecting  the  validity  of  the 
transfer  or  conveyance,  and  so  defeating  it.*'' 

But  if,  on  the  other  hand,  the  instrument  requires  the  written 
approval  of  the  trustee  expressed  in  a  certain  manner,  that  require- 
ment must  be  complied  with  to  make  even  the  joint  conveyance  of 
husband  and  wife  effectual,*^  and  it  is  incumbent  on  every  trustee 
to  see  that  all  restrictions  on  the  wife's  dominion  over  the  fund  are 
duly  respected.*' 


36.  Gardner  v.  Gardner,  7  Paige 
(N.  Y.),  112. 

37.  Kiracofe  v.  Kiracofe,  93  Va. 
5?1,  25  S.  E.  601. 

38.  Essex  v.  Atkins,  14  Ves.  552; 
Corgell  V.  Dunton,  7  Pa.  536 ;  Jaques 
V.  Methodist  Episcopal  Church,  17 
Johns.  (N.  Y.)  548. 

39.  Frank  v.  Lilienfeld,  33  Grat. 
(Va.)    377. 

40.  Clerk  v.  Laurie,  2  Hurl.  &  Nor. 
199;  Peachey,  Mar.  Settl.  292;  2 
Perry,  Trusts,  §  667 ;  Taylor  v.  Glan- 
ville,  3  Mad.  179';  North  American 
Coal  Co.  V.  Dyett,  7  Paige  (N.  Y.), 
1;  Gibson  v.  Walker,  20  N.  Y.  476. 
And    see    Lewis    v.    Harris,    4    Met. 


(Ky.)  353.  But  see  Noyes  v.  Blake- 
man,  2  Seld.  (N.  Y.)  567;  s.  c,  3 
Standf.  531,  as  to  the  effect  of  New 
York  statute  relative  to  the  declara- 
tion of  trusts. 

41.  Essex  V.  Atkins,  14  Ves.  542; 
Marrick  v.  Grice,  3  Nev.  52 ;  Stand- 
ford  V.  Marshall,  2  Atk.  69;  Knowles 
V.  Knowles,  86  111.  1. 

42.  Lindell  Real  Estate  Co.  v.  Lin- 
dell,  142  Mo.  61,  43  S.  W.  368;  Gclston 
V.  Frazier,  26  Md.  329.  See,  as  to 
lapse  of  time,  Frazier  v.  Gelston,  35 
Md.  298. 

43.  Hopkins  v.  Myall,  2  R.  &  M.  86 ; 
McCHntic  v.  Ochiltree,  4  W.  Va.  249. 
Under  strong  circumstances  of  equity. 


§  279  HUSBAND  AND  WIFE.  296 

§  277.  Form  and  Requisites  of  Deed. 

In  most  parts  of  the  United  States  a  married  woman  can  only 
dispose  of  her  real  estate,  whether  legal  or  equitable,  bj  a  convey- 
ance according  to  statute,  which  the  husband  executes  in  token  of 
assent;  a  partial  reason  for  this  being  that  the  husband  has  his 
rights  of  curtesy  even  in  lands  settled  to  his  wife's  separate  use.** 

§  278.  Of  Real  Estate. 

Where  the  wife's  separate  property  consists  of  real  estate,  her 
power  of  disposition  is  affected  by  technical  difficulties  as  to  the 
method  of  executing  conveyances.*^  But  it  has  been  suggested  in 
England  that,  according  to  the  principle  of  modern  equity  cases, 
the  heir  ought  to  be  treated  as  a  trustee,  in  case  the  wife  had  con- 
veyed her  beneficial  interest  by  deed  executed  by  herself  alone,  and 
that  thus  her  sole  conveyance  would  be  allowed  to  operate.*" 

§  279.  Of  Income  or  Profits. 

The  same  principle  applies  to  the  income  and  profits  and  rents 
of  the  wife's  separate  property.  The  wife  has  the  same  control 
over  her  savings  out  of  her  separate  estate  as  over  the  separate 
estate  itself ;  "  for,"  to  use  the  somewhat  involved  metaphor  of 
Lord  Keeper  Oowper,  so  often  quoted,  "  the  sprout  is  to  savor  of 
the  root,  and  to  go  the  same  way."  *^ 

Following  this  general  doctrine,  the  wife,  if  unrestricted  by  the 
terms  of  the  trust,  may  anticipate  and  encumber  rents  settled  apart 
for  her  separate  use.*^     But  where  the  trust,  by  suitable  expres- 

and  in  order  to  the  convenient  enjoy-  in  Macq.  Hus.  &  Wife,  29'6.    See  also 

ment  of  her  separate  property,  equity  Peachey,   Mar,   Settl.   267;    Harris  v. 

■will  allow  the  wife  to  enter  into  the  Mott,  14  Beav.  169. 
personal  enjoyment  of  rents  and  prof-  46.  Macq.  Hus.  &  Wife,  296,  297; 

its.      Horner  v.  Wheel^Tight,  2   Jur.  2  Story,  Eq.  Juris.,  §  1390,  and  cases 

(N.  S.)   367.  cited;  3  Sugd.  V.  &  P.  App.  62;  New- 

44.  Shipp  V.  Bowmar,  5  B.  Hon.  comen  v.  Hassard,  4  Ir.  Ch.  274; 
163;  Eadford  v.  Carwile,  13  W.  Va.  Burnaby  v.  Griffin,  3  Ves.  266; 
572;  2  Perry,  Trusts,  §  656;  supra,  Peachey,  Mar.  Settl,  268.  The  statute 
§§  175-180;  McChesney  v.  Brown,  25  referred  to  as  raising  technical  diffi- 
Gratt.  393 ;  Koltenback  v,  Cracraft,  culties  in  real  estate  is  3  &  4  WilL 
36  Ohio  St.  584;  Miller  v.  Albertson,  IV.,  ch.  74. 

73  Ind.  343.     But  in  New  York,  by  47.   Gore  v.   Knight,  2   Vern.   535; 

way    of   an    appointment,    a    married  s.  c,  Prec.  in  Ch.  255.     See  also  Mes- 

•woman    may    convey    such    interests  senger     v.     Clarke,     5     Exch.     392 ; 

without  the  joinder  of  her  husband.  Peachey,  Mar.   Settl.   262 ;    Newlands 

Albany  Fire  Ins.  Co.  v.  Bay,  4  Comst.  v.  Paynter,  10  Sim.  377;  s.  c.  on  ap- 

9.      See   Armstrong  v.  Ross,   5   C.   E.  peal,   4   M.  &  Cr.   408;    Humphery  v. 

Green,  109.  Eichards,  2  Jur.   (N.  S.)   432. 

45.  2  Roper,  Hna.  &  Wife,  182;  1  48.  Cheever  v.  Wilson,  9  Wall.  (U. 
Bright,  Hus.   &  Wife.   224.     See  Ex  S.)   108. 

parte  Ann  Shirley,  5  Bing.  226,  cited 


297 


EQUITABLE    SEPARATE    ESTATE. 


§    280 


sion,  restrains  the  wife  from  anticipation,  permitting  her  only  to 
receive  the  income  from  her  trustee  from  time  to  time  as  it  falls 
due,  she  cannot  anticipate  and  encumber  her  income.** 

Rents  and  profits  of  her  separate  land,  or  an  annuity  charged 
upon  land,  follow  the  more  liberal  rule  of  personal  property  held 
as  her  separate  estate,^"  unless  afterwards  converted  into  land." 

§  280.  Contracts  Relating  to  Separate  Estate  in  General. 

As  a  corollary  to  our  proposition  the  wife  may  enter  into  con- 
tracts with  reference  to  her  separate  property  in  like  manner,  and 
with  nearly  the  same  effect,  as  a  feme  sole.  Formerly  it  was 
otherwise;  and  for  a  long  period  the  English  courts  of  equity 
refused  to  married  women  having  separate  estate  the  power  to 
contract  debts.^"  But  the  unfairness  of  permitting  a  wife  to  hold 
and  enjoy  her  separate  property  after  she  had  incurred  debts 
specifically  upon  the  faith  of  it  soon  became  evident,  as  well  as 
the  inconvenience  she  suffered  in  being  unable  to  find  credit  where 
she  meant  to  deal  fairly.  So  the  courts  felt  compelled,  after  a 
while,  to  admit  that  she  might  in  equity  charge  her  separate  estate 
by  a  written  instrument,  executed  with  a  certain  degree  of  for- 
mality, such  as  a  bond  under  her  hand  and  seal.^^  One  precedent 
in  the  right  direction  leads  to  another,  and  soon  less  formal  instru- 
ments were  brought  one  after  another  under  this  rule ;  promissory 
notes,  bills  of  exchange,  and  lastly  written  instruments  in  gen- 
eral.®* Even  here  the  court  could  not  safely  intrench  itself;  for 
the  inconsistency  of  drawing  distinctions  between  the  different 
sorts  of  engagements  of  a  married  woman  having  separate  estate 
could  be  readily  shown ;   but  it  made  a  halt.     The  doctrine  of  an 


49.  Chancellor  Kent,  in  Jaques  v. 
Methodist  Episcopal  Church,  3  Johns. 
€h.  (N.  Y.)  77. 

50.  Cheever  v.  Wilson,  9  Wall.  108 ; 
Vizoneau  v.  Pegram,  2  Leigh,  183; 
Major  V.  Lansley,  2  R.  &  M.  355. 

51.  McChesney  v.  Brown,  25  Gratt. 
:!93. 

52.  Vaughan  v.  Vanderstegen,  2 
Drew.  180;  Peachey,  Mar.  Settl.  269; 
Xewcomen  v.  Hassard,  4  Ir.  Ch.  274. 

53.  Biscoe  v.  Kennedy,  1  Bro.  C.  C. 
17;  Hulme  v.  Tenant,  1  Bro.  C.  C.  16 
Norton  v.  Turvill,  2  P.  Wms.  144; 
Tullett  V.  Armstrong,  4  Beav.  323. 
This  applies,  whether  the  bond  is  exe- 


cuted by  the  wife  alone,  or  with  her 
husband  or  a  stranger,  apart  from  evi- 
dence of  fraud  or  coercion.     76. 

64.  See  Murray  v.  Barlee,  per  Lord 
Brougham,  3  Myl.  &  K,  210;  Bullpin 
V.  Clarke,  17  Ves.  365;  Stuart  v.  Lord 
Kirkwall,  3  Madd.  387;  Master  v. 
Fuller,  1  Ves.  Jr.  513;  Gaston  v. 
Frankum,  2  De  G.  &  Sm.  561;  s.  c. 
on  appeal,  16  Jur.  507 ;  Peachey,  Mar. 
Settl.  270,  and  cases  cited;  Tullett  v. 
Armstrong,  4  Beav.  323;  Owen  v. 
Homan,  4  H.  L.  Cas.  997.  Taking  a 
lease  and  agreeing  to  pay  rent  comes 
within  the  rule.  Gaston  v.  Frankum, 
supra. 


§280  HUSBAND   AND    WIFE.  298 


5& 


equitable  appointment  was  allied  to  support  the  new  distinction. 
Sound  reasoning  at  last  proved  too  strong  an  antagonist ;  this  posi- 
tion was  abandoned;  and  it  became  at  length  the  settled  doctrine 
of  the  equity  courts  of  England  that  the  engagements  and  contracts 
of  a  married  woman,  whether  general  or  relating  specifically  to  her 
separate  property,  are  to  be  regarded  as  constituting  debts,  and 
that  her  property  so  held  is  liable  to  the  payment  of  them,  whether 
the  contract  be  expressed  in  writing  or  not ;  and  all  the  more  so  if 
•she  lives  apart  from  her  husband,  and  the  debt  could  only  be 
satisfied  from  her  separate  property."'  "  Inasmuch  as  her  cred- 
itors have  not  the  means  at  law  of  compelling  payment  of  those 
debts,"  says  Lord  Cottenham,  "  a  court  of  equity  takes  upon  itself 
to  give  effect  to  them,  not  as  personal  liabilities,  but  by  laying  hold 
of  the  separate  property  as  the  only  means  by  which  they  can  be 
satisfied."" 

As  a  general  rule,  in  England,  it  became  settled,  therefore,  that 
wherever  a  married  woman,  having  proj>erty  settled  to  her  separate 
use,  enters  into  any  contract  by  which  it  clearly  appears  that  she 
intends  to  create  a  debt  as  against  herself  personally,  it  will  be 
assumed  that  she  intended  that  the  money  should  be  paid  out  of 
the  only  property  by  which  she  could  fulfil  the  engagement^* 
Thus,  in  a  case  before  Lord  Brougham,  the  question  came  up  for 
the  first  time,  whether  a  married  woman  could  bind  her  separate 
estate  for  legal  expenses  incurred  by  her,  upon  her  retainer  and 
promise  to  pay,  there  having  been  no  reference  to  her  separate 
estate  in  the  agreement ;  and  it  was  held  that  she  could,  and  that 
the  bill  must  be  paid  from  her  separate  estate.**®  But  on  the  other 
hand,  in  contracts  where  the  husband  is  the  interested  party,  the 
court  will  not  make  the  wife's  separate  property  liable,  if  that  fact 
be  made  plain ;  notwithstanding  she  may  have  had  some  agency 
in  the  transaction.^"  Nor  is  her  separate  estate  liable  for  the 
expenses  of  litigation  incurred  for  the  children  as  her  husband's 
agent." 

55.  Field  v.  Sowle,  4  Euss.  112.  57.    Owens   v.    Dickenson,   Craig   & 

56.  Peachey,  Mar.  Settl.  271,  272,      Phil.  48. 

and  cases  cited;  Vaughan  v.  Vander-  58.  Earl  v.  Ferris,  19  Beav.  69. 

stegen,  2  Drew.  184;  Owens  v.  Dick-  59.  Murray  v.  Barlee,  3  Myl.  &  K. 

enson,  Craig  &  Phil.  48;  Maeq.  Hus.  209.     And  see  Waugh  v.  Waddell,  16 

&  Wife,  303;   Picard  v.  Hine,  L.  E.  Beav.  521;  Bolden  v.  Nicholay,  3  Jur. 

5  Ch.  274.    But  see  Newcomen  v.  Has-  (N.  S.)  884. 

sard,  4  Ir.  Ch.  274 ;  1  Sugd.  Pow.  208  60.   Tullett  v.  Armstrong,   4  Beav. 

7th  ed.  319. 

61.  In  re  Pugh,  17  Beav.  336. 


299  EQUITABLE    SEPARATE    ESTATE.  §    280 

We  need  hardly  add,  therefore,  that,  in  English  chancery,  a 
married  woman,  having  separate  estate,  without  a  clause  restrain- 
ing her  right  of  disposition,  may  charge  and  encumber  it  in  any 
manner  she  chooses,  either  as  security  for  her  husband's  debts,  her 
own,  or  those  of  a  stranger;  provided  she  does  not  appear  to  have 
been  imposed  upon  in  the  transaction.®^  And  where  she  mortgages 
it,  the  court  will  regard  the  true  nature  of  the  transaction.®^ 

A  married  woman  may  bind  the  corpus  of  her  separate  property 
by  her  compromise  of  a  suit  which  she  has  instituted  by  her  next 
friend.*'*'®^  She  may  also  contract  for  the  purchase  of  an  estate, 
and,  even  though  the  contract  makes  no  reference  to  her  separate 
property,  it  will  be  bound  by  her  agreement.®"  It  would  still 
appear  that  in  England  a  married  woman  may,  upon  her  separate 
credit,  not  only  give  her  banker  a  lien  for  her  overdrafts,®^  but 
employ  a  solicitor,  or  a  surveyor,  or  a  builder,  or  a  tradesman,  or 
hire  laborers  or  servants,  all  on  the  credit  or  for  the  immediate 
benefit  of  her  separate  property,®*  and  that  her  corporation  shares 
are  liable  to  assessment.®^  Where  a  married  woman  contracts  any 
such  debt  which  she  can  only  satisfy  out  of  her  separate  estate,  her 
separate  estate  will,  in  equity,  be  made  liable  to  the  debt.'" 

62.  Clerk  v.  Laurie,  2  Hurl.  &  Nor.  niary  engagement,  whether  by  order- 
199;  Peachey,  Mar.  Settl.  292.  See  ing  goods  or  otherwise,  which,  if  she 
Horner  v.  Wheelwright,  2  Jur.  (N.  S.)  were  a  feme  sole,  would  constitute  her 
367.  The  same  rule  applied  in  the  a  debtor,  and  in  entering  into  such  en- 
United  States ;  Short  v.  Battle,  52  gagement  she  purports  to  contract,  not 
Ala.  456;  Armstrong  v.  Eoss,  5  C.  E.  for  her  husband,  but  for  herself,  and 
Green  (N.  J.),  109.  on  the  credit  of  her  separate  estate, 

63.  Gray  v.  Dowman,  6  W.  R.  571.  and  it  was  so  intended  by  her,  and  so 
64-65.  Wilton  v.  Hill,  25  L.  J.  Eq.       understood  by  the  person  with  whom 

156.  she  is  contracting,  that  constitutes  an 

66.  Dowling  v.  Maguire,  Lloyd  &  obligation  for  which  the  person  with 
Goold,  temp.  Plunket,  1 ;  Crofts  v.  whom  she  contracts  has  the  right  to 
Middleton,  2  Kay  &  Johns.  194,  re-  make  her  separate  estate  liable;  and 
versed  on  appeal.  the   question   whether   the    obligation 

67.  London  Bank  of  Australia  v.  was  contracted  in  this  manner  must 
Lempriere,  L.  R.  4  P.  C.  572,  594.  depend   upon  the   facts   and   circum- 

68.  See  Lord  Justice  James,  in  Lon-  stances  of  each  case. 

don  Bank  of  Australia  v.  Lempriere,  70.  Picard  v.  Hine,  L.  H.  5  Ch.  App. 

supra;  Lord  Justice  Turner,  in  John-  274. 

son  V.   Gallagher,   3   De   G.    F.   &   J.  The  wife  cannot  be  adjudicated  a 

4cr4.  bankrupt  in  respect  of  debts  incurred 

69.  Matthewman's  Case,  L.  R.  3  Eq.  during  marriage,  even  though  having 
787.  Kindersley,  V.  C,  rules  in  this  separate  property.  Ex  purte  Jones, 
case  that  if  a  married  woman,  having  40  L.  T.  790. 

separate  property,  enters  into  a  pecu- 


§  281  HUSBAND  AND  WIFE.  300 

§281.  Contracts  not  Beneficial  to  Wife. 

But  in  the  later  Englisli  decisions  a  new  turn  —  and  tlaat 
towards  the  better  protection  of  wives  having  separate  property 
against  their  own  imprudent  disposition  thereof  —  is  indicated, 
which  we  may  attribute  in  some  measure  to  the  late  legislative 
changes  concerning  married  women's  rights,  agitated  on  both  sides 
of  the  ocean,  and  the  influence  of  contemporaneous  American 
equity  decisions  evoked  by  the  prior  legislation  of  our  respective 
States  upon  the  subject.  In  Johnson  v.  Gallagher,  decided  in 
1861  by  the  English  Court  of  Appeal  in  Chancery,  the  court 
checked  the  loose  disposition  to  fastening  liabilities  of  a  married 
woman,  no  matter  how  improvidently  incurred,  upon  her  separate 
estate,  on  the  mere  faith  of  an  implied  engagement.^^  A  married 
woman  living  apart  from  her  husband,  and  having  separate  estate, 
carried  on  a  trade ;  and,  after  her  husband's  death,  tradesmen  who 
had  supplied  her  with  goods  for  such  trade  filed  a  bill  against  her 
and  her  trustee  to  obtain  an  account  of  her  separate  estate  and 
payment  of  it  for  their  demands.  She,  pending  the  suit,  mort- 
gaged this  separate  estate,  for  valuable  consideration,  to  an  extent 
exceeding  its  value  and  probably  so  as  to  evade  their  demands. 
The  court  sustained  her  against  the  creditors ;  and  Lord  Justice 
Turner,  after  a  very  ample  range  of  the  whole  learning  upon  the 
subject  of  charging  a  married  woman's  estate  in  equity,  in  the 
course  of  which  he  admitted  that  English  precedent  to  this  point 
had  settled  that  the  wife's  separate  estate  must  be  held  liable  for 
her  general  engagements,'^^  concluded  that  to  such  a  doctrine  there 
were  limitations.  He  was  not  prepared,  he  observed,  to  go  the 
length  of  saying  that  the  separate  estate  would,  in  all  cases,  be 
affected  by  a  mere  general  engagement ;  but  to  affect  it  there  must 
be  something  more  than  the  mere  obligation  which  the  law  would 
create  in  the  case  of  a  single  woman;  and  what  that  something 
more  might  be  must  depend  in  each  case  upon  circumstances. 

71.  Johnson  v.  Gallagher,  3  De  G.  of  it,  and  upon  the  whole,  therefore, 
F.  &  J.  494.  And  see  the  prior  Eng-  I  have  come  to  the  conclusion  that  not 
lish  cases  very  fully  cited  in  the  opin-  only  the  bonds,  bills,  and  promissory 
ion  of  Lord  Justice  Turner.  notes  of  married  women,  but  also  their 

72.  ' '  The  weight  of  authority,  there-  general  engagements,  may  affect  their 
fore,  seems  to  me  to  be  in  favor  of  the  separate  estates,  except  as  the  Statute 
liability.  I  think,  too,  that  the  prin-  of  Frauds  may  interfere  where  the 
ciple  on  which  all  the  cases  proceed  separate  property  is  real  estate." 
that  a  married  woman,  in  respect  of  Johnson  v.  Gallagher,  3  De  G.  F.  & 
her  separate  estate,  is  to  be  consid-  J.  404,  514. 

ered  as  a  feme  sole,  is  also  in  favor 


301  EQUITABLE    SEPAEATE    ESTATE.  §    282 

"According  to  the  best  opinion  which  I  can  form  of  a  question  of 
so  much  difficulty,"  he  added,  "  I  think  that,  in  order  to  bind  the 
separate  estate  by  a  general  engagement,  it  should  appear  that  the 
engagement  was  made  with  reference  to,  and  upon  the  faith  or 
credit  of,  that  estate,  and  that  whether  it  was  so  or  not  is  a  ques- 
tion to  be  judged  of  by  this  court  upon  all  the  circumstances  of 
the  case.'^^ 

These  remarks  of  Lord  Justice  Turner,  in  the  foregoing  case, 
have  been  commended  in  still  later  English  decisions,  and  by  text- 
writers  of  authority.'^*  Doubt  is  thrown  upon  the  extent  of  the 
binding  force  of  engagements  not  for  the  wife's  benefit ;  and,  on 
the  whole,  the  test  in  chancery  seems  to  be  settling,  at  the  present 
day,  towards  regarding  whether  the  transaction  out  of  which  the 
demand  arose  had  reference  to,  or  was  for  the  benefit  of,  the  wife's 
separate  estate ;  and,  on  the  whole,  unsatisfactory  as  may  be  this 
abstruse  discussion,  circumstances  are  likely  to  determine  the 
decision  of  each  case,  with  perhaps  a  growing  partiality  in  favor 
of  a  married  woman's  rights,  and  a  growing  indisposition  to  make 
her  suffer. 

§  282.  Mortgage  or  Pledge  to  Secure  Husband's  Debts. 

In  the  exercise  of  her  right  of  dominion,  the  wife  may  also,  in 
American  chancery,  unless  specially  restrained  by  the  trust,  bestow 
her  separate  property  upon  her  husband,  give  him  the  use  and 
income  thereof,  or  bind  it  for  his  debts,^^  subject  to  the  qualifica- 
tions already  noticed.^^  It  is  also  well  settled,  both  under  the 
Married  Women's  Acts  of  our  respective  States,  and  independently 
of  them,  that  a  married  woman  may  execute  a  mortgage  jointly 
with  her  husband  to  secure  his  debts,  in  which  case  she  is  to  be 
regarded  as  his  surety ;  and  this  applies  to  lands  held  in  her  right, 
whether  conveyed  to  her  separate  use  or  not,  provided  the  convey- 
ance be  executed  by  husband  and  wife  jointly  after  the  usual 
manner  of  such  instruments  under  the  statute,  and  no  duress  wa^i 

73.  Johnson  v.  Gallagher,  3  De  G.  cited ;  2  U.  S.  Eq.  Dig.  Hus.  &  Wife, 
F.  &  J.  494,  514.  18;    Dallam    v.    Walpole,   Pet.   C.    C. 

74.  London  Bank  of  Australia  v.  116;  Charles  v.  Coker,  2  S.  C.  (N.  S.) 
Lempriere,  L.  R.  4  P.  C.  572,  594,  ap-  123.  The  husband  may  be  purchaser 
proves  as  stated  in  the  text ;  also  But-  at  a  sale  properly  made  under  order 
ler  V.  Cumpston,  L.  R.  7  Eq.  20,  21;  of  chancery,  though  the  trustee  of  his 
Matthewman's  Case,  L.  S.  3  Eq.  781;  wife.  Norman  v.  Norman,  6  Bush 
Lewin  Trusts,  5th  Eng.  ed.  546.  (K.Y-).  495. 

75.  2    Kent.   Com.    Ill,   and   cases  76.  Supra,  §  281. 


§  283  HUSBAND  AND  WIFE.  302 

imposed  u2X)n  her/'     And  she  mav  pledge  her  separate  personal 
property  as  security  in  like  manner.^* 

§  283.  Gifts  and  Transfers  to  Husband. 

A  married  woman,  save  so  far  as  she  is  restrained  from  antici- 
pation by  the  terms  of  the  trust,  may  bestow  her  separate  property 
upon  her  husband  by  virtue  of  her  right  of  disposal ;  although  at 
common  law  no  such  thing  is  known  as  a  gift  between  husband 
and  wife.  She  may  likewise  transfer  it  to  him  for  a  valuable 
consideration."^®  But  acts  of  this  sort  are  very  closely  scrutinized ; 
and  undue  influence  on  the  part  of  the  husband,  or  the  fraud  of 
both  husband  and  wife  upon  creditors  of  either,  will  often  explain 
the  motive  of  such  transactions,  and  suffice  for  setting  them  aside 
in  equity.®"  The  fact  that  the  husband  receives  the  capital  of  his 
wife's  separate  property  raises  the  inference,  not  of  a  beneficial 
transfer  to  him,  but  of  a  transfer  to  him  as  her  trustee.®^  A  gift 
to  him  requires  clear  evidence,  such  as  acts  of  dominion,  or  the 
use  of  the  property  for  his  business  or  to  execute  his  marital 
obligations.*" 

When  the  wife  has  made  a  gift  to  her  husband,  she  will  be  pre- 
cluded, after  his  death,  from  charging  his  estate  with  what  he  so 
received.*^  So  long  as  her  transfer  of  separate  property  to  her 
husband  remains  incomplete,  she  can  revoke  her  consent  to  the 
gift.**  And  where  a  wife  joins  her  husband  in  encumbering  her 
separate  estate  partly  for  his  benefit  and  partly  for  her  own,  it 
will  not  readily  be  presumed  that  she  designed  to  give  the  whole 
of  the  proceeds  to  him ;  for  which  reason  the  trustee  employed  by 
them  should  not  treat  the  money  as  that  of  the  husband  alone.*^ 

77.  Demarest  v.  Wynkoop,  3  Johns.  The  method  of  conveying  the  wife  's 

Ch.  (N.  Y.)  123;  Van  Home  v.  Ever-  general  lands  under  our  modern  local 

son,  13  Barb.   (X.  Y.)   526;  Yartie  v.  statutes  is  shown  post,  §  458. 

Underwood,   18   Barb.    (N.   Y.)    561;  78.  Witsell  v.  Charleston,  7  S.  C.  88. 

Bartlett  v.  Bartlett,  4  Allen  (Mass.),  79.   Lyn  v.   Ashton,   1  Euss.  &  M. 

440;    Short   v.    Battle,    52    Ala.    456;  190 ;  Macq.  Hus.  &  Wife,  297. 

Young  V,  GrafF,  28  111.  20;  Watson  v.  80.  Pybus  v.  Smith,  1  Ves.  189. 

Thurber,    11    Mich.    457;     Eaton    v.  81.  Eich  v.  Cockell,  9  Ves.  369;  Rich- 

Nason,  47  Me.  132;   Spear  v.  Ward,  ardson  v.  Stodder,  100  Mass.  528. 

20  Cal.  659;  Ellis  v.  Kenyon,  25  Ind.  82.  Shirley  v.  Shirley,  9  Paige  (N. 

134;   Green  v.  Scranage,  19  la.  461;  Y.),  363;  Eowe  v.  Eowe,  12  Jur.  909. 

Wolff  V.  Van  Meter,  19  la.  134.     A  83.  Paulet  v.  Delavel,   2  Ves.  Sen. 

power    to    mortgage,    reserved    in    a  663;    2  Roper,  Hus.  &  Wife,  220;   1 

trust  which  settles  land  to  the  wife's  Madd.  Ch.  472. 

separate  use,  will  support  a  mortgage  84.  Penfold  v.  Mould,  L.  R.  4  Eq. 

to   secure   the   husband's   debt.      New  562. 

York   statutes  permit  it.     Leavitt  v.  85.   Jones  v.   Cuthbertson,  L.  E.   7 

Peel,  25  N.  Y.  474.  Q-  B.  218. 


303  EQUITABLE    SEPARATE    ESTATE.  §    284 

The  wife's  bond,  executed  to  her  husband,  has  accordingly  been 
sustained  in  the  English  chancery.**^  A  gift  or  conveyance  by  a 
wife  to  her  husband,  if  fraudulently  or  forcibly  procured  by  him, 
will  be  set  aside  in  equity  upon  her  representation ;  so,  too,  where 
it  was  intended  for  his  security,  but  taken  out  as  absolute;  *^  but 
if  the  rights  of  a  hona  fide  purchaser  without  notice  of  the  fraud 
or  force  have  intervened,  her  own  rights  may  be  impeded  in  the 
latter's  favor.** 

§  284.  Enforcement. 

While  the  contract  for  payment  of  money  made  by  a  married 
woman  having  separate  estate  creates  a  debt,  it  is,  practically 
considered,  only  a  debt  sub  modo  when  compared  with  the  debt  of 
a  man  or  an  unmarried  woman.  It  cannot  be  enforced  against 
her  at  law;  and  Lord  Oottenham's  language  indicates  that  it  is 
enforceable  in  equity,  not  on  the  ground  that  she  incurred  a  per- 
sonal obligation,  but  because  there  is  property  upon  which  the 
obligation  may  be  fastened.  Hence  it  is  said  that  there  can  in  no 
case  be  a  decree  against  a  married  woman  in  personam;  the  pro- 
ceedings are  simply  against  her  separate  property  in  rem.^^  And 
though  she  is  a  necessary  party  to  a  suit  to  enforce  payment  against 
her  separate  estate,  yet,  if  that  estate  be  held  in  trust  for  her 
separate  use,  the  suit  must  be  against  the  trustees  in  whom  that 
property  is  vested ;  the  decree  in  such  case  being  rendered,  not 
against  her,  but  against  the  trustees,  to  compel  payment  from  her 
separate  estate.  Moreover,  if  the  wife  survive  her  husband, 
although  the  creditors  may  still  enforce  their  demand  in  equity 
against  her  separate  estate,  yet  her  person  and  her  general  pro]> 
erty  remain  as  completely  exempted  from  liability  at  law  and  in 
equity  as  in  other  cases  of  debts  contracted  by  her  during 
coverture.^" 

Here,  however,  the  fictions  of  equity  create  a  new  practical 
difficulty.     For  if  the  wife  be  a  feme  sole  at  all,  with  reference  to 

86.  Heatley  v.  Thomas,  15  Ves.  5?6.  Drew.  184;  Peachey,  Mar.  Settl.  273; 

87.  Stumpf  V.  Stumpf,  7  Mo.  App.  Mac.  Hus.  &  Wife,  304.  But  her 
372 ;  Farg:o  v.  Goodspeed,  87  111.  290.  promissory  note,  given   during  cover- 

88.  O'Hara  v.  Alexander,  56  Miss.  ture  so  as  to  bind  her  separate  estate, 
316.  is   a   good   consideration    for   another 

89.  Hulme  v.  Tennant,  1  Bro.  C.  C.  promisory  note  given  after  her  hus- 
16;  Ashton  V.  Aylett,  1  Myl.  &  Cr.  band's  death  for  a  balance  then  due, 
111;  Macq.  Hus.  &  Wife,  304;  though  the  former  note  be  barred  by 
Peachey,  Mar.  Settl.  273.  But  see  the  statute  of  limitations.  Latoucho 
Keofrh  V.  Cathcart,  11  Tr.  Ch.  285.  v.  Latouche,  3  Hurl.  &  Colt.  576. 

90.  Yaughan    v.    Vanderstegen,    2 


§  284  HUSBAND  AND  WIFE.  304 

her  separate  property,  must  she  not  have  power  to  bind  himself 
personally?     In  Stead  v.  Nelson  a  husband  and  wife  undertook, 
for  valuable  consideration,  by  writing  under  their  hands,  to  execute 
a  mortgage  of  her  separate  estate.     The  husband   died.     Lord 
Langdale  held  that  the  surviving  wife  was  bound  by  the  agree- 
ment, and  ordered  a  specific  performance.®^     Certainly  the  ground 
of  this  decision  must  have  been  that  the  obligation  was  not  upon 
her  property  alone,  but  upon  her  person.     At  the  same  time  it  is 
readily  admitted  that  there  are  reasons  of  policy  why  the  wife 
should  be  exempted  from  personal   execution  during  coverture. 
This  latter  view  accords  with  the  common-law  practice  in  analogous 
cases.®^     Perhaps,  then,  the  more  consistent  view  of  the  subject 
would  be  that  the  wife  incurs  a  personal  obligation,  morally  and 
legally,  on  such  contracts,  express  or  implied,  as  she  may  make 
during  coverture  with  reference  to  her  separate  property ;  but  that 
the  general   disabilities   of  coverture   interpose  obstacles  to   the 
enforcement  of  remedies  by  a  creditor,  which  obstacles  the  courts 
of  equity  feel  bound  to  regard ;    and  hence  that  they  confine  the 
remedies  to  her  separate  estate,  upon  the  faith  of  which,  it  may 
reasonably  be  presumed,  the  creditor  chose  to  rely.     And  this  con- 
clusion is  that  preferred  on  the  whole  by  the  courts.     For,  as 
recent  writers  on  the  law  of  trusts  express  it,  there  are  two  con- 
flicting principles  in  these  equity  decisions :    one  that  the  engage- 
ments of  the  wife  are  charges  equivalent  to  so  many  assignments 
or  equitable  appointments  to  operate  each  in  order ;   the  other,  and 
that  now  generally   adopted,   that  the  wife's  contracts   are  not 
charges,  but  create  a  liability  against  the  person,  which,  since  the 
debtor  is  married,  cannot  be  made  available  against  her  personally; 
and  hence  the  court  permits  a  sort  of  equitable  execution  to  issue 
in  favor  of  the  creditor  against  her  separate  property.®^     So  her 
contract  to  sell  or  mortgage  her  life  interest  in  her  separate  estate 
will  be  specifically  enforced  against  her.®* 

But  a  married  woman,  one  of  several  devisees  in  trust  for  sale, 
cannot  bind  herself  to  convey ;  and  upon  such  a  contract  on  her 
part  specific  performance  will  not  be  enforced  against  her.®^     Nor 

91.  Stead  v.  Nelson,  2  Beav.  245;       seems  to  be  exploded.     Lord  Justice 
Macq.  Hus.  &  Wife,  304.  Turner  in  Johnson  v.  Gallagher,  3  De 

92.  Sparkes  v.  Bell,  8  B.  &  C.  1.  G.  F.  &  J.  494 ;  supra,  §  241. 

93.  2  Perry  Trusts,  §§  655-663;  94.  Wainwright  v.  Hardisty,  2  Beav. 
Lewin  Trusts,  5th  Eng.  ed.  542,  543.       363. 

The  doctrine  of  equitable  appointment  95.  Avery  v.  Grifl&n,  L.  E.  6  Eq.  606. 


305  EQUITABLE    SEPARATE    ESTATE.  §    285 

can  a  married  woman  consent  to  some  future  loan  to  lier  husband 
so  as  to  be  compelled  to  execute,  but  her  consent  must  go  with  the 
act;  ®®  nor  bind  herself  by  an  executory  contract  for  the  sale  of 
her  real  estate.^"  Both  she  and  her  husband  must  be  parties  to  a 
suit  concerning  her  separate  property,®*  and  it  is  all  the  more 
requisite  that  the  husband  be  joined  as  a  party  defendant  where 
he  claims  an  interest  or  any  of  his  acts  are  called  in  question.®' 

§  285.  Estoppel  to  Claim  Property. 

The  separate  estate  of  married  women  may  be  affected,  and 
their  rights  barred,  by  active  participation  in  breaches  of  trust.^ 
But  on  the  other  hand,  to  preclude  the  wife  from  the  right  to 
relief  simply  because  she  has  improperly  permitted  her  husband 
to  receive  the  trust  funds,  would  be  to  defeat  the  very  purpose  for 
which  the  trust  was  created, —  namely,  the  protection  of  the  wife 
against  her  husband.  Hence,  according  to  the  latest  and  best 
authorities,  the  court  must  be  satisfied  that  the  husband  has  not  in 
any  degree  influenced  her  acts  and  conduct,  before  it  holds  her 
separate  estate  to  be  affected;  and  this  upon  the  most  jealous 
investigation.^  For  the  wife  to  stand  by  in  silence  while  the 
husband  represents  himself  as  owner  of  what  really  is  the  wife's 
separate  property,  by  way  of  inducing  credit,  will  not  necessarily 
charge  that  estate.^  If  the  instrument  contains  no  clause  against 
anticipation,  and  the  wife  misapplies  part  of  the  trust  property, 
her  other  interests  under  the  same  instrument  may  be  held  to  make 
good  the  loss.* 

Where  her  husband  and  the  trustee  of  the  fund,  by  way  of 
fraudulent  collusion  to  deprive  her  of  her  property,  make  an 
improper  transfer  thereof  out  of  her  separate  use,  her  assent  will 
not  be  readily  presumed  to  the  transaction  from  circumstances, 

96.  Taylor  v.  Taylor,  4  Jur.  (N.  S.)  ^lontford  v.  Lord  Cadogan,  19  Ves. 
1218.  635. 

97.  Miller  v.  Albertson,  73  Ind.  343.  2.  Per  Sir  Geo.  Turner,  Hughes  v. 

98.  Holmes  v.  Penney,  3  Kay  &  Wells,  9  Hare,  773.  And  see  author- 
Johns.  91.  And  see  Peachey,  Mar.  ities,  supra;  Kellaway  v.  Johnson,  3 
Settl.  293-296,  and  cases  cited;  Macq.  Beav.  319;  Cocker  v.  Quayle,  1  Russ. 
Hus.  &  Wife,  297.  &  M.  535;  Fargo  v.  Goodspeed,  87  111. 

99.  See  Clarkson  v.  De  Peyster.  3  290;  Brewer  v.  Swirles,  2  Sm.  &  Gif. 
Paige  (N.  Y.),336;  Stuart  v.  Kissam,  219.  Contra,  Whistler  v.  Newman,  4 
2  Barb.  (N.  Y.)  493;  Bradley  v.  Ves.  129,  doubted  in  Parkes  v.  White, 
Emerson,  7  Vt.  369;  Wilson  v.  Wibon,  11  Ves.  223. 

6  Ired.  Eq.  (N.  C.)  236.  3  Carpenter  v.  Carpenter,  27  X.  J. 


10 


1.  Peachey,  Mar.  Settl.  276;  Pydcr       Eq.  50; 
V.  Bickerton,  3  Swanst.  80.  n.;  Lord  4.  Clive  v.  Carew,  1  John.  &  Hem. 


199. 


20 


§  285 


HUSBAND    AND    WIFE. 


306 


while  she  remained  in  ignorance  of  it.'^  If  a  wife  allows  her  hus- 
band to  use  her  separate  property,  without  making  a  claim  to  it,  or 
permits  him  to  receive  her  separate  income  and  apply  it  to  the  wants 
of  the  family,  she  will  in  general  be  presumed  to  have  asspented  to 
the  arrangement.^  But  if  the  circumstances  do  not  warrant  the 
inference  that  the  wife  has  assented  to,  or  acquiesced  in,  the  hus- 
band's receiving  her  income,  or  in  his  mode  of  applying  it,  she  will 
be  entitled  to  reimbursement  out  of  his  estate/ 

By  the  ordinary  rule  of  the  English  chancery  courts  a  wife  id 
precluded  from  recovering  the  arrears  of  income  on  her  separate 
estate  for  more  than  a  year,  upon  the  ground  of  a  supposed  gift  to 
her  husband.*  As  to  whether  one  year's  income  can  be  recovered 
or  not  there  is  much  discrepancy  in  the  English  cases ;  but  the 
better  opinion,  even  here,  is,  that  the  husband  has  been  allowed  by 
the  wife  presumably  to  receive  and  appropriate  her  income  from 
year  to  year,  unless,  by  a  consistent  course  of  dissent,  the  wife,  on 
her  part,  rebuts  such  presumption,  in  which  case  her  will  must  be 
respected.  If  the  wife  is  insane  and  incapable  of  assenting,  or 
the  income  has  not  actually  come  to  her  husband's  hands,  and 
under  the  trust,  moreover,  the  income  is  not  payable  to  the  husband, 
the  income  will  belong  to  her;  though  here  the  inclination  of 
equity  is  to  allow  reasonable  offsets  to  the  husband.® 


5.  Dixon  V.  Dixon,  L.  R.  9  Ch.  D. 

587. 

6.  Square  v.  Dean,  4  Bro.  C.  C.  326; 
Beresford  v.  Archbishop  of  Armagh, 
13  Sim.  643;  Bartlett  v.  Gillard,  3 
Euss.  149;  Carter  v.  Anderson,  3  Sim. 
370. 

7.  Parker  v.  Brooke,  9"  Ves.  583; 
Macq.  Hus.  &  Wife,  298;  Dixon  v. 
Dixon,  L.  E.  9  Ch.  D.  587. 

8.  Peachey,  Mar.   SettL  291,  and 


cases  cited;  Eowley  v.  Unwin,  2  Kaj" 
&  Johns.  142;  Arthur  v.  Arthur,  11 
Ir.  Ch.  513.  And  see  Dalbiac  v.  Dal- 
biac,  16  Ves.  116 ;  Parker  v.  Brooke, 
9  Ves.  583;  Caton  v.  Eideout,  1  Mac. 
&  Gord.  599;  Beresford  v.  Archbishop 
of  Armagh,  13  Sim.  643 ;  Howard  t. 
Digby,  2  CI.  &  Fin.  634. 

9.    Lewin    Trusts,     550;     2    Pecry 
Trusts,  §  665,  and  cases  ctied. 


307  MARRIED    women's    ACTS.  §    286 


CHAPTER  XVI. 

MARRIED    women's   ACTS. 

Section  286.  Tendency  and  Purpose  in  General. 

287.  History  of  American  Married  Women's  Acts. 

288.  New  York  and  Pennsylvania  Married  Women's  Acta  of  1848. 

289.  English  Married  Women's  Act  of  1870. 

290.  Scope  and  Validity. 

291.  Construction. 

29'2.  What  Law   Governs  in  General. 

293.  As  to  Eights  of  Husband. 

294.  As  to  Eights  of  Wife. 

295.  Changes  Made  by  Married  Women's  Acts  in  General. 

§  286.  Tendency  and  Purpose  in  General. 

Aside  from  woman's  political  relations,  and  those  social  and 
business  opportunities  not  peculiar  to  the  marriage  state,  which 
are  now  extended  to  her  sex,  we  may  observe,  both  in  England  and 
the  United  States,  a  liberal  disposition  of  court  and  legislature 
within  the  last  century  to  bring  her  nearer  to  the  plane  of  man- 
hood, and  advance  her  condition  from  obedient  wife  to  something 
like  co-equal  marriage  partner.  Man  makes  the  concessions,  step 
by  st«p,  out  of  deference  to  woman's  wishes,  and  in  token  of  her 
influence ;  and  thus  does  the  coverture  theory  of  marriage  gradu- 
ally fade  out  of  our  jurisprudence.  The  liberal  tendencies  of 
modem  civilization  favor  this  change;  moreover,  that  love  of 
justice  and  individual  liberty  which  always  characterized  our 
Saxon  race,  and  the  steadfast  disposition  of  English  and  American 
courts  both  to  administer  tbe  written  law  impartially  and  to  ex- 
tend and  adapt  its  provisions  to  the  ever-changing  wants  of  society. 

Our  preceding  pages  have  shown,  in  respect  to  the  person  of 
the  spouses,  their  matrimonial  domicile,  the  conjugal  restraint  and 
correction  of  the  wife,  the  custody  of  the  offspring;  again,  as  to 
the  wife's  power  to  bind  as  agent,  her  necessaries,  or,  in  respect  of 
property,  her  equity  to  a  settlement,  and  modem  modes  of  con- 
veying her  lands ;  a  modern  disposition  to  so  construe  and  apply  or 
modify  the  old  law  that  she  may  enjoy  a  very  fair  share  of  free- 
dom and  consideration  in  the  household,  and  maintain  her  dignity 
under  all  circumstances.  Husband  and  wife  cease  to  be  one; 
tbey  are  two  distinct  persons  with  distinct  and  independent  rights. 
At  the  same  time  the  idea  of  unity  in  the  domestic  government  — 


§  286  HUSBAND  AND  WIFE.  308 

of  domestic  government  at  all  —  becomes  weakened ;  the  cruel  or 
dissolute  husband  having  less  power  for  ill,  and  the  just  and  faith- 
ful one,  too,  finding  his  legal  authority  over  a  high-tempered  com- 
panion exceedingly  precarious.  Modem  legislation  accomplishes 
even  more  than  judicial  construction  towards  this,  result,  especially 
in  the  United  States ;  and  indeed,  as  to  the  Married  Women's  Acts 
and  Divorce  Acts  of  this  day,  it  may  be  truly  said  that  England 
borrows  more  from  this  country  than  does  this  country  from  Eng- 
land. 

The  American  Married  Women's  Acts  are  modem;  still,  they 
are  constantly  undergoing  local  change,  and  immense  labor  haa 
been  necessarily  bestowed  by  local  courts  in  expounding  them. 
We  shall  seek  to  place  before  the  reader  such  legal  results  as  may 
be  thought  to  have  passed  into  principles;  as  for  the  rest,  it  is 
a  chaos  of  uninteresting  rubbish,  from  which  the  practitioner 
selects  only  that  which  obtains  in  his  own  jurisdiction. 

All  this  legislation  regarding  the  rights  of  married  women 
should  be  harmonized  and  simplified  as  soon  as  practicable.  This 
is  not  easy  with  so  many  independent  States,  each  carving  out 
its  own  career.  And  the  difficulty  is  aggravated  from  the  fact 
that  the  Married  Women's  Acts  had  no  common  origin ;  there  was 
no  model  found  to  work  from,  English  or  American,  and  the  re- 
sults were  necessarily  discordant.  Yet  should  public  sentiment 
once  set  in  the  right  direction,  much  might  be  accomplished.  If, 
too,  the  married  women's  codes  of  this  country  are  to  serve  as  a 
guide  to  other  nations,  they  should  bear  the  impress  of  a  clear  and 
well-defined  purpose.  Either  the  ultimate  object  should  be  to 
place  the  wife  on  an  independent  footing,  and  enable  her  to  main- 
tain herself  against  the  world,  or  else,  providing  honorably,  faith- 
fully, and  generously  against  all  possible  misfortune,  to  teach 
her  still  to  lean  upon  the  stronger  arm  of  her  husband,  and  look  to 
man  for  guidance.  But  our  legislators  sometimes  appear  to  at- 
tempt both  systems  together.  Laws  which  invite  married  women 
to  embark  in  separate  trade  tend  plainly  to  the  wife's  independence. 
Laws,  on  the  other  hand,  which  class  widows  and  orphans  together 
as  subjects  for  special  protection,  preserve  homestead  exemptions, 
permit  of  settlements  against  the  husband's  creditors,  are  founded 
on  the  policy  of  the  wife's  dependence.  It  is  not  to  be  presumed 
that  frank  and  straightforward  discussion  is  inappropriate  to  any 
topic  where  radical  changes  are  demanded ;  nor  can  the  funda- 
mental relation  of  the  sexes  and  the  balance  of  society  be  lightly 
disturbed. 


309  MARRIED    women's    ACTS.  §    286 

Equality  and  freedom  are  precious  words ;  but  if  the  respective 
spheres  of  man  and  woman  are  equally  honorable,  equally  useful, 
equally  free,  need  they  be  precisely  identical  ?  Does  not  inequality 
manifest  itself  when  the  two  seek  to  run  the  same  circuit  ?  As  a 
logical  proposition,  if  woman  in  her  pursuits  has  the  right  to  be- 
come a  man,  man  has  no  less  the  right  to  become  a  woman. 
"Whether  the  change  would  be  expedient  and  wise,  however,  is 
another  question.  Certain  it  is  that  woman  cannot  claim  the 
privileges  of  tbe  two  sexes;  if  she  would  grasp  at  civil  honors, 
she  must  surrender  her  time-honored  tribute  of  chivalrous  homage. 
Elevated  to  the  pedestal  of  honor,  and  made  the  object  of  reverent 
esteem,  if  not  idolatry,  the  wife  stands  perhaps  as  securely  as 
she  ever  can  upon  the  prosaic  ground  of  legal  equality. 

The  changes  to  which  we  shall  proceed  to  direct  the  reader's 
inquiry,  under  our  main  heading,  must  be  studied  as  by  way  of 
supplement  or  supersedure  to  the  coverture  doctrine  already  set 
forth.  As  before,  these  changes  affect  the  wife's  debts  and  con- 
tracts, her  injuries  and  frauds,  and  her  personal  and  real  prop- 
erty. They  are  partly  of  equitable  and  partly  of  statutory  origin. 
But,  most  of  all,  they  impair  the  old  doctrine  which  treated  the 
husband  as  absolute  or  temporary  owner,  controller,  and  manager 
of  his  wife's  property  and  acquisitions,  by  virtue  of  the  marriage, 
and  create  in  favor  of  the  wife  what  is  commonly  known  in  these 
days  as  her  separate  property.  Here,  therefore,  as  on  most  points 
relating  to  the  law  of  husband  and  wife,  one  must  first  examine  the 
old  common-law  or  coverture  doctrine,  and  then  perceive  how  far 
modern  equity  rules  or  the  local  legislation  may  have  varied  that 
law.  Such  changes  date  back  not  much  farther  than  a  century 
and  a  half,  the  most  radical  of  them  being  less  than  a  century 
old ;  the  equitable  changes  being  for  the  most  part  of  earlier,  and 
the  statutory  changes  of  later  date,  and  the  law  of  England  and 
this  country  harmonizing  on  the  whole  subject,  at  the  independence 
of  the  American  colonies,  as  at  their  first  settlement.  The  instances 
will  be  found  rare  at  the  present  day,  where  an  important  com- 
mon-law principle  respecting  the  wife's  contracts,  torts,  property, 
and  the  formalities  of  suit,  is  not  at  this  day  essentially  changed. 

To  attempt  a  minute  analysis  of  the  Married  Women's  Acts 
would  require  more  space  than  out  plan  will  permit.  Nor  would 
it  profit  tJhe  reader.  The  independent  legislation  of  distinct  com- 
munities, without  unifonnity  of  plan  or  principle,  involving,  as  it 
does,  the  most  interesting  and  yet  tihe  most  perplexing  of  social 


§  287  HUSBAND  AND  WIFE.  310 

problems,  must  necessarily  produce  results  which  cannot  be  recon- 
ciled. It  is  too  early  yet  to  generalize  from  the  decisions.  Even 
though  the  hand  of  innovation  should  be  stayed  for  a  while,  and 
public  attention  centre  in  the  work  of  blending  these  results  into 
harmony,  it  would  be  many  years  before  our  courts,  applying  civil 
codes  and  the  traditions  of  the  English  common  law  and  equity 
jurisprudence  to  the  discordant  mass  of  material  before  them,, 
could  hope  to  set  up  a  consistent  and  thorough  American  system. 
As  one  of  our  own  jurists  well  remarks,^"  wherever  the  line  may 
be  drawn,  it  will  be  long  before  the  public  will  understand  and 
recognise  the  point  where  the  power  of  a  married  woman  to  bind 
herself  by  her  bargains  ceases,  and  frauds  upon  the  thoughtless 
and  inconsiderate  must  often  occur. 

The  ultimate  scope  of  all  this  legislation  must,  however,  be 
either,  regarding  the  wife  as  peculiarly  exposed  to  coercion  and 
subtle  influence,  if  not  mastery  by  main  force,  from  the  natural 
necessities  of  her  position  in  the  conjugal  partnership,  as  one 
of  the  weaker  sex,  to  afford  that  legal  protection  and  shelter  which 
she  has  always  claimed,  and  which  our  law  in  a  strait  could  never 
deny  her ;  or  else,  as  though  no  such  necessities  exist  in  a  state  of 
nature,  but  her  disabilities  have  been  rather  created  by  municipal 
law,  and  enforced  by  tyrannical  men,  to  treat  her  as  sui  juris, 
and  make  her  bear  the  full  responsibility  of  her  own  legal  engage- 
ments, be  they  prudent  or  foolish,  like  one  discovert. 

A  careful  review  of  the  latest  decisions  shows  that  the  married 
woman  is  still  far  from  being  bound,  or  desirous  of  being  bound,  to 
the  latter  alternative.  She  is  seen  setting  up  in  the  courts,  not  her 
own  ignorance  alone,  for  the  avoidance  of  her  contracts,  and  the 
retention  of  her  separate  property  against  strangers,  but  her  own 
fraud,  her  own  deliberate  and  wilful  misstatements  to  others,  her 
own  connivance  with  her  husband  in  dishonest  schemes.  We  shall 
not  inquire  whether  all  this  is  the  effect  more  of  evil  intention  on 
her  part,  or  evil  advice ;  but  in  the  courts,  certainly,  the  wife  does 
not  yet  appear  sounder  in  rectitude  and  regard  for  honorable  deal- 
ings with  the  great  world  than  her  husband. 

§  287.  History  of  American  Married  Women's  Acts. 

The  wife's  separate  use,  as  an  American  system,  or  rather  as 
the  system  of  certain  American  States,  had  thus  progressed  when 
our  local  legislatures   took   the  whole   subject   actively   in  hand. 

10.  Bell,  C.  J.,  in  Ames  v.  Foster,  42  N.  H.  381, 


o 


11  MAKKIED    women's    ACTS.  §    287 


The  American  equity  courts  had  followed  the  English  precedents 
pretty  closely,  but  without  displaying  the  same  vigor  and  bold- 
ness. None  of  our  reported  decisions  on  the  subject  of  the  wife's 
equitable  separate  property  had  attracted  popular  attention  or 
served  to  bring  out  the  discussion  of  strong  leading  principles, 
though  covering  a  period  of  sixty  years  down  to  nearly  the  middle 
of  the  last  century.  During  the  twenty-five  years  preceding  1848, 
a  change  in  public  opinion  had  been  gradually  wrought  in  this 
«ountry  and  in  England,  though  with  us  more  rapidly  than  abroad. 
The  married  women  of  America  turned  to  the  legislature  rather 
than  the  courts  of  her  State  for  a  more  complete  marital  inde- 
pendence, for  the  right  to  control  her  own  property,  for  freedom 
from  the  burdens  of  coverture.  In  shaping  popular  sentiment, 
doubtless,  the  annexation  of  territory  lately  governed  by  the  prin- 
ciples of  Koman  law  had  considerable  influence,  particularly  in 
the  States  adjacent  to  Louisiana;  still  more  in  a  national  sense 
did  our  rapid  advancement  as  a  self-governed  nation,  and  the 
spread  of  public  education,  of  independence  in  life  and  manners, 
and  of  equal  social  intercourse  of  the  sexes,  help  on  the  new  re- 
form. 

The  year  1848  saw  a  wondrous  revolution  effected  in  the  fore- 
most States  of  this  Union  as  to  the  property  rights  of  married 
women ;  and  this  revolution  has  since  extended  to  every  section  of 
the  country.  The  influence  of  these  changes  has  also  been  felt 
abroad ;  and  a  like  reform  was  pressed  in  the  English  Parliament 
about  1870,  whose  immediate  result  was  the  statute  to  which  we 
have  already  alluded.*^ 

In  1821  the  legislature  of  Maine  had  authorized  the  wife,  when 
deserted  by  her  husband,  to  sue,  make  contracts,  and  convey  real 
estate  as  if  unmarried,  prescribing  the  mode  of  procedure  in  such 
cases.  A  like  law  prevoiusly  existed  in  Massachusetts."  These 
appear  to  have  been  the  earliest  of  the  Married  Women's  Acts, 
properly  so  called:  the  first-fruits  of  the  modern  agitation  on 
woman's  rights.  The  example  of  Massachusetts  and  Maine  in  this 
respect  was  soon  imitated  elsewhere.  New  Hampshire,  Vermont, 
Tennessee,  Kentucky,  and  Michigan  all  passed  important  laws  of 
a  similar  character  before  1850.  The  independence  of  married 
women  whose  husbands  were  convicts,  runaways,  and  profligates 

11.  See  3  Juridical  Society  Papers  12.  See  Rev.  Sts.  Maine  (1840),  p. 

(1870),  part  17;  Act  33  &  34  Vict.  c.       341;  Rev.  Sts.  Mass.   (1836),  pp.  485, 
93,   1S70.  4S7. 


§  287  HUSBAND  AND  WIFE.  312 

became  thus  the  first  point  gained  in  the  new  system.  In  Massa- 
chusetts and  Rhode  Island  the  wife's  separate  use  in  life-insur- 
ance contracts  for  the  benefit  was  an  object  of  special  solicitude ; 
then,  in  1845,  the  former  State  turned  its  attention  further  to  a 
public  recognition  of  marriage  settlements  and  trusts  for  the 
wife's  separate  benefit,  extending  the  equity  jurisdiction  of  its 
courts  for  that  purpose.^'  The  right  of  a  married  woman  to  dis- 
pose of  her  property  by  will  was  legalized  in  Illinois,  Pennsyl- 
vania, Michigan,  and  Connecticut  about  the  same  time.  In  Con- 
necticut, Ohio,  Indiana,  and  Missouri,  the  first  reforms  appear 
to  have  been  directed  towards  exempting  the  wife's  property  from 
liability  for  her  husband's  debts,  rather  than  giving  her  a  com- 
plete dominion  over  it." 

The  Roman  principle  of  an  independent  estate  in  the  wife,  as 
modified  by  the  more  modem  French  and  Spanish  community 
law,  prevailed  in  Louisiana  at  the  time  of  its  admission  into  the 
Union;  and  like  traces  appear  in  the  legislation  of  Florida, 
Arkansas,  Texas  and  other  adjacent  States  formerly  under  French 
and  Spanish  rule.  So  was  the  doctrine  of  separate  estate  pro- 
mulgated by  Mississippi  statute  as  early  as  1839.^^  And  in  other 
Southern  States,  as  Alabama  and  ITorth  Carolina,  where  chancery 
jurisprudence  was  well  established,  appeared  laws  investing  the 
courts  with  larger  powers  in  matters  of  this  sort.^^  Alabama  and 
Mississippi  appear  to  have  first  postponed  the  husband's  liability 
for  his  wife's  antenuptial  debts  to  her  separate  estate.^^ 

It  should  be  said  that  both  Maine  and  Michigan  had  enacted 
laws  in  1844,  giving  enlarged  powers  to  the  wife  to  hold  and  dis- 
pose of  separate  property;  thus  anticipating  some  of  the  statutory 
changes  both  in  New  York  and  Pennsylvania.^^ 

13.  A  New  Hampshire  act  in  1846  15.  See  Bright,  ih.  The  influence  of 
copied  these  provisions;  and  a  statute  a  large  commercial  city  like  New  Or- 
of  Ehode  Island  in  1844  made  similar  leans  was  doubtless  felt  in  the  sparsely 
enactments.  These  are  indications  of  settled  territory  surrounding  it.  The 
what  the  text  has  already  stated ;  that  codes  of  these  States  were  all  disfig- 
trusts  for  separate  use  and  equity  ured  by  "chattel"  provisions,  which 
jurisdiction  on  the  wife's  behalf  were  detracted  much  from  the  merits  of  a 
little  recognized  in  that  section  when  policy  otherwise  humane  to  the  wife, 
the  married  women's  agitation  com-  16  2  Bright,  ib. 

menced  in  the  United  States.  17.  Cf.   (1846). 

14.  See  2  Bright,  Hus.  &  Wife,  Am.  18.  Eev.  Stat,  Mich.  (1846),  p.  340; 
ed.  1850,  p.  627  et  seq.,  where  married       Maine  Statutes,  March  22,  1844. 
women's  acts  are  cited  by  Mr.  Lock- 
wood;  2  Kent  Com.  130,  n. 


313  MARRIED    women's    ACTS.  §    288 

From  1848  forth  the  revolution  became  rapid,  and  has  since 
extended  to  all  the  States,  Virginia  being  the  last  to  yield.  And 
the  work  of  legislative  change  still  goes  on.  Scarcely  a  year 
passed  between  1850  and  1870  without  some  new  Married 
Women's  Acts  added  to  the  local  statute  books/®  and  with  regard 
to  woman  in  general,  the  constant  tendency  has  been  to  enlarga  her 
freedom  of  action,  and  open  to  her  sex  pursuits  hitherto  closed 
against  it. 

§  288.  New  York  and  Pennsylvania  Married  Women's  Acts  o£ 
1848. 

The  sweeping  changes  effected  by  the  legislature  of  New  York 
in  1848  deserve  more  than  a  passing  notice.  The  debates  of  the 
constitutional  convention  of  that  State  in  1846  evinced  the  grow- 
ing desire  for  a  radical  reform  in  the  property  rights  of  married 
women;  and  the  advocates  of  the  movements,  failing  in  their 
attempt  to  secure  an  article  of  amendment  to  the  State  constitu- 
tion on  their  behalf,  next  addressed  themselves  to  the  legislature, 
and  with  success.  On  the  7th  of  April,  1848,  was  enacted  a  law 
"  for  the  more  effectual  protection  of  married  women,"  which 
provided  that  the  real  and  personal  property  of  any  female  al- 
ready married,  or  who  may  hereafter  marry,  which  she  shall  own 

19,  The  acts  now  in  force,  many  of  1866.  And  see  Jackson  v.  Hubbard, 
them  perplexing,  which  need  not  here  36  Conn.  10,  on  this  point.  Afterward 
■fee  detailed,  will  be  found  summarized  another  statute  was  passed  in  this 
uptothedateof  1878  in  Wells's  Sepa-  State  in  1869,  and  still  another  in 
rate  Property  of  Married  Women,  1872,  and  then  at  the  general  revision 
Part  I.  More  or  less  liberality  is  of  the  statutes  in  1875  a  further 
shown  in  different  States  in  the  legis-  amendment  took  place.  This  is  a 
lative  grant  of  separate  property,  but  marked,  but  not  exceptional,  instance 
the  tendency  on  the  whole  is  to  place  of  State  innovations  in  the  law  of 
the  married  woman  on  the  footing  of  Husband  and  Wife.  Between  1850 
a  feme  sole  in  respect  of  property  and  and  1860  inclusive,  notes  the  writer, 
kindred  rights  of  suit  and  contract.  the  following  States  began  their  mar- 
In  the  Southern  Law  Eeview,  vol.  6,  ried  women 's  legislation,  some  boldly, 
p.  633,  will  be  found  an  instructive  others  timidly :  Indiana,  Missouri,  New 
article  by  Professor  Henry  Hitchcock,  Jersey,  Kansas;  Ohio,  and  Illinois  fol- 
commenting  upon  marital  property  lowed  in  1861,  and  other  States  suc- 
rights  as  defined  by  American  statutes  cessively  in  subsequent  years.  In  1869 
in  force  in  1880.  Detailing  the  sta-  Congress  enacted,  for  the  benefit  of 
tutory  changes  which  have  occurred,  married  women  in  the  District  of 
the  author  calls  attention  to  the  fact  Columbia,  one  of  the  most  radical 
that  in  Connecticut,  beginning  with  laws  on  the  subject.  The  last  State 
the  act  of  1845,  there  were  eleven  sue-  to  fall  into  line  was  Virginia,  in 
cessive  statutes  passed  at  intervals  1877. 
during  the  twenty-one  years  ending  in 


§    289  HUSBAND    AND    WIFE.  314 

at  the  time  of  marriage,  and  the  rents,  issues,  and  profits  thereof, 
s/hall  not  be  subject  to  the  disposal  of  her  husband,  nor  be  liable 
for  his  debts,  and  shall  continue  her  sole  and  separate  property  as 
if  she  were  a  single  female ;  and  that  any  married  female  may  law- 
fully receive  and  hold  property  in  like  manner  from  any  person 
other  than  her  husband,  whether  by  gift,  grant,  devise,  or  bequest. 
This  statute,  passed  at  such  a  time  by  the  foremost  State  in  the 
Union, —  a  State  thoroughly  northern  in  its  institutions,  while  the 
recognized  champion  of  chancery  principles, —  could  not  fail  to 
make  a  deep  national  impression.^" 

A  parallel  movement  had  meanwhile  progressed  in  Pennsyl- 
yania ;  and  in  that  State  an  act  of  the  legislature,  dated  only  four 
days  later,  conferred  substantially  the  same  rights  of  property 
upon  married  women,  though  expressed  in  different  language. 
This  act,  still  more  remarkable  in  its  general  provisions  than  that 
of  ITew  York,  not  only  recognized  the  wife's  separate  use  in  her 
own  property  as  a  legal  right,  but  at  the  same  time  gave  her  the 
power  to  dispose  of  such  estate  by  will,  made  it  liable  for  family 
necessaries  in  failure  of  attachable  property  belonging  to  the  hus- 
band, admitted  children  to  the  inheritance  of  separate  personal 
estate  in  common  with  the  surviving  husband,  and  exempted  the 
husband  from  all  liability  for  his  wife's  antenuptial  debts.  It 
further  provided  that  the  wife's  separate  property  should  be  abso- 
lutely liable  for  her  general  contracts  and  torts,  and  that  only  her 
formal  consent,  given  in  the  manner  therein  specified,  could  bring 
the  property  under  subjection  for  the  husband's  debts,  or  effect 
a  lawful  transfer.^'- 

§  289.  English  Married  Women's  Act  of  1870. 

In  England  the  Married  Women's  Property  Act  of  1870,  with 
its  later  amendments,  indicates  some  change  of  parliamentary 
policy  in  the  same  practical  direction.  But  the  English  courts 
still  incline,  as  would  the  American  under  statutes  of  dubious 
import,  to  render  the  separate  property  of  the  wife  liable  by  sub- 
jecting her  to  the  ordinary  process  of  law  and  equity.^^  The  wife 
cannot  be  sued  alone  in  respect  of  her  separte  estate  in  the  com- 

20.   We   give   the   substance   rather      modified  by  Acts  of  1849,  c.  375,  aad 
than  the  language  of  this  statute.   See       1860,  e.  90,  §  1. 

2  Bright,  Hus  &  Wife,  Am.  ed.,  1850,  21.   Bright,  ib.,  p.   648;    Laws   Pa. 

Lockwood's   note,    581    ct   seq.      This       1848,  pp.  536,  537,  538. 
statute    was    afterwards    considerably  22.  Ex  parte  Holland,  L.  R.  9  Ch. 

App.  307. 


515  MARRIED    women's    ACTS.  §    290 

mon-law  courts,  under  the  act  of  1870,  for  the  price  of  goods  sold 
her  during  coverture,  but,  as  formerlj,  the  husband  must  be 
joined."^ 

It  is  held,  under  the  English  statute,  that  where  husband  and 
wife  join  in  signing  a  joint  and  several  promissory  note,  though 
for  money  lent  him,  and  the  husband  becomes  bankrupt,  the  wife's 
separate  estate  must  be  held  liable.^*  Under  this  statute  it  is 
made  the  duty  of  a  company  to  register  stock  in  the  name  of  a 
married  woman  entitled  to  her  separate  use;  and  this  duty  is 
enforceable  by  mandamus."^  This  same  statute  makes  other  im- 
portant changes,  with  the  view  of  creating  a  statutory  separate 
estate  in  married  women,  which,  however,  do  not  as  yet  attract 
much  judicial  comment.^* 

§  290.  Scope  and  Validity. 

The  main  principles  touching  the  acquisition  of  a  statutory 
separate  property  by  the  wife,  as  an  American  system  of  positive 
law,  we  shall  now  consider  as  fairly  as  circumstances  permit. 
And,  first,  it  may  be  remarked  in  general  that  these  American 
Married  Women's  Acts  are  designed  for  women's  benefit,  and 
that  they  do  not  limit,  but  rather  extend,  her  right  to  beneficially 
hold  separate  property.  Thus  it  is  held  that  the  wife's  equity  to 
a  settlement  from  her  choses  in  action  remains  as  before;  for  the 
legislature  intended  to  offer  her  what  was  supposed  to  be  a  more 
valuable  right,  leaving  it  to  her  election  to  claim  the  benefit  of 
the  act  or  to  assert  her  equity  to  a  settlement  without  regard  to  its 
provisions.^^ 

23.  Hancocks  v.  Lablache,  26  W.  R.  proviso; ;  also,  upon  the  observance  of 
402;  Davies  v.  Jenkins,  L.  R.  6  Ch.  D.  certain  formalities,  her  property  in 
728.  See  Noel  v.  Noel,  L.  R.  13  Ch.  the  funds,  joint-stock  companies,  &c.; 
D,  510.  The  right  of  counter-claim  personal  property  coming  to  her  not 
on  the  wife's  behalf,  in  place  of  the  exceeding  £200;  rents  and  profits  of 
former  cross-bill,  is  now  admitted  un-  her  freehold  property ;  policies  of  in- 
der  English  practice.  Hodson  v.  suranee  for  benefit  of  wife  (trusts  for 
Mochi,  L,  R.  8  Ch.  D.  569.  benefit  of  wife  and  children  being  also 

24.  Davies  v.  Jenkins,  L.  R.  6  Ch.  D.  permitted). 

728.  This  moderate  act  is  doubtless  the 

25.  Queen  v.  Carnatic  R.  R.  Co.,  L.  result  of  influences  such  as  were  first 
R.  8  Q.  B.  299 ;  Act  33  &  34  Vict.  c.  manifested  in  the  United  States.  The 
93.  American   legislation   on   this   subject 

26.  See  Act  33  &  34  Vict.  ch.  93  long  antedates  the  English.  Other 
(1870).  This  act  declares  that  wages  provisions  are  found  in  this  act,  whose 
and  earnings  of  a  married  woman  appropriate  consideration  belongs  to  a 
shall  be  her  separate   property ;    also  later  chapter. 

her  deposits  in  savings  banks  (with  a  27.  Blevins  ▼.  Buck,  26  Ala.  292. 


§    290  IIUSBA^'D    ANT)    WIFE.  316 

Where  she  is  held  to  be  restricted  bv  the  statute  at  all,  it  is 
generally  with  reference  to  the  right  of  disposition,  and  in  order 
that  others  may  not  subject  it  to  the  fulfilment  of  her  engage- 
ments.^* The  provision  of  the  North  Carolina  Constitution  that 
a  wife  may  convey  her  lands  with  the  written  assent  of  her  hus- 
band does  not  prevent  the  legislature  from  regulating  the  manner 
in  which  such  assent  may  be  given,^®  nor  the  manner  in  which  the 
deed  shall  be  executed  and  acknowledged.^"  So  the  constitutional 
provision  in  Arkansas  that  a  wife's  property  shall  not  be  subject 
to  the  debts  of  her  husband  is  not  violated  by  the  Married  Women's 
Act  empowering  her  to  contract  and  to  sue  and  be  sued  as 
though  sole.^^ 

The  doctrines  of  an  equitable  separate  estate  in  the  wife  are 
generally  invoked  at  this  day  as  furnishing  a  system  available  for 
her  advantage  wherever  (as  rarely  happens)  the  statutory  privi- 
leges, in  any  particular  instance,  prove  less  adequate  for  establish- 
ing her  independent  property  relations;  the  main  policy  of  the 
Married  Women's  Acts  being  not  to  supersede  the  wife's  equitable^ 
rights,  but  to  enlarge  her  legal  status,  and  correct  the  old  anomaly 
which  left  her  a  person  in  equity  but  none  in  law. 

How  gTeat  the  change  which  modern  equity  and  legislation 
have  wrought,  and  modem  legislation  especially,  in  marital  rights 
and  duties  as  defined  by  the  common  law,  will  further  appear  from 
the  miscellaneous  changes,  to  be  noticed  in  this  final  chapter.  These 
changes,  which  concern  contracts,  torts,  property  of  the  wife, 
and  suits  by  or  against  her,  may  be  specified  as  chiefly  relating: 
(1)  to  the  wife's  antenuptial  debts;  (2)  to  the  wife's  general 
disability  to  contract;  (3)  to  the  necessaries  of  wife  and  family; 
(4)  to  torts  committed  by  the  wife;  (5)  to  torts  committed  upon 
the  wife;  (6)  to  torts  or  crimes  committed  by  one  spouse  and 
affecting  the  other;  (7)  to  the  wife's  property;  (8)  to  actions  by 
a  married  woman,  her  arbitration,  kc. 

28.   See  Davis  v.  Foy,   7   S.   &  M.  29.  Hensley  v.  Blankinship  (N.  C), 

(Miss.)    64;    Pond    v.    Carpenter,    12  94  S.  E.   519. 

Minn.  430;  Pippen  v.  Wesson,  74  N.  30.   Council   v.   Pridgen,   153   N.   C. 

C.    437.      The    subject   of   the   wife's  443,  69  S.  E.  404. 

right  of  disposition  is  discussed  in  a  31.  Holland  v.  Bond,  125  Ark.  526, 

later  chapter.  Chapter  XII.  189  S.  W.  165. 


317  MAKKIED    women's    ACTS.  §    292 

§  291.  Construction. 

Married  Women's  Acts  should  he  liberally  construed/"  as  they 
are  remedial,  and  should  be  construed  so  as  to  effect  their  objects.®* 

Statutes  enlarging  the  capacity  of  a  wife  to  contract  will  not  in 
equity  be  construed  by  a  Federal  court  to  abolish  exceptions  in 
her  favor,  in  the  absence  of  authoritative  decisions  by  the  State 
court  to  that  effect.®"' 

§  292.  What  Law  Governs  in  General. 

These  statutes  are  not  subject  to  mere  technical  construction, 
but  the  will  of  the  legislature  should  be  fairly  interpreted.  The 
legislative  will  is  not  presumed  to  be  so  exerted  as  to  operate 
retrospectively.  "  A  retrospective  statute,  affecting  and  changing 
vested  rights,"  observes  Chancellor  Kent,  "  is  very  generally  con- 
sidered in  this  country  as  founded  on  unconstitutional  principles, 
and  consequently  inoperative  and  void,"®^  and  Married  Women's 
Acts  are  in  general  prospective  and  not  retroactive  in  their  opera- 
tion.®® The  effect  of  a  previous  conveyance  of  land  to  husband 
and  wife  jointly  is  not  changed  in  respect  of  survivorship.®^  The 
whole  current  of  American  decisions  confirms  that  statement ;  and 
thus  is  it  with  our  Married  Women's  Acts,  for  they  necessaritly 
reduce  the  property  rights  of  the  husband  as  prevalent  under  the 
common  law  of  coverture.  The  respective  rights  of  a  husband  and 
wife,  duly  married,  in  property  acquired  in  any  State,  before 
fundamental  law  or  appropriate  legislation  therein  has  changed  the 
old  rule,  must  be  governed  by  the  rules  of  the  common  law.®* 

32.  De  Vries  v.  Conklin,  22  Mich.  36.  Cook  v.  Walling,  117  Ind.  9,  19 
255;  Wilk  v.  Jones,  13  App.  D.  C.  N.  E.  532,  2  L.  E.  A.  769,  10  Am.  St. 
482 ;  Kriz  v.  Peege,  184  Mo.  508,  83  K.  17 ;  Levering  v.  Shockey,  100  Ind. 
S,  W.  481;  Stephens  v.  Hicks,  156  N.  558;  In  re  Scully's  Estate  (Mich.), 
C.  239,  72  S.  E.  313.  165  N.  W.  68;  Smoot  v.  Judd,  184  Mo. 

33.  Clow  V.  Chapman,  125  Mo.  101,  508,  83  S.  W.  481;  Akin  v.  Thompson 
28  S.  W.  328,  46  Am.  St.  R.  468,  26  (Tex.),  196  S.  W.  625;  Bennett  v. 
L.  R.  A.  412.  It  is  Iteld  otherwise  in  Hutchens  (Tenn.),  179  S.  W.  629; 
Tennessee,  on  the  ground  that  such  Neville  v.  Cheshire,  163  Ala.  390,  50 
acts  are  in  derogation  of  the  common  So.  1005;  Booker  v.  Castillo,  154  Cal. 
law.       Mayo     v.     Bank     of    Gleason  672,  98   P.   1067;    Hetzel  v.  Lincoln, 

(Tenn.),   205    S.   W.    125.  216  Pa.  60,  64  A.  860. 

84.  Hunter  v.  Conrad,  94  F.  11.  37.  Almond  v.  Bonuell,  76  111.  536. 

35.  1  Kent  Com.  455.     Various  na-  38.    Carter   v.   Carter,    14    S.   &   M. 

tional  and  State  constitutional  provi-  (Miss.)    59;    Eldridge    v.    Preble,    34 

sions— as,  e.  g.,  that  no  one  shall  be  Me.    148;    Maynard    v.    Williams,    17 

deprived    of   property    "without    due  Ala.  676;   Snyder  v.  Snyder,  3  Barb, 

process  of  law,"  and  against  impair-  fN".  Y.)    621;   Perkins  v.  Cottrell.   15 

inrr  the  obliteration  of  contracts — have  Bnrb.     CN.     Y."\      446;     RatclifFe     v. 

a  similar  bearing.  PruKrhorty,   24   Miss.   181;    .Tenncy  r. 


293 


HUSBAND    AN'D    WIFE. 


31& 


Married  Women's  Acts  do  not  change  the  marital  relations  be- 
tween spouses,^^  nor  permit  them  to  defraud  even  others.*" 

§  293.  As  to  Rights  of  Husband. 

The  wife's  personal  property  already  in  possession  or  reduced  to 
possession  by  the  husband  remains  his  after  the  passage  of  a 
Married.  Women's  Act.*^  Also  any  interest,  accruing  subsequently 
to  the  Married  Women's  Act,  on  property  previously  vested  in  the 
husband,  continues  his.*"  And,  to  go  still  further,  in  her  choses  in 
action,  or  unreduced  personality  which  he  is  already  at  liberty  to 
reduce,  there  is  a  valuable  existing  interest  capable  of  assignment 
and  transfer, —  a  vested  right  in  the  husband,  which  a  subsequent 
statute  or  State  constitutional  provision  cannot  deprive  him  of, 
according  to  the  better  opinion.*^     Where  a  complete  legal  estate 


Gray,  5  Ohio  St.  45 ;  Eoby  v.  Boswell, 
23  Ga.  51;  Burson's  Appeal,  22  Pa. 
164;  Tally  v.  Thompson,  20  Mo.  277; 
Peck  V.  Walton,  26  Vt.  82 ;  Tyrson  v. 
Mattair,  8  Fla,  107;  Quigley  v.  Gra- 
ham, 18  Ohio  St.  42;  Farrell  v.  Pat- 
terson, 43  111.  52;  Coombs  v.  Read,  16 
Gray  (Mass.),  271.  See  Love  v. 
Eobertson,  7  Tex.  6.  So,  rights  ac- 
quired subsequently  under  a  foreign 
government.  Dubois  v.  Jackson,  49 
111.  49;  Morrison  v.  Morrison,  113  Ky. 
507,  69  S.  W.  1102 ;  Vanata  v.  John- 
son, 170  Mo.  269,  70  S.  W.  687;  Leete 
V.  State  Bank,  141  Mo.  574,  42  S.  W. 
1074;  Houston  Belt  &  Terminal  Ey. 
Co.  V.  Seheppelman  (Tex.),  203  S,  W. 
167;  Hockaday  v.  Sallee,  26  Mo.  219; 
Harvey  v.  Wickam,  23  Mo.  112. 

39.  Citizens '  St.  Ey.  Co.  v.  Twiname, 
121  Ind.  375,  23  N.  E.  159,  7  L.  E.  A. 
352. 

40.  Biekel  v.  Bickel,  25  Ky,  Law, 
1945,  79  S.  W.  215. 

41.  Buchanan  v.  Lee,  69  Ind.  117. 

42.  Eyder  v.  Hulse,  33  Barb.  (N. 
T.)  264;  s.  c.  on  appeal,  24  N.  Y. 
372.  See  Savage  v.  O'Neill,  42  Barb. 
(N.  Y.)  374. 

43.  See  Dunn  v.  Sargent,  101  Mass. 
339;  Westervelt  v.  Gregg,  12  N.  Y. 
202;  Ryder  v.  Hulse,  24  N.  Y.  372; 
Steams  v.  "Weathers,  30  Ala.  712; 
Kirsey  v.  Friend,  48  Ala.  276.  Such 
is  the  rule  with  reference  to  a  legacy 


bequeathed  to  a  wife,  and  taking  ef- 
fect before  the  passage  of  an  act  vest- 
ing all  such  property  in  the  married 
woman:  Norris  v.  Beyea,  13  N.  Y. 
273,  288;  or  her  distributive  share, 
accruing  previously,  in  an  estate:  lb.; 
Kidd  V.  Montague,  19  Ala.  619; 
Sperry  v.  Haslam,  57  Ga.  412 ;  or  her 
stock,  mortgages,  and  incorporeal 
property  generally. 

In  Mississippi  the  rule  was  laid 
down  differently,  upon  the  fallacious 
idea  that  the  husband's  right  to  re- 
duce was  a  mere  qualified  right  upon 
a  condition  precedent  which  the  stat- 
ute might  intercept.  Clark  v.  Mc- 
Creary,  12  S.  &  M.  (Miss.)  347,  354. 
But  to  this  may  be  opposed  the  rea- 
soning of  Edwards,  J.,  in  Westervelt 
V.  Gregg,  supra.  "A  right  to  reduce 
a  chose  in  action  to  possession,"  he 
observes,  "is  one  thing,  and  a  right 
to  the  property  which  is  the  result  of 
the  process  by  which  the  chose  in 
action  has  been  reduced  to  posses- 
sion is  another  and  different  thing. 
But  they  are  both  equally  vested 
rights.  The  one  is  a  vested  right  to 
obtain  the  thing,  with  the  certainty 
of  obtaining  it  by  resorting  to  the 
necessary  proceedings,  unless  there  be 
a  legal  defence ;  and  the  other  is  a 
vested  right  to  the  thing  after  it  has 
been  obtained. ' '  But  see  Goodyear 
V.  Eumbaugh,  13  Pa.  480;   Mellinger 


319  MARRIED    women's    ACTS.  §    293 

in  the  wife's  lands  has  already  vested  in  the  husband,  it  is  not 
taken  away  from  him.** 

The  interest  of  a  husband  in  remainder  in  property  already 
bequeathed  to  his  wife  on  the  contingency  of  surviving  a  life- 
tenant  is  held  to  be  a  vested  right  in  such  a  sense  that  it  cannot  be 
taken  away  by  a  Married  Women's  Act  passed  before  the  contin- 
gency happens.*^  And,  in  general,  an  interest  vested  in  the  hus- 
band, though  in  a  certain  sense  contingent,  which  is  not  a  mere 
expectancy  or  bare  possibility,  like  that  of  an  heir  from  his  living 
ancestor  who  may  yet  disinierit  him  by  will,  but  is  an  interest 
already  created  and  existing,  which  is  descendible,  transmissible, 
and  capable  of  transfer,  is  not  to  be  taken  away  by  subsequent 
legislation  in  the  wife's  favor.** 

In  like  manner  the  husband's  vested  life  estate  by  way  of 
courtesy  initiate  in  his  wife's  lands  cannot  be  taken  away  by 
legislative  enactment,  any  more  than  the  wife's  inchoate  right  of 
dower  in  her  husband's  lands.*^  Is^or  can  any  interest  which  a 
husband,  before  the  passage  of  the  act,  has  in  his  wife's  real 
estate,  be  thus  devested.*® 

In  other  words,  while  the  husband's  vested  rights  arising  under 
a  marriage  cannot  be  constitutionally  disturbed  by  an  alteration 
of  the  law,  his  mere  expectancy,  or  the  possibility  of  some  future 
acquisition  by  right  of  marriage,  is  subject  to  any  change  which 
the  legislature  may  choose  to  make  prior  to  the  vesting  of  a  right 
in  the  husband.** 

V.    Bausman,    45    Pa.    522;    White    v.  110.     Eents   of  the  wife's  land,  too, 

Waite,  47   Vt.   502;   Henry  v.  Dilley,  accruing  before   her   death   and  prior 

1   Dutch.    (N.   J.)    302, — -which  favor  to  the  new  constitutional  provision  as 

the  Mississippi  rule.  to   married  women's   rights,   go   with 

44.  Keith  v.  Miller,  174  111.  64,  51  the  curtesy,  and  not  to  the  wife's 
N.  E.  151;  Struss  v.  Norton,  20  Ky.  heirs.  Matthews  v.  Copeland,  79  X. 
Law,  1116,  48  S.  W.  976;   Tucker  v.  C.  493, 

Tucker's  Adm'r,  165  Ky.  306,  176  S.  48.   Burson's  Appeal,   22   Pa.   164; 

W.  1173;   Powell  v.  Powell,  267  Mo.  Prall    v.    Smith,    31    X.    J.    L.    244; 

117,   183   S.  W.  625,   188   S.  W.   795;  Wythe    v.   Smith,   4    Sawyer    (U.   S.), 

Rezabek    v.    Eezabek,    196    Mo,    App.  17.     The  increase  of  domestic  animals 

673,    192    S.    W.    107 ;    Bouknight   v.  purchased  by  the  husband  before  the 

Epting,  11  S.  C.  71.     And  hence  the  passage  of  the  married  woman  's  act, 

husband's    interest    therein     can    be  belongs  to  him,  and  not  to  his  wife, 

taken  and  sold  on  execution,     li.  Hazelbaker  v,  Goodfellow,  64  111,  238. 

45.  Dunn  v,  Sargent,  101  Mass,  336.  49.  Cooley,  Const.  Limitations,  360- 

46.  Gray,  J.,  in  Dunn  v.  Sargent,  362;  ITolliday  v.  ]\rcMill;in.  79  X.  C. 
101  Mass,  336;  Shaw,  C.  J.,  in  Gard-  315;  Gray,  J.,  in  Dunn  v.  Sargent, 
ner  V,  Hooper,  3  Gray  (Mass),  398.  101  Mass.  336;  Hill  v.  Chambers,  30 

47.  "Rose  V.  Sanderson,  38  111.  247;       Mich.   422. 
Dayton   v.   Dusenbury,    25   X.    J.   Eq. 


§    294:  HUSBAXD    AXD    WIFE.  320 

§  294.  As  to  Rights  of  Wife. 

In  some  States  constitutional  perplexities  are  obviated  by  legisla- 
tion whicli  embraces  simply  sucb  property  as  may  be  beld  or  ac- 
quired by  women  marrpng  after  the  passage  of  the  act.^°  But 
the  Married  Women's  Acts  or  constitutional  amendments  usually 
operate  upon  parties  occupying  already  the  conjugal  relation  as 
the  statute  language  shows,  and  upon  those  who  as  a  fact  are  likely 
each  to  have  married  with  some  reference  to  the  pecuniary  expecta- 
tions of  the  other.  To  protect  a  husband's  interests  to  any  such 
extent,  however,  on  any  constitutional  suggestion  on  his  behalf, 
the  courts  appear  uniformly  to  decline;  for,  as  it  has  been  ob- 
served, the  marriage  contract  does  not  imply  that  the  husband 
shall  have  the  same  interest  in  the  future  acquisitions  of  the  wife 
that  the  law  gives  him  in  the  property  ske  possesses  at  the  time  of 
the  marriage,  but  rather  that  she  shall  have  whatever  interest  the 
legislature,  before  she  is  invested  with  them,  may  think  proper  to 
prescribe.''^  The  question  whether  a  contingent  remainder  devised 
to  a  wife  is  her  separate  estate  or  not  depends  on  when  it  vests  in 
possession  and  not  when  the  will  took  effect. °"  Where  a  State 
Constitution  grants  a  wife  power  to  dispose  of  her  property  the 
legislature  cannot  take  it  away.^^  And  whatever  a  married  woman 
may  have  acquired  subsequently  to  the  passage  of  an  appropriate 
act  by  gift,  devise,  bequest,  and  so  on,  becomes  her  statutory  sepa- 
rate estate,  and  all  parties  concerned  must  govern  themselves  ac- 
cordingly,^* no  matter  when  she  was  married.^^ 

A  corresponding  rule  of  constitutional  limitations  applies  to  the 
rights  and  liabilities  of  the  wife  under  these  acts,  as  to  her  title  by 
gift  or  purchase,  and  as  to  her  dominion  over  her  property  gen- 
erally,^^ of  which  we  are  to  speak  hereafter. 

In  Mississippi  it  is  held  that  property  purchased  by  the  hus- 
band, after  the  passage  of  the  act,  with  money  acquired  by  the 

50.  See  Maelay  v.  Love,  25  Cal.  367.  54.  Cherokee  Lodge  v.  White,  63 
Such  is  not  the  Oregon  rule;  but  wo-  Ga.  742.  A  legacy  bequeathed  to  a 
men  married  before  the  constitutional  married  woman,  and  taking  effect 
change  are  entitled  to  its  benefits.  subsequently  to  the  act,  ought  not  to 
Rugh  V.  Ottenheimer,  6  Ore.  231.  be  paid   to   the   husband   without  her 

51.  Sleight  V.  Eead,  18  Barb.  (N.  authority.  Xevins  v.  Gourley,  95  111. 
T.)  159;  Southard  v.  Plummer,  36  Me.      206. 

64.  55.  Hurt  v.  Cook,  151  Mo.  416,  52 

52.  Seiion  v.  Bloomer,  72   W.   Va.       S.  W.  396. 

316,  78  S.  E.  105.  56.  Bryant  v.  Merrill,  55  Me.   515; 

53.  Vann  v.  Edwards,  135  N.  C.  661,  Clark  v.  Clark,  20  Ohio  St.  128;  Lee  v. 
47  S.  E.  784,  67  L.  R.  A.  461.  Lanahan,  58  Me.  478. 


321 


MARRIED    WOME^  .S    ACTS. 


§  29; 


wife  by  gift  or  labor  before  it,  even  though  bought  expressly  for 
the  wife's  benefit  and  in  her  name,  belongs  to  the  husband.^^  In 
^ew  York,  judgments  recovered  against  a  husband  prior  to  the 
Married  Women's  Act  are  not  a  lien  upon  the  wife's  subsequently 
acquired  property.^*  In  Missouri,  the  act  exempting  property  of 
the  wife  from  liability  for  the  husband's  debts  does  not  affect  debts 
contracted  prior  to  the  passage  of  the  act  and  after  the  wife  came 
into  possession  of  the  property.""  In  Ohio  it  is  held  that  real 
estate,  inherited  by  a  married  woman  since  the  enactment  making 
the  same  her  separate  property,  cannot  be  charged  with  a  liability 
incurred  by  her  prior  to  the  passage  of  the  act.®" 

In  New  York  it  is  held  that  the  legislature  may  fasten  upon 
the  wife's  separate  bank  stock  a  personal  liability  to  the  extent  of 
such  stock.®^  Under  the  Alabama  statute  property  conveyed  to  the 
wife  by  a  voluntary  conveyance  prior  to  the  statute  is  her  separate 
estate,  as  between  the  parties,®^  and  the  Tennessee  and  Maryland 
statutes  relating  to  the  disposition  of  the  separate  estate  of  a  wife 
applies  both  to  estates  created  before  and  after  the  passage  of  the 
statute.** 

§  295.  Changes  made  by  Married  Women's  Acts  in  General. 

As  to  changes  affecting  the  wife's  property,  the  chapters  upon 
separate  estate  and  separate  trading  may  in  general  suffice.  While 
the  wife's  equity  to  a  settlement  is  still  recognized,  by  way,  at  least, 
of  election  on  her  part  to  claim  the  benefit  of  a  Married  Women's 
Act,'*  and  perhaps  on  the  further  behalf  of  children  by  the  mar- 
riage, it  cannot  be  asserted  for  the  wife's  undue  advantage;  as 
for  instance,  to  compel,  against  a  mortgagee,  that  provision  be  made 
out  of  the  property  which  she  has  lawrfully  mortgaged  for  a  speci- 
fied security.®'^ 

In  some  States  the  husband's  life  interest  in  his  wife's  real  e«^- 


57.  Sharp  v.  Maxwell,  30  Miss.  442. 
But  on  money  of  the  wife,  received  by 
the  husband  after  the  act  took  effect, 
she  is  entitled  only  to  the  interest  ac- 
cruing the  year  last  preceding  the 
accounting.  Thomson  v.  Hester,  55 
Miss.  656. 

58.  Sleight  v.  Read,  18  Barb.  (N. 
Y.)  159. 

59.  Cunningham  v.  Gray,  20  Mo. 
170. 

60.  Fallia  v.  Keys,  35  Ohio  St.  265. 

21 


61.  Matter  of  Reciprocity  Bank,  20 
Barb.   (N.  Y.)   369. 

62.  Milam  v.  Coley,  114  Ala.  535,  3ff 
So.  511. 

63.  Jackson  v.  Everett  (Tenn.),  58 
S.  W.  340;  Martin  v.  Fort,  83  F.  19, 
27  C.  C.  A.  428;  Beinbrink  v.  Fox, 
121  Md.  102,  88  A.  106. 

64.  Blcvins  v.  Buck,  26  Ala.  292. 

65.  Allen  v.  Lenoir,  53  Miss.  321. 
See  supra,  §  175,  as  to  the  wife's 
equity  to  a  settlement. 


§  295 


husbajn^d  and  wife. 


322 


tate®®  is  protected  from  attachment  during  marriage;  and  this 
interest  is  generally,  though  not  uniformly,  preserved  under  the 
Married  Women's  Acts,  as  well  as  his  tenancy  by  the  curtesy;"^ 
the  husband  being  allowed,  however,  to  dispose  of  it  to  the  ex- 
clusion of  his  creditors.^^  Under  the  Tennessee  Married  Women's 
Act  of  1913  a  wife  is  completely  emancipated  from  common-law 
disabilities,®^  but  in  Vermont  she  is  still  under  common-law 
disability  as  to  property  held  by  both  spouses  in  her  right 


70 


66.  For  coverture  doctrine,  see 
supra,  §  186,  et  seq. 

67.  Bachman  v.  Chrisman,  23  Pa. 
162;  Van  Note  v.  Downey,  4  Dutch. 
219;  Eose  v.  Sanderson,  38  111.  247. 
In  some  States  curtesy  consummate  is 
protected,  while  the  husband's  usu- 
fruct during  his  wife's  life  is  taken 
away.  Porch  v.  Fries,  3  C.  E.  Green 
(N.  J.),  204.     And  see  Lynde  v.  Mc- 


Gregor, 13  Allen  (Mass.),  182;  Mont- 
gomery V.  Tate,  12  Ind.  615.  See  also 
in  general,  as  to  tenancy  by  the  cur- 
tesy, post,  Vol.  II. 

68.  Teague  v.  Downs,  69  N.  C.  280. 

69.  Morton  v.  State  (Tenn.),  209  S. 
W.  644;  Moffat  v.  Schenck  (Tenn.), 
210  S.  W.  157. 

70.  Fadden  t.  Fadden  (Vt.),  103  A. 
1020. 


323  WIFE  AS  SOLE  TBADEE.  §  290 


CHAPTER  XVII 

WIFE  AS  SOLE  TRADER,  PARTNER  AND  STOCKHOLDEB. 

Section  296.  As  Sole  Trader;  Early  English  Doctrine. 

297.  By  Custom  of  London. 

298.  Under  Civil  Law  Codes. 

299.  View  That  Wife  Cannot  be  Separate  Trader  at  Common  Law. 

300.  Under  Antenuptal  Agreement. 

301.  American  Equity  Doctrine. 

302.  Necessity    of    Proceedings    to    Enable    Wife    to    Become    Sole 

Trader. 

303.  Necessity  of  Assent  of  Husband, 

304.  English  Statutory  Rule. 

305.  Under  American  Married  Women's  Acts  in  General. 

306.  Massachusetts  and  Pennsylvania  Statutory  Eule. 

307.  What  Constitutes  Sole  Trading. 

308.  Validity  of  Wife's  Trading  Contracts  in  General. 

309.  Effect  of  Estoppel. 

310.  Effect  of  Bankruptcy  of  Wife. 

311.  Liability  of  Husband. 

312.  Effect  of  Participation  of  Husband  as  Agent. 

313.  Rights  of  Husband's  Creditors. 

314.  As  Copartner;  Generally. 

315.  With  Husband. 

316.  With  Third  Persons. 

317.  As  Stockholder. 

318.  Actions. 

§  296.  As  Sole  Trader;  Early  English  Doctrine. 

The  wife's  power  to  carry  on  a  separate  trade  is  another  topic^ 
known  long  ago  to  the  law  of  England;  and  in  this  respect  our 
American  legislation  of-  the  present  day  seems  to  have  been  some- 
what anticipated.  The  wife's  lawful  power  to  carry  on  a  trade  on 
her  own  account,  independently  of  her  husband,  like  most  of  her 
other  separate  privileges,  is  founded  at  the  common  law  upon  con- 
tracts made  with  her  in  derogation  of  the  husband's  marital 
rights.  It  appears  that  a  wife,  desiring  to  go  into  business  on  her 
own  account,  makes  an  agreement  with  her  husband.  When  the 
agreement  is  made  before  marriage,  it  will  bind  the  husband  and 
his  creditors;  when  made  during  the  coverture,  it  binds  the  hus- 
band only,  and  is  void  against  his  creditors.^^     This  species  of 

71.  Macq.  Hus.  &  Wife,  321;  2  &  Wife,  165,  175,  and  cases  cited. 
Bright,  Hus.  &  Wife,  292;  Lavic  v.  See  Antenuptial  and  Postnuptial  Sot- 
Phillips,  3  Burr.  1783;  2  Roper,  Hus.       tlements,  posi,  %  4?0  ei  seq. 


§  297 


HUSBAND    AXD    WIFE. 


324 


contract  seems  to  have  been  recognized  in  tlie  common-law  tribu- 
nals. 

If,  for  the  purpose  of  enabling  a  married  woman  to  carry  on  her 
separate  trade,  property  be  vested  in  trustees  before  the  marriage, 
the  wife  will  at  law  be  considered  their  agent,  and  in  that  charac- 
ter will  have  the  benefit  of  the  property,  and  enjoy  its  increase 
and  profits  independently  of  her  husband,  and  free  from  liability 
in  respect  of  his  debts.''"  The  law  here  considers  the  wife  as  the 
agent  of  her  own  trustee,  and  her  possession  as  his  possession. 

The  question  whether  the  trade  be  carried  on  solely  by  the  wife, 
or  jointly  with  her  husband,  is  a  question  of  fact  for  the  jury. 
If  they  find  that  it  is  a  joint  business,  the  stock  in  trade  will  be 
subject  to  the  husband's  obligation.''^  So  the  husband  will  be 
liable  for  the  debts,  if  it  appear  that  he  participated  with  the  wife 
in  the  benefits.''*  Notwithstanding  these  provisions  of  the  law,  it 
does  not  appear  that  separate  trading  in  England,  prior  to  the 
innovations  introduced  with  the  Married  Women's  Act  of  1870, 
was  ever  very  common.  No  modern  equity  cases  are  to  be  found 
on  this  subject.''^  The  difficulties  in  the  way  of  establishing  credit, 
and  of  negotiating  securities  on  the  wife's  sole  behalf,  were  prob- 
ably found  insurmountable,  even  though  married  women  might  be 
found  anxious  to  assume  the  responsibilities  of  trade,  with  its  inci- 
dental imprisonment  for  debt.  The  judicial  evidence  of  this 
separate  trading  is  supplied  chiefly  by  the  misfortunes  such  trade 
entailed  upon  the  women  who  embarked  in  it.  Even  where  the 
wife  lived  apart  from  her  husband  (a  very  important  considera- 
tion'*'), and,  having  her  separate  estate,  carried  on  a  trade,  it  was 
doubted,  in  an  important  case  of  which  we  .have  spoken  elsewhere, 
whether  the  tradesmen  furnishing  supplies  had  any  demands  upon 
that  estate  which  equity  could  recognize.'" 

§  297.  By  Custom  of  London. 

Separate  trading  was  also  permitted  the  wife  by  the  "  custom 
of  London ;"  and  herein  she  was  regarded  as  liable  to  arrest  and 


72.  Jarman  v.  Wooloton,  3  T.  R, 
618;  Macq.  Hus.  &  Wife,  321;  2 
Bright,  Hus.  &  Wife,  297. 

73.  Barlow  v.  Bishop,  1  East,  432; 
Macq.  Hus.  &  Wife,  322;  2  Bright, 
Hus.   &  Wife,   297. 

74.  Petty  v.  Anderson,  2  Car.  &  P. 
38:  Macq.  Hus.  &  Wife,  322. 

75.  But  see  the  recent  cases  of  Tal- 
bot V.  Marshfield,  L.  R.  3  Ch.  622 ;  Be 


Peacock's  Trusts,  L.  R.  10  Ch.  D. 
490;  Ashworth  v.  Outrani,  L.  R.  5 
Ch.  923.  See  comments  in  Macq.  Hus. 
&  Wife,  323,  on  the  cases  cited  in  2 
Roper,  Hus.  &  Wife,  172,   173. 

76.  See  Separation,  vosi.  §  1060. 

77,  Cf.  Bruce  &  Turner,  Lord  Jus- 
tices, in  Johnson  v.  Gallagher,  3  De  G. 
F.  &  J.  4n'4. 


325 


WIFE    AS    SOLE    TKADER. 


§    2^8 


imprisonment  for  debt  without  her  husibaud,  and,  moreover,  might 
be  declared  a  bankrupt.'**  If  the  husband  had  any  concern  in  the 
business,  the  wife  was  no  longer  to  be  treated  as  a  feme  sole  in 
respect  of  it,'^  and  "  for  conformity  "  it  was  needful  to  join  the 
husband  in  such  suits,  even  though  the  wife  were  alone  liable, 
being  herself  the  substantial  party  proceeded  against.^"  In  Penn- 
sylvania, and  doubtless  in  most  other  States,  the  wife  is  not  per- 
mitted to  be  a  feme  sole  trader  upon  any  temporary  inability  of 
the  husband  or  his  mere  involuntary  failure  to  support  her,  nor 
upon  any  theory  of  a  mere  custom,  while  they  live  together.*^  But 
in  one  or  two  Southern  States  it  would  appear  as  if  the  London 
custom  had  been  adopted  and  recognized  within  certain  limits, 
by  virtue  of  old  local  statutes  or  otherwise,  so  as  to  render  it  im- 
material whether  or  not  husband  and  wife  live  together.  Thus,  in 
South  Carolina  a  feme  sole  trader  is  held  bound  to  a  third  person 
by  her  indorsement  to  him  of  a  note  drawn  by  her  husband  payable 
to  herself,*^  and  in  that  State  have  been  numerous  decisions,  early 
in  the  last  century,  requiring  the  wife  to  be  engaged  in  trade  or 
commerce,  but  permitting  her  to  keep  boarders,  and  so  on.*^ 

§  298.  Under  Civil  Law  Codes. 

By  the  Civil  Code  of  France,  the  wife  may  carry  on  a  trade 
independently  of  her  husband.^*  So  the  wife  may  be  a  separate 
trader  under  the  custom  of  Paris.***  And  a  similar  right  is 
recognized  by  the  laws  of  Spain  and  other  European  countries.** 

From  the  civil,  rather  than  the  common  law,  are  derived  those 


78.  Beard  v.  Webb,  2  B.  &  P.  97. 
See  2  Koper,  Hus.  &  Wife,  124. 

79.  2  Bright,  Hus.  &  Wife,  77,  78; 
Lavie  v.  Phillips,  3  Burr.  1776. 

80.  The  Liber  Albus,  in  the  town 
clerk's  office,  stated  that  "where  a 
feme  covert  of  the  husband  useth  any 
eraft  in  the  said  city  on  her  sole  ac- 
count, whereof  the  husband  meddleth 
nothing,  such  a  woman  shall  be 
charged  as  a  feme  sole  concerning 
everything  that  toucheth  the  craft; 
and  if  the  husband  and  wife  be  im- 
pleaded, in  such  case  the  wife  shall 
plead  as  a  feme  xnle ;  and,  if  she  bo 
condemned,  she  shall  be  committed  to 
prison  till  she  have  made  satisfaction, 
.and  the  husband  and  his  sjoods  shall 
not,  in  such  cas?,  be  charged  nor  im- 


peached. ' '     2  Bright,  Hus  &  Wife,  77. 

81.  King  V.  Thompson,  87  Pa.  365 ; 
Jacobs  V.  Featherstone,  6  W.  &  S. 
(Pa.)  346.  In  this  State  there  ap- 
pears to  have  been  an  old  statute  of 
1718  on  the  subject,  as  well  as  the 
later  one  of  1855. 

82.  Wilthaus  v.  Ludicus,  5  Rich.  (S. 
C.)  326.  And  see  Stimson  v.  White, 
20  Wis.  562. 

83.  McDaniel  v.  Cornwall,  1  Hill  (S. 
C),  428;  Dial  v.  Neuffer,  3  Rich.  (S. 
C.)  78;  Newbiggan  v.  Pillans,  2  Bay 
(S.  C),  162. 

84.  Code  Civil,  art.  220;  t  Burge, 
Col.   &   For.  Laws,  219. 

85.  1  Purge,  Col.  &  For.  Laws,  21S. 

86.  Th.   226,  420,  698. 


§  300 


HUSBA:?fD    AND    WIFE. 


326 


property  rights  of  married  women  which  are  recognized  in  Louis- 
iana, California,  and  others  of  the  South-western  States,  origin- 
ally colonized  by  the  Spanish  and  French.  Thus  the  Louisiana 
code  recognizes  the  capacity  of  the  wife  to  carry  on  separate  trade, 
or,  as  it  is  said,  to  constitute  herself  a  public  merchant,  provided 
she  act  bona  fide,  and  have  an  active  agency  in  the  concern. 


87 


§  299.  View  that  Wife  Cannot  be  Separate  Trader  at  Common 
Law. 

On  the  other  hand,  in  Is"orth  Carolina  the  whole  doctrine  of 
separate  trading  is  expressly  repudiated,**  and  it  is  there  held 
that  it  is  the  function  of  the  legislature  to  say  when  and  how  a 
wife  may  become  a  free  trader.*®  Indeed,  our  earlier  American 
cases  seem  to  have  regarded  with  very  little  favor  the  doctrine 
that  the  wife,  while  living  with  her  husband,  could  carry  on  a 
business  of  her  own,  without  rendering  her  husband  liable  and  sub- 
jecting her  stock  in  trade  to  his  debt5.^°  And  the  same  may  be 
said  of  States  whose  legislatures  have  not  freely  conceded  the 
right  of  married  women  to  incur  great  risks.^^ 

§  300.  Under  Antenuptial  Agreement. 

This  doctrine  of  the  wife's  }x>wer  to  trade  comes  up  in  the 
United  States,  with  our  policy  in  favor  of  the  independence  of 
married  women.  And  the  rule  seems,  apart  from  legislation,  to 
be  well  established  in  the  United  States,  that  the  husband,  in 
pursuance  of  a  marriage  contract,  antenuptial  or  postnuptial,  may 
confer  upon  his  wife  the  right  to  trade  for  her  exclusive  benefit.®^ 
Xor  have  the  American  cases  uniformly  insisted  upon  formal  con- 
tracts for  this  purpose  between  husband  and  wife;  seemingly  re- 
garding the  question  as  one  of  mutual  and  bona  fide  intention 
merely. 


87.  La  Code,  art.  128;  Christensen 
V.  Stumpf,  16  La.  Ann.  50.  And  see 
Camden  v.  Mullen,  29  Cal.  564 ;  Read- 
ing V.  Mullen,  31  Cal.  104;  Community 
Doctrine,  post,  §  579,  et  seq. 

88.  McKinnon  v.  McDonald,  4  Jones 
Eq.  (X.  C.)  1.  As  to  Alabama,  see 
Newhrick  v.  Dugan,   61   Ala.   251. 

89.  Scott-Sparger  Co.  v.  Ferguson, 
152  X.  C.  346,  67  S.  E.  750. 

90.  McKinley  v.  McGregor,  3  Whart. 
(Pa.)  378,  and  cases  cited. 


91.  Godfrey  v.  Brooks,  5  Harring. 
(Del.)  396;  Woodcock  v.  Reed,  5  Allen 
(Mass.),  207. 

92.  Richardson  v.  Merrill,  32  Vt. 
27;  Tillman  v.  Shackleton,  15  Mich. 
447;  Wieman  v.  Anderson,  42  Pa. 
311;  Duress  v.  Horneffer,  15  Wis. 
195;  James  v.  Taylor,  43  Barb.  (N. 
Y.)  530;  Wilthaus  v.  Ludicus,  5  Rich. 
(S.  C.)  326;  IJhrig  v.  Horstman,  8 
Bush  (Ky.),  172  Cowan  v.  Mann,  3 
Lea   (Tenn.),  229. 


327  WIFE  AS  SOLE  TKADEK.  §  301 

§  301.  American  Equity  Doctrine. 

The  equity  rule  in  Vermont  is  that  the  wife  shall  hold  the 
result  of  her  earnings,  in  every  ease,  against  the  husband  and  his 
heirs,  and  generally  against  his  creditors,  so  long  as  he  allows  her 
to  keep  the  property  separate  from,  the  general  mass  of  his  own. 
estate ;  and  this,  although  his  own  name  may  be  used  in  the 
formal  conduct  of  the  business;  unless,  in  the  case  of  creditors, 
this  should  lead  to  a  false  credit  on  the  part  of  the  husband. °* 
And  in  one  case  the  stock  in  a  millinary  shop,  resulting  from  the 
wife's  credit  and  her  earnings  under  the  sanction  of  her  husband, 
was  treated  as  her  separate  property,  and  held  liable  for  dem.ands 
affecting  it.^* 

In  Virginia,  a  married  woman  owning  a  separate  property, 
is  allowed,  on  equity  principles,  to  engage  in  trade  with  her 
husband's  consent,  either  on  her  sole  account  or  in  partnership 
with  a  third  person;  and  by  doing  so  she  subjects  her  separate  es- 
tate to  pa^Tuent  of  the  business  debts.  And,  as  against  the  hus- 
band and  his  creditors,  she  is  entitled  to  the  profits,  so  far,  at 
least,  as  they  did  not  accrue  from  labor,  skill,  or  capital  be- 
stowed by  himself.^"' 

So  in  Michigan  the  wife  is  permitted  to  keep  a  boarding-house 
as  her  own  separate  business,  and  upon  her  own  account ;  and  the 
same  is  said  of  other  pursuits,  though  the  courts  of  that  State 
seem  disposed  to  restrict  her  to  the  exeix^ise  of  such  business  as  is 
usually  carried  on  by  females  and  consists  largely  and  almost 
necessarily  of  female  labor.®®  In  Pennsylvania,  it  is  decided 
that  a  wife  may  trade  with  merchandise  acquired  in  her  own  right, 
and  with  the  proceeds  of  sales  buy  other  goods  to  be  held  and 
traded  with,  which  continue  exempt  from  seizure  for  her  hus- 
band's debts." 

In  Wisconsin,  where  a  married  woman,  with  the  assent  of  her 
husband,  engages  in  business  as  a  sole  trader,  and  contracts  a  debt 
for  goods  to  carry  it  on,  verbally  pledging  the  faith  of  separate 
estate,  her  whole  separate  estate  must  answer  for  it.®*  But  earn- 
ings acquired  from  his  business  managed  in  his  absence  are  not 

93.  Per  Redfield,  C.  J.,  in  Richard-  97.    Wieman    v.    Andersou,    42    Pa. 
son  V.  Merrill,  32  Vt.  27.                               311 ;  Manderbach  v.  Mock,  29  Pa.  43. 

94.  Partridge  v.  Stocker,  36  Vt.  108.       But    see    Hoffman    v.    Toner,    49    Pa. 

95.  Penn   v.   Whitehead,    17    Gratt.       231. 

(Va.)    503.  98.  Todd  v.  Lee,  16  Wis.  480. 

96.  Tillman  v.  Shackleton,  15  Mich. 
447 ;  Glover  v.  Alcott,  11  Mich.  471. 


§  301  HUSBAND  AND  WIFE.  328 

hers  independently  of  his  gift.^®  And  in  Indiana  it  is  said  that 
while,  as  an  abstract  proposition,  the  law  may  not  authorize  a 
married  woman  to  enter  into  a  contract  of  partnership,  yet  if 
she  does  make  such  contract,  and  in  pursuance  thereof  places  her 
separate  funds  in  the  firm  of  which  she  is  by  contract  a  partner, 
such  funds  cannot,  while  there,  be  made  subject  to  her  husband's 
debts/  The  conclusion  to  be  drawn  from  this  class  of  cases  is 
that,  modern  policy  having  once  conferred  upon  the  wife  large 
powers  both  as  to  the  acquisition  and  enjoyment  of  separate  prop- 
erty, as  well  as  the  right  to  invest  and  reinvest  the  same,  including 
their  rights  under  marriage  settlements,  married  women  naturally 
sought  business  opportunities  with  their  capital;  and  thus  the 
modern  courts,  confronted  with  the  practical  results,  and  aided 
by  precedents  from  old  local  customs  or  old  legislation,  were  drawn 
into  the  practical  concession  of  trading  privileges,  and  hence  of 
trading  liabilities,  while  professing  to  deny  to  the  wife  on  general 
principles  the  right  to  engage  in  mencantile  pursuits  without 
more  explicit  statute  provisions  to  that  effect,  and  while  requir- 
ing the  assent  of  the  husband  to  appear. 

Where  it  is  clearly  for  the  wife's  advantage  to  reap  the  benefits 
of  her  business,  the  disposition  of  the  law  to  yield  them  must  be 
strong;  but  where,  as  must  often  be  the  case,  she  speculates  im- 
prudently and  becomes  deeply  involved,  the  court  is  perplexed, 
though  doubtless  anxious  to  relieve  her.  The  Vermont  equity 
rule  in  this  respect,  indicated  in  this  section,^  perhaps  not  an 
unreasonable  one,  goes  beyond  all  the  English  precedents  cited  to 
support  it;  though  in  the  leading  Virginia  and  Vermont  cases, 
and  perhaps  in  others  upon  this  point,  we  find  the  married  woman 
who  has  subjected  her  property  to  the  demands  of  her  husband's 
creditors  permitted  to  stand  in  equity,  where  the  business  fails, 
as  a  sort  of  preferred  creditor,  for  her  manifest  benefit.^  Whether 
a  creditor's  claim  for  moneys  due  from  the  wife  on  account  of 
supplies  to  carry  on  the  separate  business  can  be  enforced  against 
her  is  under  the  rule  as  to  a  beneficial  dominion  set  forth  in 
another  chapter,*  of  at  least  doubtful  equity,^  such  indebtedness 

99.  Stimson  v.  White,  20  Wis.  562.  4.  Supra,  §  223  et  seq. 

1.  Mayhew  v.  Baker,  15  Ind.  254.  5.  Johnson  v.  Gallagher,  3  De  G.  F. 

2.  Supra,  p.  327.  &   J.    494;    Copeland   v.   Cunningham, 

3.  Penn  v.  Whitehead,  17  Gratt.  31  Ind.  116.  But  see  Todd  v.  Lee,  16 
(Va.)  503;  Richardson  v.  Merrill,  32  Wis.  480;  Partridge  v.  Stoeker,  36 
Vt.     27;     Cowan     v.     MaJin,     3     Lea       Vt.    108. 

(Tenn),  229.     See  Bellows  v.  Rosen- 
thal, 31  Ind.  116. 


329  WIFE  AS  SOLE  TKADEK.  §  302 

must  usually  be  pronounced  void  at  law ;  *  while  even  equity  will 
decline  to  enter  a  decree  establishing  a  charge  on  the  wife's  estate, 
unless  the  husband,  or  some  other  trustee  for  the  wife,  is  properly 
before  the  court.'' 

If  equity,  unaided  by  legislation,  preserves  the  separate  capital 
thus  invested  in  trade,  that  the  wife  may  enjoy  its  benefits,  it  is 
otherwise  with  profits  which  may  have  accrued  beyond  the  interest 
of  such  capital.  These,  it  is  declared  in  various  cases  which 
regard  the  separate  trade  with  disfavor,  belong  to  the  husband  like 
other  separate  earnings  of  the  wife,  so  as  to  remain  liable  for  hij 
debts ;  being  in  fact  as  much  the  earnings  of  the  wife  as  any  other 
income  or  product  by  her  labor  and  skill.*  And,  of  course,  the 
avails  of  the  wife's  labor  in  her  husband's  business  belong  as  a 
rule  to  him,  like  her  earnings,  and  property  purchased  therewith 
in  her  name  cannot  be  held  by  her  against  his  creditors.® 

§  302.  Necessity  of  Proceedings  to  enable  Wife  to  become  Sole 
Trader. 

In  order  to  become  a  free  trader  in  Idaho,  a  wife  must  be 
adjudged  such  as  provided  by  the  statute.^"  A  similar  statute 
exists  in  Pennsylvania ;  ^^-  under  which  a  wife  can  only  acquire 
powers  to  contract  as  to  matters  connected  with  her  trade,  not 
necessarily  including  a  right  to  bind  her  separate  estate.^^  Under 
a  former  statute  in  Kentucky,  special  authority  to  trade  must  first 
have  been  conferred  by  the  chancellor.^^  Such  requirements  not 
being  complied  with,  the  creditors  of  the  husband  might  come 
upon  the  assets  of  the  business.  When  a  wife  had  been  so  empow- 
ered as  a  sole  trader,  she  could  contract  and  be  sued  as  though 
sole.^*  That  statute  required  that  certain  notice  be  given  to  enable 
the  court  to  grant  power  as  sole  trader  to  the  wife.^'*     Under  it  the 

6.  Conklin  v.  Doul,  &7  111.  355.  11.  Petition  of  Graver,  260  Pa.  186, 

7.  Ibid.  103  A.  601;  In  re  Coles,  230  Pa.  162, 

8.  Jassoy  v.  Delius,  65  111.  469;  Jen-  79  A.  254;  In  re  Browarsky's  Estate, 
kins  V.  Flinn,  37  Ind.  349,  and  eases  252  Pa.  35,  97  A.  91. 

cited.     But  as  to  the  husband's  right  12.  Hurley  v.  Leonard,  4  Pa.  Super, 

to  confer  her  earnings  upon  the  wife  431,  40  W.  N.  C.  225;   Von  Hclmold 

when   not   in   fraud   of   his   creditors,  v.   Von   Helmold,   19   Pa.   Super.   217. 

see  supra.    And  see  Dumas  v.  Neal,  51  13.    Uhrig    v.    Horstman,    8    Bush 

Ga.  563,  applying  the  rule  of  the  text  (Ky.)    172. 

where  the  wife  took  boarders.  14.    Hart    v.    Grigsby,    77    Ky.    14 

9.  Clinton  Man.  Co.  v.  Hummell,  25  Bush  (Ky.),  542. 

N.  J.  Eq.  45.  15.  Hart  v.  Grigsby,  14  Bush  (Ky.), 

10.  McDonald  v.  Rozen,  8  Ida.  352,       542;  Dunn's  Exrs.  v.  Shearer,  14  Bush 
69   P.   125.  (Ky.)   574. 


§  303  HUSBAND  AND  WIFE.  330 

failure  to  file  the  proof  of  notice  as  required  by  tlie  statute  was 
not  jurisdictional.^*'  Such  power  could  not  be  granted  for  the 
sole  reason  that  the  hu&band  was  insolvent,  where  it  did  not  appear 
that  the  wife  had  an  estate,  or  any  trade  or  avocation  in  which  she 
might  engage/'  and  whereby  she  could  acquire  property.^^  A 
decree  under  that  statute  empowering  her  to  "  buy  and  sell,  eon- 
tract,"  etc.,  was  held  broad  enough  to  enable  her  to  hold  and  enjoy 
the  proceeds  of  her  own  land. 


19 


§  303.  Necessity  of  Assent  of  Husband. 

The  husband's  assent  is  in  general  necessary,  provided  they  live 
together ;  and  if  they  do  not,  different  considerations  apply.  It  is 
held  in  Xew  York  that  the  husband's  assent  does  not  carry  with 
it  an  implied  authority  to  make  an  assignment  for  the  benefit  of 
creditors  of  that  business,^"  though  in  New  Jersey  a  wife,  who  has 
been  permitted  by  her  husband  to  trade,  may  transfer  her  stock  in 
payment  of  notes  given  for  the  purchase-money.^^  And  apart 
from  statute,  it  would  appear  to  be  the  general  nile,  that  unless 
the  husband's  consent  that  the  wife  carry  on  business  in  her  own 
name  is  based  upon  a  sufficient  consideration,  he  may  withdraw  it 
at  any  time  and  assert  his  common-law  Tights.^^ 

In  Indiana  it  is  stated,  in  conformity  with  various  precedents, 
that  where  a  wife  engages  in  business  with  the  knowledge  and 
consent  of  the  husband,  the  business  is  regarded  as  that  of  the 
husband,  with  the  wife  as  his  agent,  and  he  is  bound  for  the  per- 
formance of  contracts  which  she  may  make  relating  to  such  busi- 
ness,^^  but  that  where  the  wife  incurs  the  indebtedness,  and  the 
credit  is  given  to  her  exclusively,  and  where,  therefore,  there  can 
be  no  presumption  that  she  was  acting  merely  as  the  agent  of  the 
husband,  the  husband  is  not  liable. 


24 


16.  Mann  V.  Martin,  14  Bush  (Ky.),  Y.)    47;    Todd   v.   Lee,   16   Wis.   480; 
763.  Eichardson    v.    Merrill,    32    Vt.    27; 

17.  Moran  V.  Moran,  12Bush  (Ky.),  Partridge    v.    Stocker,    36    Vt.    108; 
301.  Penn  v.  Whitehead,   17   Gratt.    (Va.) 

18.  Clarkson    v.    Clarkson,    4    Ky.  503;   King  v.  Thompson,  87  Pa.  365. 
Law,  901.  23.   2  Bright,  Hus.  &  Wife,  300,  § 

19.  Wiggins    v.    Johnson,    12    Ky.  20;  Jenkins  v.  Flinn,  37  Ind.  349,  and 
Law,  276,  1  S.  W.  643.  eases   cited;    Switzer   v.    Valentine,    4 

20.  Cropsey  v.  McKinney,  30  Barh.  Duer   (N.  Y.),  96. 

(N.  Y.)   47.  24.    Tuttle    v.    Hoag,    46    Mo.    38; 

21.  Green  v.  Pallas,  1  Beasl.  267.  .Tenkins    v.    Flinn,    37    Ind.    349,  and 

22.  Conklin   v.   Doul,    67    111.    355;  cases  cited;    5  Taunt.  356. 
Cropsey  v.  McKinney,  30  Barb.    (N. 


331  WIFE    AS    SOLE    TRADEE.  §    oO-i 

The  Alabama  statute  permits  a  wife  to  engage  in  business  only 
with  her  husband's  consent,^""'  but  she  may  without  such  consent 
acquire  sufficient  title  to  goods  bought  as  to  maintain  trespass 
when  they  are  attached  as  his."^  Under  a  similar  Illinois  statute 
it  has  been  held  that  a  sufficient  consent  is  given  where  the  husband 
engages  in  such  business  as  her  agent."'  Where  a  wife's  debts  as 
sole  trader  were  not  binding  because  of  the  want  of  her  husband's 
consent,  as  required  by  the  Alabama  statute,  her  subsequent  prom- 
ise to  pay,  without  a  new  consideration,  was  held  not  binding, 
though  signed  by  the  husband. 


28 


§  304.  English  Statutory  Rule. 

But  the  doctrine  of  a  wife's  separate  trading  is  at  this  day  to 
fee  considered  under  the  combined  influence  of  modern  equity 
decisions  as  to  the  wife's  jiLs  disponendi,  and  the  recent  Married 
Women's  Acts.  And  first,  to  study  these  decisions  from  the  Eng- 
lish standpoint,  the  act  of  1870  declares  that  wages  and  earnings 
of  a  married  woman  shall  be  her  separate  property.'^  Under  con- 
struction of  this  act,  the  English  chancery  has  sustained  the  right 
of  a  butcher's  wife  to  carry  on  her  husiband's  business  upon  her 
separate  resources,  he  being  incapacitated  through  delirium 
tremens,  and,  while  at  home,  offering  no  obstruction  to  her  course ; 
notwithstanding  neither  a  positive  assent  to  the  trade  on  his  part 
appeared,  nor  his  abandonment ;  ^°  and  the  apparent  effect  of  this 
decision  was  to  treat  the  meat  the  wife  bought  as  her  statutory 
separate  property,  protected  as  hers  against  her  husband's  debts  as 
well  as  purchasable  on  her  separate  credit.  Again,  both  under  the 
act  of  1870  and  independently  of  it,  chancery  protected  the  widow's 
interest  as  against  the  husband's  administrator,  after  his  death,  in 
a  fruit-preserving  business,  which  she  had  commenced  while  single, 
then  continued,  after  her  marriage  in  1874,  to  carry  on  in  her 
maiden  name,  her  husband  consenting,  and  not  interfering  with  it ; 
and,  by  means  of  her  own  capital  and  efforts,  finally  establishing  it 
on  a  large  wholesale  basis.^^ 

25.  Horton  v.  Hill,  138  Ala.  625,  30.  LoveU  v.  Newton,  L.  R.  4  C.  P. 
36  So.  465.                                                           D.   7.      If  his  assent   was  not   clearlr 

26.  Reeves  v.  McNeill,  127  Ala.  175,  shown  to  his  wife's  trade,  there  would 
28  So.  623.  appear   to    have    been    a    pretty    fair 

27.  Taylor  v.  Minigus,  66  111.  App.  inference,  from  the  f:icts,  that  he 
70.  j:ave  it. 

28.  Horton  v.  Hill,  138  Ala.  625,  36  31.  Ashworth  v.  Outram,  L.  E.  5 
So.  465.  Ch.  923. 

29.  Act  33  &  34  Vict.,  eh.  93. 


§    305  HUSBAND    AND    WIFE.  332 

A  partnersliip  of  two  single  women  in  England  having  been 
dissolved  bj  the  marriage  of  one  of  them,  and  the  stock,  good-will, 
and  business  having  been  bought  in  bj  the  woman  remaining  single, 
chancery,  upon  the  ordinary  construction  of  such  sales,  refused 
recently  to  grant  an  injunction  in  favor  of  the  married  woman  and 
her  husband,  who  had  commenced  a  new  business  together  in  Paris, 
to  restrain  the  single  woman  from  carrying  on  her  business  in 
London  under  the  old  firm  stvle.^" 

§  305.  Under  American  Married  Women's  Acts  in  General. 

The  Married  Women's  Acts  in  many  of  the  United  States  have 
enlarged  and  more  fully  established  the  wife's  power  to  trade  on 
her  own  account ;  and  the  profits  of  her  business  are  thus  secured 
to  her  sole  and  separate  use.^'  Under  the  Oklahoma  statute  the 
wife  has  the  same  capacity  as  her  husband  to  engage  in  trade.^* 
The  wife,  under  such  statutes,  is  found  engaged  on  her  separate 
account,  as  milliner  and  dressmaker,^^  farmer,^®  boarding-house 
keeper,*'  army  sutler,*®  operator  of  a  mill,*®  saloon-keeper,*" 
tavern-keeper,*^  or  in  whatever  other  business  she  may  choose  to 
carry  on  with  her  own  capital.  Under  the  New  York  Married 
Women's  Act  a  wife  may  trade  and  bind  herself  by  a  purchase  of 
property  therefor,  whether  she  has  a  separate  estate  or  not.  In 
Louisiana  goods  purchased  by  a  wife  as  sole  trader  must  be  shown 

82.  Ee  Peacock's  Trusts,  L.  R.  10  Thompson,  87  Pa,  365.     In  Kentucky 

Ch.  D.  490.  the  separate  trading  acts  are  limited 

33.  Persica  v,  Maydwell,  102  Tenn.  in  this  direction  by  judicial  construc- 

207,  52  S.  W.  145.     Such  statutes  are  tion.       Moran    v.    Moran,     12    Bush 

to  be  found  in  New  York,  Maine,  New  (Ky,),    301. 

Hampshire,    Massachusetts,    Connecti-  34.  Farmers'  State  Bank  v.   Keen 

cut,  Kansas,  New  Jersey,  Iowa,  Call-  (Okla.),  167  P.  207. 

f ornia,  Wisconsin,  Illinois,  Arkansas,  35.   Jassoy  v.   Delius,   65   111.   469 ; 

Mississippi,  and   other   States.      And  Tuttle  v.  Hoag,  46  Mo.  38. 

see   Mitchell   v.    Sawyer,   21    la.    582,  36.  Kouskop  v.  Shontz,  51  Wis.  204 ; 

"Free   dealer"   and    "sole    trader,"  Snow  v.  Sheldon,  126  Mass.  332. 

are    words    used    in    this    connection:  37.  Bartholomew  v,  Adams,  143  la. 

Newbrick    v,    Dugan,    61    Ala.    251;  354,    121    N.    W.    1026;    Harnden    v. 

though  strict  trade  is  not  always  re-  Gould,     126     Mass,     411;     Dawes    v. 

garded  in  the  acts  referred  to.     And  Rodier,  125  Mass,  421. 

as  to  feme  sole  trader,  see  Separation,  38,  Swasey  v.  Antram,  24  Ohio  St, 

yost;  Porter  v.  Gamba,  43  Cal.   105.  87, 

Private  acts  are  sometimes  passed  to  39,  Cooper  v.  Ham,  49  Ind.  393, 

this  effect,    Halliday  v,  Jones,  57  Ala,  40.  Nispel  v.  Laparle,  74  111.  306. 

525.      Pennsylvania   has   a  feme  sole  41.   Silveus  v.   Porter,  74   Pa.   448; 

trader  act  not  aplicable   to   the  ordi-  Aitken   v.   Clark,   16    Abb.   Prac.    (N, 

nary  case  of  a  husband's  insolvency  Y.),  328,  note. 
while  he  remains  at  home.      King  v. 


333  WIFE  AS  SOLE  TKADEK.  §  30G 

to  be  in  the  line  of  her  trade,  and  not  for  the  use  of  her  husband, 
in  order  to  bind  her  bj  the  contract.*^ 

§  306.  Massachusetts  and  Pennsylvania  Statutory  Rule. 

The  statutes  of  Massachusetts  require  the  married  woman  to 
first  register  her  intention,  thus  affording  a  very  reasonable  safe- 
guard against  fraud  and  imposition  upon  the  public  and  herself, 
besides  requiring  that  the  act  be  a  deliberate  one/^  and  the  husband 
will  be  held  liable  on  her  contract  where  the  certificate  is  not  duly 
filed.**  The  certificate  is  required  even  where  the  creditor  knows 
that  she  is  trading  on  her  own  account,**  but  is  not  required  where 
the  wife's  place  of  business  is  removed  from  one  street  to  another 
in  the  same  city.**  In  case  of  such  default,  the  liability  of  the 
spouses  for  her  debts  incurred  in  carrying  on  the  business  is 
several  and  not  joint.*^  Where  a  wife  owned  real  estate  whereon 
a  business  was  conducted  by  her  hu^and  without  paying  rent, 
and  where  she  owned  all  his  stock  in  trade,  she  was  held  to  be 
conducting  business  on  her  own  account.**  Where  a  wife  con- 
ducts a  boarding  house,  debts  due  for  board  are  part  of  the  prop- 
erty employed  in  the  business,  within  the  meaning  of  that  statute^ 
in  default  of  which  such  debts  are  liable  to  attachment  for  the 
husband's  debts.*^  The  statute  has  been  held  inapplicable,  as  a 
matter  of  law,  to  cord  wood,  cut  and  piled  on  her  wood  lot,  ten 
miles  from  her  farm,  though  she  was  managing  the  farm  on  her 
separate  account  and  intended  to  sell  the  wood,°**  nor  to  a  case 
where  a  wife  in  her  lifetime  had  conducted  a  separate  business 
without  filing  a  certificate,  which  business  her  administrator  did 
not  continue,  the  action  against  her  husband  being  brought  after 

42.  Carroll  v.  Barriere,  Man.  Uiirep.      Wright,  129  Mass.  296.     It  need  not 
Caa.  (La.)  436.  specify  property.    Long  v.  Drew,  114 

43.  Mass.  Stats.  1862,  ch.  198.    This       Mass.  77. 

statute  requirement  does  not  apply  to  44.  Feran  v.  Rudolphsen,  106  Mass. 

keeping  a  colt  for  use,  nor  to  buying  471. 

materials   to    build    a   house    for    the  45.  Parsons    v.    Henry,    197    Mass. 

family.      Proper  v,  Cobb,  104   Mass.  504,  83  N.  E.  1110. 

589.     But  it  applies  to  the  boarding-  46.  Lowell  Trust  Co.  v.  Wolff,  223 

house  business.    Hamden  v.  Gould,  126  Mass.  168,  111  N.  E.  798. 

Mass,  411.    And  the  farming  business.  47.  Browning  v.  Carson,  163  Mass. 

Snow  V.  Sheldon,  126  Mass.  132.    See  255,  39  N.  E.  1037. 

also,  as  to  removing  to  a  new  town,  48.  Desmond  v.  Young,  173  Mass. 

Dawes  v.  Rodier,  125  Mass.  421.     It  90,  53  N.  E.  151. 

does  not  to  other  property  than  per-  49.  Dawes  v.  'Rodier,  125  ^fass.  421; 

sonal.     Bancroft  v.  Curtis,  108  Mass.  Harnden  v.  Gould,  126  Mass.  411. 

47.    'Sot  where  both  spouses  were  not  50.  Ayer  v.  Bartlett,  170  Mass.  142, 

domiciled  within   the   State.     Hill   v.  49  N.  E.  82. 


§    308  HUSBAND    AND    WIFE. 


334 


her  deatb.^^  A  similar  statutory  rule  prevails  in  Pennsylvania. 
The  effect  of  filing  such  a  certificate  under  the  Pennsylvania 
statute  is  defeated  by  a  reconciliation  as  far  as  her  will  is  con- 
cerned, and  in  such  case  the  husband  may  take  as  though  there 
was  no  will.^" 

§  307.  What  Constitutes  Sole  Trading. 

That  the  business  under  such  statutes  should  be  pursued  as  a 
continuing  and  substantial  employment.  And  hence  the  mere 
renting  of  a  room  or  two  by  a  married  woman  in  the  house  in 
which  she  lives  with  her  husband  is  not  "  carrying  on  business  " 
within  the  meaning  of  such  an  act.''^  The  word  "  business,"  in 
the  Nebraska  statute  empowering  a  wife  to  engage  in  trade  or 
business,  is  used  in  a  popular  sense,  including  an  employment  or 
profession  followed  as  a  means  of  livelihood.^*  In  the  North 
Carolina  statute  the  words  "  contract  and  deal  "  refer  to  ordinary 
bargains  and  trades  incident  to  business  enterprises  and  do  not 
include  conveyances  of  real  estate.^^ 

§  308.  Validity  of  Wife's  Trading  Contracts  in  General. 

Under  these  American  statutes  permissive  of  the  wife's  separate 
trade,  it  is  a  general  rule  that  the  wife's  contracts  regarding  her 
separate  trade  or  business  are  binding  on  her  separate  property, 
and  that  the  husband  is  not  answerable  for  her  solvency.  With 
reference  thereto  she  may  make  contracts,  and  sue  and  be  sued,  as 
if  sole,  except  (as  such  statutes  usually  run)  that  where  she  is  sued 
the  remedy  is  to  be  enforced  against  her  separate  property  only, 
and  not  against  her  person.  She  may  make  contracts  of  sale,  and 
sue  for  goods  sold  and  delivered  to  her  customers.^®  And  what 
she  thus  purchases,  in  the  exercise  of  her  trading  discretion,  is  to 
be  held  and  treated  as  her  sole  and  separate  property  as  against 
her  husband  and  his  creditors."     Where,  too,  the  married  woman 

51.  Allen  v.  Clark,  190  Mass.  556,  Trieber  v.  Stover,  30  Ark.  727.  The 
77  N.  E.  691.  contracts  of  married  women,  made  by 

52.  In  re  Flanagan 's  Estate,  59  Pa.  virtue  of  such  statute  capacity,  should 
Super.  61;  In  re  Hellwig's  Estate,  not  be  vievred  with  hesitation  or  sus- 
59  Pa.  Super.  233.  picion  by   the   courts,  but   should  l)e 

53.  Holmes  v.  Holmes,  40  Conn.  117.  fully  enforced.    Netterville  v.  Barber, 

54.  Dr.  S.  S.  Still  College  &  Infirm-  52  Miss.  168. 

ary  of  Osteopathy  v.  Morris,  93  Neb.  57.  Tallman  v,  Jones,  13  Kan.  438; 

328   140  N.  W.  272.  Meyers  v.  Eahte,  46  Wis.  655;  Sam- 

55.  Council  v.  Pridgen,  153  N.  C.  mis  v.  McLaughlin,  35  N.  Y.  647; 
443    69  S.  E.  404.  Silveus  v.  Porter,  74  Pa.  448 ;  Dayton 

66.  Porter  v.  Gamba,  43  Cal.   105;       v.  Walsh,  47  Wis.  113. 
Netterville   v.   Barber,   52   Miss.   168; 


335 


WtFE    AS    SOLE    TKADEK. 


§  310 


keeps  a  separate  bank  account,  with  reference  to  such  business, 
the  chock  which  she  draws  against  it  and  the  fund  itself  are  avail- 
able to  her  business  creditors.^®  What  she  borrows  by  waj  of 
capital  to  commence  the  business  she  is  required  to  refund.^^ 

The  power  to  do  business  implies,  too,  the  power  to  purchase 
goods,  fixtures,  and  stock  for  it,  and  execute  the  needful  instru- 
ments of  purchase ;  and  hence  the  wife's  contracts  for  such  pur- 
chase on  credit,  her  notes,  bills,  security,  or  simple  indebtedness 
therefor,  must  be  deemed  obligatory  and  enforceable  by  suit  or 
otherwise.®" 

On  general  principles,  equity  will  enjoin  a  married  woman  who 
sells  out  a  business  and  its  good-will,  which  she  has  carried  on  for 
her  separate  account,  from  violating  her  own  agreement  with  the 
purchaser  in  restraint  of  future  competition  or  interference;  for 
in  this  respect  a  married  woman  should  not  be  regarded  more 
favorably  than  others  who  dispose  of  their  business  to  bona  fide 
purchasers.®^ 

§  309.  Effect  of  Estoppel. 

Married  women,  as  it  is  well  observed,  to  the  extent  and  in  the 
matters  of  business  in  which  they  are  by  law  permitted  to  engage, 
owe  the  same  duty  to  those  with  whom  they  deal,  and  to  the  public, 
and  may  be  bound  in  the  same  manner  as  if  they  were  unmarried. 
To  the  extent  of  their  enlarged  capacity  to  transact  business  as 
conferred  by  statute,  they  may  be  estopped  by  their  acts  and 
declarations,  and  made  subject  to  all  the  presumptions  which  the 
law  indulges  against  the  other  sex. 


62 


§310.  Effect  of  Bankruptcy  of  Wife. 

A   married   woman's   firm,    trading  under   a   permissive   local 
statute,  has  been  adjudged  bankrupt  in  this  country.®^     But  it  is 


58.  Nash  v.  Mitchell,  15  N.  Y.  471. 

59.  Frocking  v.  Rolland,  53  N.  Y. 
442.  As  to  purchasing  fixtures  or  real 
estate  for  carrying  on  the  business, 
see  Jft.;  Dayton  v.  "Walsh,  47  Wis. 
113.  The  rule  of  contract  liability 
(apart  from  any  statute  of  frauds  as 
to  conveyances)  is  the  same,  whether 
tho  evidence  of  the  wife's  contract  bo 
oral  or  written.  Kouskop  v.  Shontz, 
51   Wis.   204. 

60.  Nispcl  V.  Lap.'irlo,  7i  Til.  300; 
Kouskop  V.  Shontz,  51  Wis.  204;  Day- 


ton V.  Walsh,  47  Wis.  113;  Wheaton 
V.  Phillips^  1  Beasl.  221;  Guttnian  v. 
Scannell,  7  Cal.  455;  Camden  v.  Mul- 
len, 29  Cal.  564;  Reading  v.  Mullen, 
31  Cal.  104. 

61.  Morgan  v.  Perliamus,  3(3  Ohio 
St.  517.  And  see  Be  Peacock's  Trust^i, 
L.  R.  10  Ch.  D.  490. 

62.  Podine  v.  Klllccn,  53  N.  Y.  93 ; 
Parshall  v.  Fislicr,  43  Mich.  529;  Ice- 
land v.  Collver,  34  Mich.  418. 

63.  Ri-  Kinkhead,  3  Bisa.  (U.  S.) 
405. 


§    311  HUSBA>^D   AND    WIFE.  336 

held  in  England  that  a  married  woman  having  no  separate  prop- 
erty cannot  be  adjudged  a  bankrupt  upon  a  judgment  against  her 
for  an  indebtedness  which  does  not  concern  a  separate  trade.'* 

§311.  Liability  of  Husband. 

It  follows  that  under  such  legislation  the  husband  is  not  liable 
on  the  wife's  contracts  and  liabilities  incurred  in  the  pursuit  of 
her  separate  business,  unless  he  participates  in  it.''  But  his  par- 
ticipation will  not  unfrequently  be  found  in  the  modem  cases; 
and  hence  arises  legal  uncertainty,  and  often  a  suspicion  of  fraud- 
ulent arrangements  against  one  another's  creditors.  Does  the 
proof,  we  must  ask,  under  any  such  circumstances,  show  that  the 
wife  carried  on  no  separate  trade,  but  was  her  husband's  agent? 
or  that  she  did,  and  the  husband  was  her  agent  ?  or  that  they  were 
in  partnership  together? 

In  Massachusetts,  where  the  statutory  doctrine  of  the  wife's 
power  to  trade  and  acquire  separate  earnings  has  already  received 
a  considerable  exposition  in  the  courts,  it  is  held  that  where  a 
married  woman  carries  on  the  business  of  keeping  boarders  on 
her  sole  and  separate  account,  and  has  purchased  goods  to  be  used 
in  her  business  on  her  sole  credit,  she  alone  is  liable,  although  her 
hus-band  lived  with  her  when  the  goods  were  purchased ;  and  her 
own  acts  and  admissions  in  reference  to  the  business  are  competent 
evidence  against  her.®'  In  Maine  the  husband  cannot  be  sued  for 
goods  and  chattels  furnished  his  wife  by  third  persons  in  the 
course  of  her  business,  even  though  such  purchases  were  made  by 
her  with  his  knowledge  and  consent,  and  although  she  appropriated 
part  of  the  proceeds  to  the  support  of  her  husband  and  family.'^ 

But  where  the  purchase  and  sales  are  made  with  the  husband's 
knowledge  and  consent,  and  he  participates  in  the  profits  of  the 
business,  knowing  them  to  be  such,  and  that  she  professed  to  act 
for  him,  it  may  be  inferred  in  general  that  the  purchases  were 
made  on  the  husband's  credit.'*  Where  the  separate  business, 
however,  is  carried  on  against  the  husband's  consent  and  without 
his  concurrence,  he  assuredly  is  not  liable.'® 

64.  Ex  parte  Holland,  L.  R.  9  Ch.  underlet  for  a  wife's  business,  tjee 
307.  Knowles  v.  Hull,  99  Mass.  562. 

65.  Parker  v.  Simonds,  1  Allen  67.  Colby  v.  Lamson,  39  Me.  119. 
(Mass.),  258;  Colby  v.  Lamson,  39  68.  Oxnard  v.  Swanton,  39  Me.  125. 
Me.  119;  Trieber  v.  Stover,  30  Ark.  69.  Tuttle  v.  Hoag,  46  Mo.  38;  Jen- 
727;  Tuttle  v.  Hoag,  46  Mo.  38.  kins  v.  Flinn,  37  Tnd.  349.    See  Smith 

66.  Parker  v.  Simonds,  1  Allen  v.  Thompson,  36  Conn.  107,  where  the 
(Mass.),  258.  As  to  husband's  liabil-  married  woman  had  no  power  to  trade 
ity  on  a  lease,  though  professing  to  as  a  feme  sole. 


337  WIFE  AS  SOLE  TRADER.  §  312 

The  husband  who  does  not  participate  in  his  wife's  business  is 
not  usually  held  liable  under  our  separate  trading  acts ;  and  hence 
cannot  be  sued  with  his  wife  for  her  store  rent/" 

Apart  from  statutes  giving  a  contrary  scope  to  the  rule,  a  single 
woman  engaged  in  trade  or  business  is  legally  engaged  therein; 
if  she  marries,  the  disability  of  coverture  puts  an  end  to  the  trade, 
and  dissolves  her  business  copartnership  if  there  be  one ;  and 
thereupon  the  husband,  by  virtue  of  the  common  law,  becomes 
liable  for  the  business,  even  the  partnership  debts,  having  a  corre- 
sponding right  to  recover  her  share  in  the  assets  on  a  winding  up.'^ 

§  312.  Effect  of  Participation  of  Husband  as  Agent. 

In  New  York,  as  against  her  husband's  creditors,  the  wife  may 
make  him  managing  agent  and  let  him  conduct  the  business  in  her 
name,  while  she  furnishes  capital  from  her  own  means  and  takes 
the  profits  to  herself ;  paying  the  managing  agent  what  she  thinks 
best,  without  subjecting  the  stock  in  trade  to  his  debts.^*  So  it  is 
held  that  a  wife,  by  allowing  chattels  belonging  to  her,  and  which 
remain  in  specie,  to  be  employed  by  her  husband  in  carrying  on 
a  business  for  their  common  bene^t,  does  not  devote  them  to  her 
husband,  so  as  to  render  them  liable  for  his  debts.''*  The  courts 
of  that  State  intimate,  however,  that  there  should  be  no  fraud  in 
such  transactions ;  which  otherwise  the  reader  might  doubt,  from 
finding  such  latitude  given  to  the  wife's  business  dealings.  We 
should  add  that  it  is  deemed  a  question  of  fact  for  the  jury, 
whether  upon  evidence  a  business  is  in  trust  the  wife's,  with  the 
husband  acting  merely  as  her  agent,  or  this  agency  is  a  cover  for 
the  husband's  business  to  keep  his  property  from  his  own  cred- 
itors.'* And  that  under  some  circumstances  a  husband's  agency 
from  the  wife  will  be  considered  revoked  and  the  business  subse- 
quently carried  on  for  his  benefit,  and  not  hers  alone.'"  But  the 
employment  of  her  husband  in  carrying  on  her  separate  business 
of  farming  does  not  make  him  the  wife's  agent  in  the  business, 
unless  he  contributed  money  or  services  as  partner,'®  nor  his 
employment  as  salesman  in  the  wife's  store,"  or  as  operative  or 
manager  in  his  wife's  mill.'*     Proof  that  a  husband  signed  notes 

70.  Jaycox  v.  Wing,  66  111.  182.  75.  Hamilton  v.  Douglas,  46  N.  Y. 

71.  Alexander  v.   Morgan,  31   Ohio       318. 

St.  546.  78.  Ibid. 

72.  Buckley  v.  Wells,  33  N.  Y.  518.  77.    Ploss   v.    Thomas,   6    Mo.   App. 

73.  Sherman  v.  Elder,  24  N.  Y.  381 ;       157. 

Barton  v.  Beer,  35  Barb.   (N.  Y.)  78.  78.  Cooper  v.  Ham,  49  Ind.  393. 

74.  Abbey  v.  Deyo,  44  N.  Y.  343. 

22 


§313  HUSBAND    AND    WIFE.  338 

for  goods  in  a  shop  leased  to  him  is  not  conclusive  proof  that  the 
goods  did  not  belong  to  the  wife's  separate  business,'^  for  a  husband 
mig'ht  sign  as  an  agent  and  render  her  business  liable.^"  A  change 
in  the  mutual  relations  of  the  spouses  regarding  the  business  ought, 
on  the  usual  principles  of  both  agency  and  partnership,  to  be 
brought  home  to  the  knowledge  of  creditors  with  whom  business 
relations  continue  uninterrupted.®^ 

Where  a  married  woman  manages  a  separate  trade  or  business 
by  agents,  the  usual  doctrine  of  agency  must  apply.  The  wife 
cannot  avoid  the  usual  liabilities  on  the  plea  that  she  made  her 
husband  her  agent.*"  The  scope  of  the  agency,  too,  must  be  con- 
sidered as  in  other  cases,  and  the  agency,  as  actually  conferred,  is 
not  the  full  test  of  responsibility  for  the  agent's  dealings  with  third 
parties,  for  those  clothed  with  apparent  authority  may  bind  their 
principals  as  though  really  authorized.®^  A  husband  conducting 
his  wife's  separate  business  as  agent  cannot  recover  for  his  services 
without  a  special  contract  to  pay  for  them.®*  Where  a  husband 
became  insolvent  and  money  was  loaned  to  his  wife  to  continue 
the  business  on  condition  that  the  services  of  the  husband  were 
retained,  he  being  paid  a  salary  therefor,  it  was  held  that  the 
profits  acquired  thereby  were  not  subject  to  his  debts.®^ 

§  313.  Rights  of  Husband's  Creditors. 

All  purchases  or  contracts  of  purchase  for  commencing  or  prose- 
cuting the  wife's  separate  business  must  have  been  made  in  good 
faith  and  not  as  a  means  of  fraudulently  placing  the  husband's 
property  beyond  the  reach  of  his  creditors.®* 

But  transactions  which  are  tainted  with  fraud  upon  the  rights 
of  creditors  and  others  must  not  be  permitted  to  stand.  Capital 
placed  by  a  wife  in  her  husband's  hands,  and  by  him  so  embarked 
in  business  with  her  assent  that  credit  is  obtained  upon  it,  are  not, 
with  the  increase,  the  wife's  separate  property,  as  against  his 
creditors  who  have  trusted  accordingly,  but  rather  his  property.®^ 

79.  Mason  v.  Bowles,  117  Mass.  86.  S.    E.    628 ;    Paull   v.    Parks,   20    Ky. 

80.  Freiberg  v.  Branigan,  18  Hun  Law,  241,  45  S.  W.  873;  Penn  v. 
(N.  Y.),  344.  But  as  to  a  judgment  Whitehead,  17  Grat.  (Va.)  503,  94 
rendered   against    the    agent    himself.  Am.  Dec.  478. 

see  Smiley  v.  Meyer,  55  Miss.  555.  85.   Kendall  v.  Beaudry,    107   Wis. 

81.  Bodine  v.  Killeen,  53  N.  Y.  93.  180,  93  N.  W.  314. 

82.  Taylor  v.  Angel,  162  Ind.  670,  86  Dayton  v.  Walsh,  47  Wis.  113. 
71  N.  E.  49;  Porter  v.  Gamba,  43  87.  Patton  v.  Gates,  67  111.  164; 
Cal.  105.  Kouskop  v.  Shontz,  51  Wis.  204.     Or 

83.  Bodine  v.  Killeen,  53  N.  Y.  93.  possibly  like  that  of  a  firm  in  which 

84.  Hood  V.  Eod^ers,  9^  Ga.  271,  25  both  were  partners. 


339  WIFK  AS  SOLK  TEADEK.  §  314 

And  while,  in  general,  the  husband's  gift  may  sustain  the  wife's 
claim  of  profits  accruing  from  her  separate  trade,  yet  the  better 
opinion  is,  upon  either  equity  or  statute  consideration,  that  a  busi- 
ness carried  on  by  a  husband  and  wife  in  co-operation,  his  labor 
and  skill  united  with  hers,  must  be  considered  as  his  business  so 
far  as  his  creditors  are  concerned,  and  fails  accordingly  of  protec- 
tion for  her  especial  benefit,*^  though  it  might,  perhaps,  be  well 
ruled  in  some  States,  that  there  is  a  partnership  whose  liabilities 
should  be  adjusted  on  partnership  principles;  highly  objectionable 
ae  the  jurist  may  well  regard  all  such  partnerships  upon  principle. 
Even  though  the  trade  be  unsuitable  to  her  sex,  fraud  upon  the 
husband's  creditors  will  not  be  conclusively  presumed.* 


89 


§  314.  As  Copartner ;  Generally. 

At  common  law  a  wife  could  not  bind  herself  a^s  a  partner,®"  but 
Married  Women's  Acts  in  several  States  now  permit  her  to  do  so,®^ 
the  power  being  predicated,  in  some  cases,  on  her  statutory  right 
to  contract.®"  In  Alabama,  where  only  the  joint  property  of  part- 
ners is  bound  by  a  judgment  against  the  partnership,  it  is  no 
defence  to  an  action  against  it  that  one  of  the  partners  is  a  wife,®^ 
In  Florida,  only  a  wife  who  has  been  lawfully  declared  a  free 
trader  may  be  a  partner,®*  but  her  separate  estate  cannot  be 
charged  with  debts  contracted  by  her  partner.®'  Under  the  Georgia 
Married  Women's  Act  a  wife  may  be  a  partner  with  any  person 
except  her  husband.®*     In  South  Carolina  a  wife  cannot  bind  her- 

88.  See  National  Bank  v.  Sprague,  Law  Rev.  129;  Elliott  v.  Hawley,  34 
5  C.  E.  Green  (N.  J.),  13;  Oxnard  Wash.  585,  76  P.  93,  101  Am.  St.  E. 
V.   Swanton.    39   Me.    125;    Cramer   v.       lOlG. 

Reford,  2  C.   E.  Green    (N.  J.),   383.  92.    Vail   v.   Winterstein,   9^4    Mich. 

But  see  Penn  v.  Whitehead,  17  Gratt.  230,  53  N.  W.  932,  IS  L.  R.  A.  515; 

(Va.)    503;    Partridjre   v.   Stocker,   36  Kutchcr    v.    Williams,    40    N.    J.    Eq. 

Vt.  108.  436,   3   A.  257. 

89.  Guttman  v.  Seannell,  7  Cal.  455.  93.  C.  S.  Yarbrough  &  Co.  v.  Bush 

90.  Nadel  v.  Weber  Bros.  Shoe  Co.  &  Co.,  69  Ala.  170;  O'Neil  v.  Bir- 
(Fla.),  70  So.  20;  Bryan  v.  Inman,  mingham  Brewing  Co.,  101  Ala.  383, 
10  Ky.  Law,  542;  Foxworth  v.  Magec,  13  So.  576. 

44   Miss.   430;   Little   v.   Hazlett,   197  94.   Porter  v.   Taylor,  64   Fla.   100, 

Pa.    591,    47    A.    855;    Cleveland    v.  59   So.   400;    Virginia-Carolina  Chem- 

Spencer  (Tex.),  50  S.  W.  405;   Keith  ical  Co.  v.  Fisher,  58  Fla.  377,  50  So. 

V.  Aubrey    (Tex.),  127  S.  W.  278.  504. 

91.  Norwood  v.  Francis,  25  App.  95.  Nadel  v.  Weber  Brothers  Shoe 
D.  C.  463;  Stone  Co.  v.  McLamb  &  Co.  (Fla.),  70  So.  20,  L.  R.  A.  1916D, 
Co.,    153    N.    C.    378,    69    S.    E.    281;  1230. 

First  Nat.  Bank  v.  Rice,  22  Ohio  Cir.  96.  Butler  v.  Frank,  7  Ga.  App.  655, 

Ct.    183.    12    O.    C.    D.    121;    Lopb    v.       67  S.  E.  884. 
Mellinger,  12  Pa.  Super.  592,  17  Lane. 


§    315  HUSBAND    AND    WIFE.  340 

self  by  a  partnersiiip  not  affecting  her  separate  estate.®'  Under 
tJbe  Virginia  statute  she  may  be  a  partner  with  the  consent  of  her 
husband.®^  In  West  Virginia  a  wife  living  with  her  husband 
cannot  be  a  partner.®^ 

§  315.  With  Husband. 

As  to  all  agencies  and  partnerships  one  rule  may  apply  in 
adjusting  rights  as  between  themselves,  and  another  as  to  creditors 
whose  confidence  has  been  invited.  And,  on  the  whole,  it  would 
still  appear  to  be  the  general  rule,  notwithstanding  the  late  statutes, 
that  a  wife  may  not,  as  against  the  world,  become  her  husband's 
partner,  nor  even  join  her  labor  and  capital  to  his  in  one  and  the 
same  business  enterpride.^  In  Massachusetts,  while  the  statute 
permitted  the  wife  to  form  a  copartnership  with  third  parties,  thig 
exception  the  court  so  strictly  enforced  as  to  hold  her  transactions 
as  a  member  of  any  firm  in  which  the  husband  was  intere^ited  as  a 
partner  utterly  void,  whether  to  her  advantage  or  injury,  inasmuch 
as  a  married  woman  cannot  legally  contract  with  her  husband 
singly  or  jointly.^ 

But  under  the  New  York  statutes  it  is  held  that  a  husband  and 
wife  may  not  only  enter  into  a  valid  partnership  together  for 
business,  but  carry  it  on  under  the  name  "A.  &  Co."  (the  "  Co." 
representing  the  wife)  without  violating  the  law  which  forbide 
persons  to  transact  business  under  fictitious  names,"  and  that  hence 
they  can  sue  and  recover  in  their  joint  names  for  goods  sold  and 
delivered  by  their  firm.*  In  Illinois,  too,  as  it  would  appear,  a 
wife  may  enter  into  a  partnership  with  her  husband,  and  when 
she  does  this  it  will  be  presumed,  in  the  absence  of  different  proof,^ 
that  she  contributed  her  share  of  the  capital,  and  that  her  time, 
skill,  and  earnings  went  into  the  business ;  and  such  a  partnership 
has  been  actually  adjudged  bankrupt.^  In  California  not  only  is 
the  husband  not  forbidden  to  become  a  partner,  but  the  ptain 
intention  of  the  Code  is  that  he  may  furnish  part  of  the  capital 

97.  Collins  v.  Hall,  55  S.  C.  33«,  33  2.  Lord  v.  Parker,  3  Allen  (Maas.)^ 
S.  E.  4&6.                                                         127;    Edwards    v.    Stevens,    3    Allen 

98.  Penn   v.  Whitehead,   17   Gratt.  (Mass.),  315;  Plumer  v.  Lord,  7  Allen 
(Va.)   503,  94  Am.  Dee.  478,  (Mass.),  481. 

99.  Carey  v.  Burruss,  20  W.  Va.  3,  Zimmerman  v.  Erhard,  8  Daly 
571,  43  Am.  E.  790;  Ringold  v.  Suiter,  (N.  Y.),  311. 

35  W.  Va.  186,  13  S.  E.  46.  4.  Ibid. 

1.   Wilson   V.   Loomis,    55    111.   352;  5.  Be  Kinkead,  3  Biss.  (U.  S.)  405. 

Montgomery  v.  Sprankle,  31  Ind.  113;  As  to  bankruptcy,  cf.  Ex  parte  Hol- 

Lord  V.  Parker,  3  Allen  (Mass.)   127.  land,  L.  R.  9  Ch.  307. 


;341 


WIFE    AS    SOLE    TEADEK. 


§  31G 


stock.  The  wife  may  sue  alone  in  such  business,  and  may  employ 
her  husband  to  manage  it.  In  some  Southwestern  States*  separate 
trading  seems  to  be  permitted  on  similar  principles.^  The  Maine 
Married  Women's  Act  does  not  remove  the  wife's  common-law 
disability  to  be  her  husband's  partner,  and  bind  her  by  partner- 
ship debts.®     The  same  is  true  in  South  Carolina." 

§316.  With  Third  Persons. 

By  the  wife's  business  copartnership  with  third  persons,  and 
particularly  with  those  of  the  opposite  sex  apart  from  her  husband, 
she  entangles  her  separate  property  disadvantageously,  and  incurs 
the  risk  of  personal  affiliations,  besides,  quite  perilous  to  domestic 
concord  and  the  mutual  confidence  which  marriage  demands.  In 
Massachusetts  the  legislature  permitted  a  married  woman  to  form 
a  copartnership  in  business  with  third  parties,  though  not  with  her 
husband ;  but,  after  some  ten  years'  experience,  repealed,  in  1874, 
that  permission.^"  Most  other  States  deny  her  such  a  right  as 
separate  and  exclusive  of  her  hus'band's  interest,^^  though  in  some 
parts  of  the  Union  such  copartnerships  are  sustained,^"  and  she  is 
not  unfrequently  found  connected  with  business  firms  as  a  partner 
in  place  of  her  deceased  husband ;  ^'  sometimes,  too,  he  is  her 
successor,  or  else  participates  with  her  and  third  persons  in  the 
(X)ncem.^* 

Where  a  married  woman  enters  legally  into  a  copartnership 
she  becomes  personally  liable,  to  the  extent  of  her  separate  prop- 
erty, for  the  partnership  debts,  like  any  other  partner.^^ 

In  Ohio  it  is  held  that  where  a  married  woman,  assuming  to 
carry  on  a  partnership  business  unconnected  with  her  separate 
property,  is  assisted  by  her  husband,  he,  and  not  she,  is  to  be 
regarded  in  law  as  the  partner ;  and  that  accordingly  a  firm  cred- 
itor may  proceed  against  the  husband  and  the  other  members,  not 


6.  Camden  v.  Mullen,  29  Cal.  564; 
Beading  v.  Mullen,  31  Cal.  104;  Gutt- 
mann  v.  Scannell,  7  Cal.  455. 

7.  See  Atwood  v.  Meredith,  37  Miss. 
635 ;  Oglesby  v.  Hall,  30  Ga.  386. 

8.  Haggott  V.  Hurley,  91  Me.  542, 
40  A.  561,  41  L.  R.  A.  362. 

9.  Collins  V.  Hall,  55  S.  C.  336,  33 
S  E.  466. 

10.  Todd  V.  Clapp,  118  Mass.  495. 
Such  a  law,  not  being  interpreted 
retroactively,  was  held  constitutional. 
lb. 


11.  See  Bradford  v.  Johnson,  44 
Tex.  381;  Bradstreet  v.  Baer,  41  Md. 
19 ;  Howard  v.  Stephens,  52  Miss.  239. 

12.  See  Newman  v.  Morris,  52  Miss. 
402. 

13.  rreus3er  v.  Henshaw,  49  la.  41. 

14.  Bitter  v.  Rathman,  61  N.  Y. 
512;  Swasey  v.  Antram,  24  Ohio  St. 
87. 

15.  Prcusscr  v.  Honshaw,  49  la.  41 ; 
Newman  v.  Morris,  52  Miss.  402. 


§    :518  HUSBAJJD    AND    WIFE.  342 

including  the  wife,  even  though,  on  dissolution  of  the  firm,  the 
other  partners  had  transferred  the  property  to  her,  she  agreeing  to 
pay  all  the  firm  debts.^^  And  where,  again,  a  firm  composed  of 
two  women  put  the  husband  of  one  in  absolute  charge  of  the 
business,  who,  with  his  wife's  knowledge  and  consent  made  pur- 
chases on  credit,  and  acted  as  if  he  instead  of  his  wife  were  one 
of  the  partners,  it  was  held  in  Michigan  that  the  husband  and 
the  other  partner  must  be  concluded  by  such  conduct,  as  to  credit- 
ors having  no  knowledge  to  the  contrary,  and  that,  in  absence  of 
superior  equities,  such  creditors  might  treat  the  firm  as  composed 
of  the  husband  and  the  other  woman.^'  These  decisions  tend  to 
the  protection  of  the  wife.  And  such,  too,  is  the  effect  of  a  New 
York  decision,  which,  admitting  that  a  husband  might,  perhaps, 
be  deemed  the  partner  as  between  the  wife  and  himself  or  his 
creditors,  rules,  nevertheless,  that  where  a  married  woman  acting 
under  a  secret  trust  for  her  husband,  becomes  a  member  of  a  co- 
partnership, she  is  to  be  regarded,  as  between  her  and  her  copart- 
ner, the  owner  of  the  interest  she  represents,  so  as  to  maintain 
proceedings  for  a  dissolution  of  the  copartnership  and  for  an 
accounting.^* 

§  317.  As  Stockholder. 

Married  Women's  Acts  in  some  States  enable  a  wife  to  become 
a  stockholder  in  a  corporation,  and  to  be  liable  as  such."  In 
Ivouisiana  a  wife  separated  in  property  from  her  husband  by  a 
judgment  may  be  a  stockholder,  and  be  liable  as  such,""  and  may 
be  so  liable  in  Florida  even  where  the  stock  was  acquired  as  a 
gift.- 

§  318.  Actions. 

Under  the  statutes  of  some  States  which  permit  the  wife  to  trade 
separately,  the  wife's  business  debts  may  be  collected  from  her  by 
proceedings  in  equity  for  declaring  such  debts  a  specific  lien  on  her 
separate  estate.""     But  in  other  States  such  proceedings  on  behalf 

16.  Swasey  v.  Antram,  24  Ohio  St.  S.  E.  345;  Good  Land  Co.  v.  Cole,  131 
87.  '  Wis.   467,   110   X.   W.   895. 

17.  Parshall  v.  Fisher,  43  Mich.  529.  20.  First  Natchez  Bank  v.  Moss,  52 

18.  Bitter    v.    Eathman,    61    N.   T.       La.  Ann.  1524,  28  So.  133. 

.■512.  21.    Keyser   v.   Milton,   228   F.    594, 

19.  Norwood  v.  Francis,  25  App.  D.       143  C.  C.  A.  116. 

C.  463;  Meares  v.  Duncan,  123  N.  C.  22.    Wheaton    v.    Phillips,    1    Beasl. 

203,  31  8.  E.  476;  Smathers  v.  West-       (N.  J.)  221. 
em  Carolina  Bank,  155  N.  C.  283,  71 


343  WIFK  AS  SOLK  TRADER.  §  318 

of  creditors  are  not  favored,  each  creditor  having,  under  local 
statute,  the  usual  remedies  at  law  as  though  the  woman  were 
single."^  The  other  members  of  the  firm  ought  to  be  made  parties 
where  the  wife  is  a  copartner.-*  So,  too,  statutes  permit  the  wife 
to  sue,  as  if  unmarried,  the  business  debtors.^^  Allegation  of 
business,  or,  in  other  words,  of  separate  capacity,  should  usually 
appear  of  record  in  all  such  suits,  whether  the  married  woman  be 
plaintiff  or  defendant. 


26 


23.  Meyers  v.  Eahte,  46  Wis.  655;  Smith  v.  New  England  Bank,  45  Conn. 
Nash  V.  Mitchell,  71  N.  Y.  199;  Vos-  416. 

burgh   V.   Brown,   66   Barb.    (N.   Y.)  26.  Nash  v.  Mitchell,  71  N.  Y.  199; 

421;  Heller  v.  Rosselle,  13  N.  Y.  631;  Smith    v.     New     England    Bank,    45 

Haight  V.  McVeagh,  69  111.  624.  Conn.    416;     Magruder    v.    Buck,    56 

24.  Westphal  v.  Henney,  49  la.  542.  Miss.  314. 

25.  Rockwell  v.  Clark,  44  Conn.  534; 


§    319  HUSBAND    AND    WIFE.  344 


CHAPTER  XVIII. 

WHAT    CONSTITUTES    WIFe's    STATUTORY    SEPABATE    ESTATE. 

Section  319.  Creation  of  Separate  Estate  in  General. 

320.  By  Written  Instrument. 

321.  By  Parol  Transfer. 

322.  Necessity  of  Schedule. 

323.  What  Constitutes  Separate  Estate;  Property  Acquired  Prior  to 

Coverture. 

334.  Property   Acquired  by   Gift,   Grant,  Devise   or   Bequest   during 
Coverture. 

325.  Wife 's  Land  in  General. 

326.  Eents,  Profits  and  Issues  of  Separate  Estate. 

327.  Proceeds  of  Sale  of  Separate  Estate. 

328.  Property  Purchased  at  Judicial  Sale. 

329.  Property  Held  by  Husband  as  Trustee  for  Wife. 

330.  Personal  Property  in  General. 

331.  Alimony  Granted  to  Wife. 

332.  Damages  Eecovered  by  Wife. 

333.  Proceeds  of  Insurance  Policy  on  Life  or  Property  of  Husband. 

334.  Goods  Bought  by  Husband  on  Wife 's  Credit. 

335.  Trust  Fund  in  Bastardy  Proceedings. 

336.  Wife 's  Earnings  in  General. 

337.  Principles  Applicable. 

338.  In  Separate  Business. 

339.  In  Keeping  Boarders. 

340.  Property  Purchased  with  Earnings. 

341.  Effect  of  Waiver  of  Marital  Eights  by  Husband. 

342.  Effect  of  Husband's  Desertion. 

343.  Actions  to  Recover  Earnings. 

344.  Presumptions;  As  Between  Spouses  in  General. 

345.  As  to  Property  Standing  in  Name  of  Husband. 

346.  As  to  Property  Standing  in  the    Name  of  Third  Persona. 

347.  As  Against  Husband's  Creditors. 

348.  Statutory    Presumptions, 

349.  Burden  of  Proof  as  Against  Creditors  of  Husband. 

350.  Questions  for  Jury  as  Against  Creditors  of  Husband. 

351.  Effect  of    Estoppel  in  General. 

352.  To  Claim  Property  as  Separate  Estate  in  General. 

353.  By  Deed. 

354.  By  Record. 

355.  By  Fraudulent  Representations. 

356.  By  Silence. 

357.  By  Failure  to  Assert  Her  Title. 

358.  By  Clothing  Husband  with  Apparent  Title  or  Authority. 

§  319.  Creation  of  Separate  Estate  in  General. 

In  Louisiana  the  right  of  a  wife  to  acquire  property  in  her  own 
name  during  coverture,  and  for  her  separate  paraphernal  estate,  is 


345  STATUTORY  SEPARATE  ESTATE.  §  'J  2 2 

an  exception  to  the  general  rule  established  by  the  statute,  and  is 
to  be  strictly  oonstrued.^^  Under  the  Missouri  Married  Women's 
Act  a  wife  may  take  transfers  of  property  as  her  separate  estate 
without  technical  words  of  limitation.'* 

§  320.  By  Written  Instrument. 

Where  a  conveyance  or  other  written  instrument  is  needful,  the 
expression  must  conform  to  the  legislative  intent ;  and  even  where 
the  language  of  the  statute  is  broad  enough  to  dispense  with  such 
phrases  as  "  sole  and  separate  use/'  the  wife's  only  safety  consists 
in  having  her  name  used  as  that  of  grantee  or  transferee,  instead 
of  the  husband's."**  Where  it  comes  to  an  expression  of  separate 
use,  under  some  instrument  made  on  the  wife's  behalf,  an  equi- 
table separate  use,  rather  than  a  statutory  separate  use,  may  be 
said  to  have  been  created ;  though  authorities  style  it  under  some 
local  acts  as  a  statutory  separate  estate.*" 

§  321.  By  Parol  Transfer. 

Where  the  property  is  such  as  can  pass  without  a  written  trans- 
fer or  conveyance,  a  gift  or  sale  to  the  wife,  of  statutory  separate 
property,  may  be  by  parol,^^  although,  of  course,  all  proof  must 
consist  with  the  idea  that  delivery  is  for  her  sole  and  separate  use, 
and  not  so  as  to  admit  the  rights  of  her  husband.^" 

§  322.  Necessity  of  Schedule. 

The  requirement  in  a  few  States  is  that  the  wife's  separate 
property  shall  be  scheduled  or  inventoried  in  order  to  receive  legal 
protection  for  her  separate  benefit.  Considering  the  fallibility  of 
presumptions  and  of  the  usual  tests,  this  plan  seems  worthy  of 
more  extensive  introduction  in  the  legislation  of  the  various  States 
relative  to  married  women.*^     Such  provisions  are  sometimes  con- 

27.  Jordy  v.  Muir,  51  La.  Ann,  55,  hnma  to  a  married  woman,  "to  have 
25  So.  550.  and  to  hold  to  the  sole  and  proper  use, 

28.  Judson  v.  Walker,  155  Mo.  166,  benefit,  and  behoof  of  her,  her  heirs 
55  S.  W.  1083.  and    assigns    forever,"   vests   in    her, 

29.  Pepper  v.  Lee,  53  Ala.  33;  under  the  laws  of  that  State,  a  statu- 
Slaughter  v.  Glenn,  98  U.  S.  242;  tory  separate  estate.  Lippincott  v. 
Kobinson  v.  O'Neal,  56  Ala.  541;  Mitchell,  94  U.  S.  767.  And  see  Swain 
Campbell  v.  Galbreath,  12  Bush  (Ky.),  v.  Duane,  48  Cal.  358. 

459.     Under  the  more  sweeping  local  31.   Tinsley  v.  Roll,  2   Met.    (Ky.) 

statutes   a    conveyance   to   a   married  rjOP. 

■woman  need  not  state  that  she  is  to  32.    Walton    v.    Broaddus,    6    Bush 

hold  it  to  her  separate  use.     Sims  v.  (Ky.),  328. 

Rickets,  35  Ind.  181.  33.   Price   v.   Sanchez,   8   Fla.   136; 

30.  A  conveyance  of  lands  in  Ala-  Humphries  v.   Harrison,   30   Ark.   7ff. 


§  323  HUSBAND  AND  WIFE.  346 

strued  as  mere  registry  requirements,  not  essential  as  against 
parties  having  actual  knowledge  of  the  wife's  title, —  a  husband, 
for  instance, —  and  only  intended  to  prevent  frauds  and  imposi- 
tions as  to  creditors  and  purchasers/*  The  mode  of  acquisition 
constitutes  in  such  case  the  actual  title  to  the  wife';*  separate  prop- 
erty; but,  even  with  this  limited  application,  the  schedule  regula- 
tion enables  the  wife  to  secure  her  o^vii  interests  where  the  posses- 
sion of  personal  property,  such  as  household  furniture,  i* 
essentially  that  of  both  husband  and  wife,  so  long  as  they  dwell 
together,  and  fraudulent  credit  ought  not  to  be  permitted  on  behalf 
of  either  spouse.  These  schedule  provisions  are  based,  doubtless, 
upon  the  principle  that  the  property  in  joint  possession  of  husband 
and  wife  under  his  marital  control  is  presumably  his. 

The  Oregon  statute  providing  that  personal  property  not  regis- 
tered by  the  wife  shall  be  prima  facie  the  property  of  the  husband, 
does  not  apply  to  personal  property  purchased  by  her  during 
coverture  or  acquired  by  gift  from  her  husband.^^  Under  a  similar 
statute  in  South  Dakota  it  is  held  that  the  failure  to  register  does 
not  prevent  her  from  recovering  her  property  taken  by  her  hus- 
band, but  merely  lays  on  her  the  burden  of  proving  title  affirm- 
atively.^" The  Montana  Married  Women's  Act,  providing  that  a 
wife's  separate  property  included  in  the  inventory  required  by  the 
statute  shall  be  exempt  from  her  hus'band's  debts,  applies  only  to 
property  in  the  exclusive  possession  of  the  husband.^^  Such  prop- 
erty must  be  in  his  possession  at  the  time  the  debt  was  contracted 
in  order  to  subject  it  to  his  debts.^^ 

§  323.  What  Constitutes  Separate  Estate;   Property  Acquired 
Prior  to  Coverture. 

'  Our  Married  Women's  Codes  fairly  correspond  in  permitting 
the  wife  (subject  to  constitutional  limitations)  to  hold,  in  her  sole 
and  separate  right,  all  the  property,  real  or  personal,  which  she  had 

As  to  the  filing  of  such  a  schedule  by  35.  Noblitt  v.  Durbin,  41  Ore.  555, 

the  woman  prior  to  her  marriage,  see  69  P.  685. 

Berlin  v.  Cantrell,  33  Ark.  611.  36.  Anderson  v.  Medbery,  16  S.  D. 

34.  Jones  v.  Jones,  19  la.  236;  Sel-  324,  92  N.  W.  1089. 

over  V.   Commercial   Co.,   7    Cal.   266,  37.   Chan   v.   Slater,   33   Mont.   155, 

This  registry  law,  after  having  called  82  P.  657. 

for   considerable   construction   in   the  38.  Webster  v.  Sherman,  33  Mont. 

courts,   appears  to   have   finally  been  448,  84  P.  878. 
repealed  in  Iowa.     Schmidt  v.  Holtz, 
44  la.  448. 


347  STATUTORY  SEPAKATK  E8TATE,  §  324 

at  the  time  of  marriage.^"  Gifts  made  by  the  husband  to  the  wife 
prior  to  coverture  and  afterwards  recognized  by  him  as  her  sep- 
arate property  are  not  subject  to  his  marital  rights,  and  must  be 
treated  as  separate  estate.*"  A  homestead  claim,  settled  and  im- 
proved upon  by  a  woman  before  marriage,  is  her  separate  estate, 
though  not  patented  till  after  coverture.*^  Where  a  woman  took 
land  under  a  deed  before  coverture,  and  immediately  began  her 
assertion  of  ownership,  a  title  by  adverse  possession  under  the 
occupancy  of  the  spouses  after  coverture  was  held  to  inure  to  her 
separate  estate.*" 

§  324.  Property  Acquired   by   Gift,   Grant,   Devise  or  Bequest 
during  Coverture. 

The  wife's  separate  estate  includes  property  which  she  has 
acquired  thereafter  from  any  person  other  than  her  husband,  by 
gift,  grant,  devise,  or  bequest.  Real  estate  thus  held  or  acquired 
is  regarded,  not  as  land  of  which  the  hushand  enjoys  the  beneficial 
use,  but  as  her  separate  land.  Leasehold  property  may  be  thus 
held  and  enjoyed  by  the  wife.  Her  personal  property,  whether  in 
possession  or  lying  in  action,  is  her  own,  provided  the  statute 
description  be  fulfilled. 

Where  a  hus'band  purchases  land  or  personalty  with  his  own 
money,  and  conveys  or  transfers  it  to  his  wife,  the  question  be- 
comes ordinarily  one  of  post-nuptial  settlement  or  gift,  with 
equitable  rules  such  as  we  shall  consider  hereafter ;  though  some- 
times the  Married  Women's  Act  is  broad  enough  in  scope  to  confer 
the  right  of  separate  property  acquisition,  as  such,  from  a  husband, 
as  well  as  from  third  persons.  If,  on  either  theory,  the  title  vests 
in  the  wife,  as  of  her  separate  right,  the  proceeds  thereof,  or  the 
specific  re-investment,  is  the  wife's  also.  Where  the  husband 
appropriates  such  proceeds  or  takes  other  property  in  his  own 
name,  equity  and  modern  statutes  between  them  may  preserve  the 
wife's  rights ;  she  may,  in  the  usual  manner,  follow  her  title  into 
the  new  property,  or  else  regard  her  trustee  as  remiss  in  duty  and 
indebted  to  her.     But  if,  at  any  point  of  this  property  manage- 

39.  Vandevoort  v.  Gould,  36  N.  T.  40.    Young    v.    Young    (Tenn.),    64 

639:    Prevot   v.   Lawrence,    51    N.   Y.  S.  W.  319. 

219;     Wellman    v.    Kaiser    Tnv.    Co.  41.  Forker  v.  Henry,  21  Wash.  235, 

(Mo.),    171    S.    W.    370;    MoKee    v.  57  P.  811. 

Downing,  224  Mo.  115,  124  S.  W.  7 ;  42.    Alford    Bros.    &    Whiteside    v. 

Henderson    Grocery    Co.    v.    Johnson  Wililams,  41  Tex.  Civ.  436,  91  S.  W. 

(Tenn.),  207  S.  W.  723;  Williams  v.  636. 
Lord,  75  Va.  390. 


§    324  IIUSBAISI)    AND    WIFE.  345 

ment,  it  be  said  that  the  husband  appropriated  to  himself  with  his 
wife's  assent,  then  the  beneficial,  as  well  as  legal,  title  vests  in  him. 
Here,  and  in  laying  down  the  presumption  generally  as  between 
husband  and  wife,  is  a  fruitful  source  of  legal  embarrassment  and 
uncertainty,  as  Married  Women's  Acts  stand  at  the  present  day. 
The  husband's  opportunities  are  ample ;  for  no  third  party,  as  in 
a  trust  settlement,  stands  between  these  spouses,  so  closely  united, 
to  preserve  the  property  and  the  evidence  of  title  to  the  true  owner. 
I^Tor  are  States  agreed  in  the  course  to  pursue,  since  the  policy  of 
some  is  to  emancipate  woman  from  property  restraints  altogether, 
while  others  grudge  the  change  as  tending  to  strip  husbands  of 
their  matrimonial  rights ;  one  regards  the  woman's  right  to  her 
oAvn  acquisitions  as  properly  the  rule,  another  as  prop€rly  the 
exception. 

Under  most  Married  Women's  Acts  gifts  of  real  estate  from  the 
husband  to  the  wife  are  her  separate  estate,*^  even  though  he  pays 
taxes  and  interest  on  the  mortgage,**  and  even  though  the  gift  was 
from  their  community  property,  if  he  is  free  from  debt  at  the 
time.*^  The  wife's  separate  estate  also  includes  property  acquired 
by  use  of  the  proceeds  of  such  gifts,**  and  property  acquired  with 
the  proceeds  of  gifts  from  his  relatives,*^  and  property  given  her 
by  her  own  relatives,**  as  well  as  transfers  of  personal  property, 
whether  gifts  or  as  payment  for  her  money  or  property  used  by 
him,**  even  though  made  by  parol,^**  and  gifts  made  by  strangers 
to  the  wife  on  the  occasion  of  giving  birth  to  quintuplets."^  Where 
a  husband,  indebted  to  his  wife's  father  on  notes,  took  one  of  the 
notes  as  her  share  of  the  father's  estate,  it  was  held  that  the  note 
so  taken  was  her  separate  estate.^^  Under  the  former  statute  in 
Texas,  providing  that  the  lands  owned  by  the  wife  at  marriage  or 

43.  Hamilton  v.  Hubbard,  134  Cal.  49.  Carver  v.  Carver,  53  Ind.  241; 
603,  65  P.  321  (affd.,  134  Cal.  603,  Kelly  v.  Kelly,  131  La.  1024,  60  So. 
66  P.  860).  671;  Mitchell  v.  Chattanooga  Savings 

44.  Corbett  v.  Sloan,  52  Wash.  1,  Bank,  126  Tenn.  669,  150  S.  W.  1141; 
99  P.  1025.  Cullen  v.  Bisbee,  168  Cal.  eg'S,  144  P. 

45.  Bank  of  Orofino  v.  Wellman,  26  968;  Baker  v.  Hedrich,  85  Md.  645, 
Ida.  425,  143  P.  1169.  37  A.  363   (savings  bank  account). 

46.  Smith  v.  Weed,  75  Wash.  452,  50.  Williford  v.  Phelan,  120  Tenn. 
134  P.  1070.  ■89,  113  S.  W.  365. 

47.  Marshall  Field  &  Co.  v.  McFar-  51.  Lyon  v.  Lyon,  24  Ky.  Law, 
lane   (la.),  84  N.  W.  1030.  2100,  72  S.  W.  1102. 

48.  Tanner  v.  Skinner,  11  Bush  52.  Hileman  v.  Hileman,  85  Ind.  1. 
(Ky.),  120;  Tolley  v.  Wilson  (Tenn.), 

47  S.  W.  156. 


349 


STATUTORY    SEPAE^iTE    ESTATE. 


§  325 


afterwards  acquired  shall  be  her  separate  estate,  it  was  held  that 
her  interest  in  a  land  certificate  issued  to  heirs  of  her  former 
husband  remained  her  separate  estate,  and  that  a  subsequent 
husband  took  no  interest  in  the  certificate."  Under  the  Missouri 
Married  Women's  Act  money  inherited  by  a  wife  and  received  by 
her  husband  is  her  separate  estate,  unless  she  consents  in  writing 
that  he  may  appropriate  it."^*  In  Tennessee  money  inherited  by  a 
wife  is  part  of  her  general  estate.**^ 

§  325.  Wife's  Land  in  General. 

Generally  land  conveyed  to  a  wife  is  her  separate  estate,'"  even 
of  community  property,®''  or  an  undivided  interest  in  land,"  as 
well  as  land  conveyed  to  the  wife  at  the  husband's  request,'*'  or  by 
his  relatives  without  his  request,®"  even  though  no  special  words  of 
limitation  to  her  separate  use  are  inserted  in  the  deed,®^  especially 


53,  Laufer  v.  Powell,  30  Tex.  Civ. 
604,  71  S.  W.  604. 

54.  Columbia  Sav.   Bank  v.  Winn, 
132  Mo.  80,  33  S.  W.  457. 

55,  Sanford    v.    Allen    (Tenn,),   42 
S,  W.  183. 

56.  Montague  v.  Buchanan  (Tenn.), 
311  S.  W.  211;  Johnson  v.  Johnson 
(Tex,),  207  S,  W.  202;  O'Connor  v. 
Vineyard,  91  Tex.  488,  44  S,  W.  477; 
Martinez  v.  De  Barroso  (Tex.),  189 
8.  "W.  740;  Harrison  v.  Mansur-Tib- 
betts  Implement  Co.,  16  Tex  Civ.  630, 
41  S.  W.  842;  Emery  v.  Barfield 
(Tex.),  156  S.  W.  311;  Sharitz  v. 
Moyers,  99  Va.  519,  3  Va.  Sup.  Ct.  R, 
359,  39  S.  E.  166;  Robinson  v.  Neill, 
34  W.  Va.  128,  11  S.  E.  999;  Cropper 
V.  Bowles,  150  Ky.  393,  150  S.  W. 
380;  Kelley  v.  Grundy,  20  Ky.  Law, 
1081,  45  S.  W.  100;  Pearll  v.  Pearl! 
Advertising  Co.,  17  Det,  Leg,  N.  543, 
127  N.  W.  264;  Turner  v.  Shaw,  96 
Mo.  22,  8  S.  W.  897,  9  Am.  St.  R. 
319;  Stark  v.  Kirchgraber,  186  Mo, 
633,  85  S.  W.  868,  105  Am.  St.  R. 
629;  Scruggs  v.  Mayberry,  135  Tenn. 
586,  188  S.  W.  207;  Bamum  v.  Le 
Master,  110  Tenn.  638,  75  S,  W,  1045, 
69  L.  R.  A.  353;  Johnson  v.  Johnson 
(Tex.),  205  S.  W.  202;  Kahn  v. 
Kahn,  94  Tex.  114,  58  S.  W.  825; 
Cardwell  v.  Perry,  82  Ky.  129,  6  Ky. 
Law,  97;  Emery  v.  Barfield  (Tox.). 
183  S.  "W.   386;    Wilson   v.   McDaniel 


(Mo.),  190  S.  W.  3;  Hill  v,  Meinhard, 
39  Fla.  Ill,  21  So.  805  MoUoy  v. 
Brower  (Tex.),  171  S.  W.  1079;  Bird 
V.  Lester  (Tex.),  166  S.  W,  112;  Kin 
Kaid  V.  Lee,  54  Tex,  Civ,  622,  119 
S,  W,  342;  Emery  v.  Barfield  (Tex.), 
183  S.  W.  386;  Jones  v.  Jones  (Tex.), 
146  S.  W.  265;  Pfingsten  v.  Pfingsten, 
164  Wis.  308,  159  N.  W.  921, 

57.  Alferitz  v.  Arrivillaga,  143  CaL 
646,   77   P.   657, 

58.  Lapique  v.  Greantit,  21  Cal,  App. 
515,  132  P.  78, 

59.  Butler  v.  Gosling,  130  Cal.  422, 
62  P.  596;  Bauer's  Law  &  Collection 
Co.  V.  Berthiaume,  21  Cal.  App.  670, 
132  P,  596 ;  Leust  v,  Staffan,  14  App. 
D.  C.  200;  Kent  v.  Tallent  (Okla,), 
183  P,  422;  Ferguson  v.  Booth,  128 
Tenn,  259,  160  S.  W.  67;  McKinney 
V.  McKinney  (Tex,),  87  S,  W.  217. 

60.  Anderson  v.  Casey-Swasey  Co. 
(Tex.),  129  S.  W.  349. 

61.  Harlan  v.  Harlan,  144  Ky.  817, 
139  S.  W.  1063  Emery  v.  Barfield 
(Tex.),  138  S.  W.  419;  Emery  v.  Bar- 
field  (Tex.),  156  S.  W.  311;  Merriman 
V.  Blalack,  56  Tex.  Civ.  594,  121  S.  W. 
552;  Du  Perier  v.  T>u  Perier.  126  S. 
W.  10;  Jones  v.  Humphreys,  30  Tex. 
Civ.  644,  88  S.  W.  403;  Thorpe  v. 
Sampson,  84  F.  63 ;  Drake  v.  "David- 
son, 28  Tex.  Civ.  184.  66  S.  W.  8S9; 
Hankins  v.  Columbia  Trust  Co.,  142 
Ky.  206,  134  S.  W.  499. 


§  325 


HUSBAND    AND    WIFE. 


350 


where  the  land  is  purchased  with  the  wife's  funds,^^  and  even 
where  the  husband  gives  his  note  for  deferred  payments,  if  the 
wife  agrees  to  pay  the  note,^^  and  even  where  payments  were  made 
by  the  husband's  checks,  if  she  had  given  him  the  money  to  make 
them.®*  The  same  is  true  where,  after  taking  title,  he  disclaims 
title  in  himself  and  refers  to  it  as  her  property.'^  The  fact  that 
the  husband  has  fenced  and  otherwise  improved  the  land  does  not 
change  its  character  as  a  separate  estate.®®  Under  the  Married 
Women's  Acts  in  California,  New  Mexico,  West  Virginia  and 
Wisconsin,  all  rights  in  land  conveyed  to  a  wife  are  her  separate 
estate.®^  In  Louisiana  property  so  conveyed  or  transferred  to  the 
wife  is  paraphernal.®*  In  the  District  of  Columbia  real  estate 
conveyed  to  a  wife  in  fee  simple  absolute,  free  from  the  control  of 
her  husband,  becomes  hers  in  equity  as  though  she  was  unmarried, 
and  she  may  convey,  devise  or  otherwise  dispose  of  as  though  sole.®* 
Under  the  Tennessee  statute  there  is  no  presumption  that  a  wife's 
property  is  her  separate  rather  than  her  general  estate,  but  rather 
the  contrary.''"  In  Vermont  a  wife's  land  is  not  her  separate 
estate  unless  it  is  made  so  by  some  provision  in  the  instrimient  or 
decree   creating   the    estate. ^^     Under   the    Washington    Married 


62.  United  States  Fidelity  &  Guar- 
anty Co.  V.  Lee,  58  Wash.  16,  107  P. 
870;  Green  v.  Forney,  134  la.  316, 
111  N.  W.  976;  Ligon  v.  Wharton 
(Tex.),  120  S.  W.  930;  Johnson  v. 
Johnson  (Tex.),  207  S.  W.  202; 
OTarrell  v.  O'Farrell,  56  Tex.  Civ. 
51,  119  S.  W.  899;  Clark  v.  Baker, 
76  Waah.  110,  135  P.  1025;  Nilson  v. 
Sarment,  153  Cal.  524  96  P.  315. 

63.  Amend  v.  Jahns  (Tex.),  184 
S.  W.  729. 

64.  Conron  v.  Cauchols,  242  F.  909, 
155  C.  C.  A.  497. 

65.  Black  v.  Black,  64  Kan.  689, 
68  P.  662. 

66.  Donovan  v.  Olsen,  47  Wash.  441, 
9S  P.  276. 

67.  Hitchcock  v.  Rooney,  171  Cal. 
285,  152  P.  913;  Randall  v.  Washing- 
ton, 161  Cal.  59,  118  P.  425;  Title 
Ins.  &  Trust  Co.  v.  Ingersoll,  153  Cal. 
1,  94  P.  94 ;  Bell  v.  Wyman,  147  Cal. 
514,  82  P.  39:  Hammond  v.  McCol- 
lough,  159  Cal.  639,  115  P.  216; 
Farnum  v.  Kern  Valley  Bank,  12  Cal. 


App.  426,  107  P.  568;  Mitchell  v. 
Moses,  16  Cal.  App.  594,  117  P.  685; 
Holmes  v.  Holmes,  27  Cal.  App.  546, 
150  P.  793;  Bekins  v.  Dieterle,  5  Cal. 
App.  690,  91  P.  173;  Bekins  v.  Die- 
terle, 5  Cal.  App.  690,  91  P.  173; 
Oldershaw  v.  Matteson  &  Williamson 
Mfg.  Co.,  19  Cal.  App.  179;  125  P. 
263;  Miera  v.  Miera  (N.  M.),  181 
P.  583 ;  Smith  v.  New  Huntington 
General  Hospital  (W.  Va.),  99  S.  E. 
461 ;  Citizens '  Loan  &  Trust  Co.  v. 
Witte,  116  Wis.  60,  92  N.  W.  443. 

68.  Dupre  v.  Jenkins,  52  La.  Ann. 
1819,  28  So.  321. 

69.  Leust  v.  Staff  an,  14  App.  D.  C. 
200.  To  the  same  effect  see  Travis 
v.  Sitz   (Tenn.),  185  S.  W.  1075. 

70.  City  Lumber  Co.  v.  Barnhill, 
129  Tenn.  676,  168  S.  W.  159. 

71.  7?!  re  Rooney,  109  F.  601; 
Seaver  v.  Lang  (Vt.),  104  A.  877; 
Dietrich  v.  Deavitt,  81  Vt,  160,  69 
A.  661;  Ainger  v.  Webster  (Vt.),  82 
A.  666;  In  re  Nelson's  Will,  70  Vt. 
130,  39  A.  750. 


351  STATUTORY  SEPARATE  ESTATE.  §  326 

Women's  Act  a  deed  procured  by  the  husband  in  the  name  of  the 
wife  creates  a  separate  estate  in  her  where  he  so  conducts  himself 
as  to  indicate  that  he  makes  no  claim  to  the  property."  Under 
the  Delaware  Married  Women's  Act  a  wife  cannot  claim  as  her 
separate  estate  property  acquired  directly  from  her  husband." 

§  326.  Rents,   Profits  and   Issues  of  Separate   Estate. 

The  natural  increase  and  profits  of  the  wife's  statutory  separate 
property,  including  the  progeny  of  her  separate  domestic  animals 
and  the  rents  of  her  separate  lands  or  the  crops,  are  usually  to  be 
construed  hers  and  at  her  disposal  during  marriage,  as  well  as  the 
property  which  produced  the  increase  and  profits,''*  including 
profits  from  the  sale  of  live  stock,"  and  the  profits  of  her  separate 
business.'^"  The  same  is  true  of  profits  from  land  held  by  the 
husband  as  trustee  for  the  wife  and  children,  where  it  does  not 
appear  that  his  services  were  worth  more  than  he  was  bound  to 
contribute  to  the  support  of  the  family,  or  more  than  the  cost  of  his 
support."  If  it  were  rightly  held  otherwise,  this  would  be  on 
some  construction  that  the  wife  had,  by  her  acts  and  conduct, 
acquiesced  in  her  husband's  assumption  of  the  ownership.''*  In 
short,  all  the  product  and  increase  of  the  original  property  will 
become  the  wife's  as  long  as  she  can  follow  and  identify  it,''® 
though  expenditure  of  income  for  authorized  family  purposes  may 
well  be  presumed.*"  And  since  the  income  of  her  separate  fund  is 
hers,  property  purchased  with  her  savings  from  interest  arising 
out  of  her  separate  funds  belongs  to  her  as  her  separate  property." 

72.  Lanigan  v.  Miles   (Wash.),  172  products  of  the  land  occupied  by  the 
p.  894.                             .  family,    cf.    Moreland    v.    Myall,    14 

73.  Whiteman  v.  Whiteman   (Del.),  Bush    (Ky.),   474;    Hill  v.  Chambers, 
105  A.  787.  30   Mich.   422;    Williams  v.   Lord,  75 

74.  Webster  v.   Sherman,  33   Mont.  Va.  390;  Harris  v.  Van  de  Vanter,  17 
448,  84   P.   878;    Sullivan   v.   Skinner  Wash.  489,  50  P.  50. 

(Tex.),  66  S.  W.  680;  Carle  V.  Heller,  75.    Blankinship      Bros.      v.      Knox 

18  Cal.  577,  123  P.  815;  Smith's  Exr.  (Wash.),  178  P.  629. 

v.  Johns,  154  Ky.  274,  157  S.  W.  21;  76.  Bourgeois  v.  Edwards   (N.  J.), 

Dollar  V.  Busha,  124  Ga.  521,  52  S.  E.  104  A.  447. 

615;    Featherngill    v.    Dougherty,    44  77.   Brown   v.   Brown's   Adm'r,    20 

Ind.  App.  452,  89  IST.  E.  521;  Kelley  Ky.  Law,  690. 

V.  Grundy,  20  Ky.   Law,   1081,   45  S.  78.    But    see    peculiar    statute    con- 

W.    100;    Martin    v.    Davis,    30    Pa.  strucd  in  Chambers  v.  Richardson,  57 

Super.  59;  Hester  v.  Stine,  46  Wash.  Ala.  85. 

469,  90  P.  594;  Williams  v.  McGrade,  79.    Holcomb   v.   Meadville   Savings 

13   Minn.   46;    Hanson   v.   Millett,   55  Bank,  92  Pa.  338. 

Me.   184;    Gans  v.   Williams,   62   Ala.  80.  See  Chambers  v.  Eichardson,  57 

41 ;  Hutchins  v.  Colby,  43  N.  H.  159 ;  Ala.  85. 

Stout  V.  Perry,  70  Ind.  501.  But  as  to  81.  Merritt  v.  Lyon,  3  Barb.  (N.  Y.) 

110. 


§  328  HUSBAND  AND  WIFE.  352 

§  327.  Proceeds  of  Sale  of  Separate  Estate. 

Upon  a  sale  and  exchange  of  the  wife's  separate,  as  contrasted 
with  her  general,  lands,  the  proceeds  belong  to  the  wife,*^  even 
though  the  labor  of  the  husband  contributes  to  its  production,** 
as  well  as  the  proceeds  of  a  sale  of  a  wife's  separate  estate  gen- 
erally,** and  property  purchased  with  such  proceeds.*''  And  where 
her  realty,  as  in  partition  proceedings,  is  converted  int-o  money, 
the  proceeds  stand  in  lieu  of  the  real  estate  for  her  benefit,** 
Where  spouses  hold  land  equally  in  common,  a  half  of  a  note  taken 
in  payment  for  the  land  is  the  wife's  separate  estate.*^ 

Property  acquired  by  exchange  for  the  wife's  statutory  property 
is  presumably  her  separate  property  likewise,  as  where  one  horse 
is  exchanged  for  another.**  Where  spouses  occupied  land  rent 
free  for  two  years  in  lieu  of  $1,000  to  which  she  was  entitled  from 
an  estate,  and  where  the  husband  later  bought  an  interest  in  the 
land,  which  he  sold  and  loaned  the  proceeds  on  two  notes,  of  which 
one,  for  $1,500,  was  payable  to  the  wife,  it  was  held  that  the  note 
was  her  separate  estate,  where  it  appeared  that  the  proceeds  of  the 
farm,  during  the  free  occupation,  was  equal  to  the  amount  of  the 
note.*^  Under  the  Kentucky  statute  providing  that  the  proceeds 
of  the  wife's  land  shall  belong  to  her  unless  otherwise  provided  in 
the  deed  or  the  obligation  of  the  purchaser,  it  was  held  that  the 
fact  that  notes  payable  to  the  husband  were  taken  in  payment  for 
such  land,  coupled  with  a  recital  in  the  deed  that  the  consideration 
had  been  paid  to  him,  were  sufficient  to  show  his  title  to  the  notes.** 
Where  a  wife  acquired  separate  real  estate  prior  to  the  Married 
Women's  Act  in  Missouri,  and  sold  it  after  the  act  took  effect,  the 
proceeds  were  held  to  be  her  separate  estate.®^ 

§  328.  Property  Purchased  at  Judicial  Sale. 

Title  to  real  estate  acquired  by  the  wife  as  purchaser  at  a  fore- 
closure sale  is  her  separate  property,  though  her  husband  has  a 
mortgage  on  the  property  junior  to  that  foreclosure,®^  and  even 

82.  Brevard  v.  Jones,  50  Ala.  221.  87.  Isley  v.  Sellars,  153  N.  C.  374, 

83.  Martin  v.  Davis,  30  Pa.  Super.      69  S.  E.  279. 

59.  88.  Pike  v.  Baker,  53  111.  163. 

84.  Carle  v.  Heller,  18  Cal.  577,  123  89.  Harris  v.  Harris,  31   Ky.  Law, 
P.  815.  930,  104  S.  W.  387. 

85.  Lanning  v.  Fogler,  16  Ohio  Oir.  90.  Skeen  v.  Scroggins,  20  Ky,  Law, 
Ct.  151,  8  O.  C.  D.  780.  333,  46  S.  W.  9. 

86.  Nissley  v.  Heisey,  78  Pa.  418 ;  91.  Gordon  v.  Gordon,  183  Mo.  294, 
Rice  v.  Hoffman,  35  Md.  344;  Terrell  82  S.  W.  11. 

v.  Manpin,  26   Ky.  Law,  1203,  83  8.  92.   Potter   v.   Sachs,   45   App.   DIt. 

W.  591.  454,  61  N.  Y.  S.  426. 


353  STATUTORY  SEPARATE  ESTATE.  §  32 !i' 

though  tho  laud  was  mortgaged  by  her  husband,  where  he  has 
parted  with  his  equity  of  redemption  prior  to  the  foreclosure."'* 
Tinder  the  Washington  Married  Women's  Act  she  may  buy  person- 
alty at  an  execution  sale  and  pledge  the  property  to  a  bank  as 
security  for  money  loaned  by  it  to  pay  for  the  property."* 

§  329.  Property  Held  by  Husband  as  Trustee  for  Wife. 

The  husband,  while  the  marriage  relation  lasts,  may  hence 
become  bound  as  trustee  of  his  wife's  statutory  separate  estate,  not 
only  by  express  appointment,  but  through  implication,  as  under 
the  equity  rule."^  In  certain  States  the  husband  is  specially 
designated  by  statute  as  his  wife's  trustee/^  —  a  peculiarity  of 
legislation  which  is  attended  with  peculiar  consequences  as  to  the 
legal  title  of  such  property.  And  since  the  opportunities  afforded 
him  for  mixing  up  her  property  with  his  are  very  great,  in  the 
present  raw  age  of  our  married  women's  legislation,  we  often  find 
her,  upon  surviving  him,  a  general  creditor  against  his  estate,  or 
the  claimant  of  a  trust  fund,  which  cannot  easily  be  identified,"^ 
A  husband  who  is  trustee  under  the  Connecticut  statute  of  his 
wife's  personalty  remains  such  though  he  so  intermingles  her  prop- 
erty with  his  that  its  identity  is  lost.***  During  the  husband's  life 
the  legal  title  to  property  held  under  such  a  trust  remains  in  him, 
but  at  his  death  the  trust  determines  and  the  legal  title  vests  in  the 
wife,  giving  her  absolute  title.®**  Unlike  the  wife's  separate  estate 
in  equity,  the  separate  property  of  a  married  woman  under  Amer- 
ican statutes  seems  sometimes  to  retain  its  qualities  after  her  death, 
so  that  her  administrator  often  claims  it  against  her  surviving 
husband.^     Tn  the  absence  of  a  gift,  a  husband  who,  without  his 

93.  Field    v,    Gooding,    106    Mass.      with  regard  to  it.     Williams  v.  King, 
310;    dist.    Stetson    v.    O 'Sullivan,    8       43  Conn.  569. 

Allen    (Mass.)    321.  The  husband  may  sue,  "  as  trust-ee 

94.  Main  v.   Schcrtl,  20  Wash.   201,  of  his  wife, "  to  recover  rents,  income, 
54  P.  1125.  and  profits  of  his  wife's  statutory  sep- 

95.  Walter  v.  Walter,  48  Mh.  140;  arate  estate.     Bentley  v.  Simmons,  51 
Hall  v.  Creswell,  46  Ala.  460;   Wood  Ala.   165. 

v.  Wood,  83  N.  Y.  575;  Patten  v.  Pat-  97.  Martin  v.  Curd,  1  Bush   (Ky.), 

ten,  75  111.  446.  327;    Hause    v.    Gilger,    52    Pa.    412; 

96.  Sherwood  v.  Sherwood,  32  Conn.       Powlcr  v.  Rice,  31  Ind.  258. 

1 ;  Marsh  v.  Marsh,  43  Ala.  677.     The  98.  Conn.  Trust  &  Safe-Deposit  Co. 

personal   property   of   a   married   wo-  v.  Security  Co.,  67   Conn.   438,  35  A. 

man,  which  is  by  the  statute  vested  in  342. 

the  husband  as  hor  trustee,  is  not  in  99.   Pettu3  v.  Gault,  81   Conn.   41',, 

legal  strictness  her  sole  and  separate  71  A.  .'iOO. 

estate,  unless  the  husband  transfers  it  1.  Leland    v.    Whitaker,    23    Mich. 

to  the  wife  or  relinquishes  bis  rights  324. 


380 


HUSBAND    AND    WIFE. 


354 


wife's  consent,  acquires  lier  separate  property,  holds  it  as  trustee 
for  h.ev.^  Such  an  act  has  been  said  to  be  a  fraud,^  but  generally 
it  is  regarded  as  a  resulting  trust.*  The  rule  applies  to  a  tax  title 
bought  by  him  against  her  property,^  and  to  any  interest  acquired 
by  him  against  her  land  which  he  holds  jure  mariti.^  Where  such 
a  trust  exists  the  wife  may  have  an  accounting.^  The  rule  does 
not  apply  where  title  is  conveyed  to  the  spouses  jointly  and  wife 
has  paid  but  a  portion  of  the  consideration,*  nor  where  she  regards 
him  as  a  debtor  for  the  money  so  used.^  A  deed  by  a  husband  to 
his  wife  providing  that  neither  could  dispose  of  the  property  in 
the  lifetime  of  the  other,  but  that  he  should  control  and  manage  it, 
has  been  held  to  create  a  trust  in  favor  of  the  wife's  separate 
estate.^"  Where  a  wife  procures  her  husband  to  sell  her  land  and 
receive  the  proceeds  with  the  intention  that  he  shall  immediately 
reinvest  the  proceeds  in  other  land,  the  funds  received  from  the 
sale  do  not  ipso  facto  become  his  property  and  subject  to  his  debts 
where  all  parties  understood  that  the  wife  intended  merely  to 
m.ake  a  substitution  of  lands.^^ 

§  330.  Personal  Property  in  General. 

The  wife's  personal  property  is  generally  her  separate  estate,^" 
even  though  bought  on  conditional  sale,^^  especially  where  pur- 
chased by  her,^*  and  especially  if  it  is  for  use  in  her  business,^^ 
even  though  the  bill  of  sale  does  not  expressly  limit  the  conveyance 
to  her  separate  use/®  and  even  though  she  permits  the  husband  to 


2.  Barber  v.  Barber,  125  Ga.  226, 
53  S.  E.  1017;  Bohannon  v.  Bohan- 
non's  Adm'x,  29  Ky.  Law,  143,  92 
S.  W.  597;  Winn  v.  Riley,  151  Mo. 
61,  52  S.  W.  27,  74  Am.  St.  R.  517; 
Smith  V.  Settle,  128  Mo.  App.  379, 
107  S.  W.  430;  Farmers'  State  Bank 
V.  Keen  (Okla.),  167  P.  207. 

3.  McKee  v.  Downing,  224  Mo.  115, 
124  S.  W.  7. 

4.  Heintz  v.  Heintz,  56  Tex.  Civ. 
403,  120  S.  W.  941. 

5.  Simon  v.  Rood,  129  Mich.  345,  88 
N.  W.  879,  8  Det.  Leg.  No.  961. 

6.  Manning  v.  Kansas  &  T.  Coal 
Co.,  181  Mo.  359,  81  S.  W.  140. 

7.  Stoekwell  v.  Stockwell's  Estate 
(Vt.),  105  A.  30  (trust  to  lumber, 
wife's  land"). 

8.  Serofin  v.  Diokison,  (Ind.)  107 
N.  E.  86. 


9.  Kegerreis  v.  Lutz,  187  Pa.  252, 
41  A.  26;  Sparks  v.  Taylor,  99  Tex. 
411,  90  S.  W.  485,  6  L.  R.  A.  (N.  S.) 
381. 

10.  Scruggs  V.  Mayberry,  135  Tenn. 
586,  188  S.  W.  207. 

11.  Aston  V.  Kindrick,  90  Va.  825, 
20  S.  E.  827. 

12.  O  'Brien  v.  McSherry,  222  Mass. 
147,  109  N.  E.  904. 

13.  Patterson  v.  Patterson,  197  Miss. 
112,  83  N.  E.  364. 

14.  Reeves  v.  McNeill,  127  Ala.  175, 
28  So.  623;  Hoover  v.  Carver  (Minn.), 
160  N.  W.  249. 

15.  First  Nat.  Bank  v.  Hirschko- 
witz,  46  Fla.  588,  35  So.  22;  Weakley 
V.  Woodard,  2  Tenn.  Ch.  586. 

16.  MejTuiar  v.  Wilson,  9  Ky.  Law, 
195. 


20 
21 


355  STATUTOKY  SEPAEATE  ESTATE.  §  332 

use  it,^'  and  even  if  the  husband  signed  tihe  deferred  payment 
notes,  and  even  if  the  receipts  were  made  out  to  him.^*  A  married 
woman,  transferring  stock  after  marriage  from  her  maiden  to  her 
married  name,  may  retain  it  as  her  separate  property.^®  Xotes, 
bonds,  or  other  evidences  of  debt,  and  incorporeal  property, 
animate  as  well  an  inanimate  property,  constitute  separate  estate, 
as  well  as  money,  which  of  course  is  personal  property,"^  including 
money  derived  from  a  mortgage  of  separate  estate,^*  and  debts.^* 
And  so  may  the  equity  obtained  by  having  purchased  land,  paid 
part  of  the  purchase-money,  and  taken  a  bond  for  title  on  payment 
in  full."^  Patents  taken  out  in  the  wife's  name  for  inventions  by 
the  husband  are  her  separate  property,  where  she  in  good  faith 
employs  him  to  devise  and  perfect  the  inventions,  paying  him  a 
salary  therefor 


26 


§  331.  Alimony  Granted  to  Wife. 

In  Massachusetts,  alimony  granted  to  the  wife  is  not  her  sep- 
arate estate."^  In  Wisconsin  it  is  held  that  a  judgment  granting 
a  wife  a  divorce  and  a  specified  amount  as  a  division  of  the  prop- 
erty vests  the  amount  in  her  as  separate  estate.^® 

§  332.  Damages  Recovered  by  Wife. 

Damages  recovered  by  the  wife  are  usually  her  separate  estate.'* 
This  rule  is  established  by  statute  in  Louisiana.'"  Under  that 
statute  "  personal  injuries  "  is  held  to  include  injuries  to  her 
feelings,  resulting  from  abuse,   slander  or  libel.^^     A  husband's 

17.  Campbell  v.  Fillmore,  13  Colo.  26.  Talcott  v.  Arnold,  55  N.  J.  Eq. 
App.     503,     58     P.     790     (horse    and       519,  37  A.   891. 

wagon).  27.   Brown   v.    222   Mass.    415,    111 

18.  Fox  V.  Tyrone,  104  Miss.  44,  61       N.  E.  42. 

So.  5.  28.  Kistler  v.  Kistler,  141  Wis.  491, 

19.  Mason  v.  Fuller,  36  Conn.  160;        124  X.  W.  1028. 

Salisbury  v.  Spoford,  22  Ida.  393,  126  29.  Duffee  v.  Boston  Elevated  Ey. 

P.  400.  Co.,   191   Mass.    563,   77   N.   E.   1036; 

20.  Clark  v.  Cullen,  44  S.  W.  204;  Tlahn  v.  Goings,  22  Tex.  Civ.  576,  56 
Case  V.  Espenschied,  169  Mo.  215,  69  S.  W.  217;  Western  Union  Telegraph 
S.  W.  276,  92  Am.  St.  E.  633 ;  Selden  Co.  v.  Eowe,  44  Tex.  Civ.  84,  98  S.  W. 
V.  Bank,  69  Pa.  424.  228. 

21.  Gans   v.   Williams   62    Ala.    41.  30.  Martin  v.  Derenbeckcr,  116  La. 

22.  Mitchell  v.  Mitchell,  35  Miss.  405,  40  So.  849;  Eobertson  v.  To\\-n 
114.  of  Jennings,  128  La.  795,  55  So.  375; 

23.  Sparks  v.  Taylor,  99  Tex.  411,  Iley  v.  Prime,  197  Mass.  474,  84  N.  E. 
90  S.  W.  435.  141. 

24.  Hunt  v.  Eaton,  55  Mich.  362,  31.  Martin  v.  Derenbecker,  116  La. 
21  N.  W.  429.  495,  40  So.  849. 

25.  Prout  V.  Hoge,  57  Ala.  28. 


§    333  HUSBAIS^D    AiSTD    WIFE.  356 

release  by  deed  of  all  interest  in  land  devised  to  his  wife  surrenders 
all  claim  to  damages  she  may  recover  for  injury  to  such  land.^' 

Land  damages  under  eminent  domain  proceedings  may  be  her 
statutory  separate  property. ^^ 

§  333.  Proceeds   of   Insurance   Policy  on   Life  or   Property  of 
Husband. 

Since  the  wife  has  an  insurable  interest  in  the  life  of  the 
husband,  proceeds  of  a  policy  on  his  life  payable  to  her  are  her 
separate  estate,  if  written  after  the  passage  of  a  Married  Women's 
Act,^*  but  such  act  cannot  take  away  the  husband's  rights  in  a 
policy  written  before  its  enactment.^^  Money  derived  from  an 
insurance  policy  on  the  life  of  a  woman's  first  husband  is  part  of 
her  separate  estate  on  her  second  marriage.^® 

Where  a  husband  takes  out  a  policy  of  life  insurance  in  favor 
of  his  wife  which  has  an  endowment  feature,  she  has  on  the  issu- 
ance of  the  policy  an  interest  in  it  which  cannot  be  divested,  and 
she  is  entitled  to  the  proceeds  even  though  at  the  expiration  of  the 
period  of  the  endowment  feature  the  husband  is  still  alive.'^ 

Where  the  statute  provides  that  a  judgment  of  divorce  restore 
to  the  divorced  parties  the  title  to  such  property  as  either  may  have 
obtained  from  or  through  the  other  during  marriage,  this  covers 
the  wife's  interest  in  a  paid-up  policy  of  insurance  taken  out  for 
her  benefit  by  the  husband,  where  the  husband  paid  the  premiums, 
and  she  had  no  equitable  interest  in  the  policy.^^ 

Where  the  parties  are  divorced  before  the  time  arrives  for 
renewing  the  policy,  and  where  by  agreement  with  the  insurer 
expressed  in  the  form  of  a  rider  on  the  policy  it  is  not  in  fact 
renewed,  but  merely  continued  for  an  additional  term,  and  the 
wife  continues  to  pay  the  premiums,  the  policy  remains  in  force.^* 

Where  a  policy  of  beneficiary  insurance  is  taken  out  by  a  hus- 
band for  his  wife,  who  afterwards  obtains  a  divorce  from  him  and 
continues  to  pay  the  premiums  on  the  assurance  of  the  officers  of 

32.  Williford  v.  Phelan,  120  Tenn.  N.  W.  182,  49  L.  E.  A.  (N.  S.)  487. 
689,  113  S.  W.  365.  36.   Hughey   v.   Warner,   124   Tenn. 

33.  Sharpless    v.    West    Chester,    1       725,   140   S.   W.    1058. 

Grant,  257;  State  v.  Hulick,  33  N.  J.  37.  Re  Desforgcs  (La.),  64  So.  987, 

307.  52  L.  K.   A.    (N.  S.)    689. 

34.  Hughey  v.  Worner,  124  Tenn.  38.  Sea  v.  Conrad,  155  Ky.  51,  159 
725,  140  S.  W.  1058,  37  L.  R.  A.  (N.  S.  W.  622,  47  L.  I^.  A.  (N.  S.^  1074. 
S.)  582;  Judson  v.  Walker,  155  Mo.  39.  Marquet  v.  Aetna  Life  In.sur- 
166,   55   S.  W.   1083.  ance  Co.   (Tenn.),  159  S.  W.  733,  L. 

35.  Boehmer   v.    Kalk    (Wis.),    144  R.  A.   191 -R  749. 


357  STATUTORY    SEl'ABATE    ESTATE.  §    334 

the  society  that  she  will  be  the  beneficiary  of  the  policy  in  case  of 
his  death,  ahe  is  entitled  to  them  although  the  society  had  a  by-law 
that  policies  were  not  payable  to  divorced  wives  as  the  society  is 
estopped  to  set  up  that  defence.'*" 

Under  the  Tennessee  statute  empowering  a  wife  to  bind  herself 
by  her  conti-acts  made  in  her  separate  business  as  though  sole,  it 
was  held  that  money  due  her  on  a  policy  of  insurance  on  her 
husiband's  life  might,  after  his  death,  be  subjected  to  debts  con- 
tracted as  a  trader,  ttough  contracted  in  his  lifetime  and  while 
living  with  him/^ 

A  woman  has  an  insurable  interest  in  the  life  of  the  husband 
with  whom  she  is  living  as  his  wife  under  a  formal  but  illegal 
marriage,  but  her  interest  is  cut  off  by  a  decree  annulling  the  mar- 
riage, and  she  can  recover  only  the  premiums  she  had  paid  on 
the  policy.*^ 

The  wife  has  not  an  insurable  interest  in  her  husband's  prop- 
erty unless  she  has  some  contract  rights  in  it  or  is  occupying  it, 
but  a  widow  has  an  insurable  interest  by  virtue  of  her  dower 
rights." 

Where  a  wife  insured  property  on  which  the  husband  had  given 
her  a  mortgage  in  fraud  of  creditors,  it  was  held  that  the  proceeds 
of  the  insurance  were  here  separate  property,  even  against  such 
creditors.^* 

§  334.  Goods  bought  by  Husband  on  Wife's  Credit. 

Goods  bought  by  the  husband  on  his  wife's  credit  do  not  neces- 
sarily become  part  of  her  statutory  separate  estate  apart  from  her 
authority  or  acquiescence.*^  And,  on  the  otber  hand,  where  one 
furnishes  goods,  or  contracts  to  render  service,  or  supplies  mate- 
rials, giving  credit  to  the  wife  alone,  and  dealing  with  her  or  her 
agent,  the  husband  will  not  be  liable  out  of  his  own  property,  even 
though  he  receive  some  substantial  benefit,*® 

40.  Snyder  v.  Supreme  Ruler  F.  M.  Southwestern  Mutual  Fire  Insurance 
C,  122  Tenn.  248,  122  S.  W.  981,  45  Co.  (W.  Va.),  93  S.  E,  873,  L.  R.  A. 
L.  R.  A.   (X.  S.)   209.  191SA  789;  Louden  v.  Waddle,  98  Pa. 

41.  Sam  Levy  &  Co.  v.  Davis,   125  243. 

Tenn.  342,  142  S.  W.  1118.  44.    Murphy   v.   Nilles,    166   HI.    99, 

42.  Western  &  S.  Life  Ins.  Co.   v.       46  X.  E.  772. 

Webster,  172  Ky.  444,  189  S.  W.  429,  45.    Wilder   v.    Abcrnethy.    54    Ala. 

L.  R.  A.  1917B  375.  644 ;  Roberts  v.  Kelley,  51  Vt.  97. 

43.  Tyree  v.  Yircrinia  Ins.  Co.,  55  46.  Hanpeck  v.  Hartley,  7  Baxt. 
W.  Va.  63.  46  S.  E.  706,  66  L.  R.  A.  (Tenn.^   411. 

657,  104  Am  St.  R.  983;   Hawkins  v. 


§    336  HUSBAKD    AA'D    WIFE.  358 

§  335.  Trust  Fund  in  Bastardy  Proceedings. 

A  trust  fund  to  secure  the  support  of  a  prosecutrix  in  bastardy 
proceedings  may  be  ber  separate  estate  under  the  Wisconsin  Mar- 
ried Women's  Act,  though  her  control  of  it  is  subject  to  the 
conditions  of  the  trust."*^ 

§  336.  Wife's  Earnings  in  General. 

Indeed,  the  well-settled  principle,  both  at  law  and  equity,  is 
that,  in  absence  of  a  distinct  gift  from  the  husband,  all  the  wife's 
earnings  belong  to  him  and  not  to  herself.*^  But  by  recent  stat- 
utes, enacted  in  many  of  the  United  States,  married  women  are 
allowed  the  benefits  of  their  own  labor  and  services  when  per- 
formed, or  even  contracted  to  be  performed,  on  their  sole  and 
separate  account,  free  from  all  control  or  interference  of  a  hus- 
band,*^ in  the  absence  of  an  agreement  to  the  contrary.^"  The 
English  Married  Women's  Act  of  1870,  moreover,  recognizes  the 
wife's  right  to  her  separate  earaings.^^  These  statutes  vary  some- 
what in  their  terms.  Thus,  by  a  Maryland  statute,  the  amount 
she  may  so  acquire  is  limited  to  one  thousand  dollars  over  and 
above  her  debts.  Statutes  sometimes  discriminate  so  as  to  protect 
simply  the  wife's  earnings  derived  from  labor  for  another  than  her 
husband."  Under  the  Kentucky  Married  Women's  Act  her  earn- 
ing's  under  a  contract  made  with  her  by  him  as  agent  of  another 
were  held  her  separate  property  as  against  his  creditors,  though 
such  a  contract  was  to  be  scrutinized  somewhat  closely  by  the 
court.^^     Under  the  JSTebraska  Married  Women's  Act,  making  the 

47.  Meyer  v.  Meyer,  123  Wis.  538,      Kelley,  10  Kan.  298 ;  Jassoy  v.  Delius, 
102  N,  W.  52.  65  111.  469 ;  Whitney  v.  Beckwith,  31 

48.  Jones  v.  Eeid,  12  W.  Va.  350;       Conn.  596. 

Douglas    V.    Gausman,    68    111.    170;  50.   Briggs  v.    Sanford,   219    Mass, 

Kelly  V.  Drew,  12  Allen  (Mass.),  107;  572,  107  N.  E.  436. 

Glaze  V.  Blake,  56  Ala.  379,  51.  Lovell  v.  Newton,  L.  R.  4  C.  P. 

49.  De   Brauwere   v.   De   Brauwere,  D.  7. 

203  N.  Y,  430,  96  N,  E.  722,  38  L.  E.  52.  Hamilton  v.  Hamilton's  Estate, 
A.  (N.  S.)  508;  Martin  v.  Davis,  3u  26  Ind.  App,  114,  59^  N.  E.  344;  El- 
Pa,  Super.  59;  Whiteman  v.  White-  liott  v.  Atkinson,  45  Ind.  App.  290, 
man  (Del.),  105  A.  787.  See  latest  90  N.  E.  779;  Booth  v.  Backus  (la.), 
statutes  of  New  York,  Massachusetts,  166  N.  W.  695;  Turner  v,  Davenport, 
Rhode  Island,  Maryland,  Kansas,  and  63  N.  J.  Eq.  288,  49  A,  463 ;  Stevens 
California.  And  see  Cooper  v,  Alger,  v.  Cunningham,  181  N.  Y.  454,  74  N. 
51  N.  H.  172;  Fowle  v.  Tidd,  15  Gray  E.  434;  Snow  v.  Cable,  19  Hun  (N. 
(Mass.),  94;  Tunks  v.  Grover,  57  Me.  Y.),  280. 

586;  Meriwether  v.  Smith,  44  Ga.  541;  53.  Clark  v.  Meyers,  24  Ky.  Law, 

Berry  v.  Teel,  12  R.  I.  267;  Attebury  380,  68   S.  W.   853. 
V.   Attebury,   8   Ore.   22.4;   Larimer  v. 


359  STATUTORY  SEPARATE  ESTATE.  §  337 

earnings  of  a  wife  from  her  services  her  separate  property,  the 
practice  of  osteopathy  has  been  held  within  the  meaning  of  the 
word  "  ser%dces."  ^*  Under  the  Xevada  Married  Women's  Act  an 
agreement  of  spouses  that  she  shall  have  the  proceeds  of  butter, 
eggs  and  poultry  raised  by  her  makes  such  earnings  her  separate 
estate.''^  A  judgment  for  costs  is  not  earnings  by  a  wife  within 
the  meaning  of  that  act/''  Under  the  Pennsylvania  Married 
Women's  Act  it  was  held  that  she  might  recover  wages  under  a 
contract  with  her  husband  to  act  as  cook  in  his  business,  outside 
family  relations.^^  Under  the  Vermont  Married  Women's  Act  the 
wife's  earnings  from  sources  other  than  her  separate  business 
belong  to  the  husband.^^  The  Xew  Mexico  Married  Women's  Act 
simply  exempts  her  earnings  from  his  debts,  but  does  not  make 
them  her  separate  estate.^^  The  savings  of  a  wife  from  allowances 
made  by  her  husband  and  father  for  their  families,  and  allowed  by 
her  husiband  to  be  retained  as  her  own,  have  been  held  to  be  the 
wages  of  her  own  labor,  within  the  Missouri  Married  Women's 
Act.^"  The  California  statute  providing  that  the  ''  accumula- 
tions "  of  a  wife  living  apart  from  her  husband  shall  be  her 
separate  estate  has  been  held  to  apply  to  property  of  her  husband 
put  into  her  possession  by  him  and  acquired  by  her  by  adverse 
possession  while  living  separate,  the  term  "  accumulation  "  includ- 
ing every  means  of  acquirement  of  property.^^  Under  the  Married 
Women's  Act  in  the  same  State  she  mav  contract  with  him  for 
services  to  be  rendered  outside  the  family  relation,  and  her  earn- 
ings so  acquired  are  her  separate  property.®" 

§  337.  Principles  Applicable. 

The  presumptions  here  concerning  the  wife's  title  to  her  earn- 
ings seem  to  be  much  the  same  as  in  other  separate  property  pur- 
porting to  belong  to  her.®^  Questions  of  identity,  too,  in  tracing 
an  investment  of  earnings,  are  applicable,  as  in  other  cases  of 

54.  Dr.  S.  S.  Still  College  &  Infirm-  59.  Albright  v.  Albright,  21  N.  M. 
i\Tj   V.   Morris,   93   Neb.   328,   140   N.       606.    157   P.    662. 

W.  272.  60.  E^gal  Realty  &  Investment  Co. 

55.  Van  Sickle   v.   Wells,   Fargo   &  v.  Gallagher  (Mo.),  188  S.  W,  151. 
Co.,  105  F.  16.  61.   Union   Oil  Co.   v.  Stewart,   158 

56.  Adams  v.  Baker,  24   Nev.  375,  Cal.  149,  110  P.  313. 

55  P.  362.  62.  Moore  v.  Cramlall,  205  F,  689, 

57.  Xuding  v.  Ulrich,  169  Pa,  289,       124    C.    C.   A.    11. 

32   Atl.   409.  63.  Rayhol.l  v.  Eaybold,  20  Pa.  303; 

58.  Monahan   v.    Monahan,   77    Vt.       Elliott  v.  Bcntly,  17  Wis.  591;  Laing 
133,  59  A.  169,  70  L.  E.  A.  935.  v.  Cunningham,  17  la.  510. 


§  338  HUSBAND  AND  WIFE.  360 

separate  property.  There  is,  kowever,  apparently  less  favor  shown 
by  our  courts  to  the  legislative  grant  of  separate  earnings,  than  to 
that  of  acquisitions  to  a  wife's  separate  use  from  other  sources; 
and  still  less,  as  we  shall  soon  see,  to  statutes  extending  the  wife's 
right  of  acquiring  earnings  to  a  permission  to  embark  in  business 
on  her  own  account.  The  presumption  is  said  to  be,  that  a  wife's 
services,  rendered  even  to  her  own  mother  on  a  basis  of  compensa- 
tion, were  given  on  the  husband's  behalf.®*  And  where  the  pro- 
ceeds of  her  earnings  have  been  so  mixed  up  with  her  husband's 
property  as  not  to  be  easily  distinguishable,  the  disposition  is  to 
regard  the  whole  as  belonging  to  the  husband.®^  The  idea,  more- 
over, is  not  favored,  of  permitting  a  wife  to  forsake  the  matrimonial 
domicile,  or  neglect  her  household  duties,  without  her  husband's 
consent,  for  the  purpose  of  acquiring  earnings  for  her  separate  use, 
especially  if  her  husband  be  still  legally  bound  to  support  her  by 
his  own  labor.®®  It  may  be  added  that,  in  general,  statutes  which 
authorize  married  women  to  hold  property  acquired  by  gift,  grant, 
or  purchase,  from  any  person  other  than  the  husband,  do  not  carry 
the  wife's  earnings  by  implication.®^ 

But  where  a  statute  provides  that  property  acquired  by  a  married 
woman  by  her  personal  services  shall  be  her  separate  property,  and 
exempt  from  liability  for  her  husband's  debts,  money  due  for  her 
services  is  protected  in  the  same  manner  as  if  the  money  had  been 
received.®* 

§  338.  In  Separate  Business. 

A  wife's  profits  in  her  separate  business  have  been  held  to  be  her 
separate  estate,  though  she  employs  her  insolvent  husband  in  such 
business  as  her  agent,  there  being  no  evidence  that  he  had  capital 
invested  in  it,  or  that  it  was  a  device  to  defraud  his  creditors.®* 
Where  a  wife  was  engaged  with  her  husband  in  a  theatrical  per- 
formance her  compensation  was  held  to  be  her  separate  labor, 
within  the  meaning  of  the  Missouri  Married  Women's  Act,  and 
therefore  her  separate  estate.'"     Under  the  Washington  Married 

64.  Morgan  v.  Bolles,  36  Conn.  175.      v.    Alcott,    11    Mich.    470;    Baxter   v. 

65.  Quidort  v.  Pergaux,  3  C.  E.  Prickett,  27  Tnd.  490;  Bear  v.  Hays, 
Green  (N.  J.),  472;  McCluskey  v.  36  111.280.  But  see  Duncan  v.  Cashin, 
Provident  Institution,  103  Mass.  300;       L.  E.  10  C.  P.  554. 

Kelly  V.  Drew,  13  Allen  (Mass.),  107.  68.  Whitney  v.  Beckwith,  31  Conn. 

66.  Douglas    v.    Gausman,    68    111.       596. 

170;   Mitchell  v.  Seitz,  94  U.  S.   580.  69.  Taylor  v.  Wands,  55  N.  J.  Eq. 

67.  Rider   v.   Hulse,    33   Barb.    (N,  491,  37  A.  315,  62  Am.  St.  R.  818. 
Y.)  264;  Hoyt  v.  White,  46  N.  H.  45;  70.    Macks   v.    Drew,   86    Mo.    App. 
Merrill  v.  Smith,  37  Me.  394;   Grover  224. 


361 


STATUTORY  SEPARATE  ESTATE. 


§  340 


Women's  Act,  making  the  property  of  a  wife  acquired  bj  her  labor 
her  separate  estate,  the  property  affected  is  not  limited  to  earnings 
by  manual  labor,  but  includes  the  profits  of  a  mining  claim  which 
she  worked  with  another  person.' 


71 


§  339.  In  Keeping  Boarders. 

A  wife  cannot  recover  for  board  furnished  to  one  liWng  in  the 
family  of  which  her  husband  is  the  head,  in  the  absence  of  a  con- 
tract made  with  her  therefor,  with  his  consent. "^^  If  he  consents 
she  may  recover  for  it"^  Under  the  Minnesota  Married  Women's 
Act  it  was  held  that  a  contract  by  the  wife  of  a  sheriff  with  her 
husband  to  board  the  county  prisoners  for  the  statutory  compensa- 
tion was  valid,  and  that  the  money  earned  thereby  was  her  separate 
property.'*  Money  earned  keeping  boarders  in  a  house  purchased 
by  the  wife  on  her  own  account  was  held  to  be  the  wages  of  her 
labor,  within  the  Missouri  Married  Women's  Act  making  such 
wages  her  separate  estate.'^  Under  the  Xew  Jersey  Married 
Women's  Act  money  earned  by  the  wife  keeping  boarders  is  not 
her  separate  estate  unless  she  conducts  a  business  independently  of 
her  husband."®  In  Pennsylvania  such  earnings  are  not  subject 
to  her  husband's  debts.'' 

§  340.  Property  Purchased  with  Earnings. 

Property  purchased  with  the  earnings  of  a  wife  is  her  separate 
estate  in  some  States,'^  as  well  as,  in  Iowa,  property  purchased 
with  her  earnings  keeping  a  boarding  house  with  her  husband's 
consent.'*  The  character  of  such  a  separate  estate  is  not  affected 
by  the  fact  that  the  husband  contributes  some  labor  to  property  so 


71.  Elliott  V.  Hawley,  34  Wash. 
585,  76  P.  93,  101  Am.  St.  R.  1015. 

72.  Kinert  v.  Kapp,  50  Pa.  Super. 
222:  Brown  v.  Walker,  81  111.  App. 
396;  7n  re  Shaw's  Estate,  201  Mich, 
574,   167   N.   W.   885. 

73.  Morrison  v.  Nipple,  39  Pa. 
Super.  184;  In  re  Lewis'  Estate,  156 
Pa,  337,  27  Atl.  35;  Arthur  Lehman 
&  Co.  V.  Slat,  208  ni.  App.  39 ;  Perry 
V.  Blumenthal,  119  App.  Div.  663,  104 
N.  Y.  S.  127. 

74.  Bodkin  v.  Kerr,  97  Minn.  301, 
107  N.  W.  137. 

75.  Furth  v.  March,  101  Mo.  App. 
329,  74   S.  W.   147. 


76.  Mayer  v.  Kane,  69  N,  J.  Eq. 
733,  61   A.   374. 

77.  Martin  v.  Davis,  30  Pa.  Super, 
59. 

78.  Wallace  v.  Mason,  100  Ky.  560, 
18  Ky.  Law,  935,  38  S.  W.  887;  Pit- 
man V.  Pitman,  23  Ky.  Law,  939,  64 
S.  W.  514;  Dobbins  r.  Dexter  Horton 
&  Co.,  62  Wash.  423,  113  P.  1088; 
Tngals  V.  Alexander,  138  Mo.  358,  39 
S.  W.  801 ;  Carson  v.  Carson,  204  Pa. 
466,   54  A.  348. 

79.  Ehlers  v.  Blumer,  129  la.  168, 
105  X.  W.  406;  Green  v.  Forney,  134 
la.  316,  111  N.  W.  976. 


§  341  HUSBAND  AND  WIFE.  362 

purchased.^"  It  was  held  otlierwise  where  the  hushand  stayed  at 
home  and  did  the  housework  while  the  wife  worked  away  from 
home.®^  In  West  Virginia  it  was  held  that  a  wife  who  invests  her 
earnings  from  sewing  and  washing  in  real  estate  with  her  hus- 
band's consent,  taking  a  deed  to  herself  and  improving  the  prop- 
erty, does  not  take  it  as  separate  estate,  as  against  his  creditors.*^ 
In  Utah  it  is  held  that  the  joint  earnings  of  spouses,  he  by  engag- 
ing in  business  outside  and  she  by  housework,  when  invested  in 
real  estate,  are  the  property  of  the  husband.*^  Under  the  California 
Married  Women's  Act  property  purchased  by  a  wife  with  her  earn- 
ings in  a  business  carried  on  with  her  husband's  consent  are  her 
separate  property.®*  Under  the  Missouri  statute  real  and  personal 
property  acquired  by  a  wife  by  means  of  her  separate  labor  is  her 
separate  property  and  is  not  subject  to  her  husband's  debts. 


85 


§  341.  Effect  of  Waiver  of  Marital  Rights  by  Husband. 

Even  on  general  principles  of  equity,  the  husband  may,  in  this 
country,  as  in  England,  create  in  his  wife  a  separate  estate  in  the 
proceeds  of  her  own  toil ;  the  validity  of  such  a  gift,  as  against 
creditors,  being  subject  to  the  same  rules  which  apply  to  other 
voluntary  conveyances ;  *^  that  is  to  say,  he  cannot  defeat  his  exist- 
ing creditors,  but,  as  to  creditors  subsequent,  may  bestow,  unless 
the  gift  is  tainted  with  a  fraudulent  design.®^  Such  a  gift  on  his 
part,  once  made,  the  husband  cannot  annul,  by  a  subsequent  invest- 
ment of  the  proceeds  in  his  own  name.**  So,  where  a  married 
woman  by  her  industry  made  money  as  a  basket-maker,  thus  sup- 
plying her  family  with  necessaries ;  and  was  in  the  habit  of  lend- 
ing out  the  surplus  money,  and  collecting  it  when  due,  with  her 
husband's  knowledge;    even  a  court  of  law  has  liberally  stretched 

80.  King  V,  Wells,  106  la.  649,  77  Vt.  375 ;  Eichardson  v.  Merrill,  32  Vt. 
N.  W.  338.  27;  Smart  v.  Comstock,  24  Barb.   (N. 

81.  Scruggs  V.  Kansas  City,  Ft.  S.  T.),  411;    Jones  v.  Reid,  12  W.  Va. 
&  M.  R.  Co.,  69  Mo.  App.  298.  350;    Glaze    v.    Blake,    56    Ala.    379; 

82.  Bailey  v.  Gardner,  31  W.  Va.  94,  Peterson    v.    Mulford,    36    N.    J.    L. 
5  S.  E.  636,  13  Am.  St.  R.  847.  481.     In  New  York,  the  wife's  right 

83.  Anderson    v.    Cercone    (Utah),      to  sue  even  a  firm  to  which  her  hus- 
180  P.   586.  Land  belongs  for  her  labor  and   ser- 

84.  Larson  v.  Larson,  15  Cal.  App.  vice  is  maintained,  under  the  statutes. 
531,  115  P.  340.  Adams  v.  Curtis,  4  Lans.  (N.  Y.)  164. 

85.  Crump  v.  Walkup,  246  Mo.  266,  87.     See     Postnuptal     Settlements, 
151   S.   W.   709.  where    the   variations    of   these   rules 

86.  Pinkston  v.  McLemore,  31  Ala.  are  noted. 

308;  Neufville  v.  Thompson,  3  Edw.  88.  Rivers  v.  Carleton,  50  Ala.  40. 

Ch.  (N.  Y.)  92;  Barron  v.  Barron,  24 


363  STATUTORY  SEPARATE  ESTATE.  §  343 

its  authority  to  protect  her  acts,  on  the  ground  of  an  implied  agency 
from  her  husband.^'*  And  with  the  assent  of  all  concerned,  the 
Avife  has  been  allowed  to  recover  compensation  for  her  special 
services  in  taking  special  care  of  the  husband's  own  father,  who 
lives  in  the  family.""  In  Michigan  it  has  been  held  that  a  consent 
by  the  husband  that  his  wife  might  keep  boarders  if  she  wished 
and  have  whatever  she  earned  covered  only  earnings  from  services, 
and  not  board  and  lodging.®^  Under  the  Washington  Married 
Women's  Act,  making  the  earnings  of  a  wife  while  living  with  her 
husband  community  property,  a  mere  general  agreement  of  the 
spouses  shall  be  her  separate  estate  is  insufficient  to  make  them 
such,  where  the  agreement  has  no  reference  to  any  particular 
business  or  employment.^ 


92 


§  342.  Effect  of  Husband's  Desertion. 

There  are  statutes  in  England  and  parts  of  this  country  which 
give  to  the  wife  the  fruits  of  her  lawful  industry,  where  she  is 
deserted  by  her  husband,  or  even  where  he  grossly  neglects  to  pro- 
vide for  the  support  of  his  family ;  and  here  the  husband's  consent 
to  her  sole  employment  being  no  element  in  the  case,  she  is  fairly 
entitled  to  hold  the  property  thus  acquired  against  all  but  her  own 
creditors.''*  Even  were  the  statute  equivocally  expressed,  pre- 
sumptions of  the  husband's  title  might  properly  change;  for 
besides  the  absence  of  dissent  on  his  part,  or  the  possible  inference 
of  an  agency,  we  are  to  regard  the  fact  that  the  husband  is  at  fault, 
while  the  wife,  on  her  part,  so  far  from  neglecting  matrimonial 
duties  or  forsaking  the  common  abode,  does  rather  what  necessity 
compels  her  to  do,  and  therefore  ought  fairly  to  have  legal  protec- 
tion while  she  remains  a  wife.  The  husband's  mere  absence  from 
home,  his  conduct  not  amounting  to  desertion,  does  not,  of  course, 
afford  her,  of  itself,  such  a  separate  privilege,  unless  the  statute 
is  explicit.®* 

§  343.  Actions  to  Recover  Earnings. 

The  husband,  under  some  of  the  late  enactments  providing  for 
the  wife's  separate  earnings,  is  debarred  from  suing  with  or  with- 

89.  White  v.  Oeland,   12   Rich.    (S.  93.    IMa-son    v.   Mitchell,    3   Hurl.    & 
C.)   308.  Colt.    538;    Black   v.   Tricker,   5?   Pa. 

90.  Mason  v.  Dunbar,  43  Mich.  407.  13;  Berry  v.  Teel,  12  E.  I.  267;  Pur- 

91.  Brackett's  Estate  v.  Burnham's  sell    v.    Fry,    19    Hun    (N.    Y.),    595. 
Estate  (Mich.^,  165  N.  W.  665.  And  sec  poftt.  Separation,  §  1060. 

92.  Sherlock    v.    Denny,    28    Wash.  94.     See    Campbell    v.    Bowles,     30 
170,  68  P.  453.                                                    Gratt.    (Va.)   652. 


§   344 


HUSBAND    AND    WIFE. 


364: 


out  his  wife.®^  Yet,  as  the  wife's  right  depends  upon  her  intention 
to  exercise  it,  the  rule  is  still  that  the  husband  may  maintain  hi^ 
common-law  action  in  his  own  name  for  his  wife's  earnings,  if 
thej  live  together  and  are  mutually  engaged  in  providing  for  the 
support  of  their  family,  and  there  is  nothing  to  show  an  intention 
on  the  wife's  part  to  separate  her  earnings  from  those  of  her 
husband.** 

§  344.  Presumptions;  As  Between  Spouses  in  General. 

We  must  here  bear  in  mind  that  the  Married  Women's  Acts 
have  reference,  not  to  the  wife's  property  in  the  mass,  but  to  prop- 
erty suitably  acquired  by  her  in  certain  instances  by  way  of  excep- 
tion to  the  old  rule  of  coverture.  Broad,  therefore,  as  they  may 
often  appear,  these  statutes  are  considerably  restrained  by  judicial 
construction  and  the  application  of  presumptions.  In  some 
States  the  presumption  is  still,  in  absence  of  suitable  words  or 
circumstances  manifesting  an  intent  on  the  part  of  those  interested 
to  claim  the  benefits  of  the  statute,  that  a  married  woman's  prop- 
erty belongs  to  her  husband  as  at  the  common  law ;  and  his  posses- 
sion of  the  property,  undisputed  and  unexplained,  or  even  a  visible 
possession  thereof  in  connection  with  his  wife,  gives  him  the 
marital  dominion.®^  In  Pennsylvania  the  courts  were  at  first 
disposed  to  rule  otherwise,  but  they,  too,  finally  settled  upon  the 
same  presumption.®^  On  the  other  hand,  the  New  York  courts 
approve  the  new  system  to  its  vtddest  extent ;  and  it  would  appear 
that  married  women  in  that  State  are  well-nigh  emancipated  alto- 
gether from  marital  restraints,  so  far  as  concerns  their  property, 
while  the  husband's  own  rights  therein  are  exceedingly  precari- 
ous.®*    To  ascertain  as  a  fact  whether  the  ownership  be  in  wife  or 


95.  Cooper  v.  Alger,  51  N.  H.  172 ; 
Tunks  V.  Grover,  57  Me.  586. 

96.  Birkbeck  v.  Ackroyd,  74  N.  T. 
356. 

97.  Eldridge  v.  Preble,  34  Me.  148; 
Smith  V.  Henry,  35  Miss.  369;  Alver- 
son  V.  Jones,  10  Cal.  9;  Farrell  v.  Pat- 
terson, 43  111.  52;  Reeves  v.  "Webster, 
71  111.  307;  Stanton  v.  Kirsch,  6  Wis. 
338;  Smith  v.  Hewett,  13  la.  94: 
Contra,  Johnson  v.  Eunyan,  21  Ind. 
115;  Stewart  v.  Ball,  33  Mo.  154. 
"While  a  husband  and  wife  both  live 
on  her  land  held  as  general  estate, 
the  possession  of  the  products  is  pre- 


sumptively his.  Moreland  v.  Myall, 
14  Bush  (Ky.),  474.  But  cf.  HiU  v. 
Chambers,  30  Mich.  422. 

98.  Cf.  Gamber  v.  Gamber,  18  Pa. 
363;  Winter  v.  Walter,  37  Pa.  157; 
Bear's  Adm'r  v.  Bear,  33  Pa.  525; 
Gault  V.  Saffin,  44  Pa.  307;  with 
Goodyear  v.  Rumbaugh,  13  Pa.  480. 
And  see  Curry  v.  Bott,  53  Pa.  400. 
Under  the  law  of  Tennessee,  direct 
gifts  to  the  wife  enure  to  the  hus- 
band, unless  the  separate  estate  in- 
tention is  clearly  expressed.  Ewing 
V.  Helm,  2  Tenn.  Ch.  368. 

99.  Peters  v.  Fowler,  41  Barb.   (N. 


365  STATUTORY    SEPAltATE    ESTATE.  §    344 

husband,  evidence  of  how  the  matter  was  understood  and  treated 
between  the  spouses  may  be  quite  essential,^  for  a  sort  of  joint 
possession  on  their  part  is  often  the  practical  situation  of  the  case. 

As  the  rule  is  usually  expounded,  presumptions  bear  heavily 
against  the  wife  in  contests  of  title,  but  more  especially  where  the 
rights  of  a  husband's  creditors  are  affected  by  the  decision.  "  Be- 
tween strangers,"  it  is  observed  in  a  Pennsylvania  case,  "  open, 
visible,  notorious,  and  exclusive  possession  is  the  test  of  title  in  all 
cases  where  the  rights  of  creditors  are  involved.  But  this  is  not 
possible  with  reference  to  the  personal  goods  of  a  married  woman. 
She  cannot  have  or  use  her  property  exclusively,  unless  she  lives 
apart  from  her  husband.  It  was  not  the  intention  of  the  legisla- 
ture to  compel  a  separation  in  order  to  save  the  wife's  rights ;  but 
if  the  rule  of  exclusive  possession  were  adopted,  the  statute  would 
be  inoperative  as  long  as  they  live  together.  But  this  shows  how 
necessary  it  is  to  demand  the  clearest  proof  of  the  wife's  original 
right."  ^ 

In  Missouri  property  acquired  by  a  wife  during  coverture  was 
formerly  presumed  to  have  been  paid  for  by  the  husband,^  but  the 
presumption  was  of  little  weight,*  and  has  been  abolished  by 
statute.^  In  other  States  there  is  no  such  presumption,'  especially 
where  a  debt  is  not  in  existence  at  the  time  when  land  is  conveyed 
to  the  debtor's  wife.'^  There  is  now  no  presumption  that  chattels 
found  in  the  joint  possession  of  spouses  belong  to  the  husband.* 
A  spouse's  possession  of  notes  payable  to  him  or  her  is  usually 
sufficient  to  raise  a  presumption  of  separate  ownership,®  as  is  the 
fact  that  a  grocery  store  was  conducted  and  the  bank  account  kept 
in  the  name  of  the  spouse  claiming  it  as  separate  estate,^"  and  the 

Y.)    467;    Knapp  v.  Smith,  27  N,  Y.  4.   Regal  Realty  &   Investment   Co. 

277.  V.  Gallagher  (Mo.),  188  S.  W.  151. 

1.  Hill  V.  Chambers,  30  Mich.  422.  5.  Aeby  v.  Aeby  (Mo.),  192  S.  W. 
In  this  State  the  obvious  inclination  97. 

is  to  determine,  not  by  presumptions  6.    Farmers'    State    Bank    v.    Keen 

or  inferences,  but  upon  the  facts.    Jft.  (Okla.),  167  P.  207;  Southern  States 

2.  Gamber  v.  Gamber,  18  Pa.  363.  Phosphate  &  Fertilizer  Co.  v.  Weekley, 
And  see  Kenney  v.  Good,  21  Pa.  349.  107  S.  C.  510,  93  S.  E.  190. 

3.  Smelser  v.  Meier  (Mo.),  196  S.  7.  Jones  v.  Nolen,  133  Ala.  567,  31 
W.    22;    Gruner    v.    Scholz,    154    Mo.  So.  945. 

415,  55  S.  W.  441;  Halstead  v.  Mus-  8.  Booknau  v.  Clark,  58  Neb.   610, 

tion,    166    Mo.    488,    66    S.    W.    258;  TO   N.   W.    15?. 

Ryan  v.  Bradbury,  89  Mo.  App.  665;  9.  Bibbor-White  Co.  v.  White  River 

Clark  V.  Clark,  21  Tex  Civ.  371,  51  S.  Valley  Electric  R.  Co.,  175  F.  470. 

W.   337 ;   Harr  v.  Shaffer,  52  "W.  Va.  10.    Johnson    v.    Johnson 's    Adm  'x, 

207,  43  S.  E.  8(r.  134   Ky.   263,   120   S.  W.   303. 


§  345  HUSBAND  AND  WIFE.  366 

fact  that  a  bank  account  stands  in  the  name  of  such  spouse.^^  As 
between  the  parties,  hay  raised  by  the  husband  on  the  wife's  land 
prinm  facie  belongs  to  her  separate  estate.^^  The  wife's  earnings 
acquired  in  giving  board  in  the  household  are  presumed  to  belong 
to  the  husband."  In  Michigan  it  is  held  that  a  check  given  for 
realty  conveyed  by  spouses  and  payable  to  her  is  presumed  to  be  her 
separate  estate.^* 

§  345.  As  to  Property  Standing  in  Name  of  Husband. 

Land  or  other  property  bought  by  the  husband  with  his  wife's 
money,  but  in  his  own  name,  and  without  any  agreement  that  the 
purchase  shall  be  to  her  separate  use,  or  the  title  taken  in  her 
name,  will  not,  as  a  rule,  be  treated  as  her  separate  property.^^ 
If  certain  property  be  purchased  in  part  from  her  own  funds,  and 
in  part  from  her  husband's,  whatever  the  form  of  the  investment, 
her  title  extends  only  to  the  amount  of  her  investment.^® 

On  the  other  hand,  where  the  husband  has  kept  his  wife's  funds 
distinct  from  his,  though  changing  investments  from  time  to  time, 
and  preserved  the  ear-marks  so  to  speak,  her  right  to  claim  the 
property  from  his  estate,  upon  surviving  him,  has  been  strongly 
asserted.^'  Where  by  the  form  of  his  transaction,  as  in  making 
out  a  bill  of  sale,  the  title  evidently  stands  in  her,  her  legal  right 
must  be  respected,  even  though  some  partial  consideration  passed 
from  him.^*  And  where  there  has  been  no  waiver  or  fault  on  the 
wife's  part,  her  title  to  her  statutory  separate  property  will  in 
every  instance  be  protected  to  the  full  extent  of  her  interest.^® 
The  doctrine  of  merger,  operating  to  the  wife's  disadvantage  be- 
cause of  her  husband's  acts,  is  not  favored  by  our  legislation."" 

11.  Madgeburg  v.  Dry  Dock  Sav-  Maine  statutes,  property  conveyed  to 
ings  Institution,  147  App.  Div.  652,  a  married  woman,  but  wholly  or  part- 
132   N.   Y.   S.   655.  ly  paid  for  by  her  husband,  may  be 

12.  Webster  v.  Sherman,  33  Mont.  reached  by  the  husband's  creditors  to 
448,  84  P.  878;  Foreman  v.  Citizen's  the  extent  of  his  interest.  Call  v. 
State  Bank,  128  la.  661,  105  N.  W.  Perkins,  65  Me.  439. 

163;    Sharp,   v.   Wood,   21   Ky.   Law,  17.    Fowler   v.   Rice,    31    Ind.    538; 

189    51  S.  W.  15.  Richardson  v.  Merrill,  32  Vt.  27. 

13.  Cory  v.  Cook,  24  R.  I.  421,  53  A.  18.    McCowan    v.    Donaldson,    128 


315 


Mass.  169. 


14.  Hall  V.  Wortman,  123  Mich.  19.  Barron  v.  Barron,  24  Vt.  375. 
304,  82  N.  W.  50,  6  Det.  Leg.  N.  1073.  See  Holthaus  v.  Farris,  24  Kan.  784. 

15.  Kidwell  v.  Kirkpatrick,  70  Mo.  20.  Clark  v.  Tennison,  33  Md.  85. 
214  And  see  generally,  Hutchins  v.  Colby, 

16.  Hopkins  v.  Carey,  23  Miss.  54;  43  N.  H.  159;  Kirkpatrick  v.  Bauford, 
Worth  V.  York,  13  Ircd.  (N.  C.)  206;  21  Ark.  268;  Teller  v.  Bishop.  8  Minn. 
Haines  v.  Haines,  54  111.  74.     Under  226;    LMond   v.   Whitaker,    23    Mich. 


367 


STATUTORY  SEPARATE  ESTATE. 


§  346 


So  discordant  is  our  married  women's  legislation,  however,  that 
in  Xew  York,  where  presumptions  lean  strongly  to  the  wife's  side, 
it  is  held  that  if  household  furniture  belonging  to  a  wife,  and 
acquired  from  her  father,  is,  with  her  consent,  taken  to  the  com- 
mon dwelling,  mingled  with  the  husband's  furniture,  and  used 
therewith  for  the  common  household  purposes,  it  does  not  thereby 
become  her  husband's  property,  but  the  title  remains  in  her."^ 
This  doctrine,  however,  is  applied  as  between  the  wife  or  her 
assignee,  and  the  husband  himself.'"  A  wife  may  have  an  equi- 
table right  to  pursue  her  funds  invested  by  her  husband,  while, 
until  this  right  is  asserted,  the  husband  retains  a  legal  title  of 
which  a  bona  fide  transferee  for  value  may  perhaps  avail  himself 
by  way  of  a  countervailing  equity."^ 

Even  promissory  notes  taken  in  the  husband's  name  are  open  to 
explanation;  and  evidence  aliunde  may  show  that  they  belonged 
to  the  "safe's  separate  property."*  Subject,  perhaps,  to  equities  of 
bona  fide  third  parties  for  consideration,  without  notice  of  the 
trust  in  strong  instances,  the  wife's  rights  are  protected  in  equity 
against  her  husband's  misdealings  with  her  fund.""  She  may 
avail  herself  of  the  equity  doctrine  of  resulting  trusts,  where  the 
title  to  her  invested  property  has  been  taken,  without  her  concur- 
rence or  default,  in  his  name.^®  Reduction  into  possession  is  not 
favored  as  formerly,  to  exclude  her  rights  in  her  personal  prop- 
erty."^ Under  the  Massachusetts  Married  Women's  Act  it  is  now 
held  that  the  money  of  the  wife  does  not  become  that  of  her 
husband  merely  by  receiving  and  possessing  it  as  her  agent."^ 

§  346.  As  to  Property  Standing  in  the  Name  of  Third  Persons. 
A  negotiable  instrument  executed  by  or  taken  in  the  name  of 


324;  Marsh  v.  Marsh,  43  Ala.  677; 
Fowler  V.  Eice,  31  Ind.  258;  Pike  v. 
Beker,  53  111.  163;  Yreeland  v.  Vree- 
land  1  C.  E.  Green  (X.  J.),  512;  Day- 
ton V.  Fisher,  34  Ind.  356.  The  fact 
that  the  husband  acts  as  the  wife's 
agent  in  buying  and  selling,  and  in- 
vesting her  money,  does  not,  against 
her  consent,  transfer  her  right  of 
property  to  him.  Holcomb  v.  Mead- 
ville  Savings  Bank,   92   Pa.   338. 

21.  Fitch  V.  Rathbim,  61  N.  Y.  579. 

22.  li. 

23.  See  Holly  v.  Flournoy,  54  Ala. 
99. 


24.  Buck  V.  Gilson,  37  Vt.  653; 
Conrad  v.  Shomo,  44  Pa.  193;  Baker 
V.  Gregory,  28  Ala.  544;  Fowler  v. 
Rice,  31  Ind.  258. 

25.  Moulton  v.  Haley,  57  N.  H.  184. 

26.  Postnuptal  Settlements.  Stat- 
utes sometimes  extend  this  equitable 
right  of  the  wife's.  Brooks  v.  Shel- 
ton,  54  Miss.  353 ;  Frielander  v.  John- 
son, 2  Woods   (U.  S.),  675. 

27.  Schmidt  v.  Holtz,  44  la.  446; 
Sunmcr  v.  McCray.  60  Mo.  493. 

28.  Duggan  v.  Wright,  157  Mass. 
228,  32  N.  E.  159. 


§  347  HUSBAND  AND  WIFE.  368 

a  trustee  of  a  married  woman  will  be  regarded  in  equity  as  mani- 
festing the  trust  for  her  benefit."® 

§  347.  As  Against  Husband's  Creditors. 

The  greatest  source  of  perplexity,  in  truth,  in  these  Married 
Women's  Acts,  arises  out  of  the  effort  at  elimination  of  the  hus- 
band's control  in  the  wife's  statutory  property ;  for  here  the  safe- 
guards usual  in  equitable  trusts  are  wanting.  A  married  woman, 
in  order  to  preserve  her  separate  property,  should  keep  it  distinct 
from  that  of  her  husband ;  and  especially  does  the  rule  hold  true 
in  States  where  presumptions  are  against  her  exclusive  right. 
Thus  it  is  held  that  if  a  married  woman  willingly  allows  what  she 
might  have  retained  as  her  separate  property  to  be  so  mixed  into 
a  common  mass  with  that  of  the  husband  as  to  be  undistinguish- 
able,  or  acquiesces  in  leaving  it  so,  it  must,  as  to  her  husband's 
creditors,  be  treated  as  relinquished  to  him.^"  Thus,  if  the  hus- 
band should  invest  the  wife's  legacy  money,  or  other  fund  belong- 
ing to  her  separately  by  right,  upon  an  understanding  with  her 
that  the  new  investment  shall  stand  in  her  name,  his  breach  of 
trust  and  investment  in  his  own  name,  though  it  be  of  land,  will 
confer  upon  him  no  right  to  her  prejudice,  available  to  himself  or 
to  his  creditors  and  representatives.^^  As  to  bona  fide  third  par- 
ties for  value  without  notice,  the  assertion  of  a  wife's  title  as 
against  those  who  have  given  credit  to  a  husband  in  possession 
requires  the  nicest  discrimination  on  the  part  of  the  court.  Prop- 
erty bought  by  a  husband  with  money  belonging  to  his  wife  will 
in  general  be  presumed  to  be  his  owti  until  the  contrary  is  shown,^^ 
and  even  property  bought  by  the  husband  with  money  from  the 
wife,  which  is  placed  in  his  hands  for  such  investment  in  his  name 
and,  for  his  benefit,  is  liable  to  seizure  for  his  debts,  notwithstand- 
ing she  borrowed  the  money.^^  His  possession  and  control  of  the 
property  must,  to  avail  himself  or  his  creditors,  be  a  proprietor's 
control,  and  not  in  any  trust  capacity  for  her  sole  benefit.^*  And 
if  a  husband  holds  a  legal  title  to  land  in  trust  for  his  wife  or 
family,  his  sale  and  transfer  of  the  proceeds  to  other  land,  taken 

29.  Lewis  v.  Harris,  4  Met.   (Ky.)  Davis  v.  Davis,  43  Ind.  561;  Hutchins 
353.  V.  Colby,  43  N.  H.  159. 

30.  Glover  v.  Alcott,  11  Mich.  470;  32.  Moye  v.  Waters,  51  Ga.  13. 
Gross  V.  Reddy,  45  Pa.  406;  Kelly  v.  33.  Nelson  v.  Smith,  64  111.  394. 
Drew,  12  Allen   (Mass.),  107;   Cham-  34.  Nicholas  v.  Higby,  35   la.  401. 
bers     v.     Richardson,     57     Ala.     85;  Aliter  in  Kentucky.     Penn  v.  Young, 
Humes  v.  Scruggs,  94  U.  S.  22.  10  Bush   (Ky.),  626. 

31.  Van  Dorn  v.  Leeper,  95  111.  35; 


369  STATUTORY  SEPARATE  ESTATE.  §  348 

without  due  consent  in  his  own  name,  will  not  enaible  his  general 
creditors  to  seize  and  appropriate  it  for  his  debts.^"^ 

So  far  is  the  wife's  right  to  acquire  by  purchase  from  third 
parties  favored  under  our  Married  Women's  Acts,  that  a  convey- 
ance of  land  for  value  to  a  wife  has  been  upheld  against  her 
husband's  creditors,  even  though  the  person  who  conveyed  it  had 
bought  it  of  her  husband,  so  long  as  he  bought  bona  fide  and  for 
valuable  consideration,^^  nor  can  a  creditor  having  notice  that 
property  standing  in  the  debtor's  name  is  really  that  of  his  wife 
subject  the  property  to  his  debt.^''  Such  is  the  temptation  to  mak- 
ing colorable  transfers  to  one's  wife  in  fraud  of  creditors,  that  in 
controversies  over  title,  where  the  legislation  discourages  acquisi- 
tions from  the  hus'band,  the  wife,  as  against  the  husband  and  his 
creditors  and  representatives,  has  been  held  quite  strictly  to  her 
proofs  of  acquisition  from  a  person  other  than  her  husband,^* 
unless,  at  all  events,  there  are  writings  which  run  so  as  suitably  to 
give  her  the  legal  title  instead/® 

§  348.  Statutory  Presumptions. 

In  some  States  by  statute  there  is  a  presumption  that  property 
standing  in  the  name  of  either  spouse  is  the  separate  estate  of  such 
spouse.***  Under  the  California  statute  a  conveyance  to  spouses 
jointly  is  presumed  to  vest  an  undivided  half  in  each  spouse  as 
separate  estate.*^  Under  the  New  Mexico  statute  property  ac- 
quired by  the  wife  under  the  Federal  Desert  Land  Act,  for  which 
she  has  received  a  patent,  will  be  conclusively  presumed  in  favor 
of  the  incumbrancer  in  good  faith  to  be  her  separate  property.*^ 
Under  a  similar  California  statute  the  expression,  "  incumbrancers 
in  good  faith  and  for  a  valuable  consideration,"  is  defined  as  mean- 
ing persons  who  have  taken  or  purchased  a  lien  or  the  means  of 
obtaining  one,  and  who  have  parted  with  something  of  value  in 

35.  Shippen's  Appeal,  80  Pa.  391;  W.  608;  Alferitz  v.  Arrivillaga,  143 
Porter  v.  Caspar,  54  Miss.  359;  Mc-  Cal.  646,  77  P.  657;  Peiser  v.  Brad- 
Connell  v.  Martin,  52  Ind.  434.  bury,  138  Cal.  570,  72  P.  165;   Cohn 

36.  Evans  v.  Nealis,  69  Ind.  148.  v.  Smith   (Cal.),  174  P.  682;  Hale  v. 

37.  Hayward  V.  Cain,  llOMass.  273;  Kennedy  (Cal.),  183  P.  723;  Stock- 
Reaves  V.  Meredeth,  120  Ga.  727,  48  well  v.  Stockwell's  Estate  (Vt.),  105 
S.  E.  139,  123  Ga.  444,  51  S.  E.  391.  A.  30. 

38.  See  Reeves  v.  "Webster,  71  111.  41.  Gilmour  v.  North  Pasadena 
307;  Johnson  v.  Johnson,  72  111.  489.       Land    &    Water    Co.    (C.il.),    171    P. 

39.  Lyon  v.  Green  Bay  R.,  42  Wis.       1066. 

548.  42.  Lukins  v.  Traylor  (N.  M.),  160 

40.  Emerson-Brantinfrham  Imple-  P.  349;  State  Nat.  Bank  v.  Traylor 
ment  Co.  v.  Brothers    (Tex.),   194   S.       (N.  M.),  159  P.  1006. 

24 


§  350 


HUSBAND   AND    WIFE. 


370 


consideration   thereof,    tlie   payment   of   money   or   parting  with, 
something  of  value  being  essential.*^ 

§  349.  Burden  of  Proof  as  Against  Creditors  of  Husband. 

As  against  the  creditors  of  the  husband,  the  burden  is  on  the 
wife,  if  the  property  sought  to  be  subjected  to  the  debt  is  claimed 
to  be  her  separate  estate,  to  prove  the  fact  **  by  clear,*^  convinc- 
ing,*® strong  and  unequivocal  evidence,*^  sufficient  to  repel  all 
adverse  presumptions,  but  she  is  not  required  to  show  the  fact 
beyond  a  reasonable  doubt.*®  The  rule  applies  whether  the 
apparent  title  is  in  the  claimant,*^  or  in  the  joint  names  of  the 
spouses.^" 

§  350.  Questions  for  Jury  as  Against  Creditors  of  Husband. 

As  between  creditors  of  a  spouse  and  the  other  spouse  who 
claims  property  seized  by  the  creditor  as  separate  estate,  it  is  the 
province  of  the  jury  to  determine  the  credibility  of  witnesses, 
and  the  question  whether  the  property  belong  to  the  debtor  or  not, 
even  where  the  property  claimed  by  the  other  spouse  is  produce 


51 


52 


43.  Fulkerson  v.  Stiles,  156  Cal.  703, 
105  P.  966. 

44.  Davis  v.  Green,  122  Cal.  364,  o5 
Pac.  9;  Jolly  v.  McCoy  (Cal.),  172  P. 
618;  Knight  v.  Kaufman,  105  La. 
35,  29'  So.  711 ;  Wayne  County  &  Home 
Sav.  Bank  v.  Smith  (Mich.),  160  K 
W.  472 ;  Fleming  v.  Dalton,  201  Mich. 
294,  167  N.  W,  893 ;  Bartlett  v.  Smith, 

I  Neb.  (Unof.)  328,  95  N.  W.  661; 
Heiges  v.  Pifer,  224  Pa.  628,  73  A. 
950;  Hunter  v.  Baxter,  210  Pa.  72, 
59  A.  429;  Eavenson  v.  Pownall,  182 
Pa.  587,  38  A.  470 ;  Quigley  v.  Swank, 

II  Pa.  Super.  602;  Ferguson  v.  Dodd 
(Tex.),  183  S.  W.  391;  Erfurth  v. 
Erfurth,  90  Wash.  521,  156  P.  523; 
Patterson  v.  Bowes,  78  Wash.  476,  139 
P.  225;  Eberhardt  v.  Wahl's  Adm'r, 
124  Ky.  223,  98  S.  W.  904,  30  Ky. 
Law,  412;  Kichards  v.  Parsons,  7  Ohio 
App.  422. 

45.  Bennett  v.  Bennett,  83  Ore.  326, 
163  P.  814;  In  re  Ehinesmith's  Case, 
25  Pa.  Super.  300. 

46.  Kanawha  Valley  Bank  v.  Atkin- 
son, 32  W.  Va.  203,  9  S.  E.  175,  25 
Am.  St.  R.  806;  Oldershaw  v.  Matte- 


son  &  Williamson  Mfg.  Co.,   15^  Cal. 
App.  179,  125  P.  263. 

47.  Pederson  v.  Nixon  (111.),  120  N. 
E.   323. 

48.  Hilton  v.  Liebig  Mfg.  Co.,  59 
Pa.  Super.  460. 

49.  Plath  V.  Mullins,  87  Wash.  403, 
151  P.  811;  Keith  v.  Aubrey  (Tex.), 
127  S.  W.  278. 

50.  Hord  V.  Owens,  20  Tex.  Civ.  21, 
48  S.  W.  200;  Sharp  v.  Fitzhugh,  75 
Ark.   562,  88  S.  W.  929. 

51.  Goppelt  V.  Burgess,  132  Mich. 
28,  92  N.  W.  497,  9  Det.  Leg.  N.  491. 

52.  Patterson  v.  Gilliland  (Ala.), 
82  So.  493;  Goldrick  v.  Lacombe 
(Mass.),  121  N.  E.  67;  Parsons  v. 
Kimmel  (Mich.),  173  N.  W.  539; 
Caldwell  v.  Sisson,  150  Mo.  App.  547, 
131  S.  W.  140;  Bromley  v.  Miles,  51 
App.  Div.  95,  64  N.  Y.  S.  353;  Heiges 
V.  Pifer,  224  Pa.  628,  73  A.  950;  Haw- 
ley  V.  Bond,  20  S.  D.  215,  105  N.  W. 
464;  Amend  v.  Jahns  (Tex.),  184  S. 
W.  729;  Chalk  v.  Daggett  (Tex.),  204 
S.  W.  1057*  Gambrel  v.  Hines,  170 
Mo.  App.  560,  167  S.  W.  119;  Kroll 
V.  Moritz,  112  Minn.  270,  127  N.  W. 
1120. 


371 


STATUTOKY  SEPARATE  ESTATE. 


§  351 


raised  on  a  fami  which  the  debtor  spouse  conveyed  in  fraud  of 
creditors/'^ 

§  351.  Effect  of  Estoppel  in  General. 

Where  the  statute  does  not  pennit  the  wife  to  bind  herself  by  a 
contract,  she  cannot  be  bound  by  an  estoppel  except  for  fraud.^* 
To  raise  an  estoppel  against  a  wife  by  reason  of  fraud,  she  must 
actively  participate  in  it  or  reap  its  fruits.^"  The  doctrine  of 
estoppel  may  be  invoked  against  a  wife  where  public  rights  are 
involved."*"'  Where  she  has  power  to  contract,  a  wife  may  bind 
herself  by  an  estoppel.^"  Under  Married  Women's  Acts  a  wife  is 
estopped  by  averments  in  her  pleadings  as  are  other  persons.^' 
She  is  not  estopped  to  question  the  title  of  her  husband's  landlord,^^ 
nor  by  an  agreement  authorizing  commissioners  in  partition  to 
make  a  sale.®''  She  may  be  estopped  to  deny  the  validity  of  a 
contract  under  which  she  has  received  benefits  without  offering  to 
return    the    amounts    received.®^     Under    the   Missouri    Married 


53.  Hoover  v.  Carver  (Minn.),  160 
N.  W.  249. 

54.  City  of  Indianapolis  v.  Patter- 
son, 112  Ind.  344,  14  X.  E.  551;  Se- 
l)rell  V.  Hughes,  72  Ind.  186;  Syck  v. 
Hellier,  140  Ky.  388,  131  S.  W.  30; 
Lewis  V.  Barnes,  272  ]Mo.  377,  199  S. 
W,  212;  Sherwin  v.  Sternberg  (X.  J.), 
74  A.  510 ;  Parker  v.  Schrimsher 
(Tex.).  172   S.  W.   165. 

55.  Pool  V.  Stephenson,  146  Ky. 
784,  143  S,  W.  419;  Floyd  v.  Mackey, 
112  Ky.  646,  23  Ky.  Law,  2030,  66 
S.  W.  518;  Henry  v.  Sneed,  99  Mo. 
407,  12  S.  W.  663,  17  Am.  St.  R. 
580 ;  Rich  v.  Morisey,  149  N.  C.  37,  47, 
62  S.  E.  762;  Stewart  v.  Conrad's 
Adm'r,  100  Va.  128,  4  Ya.  Sup.  Ct. 
R.  49,  4  S.  E.  624;  Yock  v.  Mann, 
57  W.  Va.  187,  49  S.  E.  1019. 

56.  Town  of  Johnson  City  v.  Wolfe, 
103  Tenn.  227,  52  S.  W.  991. 

57.  Lewis  v.  Stanley,  148  Ind.  351, 
45  N.  E.  693;  Morgan  v.  Hoadley, 
156  Ind.  320,  59  X.  E.  935;  Brusha 
V.  Board  of  Education  of  Oklahoma 
City,  41  Okla.  595,  139  P.  293;  Wil- 
liamson V.  Jones,  43  W.  Va.  562,  27 
S.  E.  411,  64  Am.  St.  R.  891,  38  L.  R. 
A.  694  ;  Hart  v.  Church,  126  Cal.  471, 


58  P.  910;  WilkLus  v.  Lewis  (Fla.), 
82  Sp.  762;  Woods  v.  Soucy,  184  111. 
568,  56  X.  E.  1015;  Taylor  v.  Griner, 
55  Ind.  App.  617,  104  N.  E.  607; 
Townsend  v.  Woodworth  (la.),  169 
X.  W.  752;  Hollo  way  v.  Louisville,  St. 
L.  &  T.  Ry.  Co.,  92  Ky.  244,  13  Ky. 
Law,  481,  17  S.  W.  572;  Bull  v. 
Sevier,  88  Ky.  515,  11  Ky.  Law,  32, 

II  S.  W.  506;  Overcast  v.  Lawrence, 
141  Ky.  25,  131  S.  W.  1029;  Smith  v. 
Sisters  of  Good  Shepherd  of  Louis- 
ville, 29  Ky.  Law,  912,  96  S.  W.  549 ; 
Roberson  v.  Goldsmith,  130  La.  255, 
57  So.  908;  Raueh  v.  Metz  (Mo.),  212 
S.  W.  357;  Stone  v.  Gilliam  Exch. 
Bank,  81  Mo.  App.  9;  Engholm  v. 
Ekrcm,  18  X.  D,  185,  119  X.  W.  35; 
Monarch  Gas  Co.  v.  Roy  (W.  Va.), 
95  S.   E.   789;   Stapleton  v.   Poynter, 

III  Ky.  264,  23  Ky.  Law,  76,  62  S.  W. 
730,  98  Am.  St.  R.  411,  53  L.  R.  A. 
784. 

58.  Brooks   v.  Laurent,  98  F.   647, 
39   C.  C.  A.  201. 

59.  Shew  \.  Call,  119  X.  C.  450,  26 
S.  E.  33,  56  Am.  St.  R.  678. 

60.  Vanderbilt  v.  Brown,  128  N.  C. 
498,  39  S.  E.  36. 

61.  Crosby  v.  Waters,  28  Pa.  Super. 


§  352 


HUSBAND   AND    WIFE. 


372 


Women's  Act  a  wife  is  not  completely  subjected  to  the  doctrine  of 
estoppel  in  pais.^^  That  statute  does  not  permit  her  to  bind  her- 
self by  an  estoppel  as  against  her  husband.®^  The  Indiana  statute 
providing  that  a  wife  shall  be  bound  by  an  estoppel  in  pais  like 
other  persons  is  prospective.®*  Under  that  statute  she  is  bound  by 
representations  as  to  the  contract  she  proposes  to  make,®'  and  by 
her  representation  that  money  secured  on  a  loan  was  for  her  sole 
use,  when  it  was  in  reality  for  the  use  of  her  husband,®®  or  that  it 
was  for  their  joint  use  when  it  was  for  his  sole  use,®^  or  that  she 
was  a  partner  with  him,  and  that  the  loan  was  for  the  use  of  the 
partnership,®^  as  well  as  by  her  silence  while  her  husband  repre- 
sented himself  the  owner  of  property  held  by  the  entirety.®^ 


§  352.  To  Claim  Property  as  Separate  Estate  in  General. 

As  a  natural  result  of  the  first  modern  innovations  upon  the 
coverture  theory,  it  may  be  observed  that  estoppel  does  not  work 
against  a  married  woman  so  readily  as  against  persons  sui  juris. 
A  married  woman  cannot  be  debarred  of  rights  of  separate  prop- 
erty by  estoppel  in  pais,^^  except  for  fraud,  or  conduct  equivalent 
thereto,^^  or  when  her  assertion  of  title  would  work  a  fraud.'* 
Parties  may  be  misled  to  their  injury  by  her  statements  and  yet 
have  no  redress.'^     After  a  conditional  judgment  in  suitable  fore- 


559;  Edwards  v.  Stacey,  113  Tenn. 
257,  83  S.  W.  470,  106  Am.  St.  R. 
831. 

62.  Blake  v.  Meadows,  225  Mo.  1, 
123  S.  W.  868. 

63.  Tennent  v.  Union  Cent.  Life 
Ins.  Co.,  133  Mo.  App.  345,  112  S.  W. 
754. 

64.  Wilhite  v.  Hamriek,  92  Ind.  59-4; 
Applegate  v.  Conner,  93  Ind.  185. 

65.  Ward  v.  Berkshire  Life  Ins.  Co., 
108  Ind.  301,  9  N.  E.  361. 

66.  Till  V.  Collier,  27  Ind.  App.  333, 
61  N.  E.  203. 

67.  Lavene  v.  Jamecke,  28  Ind. 
App.  221,  62  N.  E.   510. 

68.  Anderson  v.  Citizen 's  Nat.  Bank, 
38  Ind.  App.  190,  76  N.  E.  811. 

69.  Government  Building  &  Loan 
Inst.  V.  Denny,  154  Ind.  261,  55  N. 
E.  757;  McNeeley  v.  South  Penn.  Oil 
Co.,  52  W.  Va.  616,  44  S.  E.  508,  62 
L.  R.  A.  562. 


70.  Bemis  v.  Call,  10  Allen  (Mass.), 
512.  But  see  Anderson  v.  Armstead, 
69  111.  452;  Reed  v.  Kimsey,  98  111. 
App.  364;  Powell  v.  Bowen  (Mo.), 
214  S.  W.  142;  Williamson  v.  Jones, 
43  W.  Va.  562,  27  S.  E.  411,  64  Am. 
St.  R.  SO'l,  38  L.  R.  A.  694;  Glaze  v. 
Pullman  State  Bank,  91  Wash.  187, 
157  P.  488;  Latham  v.  Latham,  98 
Ga.  477,  25  S.  E.  505. 

71.  Williamson  v.  Gore  (Tex.),  73 
S.  W,  563;  Franklin  v.  Texas  Sav.  & 
Real  Estate  Inv.  Ass'n,  119  S.  W. 
1166,  Gillean  v.  Witherspoon  (Tex.), 
121  S.  W.  909;  King  v.  Driver  (Tex.), 
160  S.  W.  415;  Waldron  v.  Harvey,  54 
W.  Va.  608,  46  S.  E.  603,  102  Am. 
St.  R.  959. 

72.  Ayer  of  Lord  Tie  Co.  v.  Baker, 
138  Ky.  494,  128  S.  W.  346. 

73.  Klein  v.  Caldwell,  91  Pa.  140. 


373  STATUTOKY  SEPAEATE  ESTATE.  §  353 

closure  proceedings,  a  wife  cannot  show  that  the  mortgage  deed 
was  void  for  want  of  the  husband's  assent/* 

A  wife  is  not  estopped  from  setting  up  usury  in  defence  to  the 
same  extent  as  her  husband."^  Estoppel  may  sometimes  be  well 
applied  in  equity  against  a  married  woman  to  prevent  her  from 
relying  upon  coverture  in  order  to  retain  the  inequitable  advantage 
of  a  transaction,^^  or  for  denying  her  own  title.'^  And  the  wife's 
acts  and  conduct  under  suitable  circumstances  will  estop  her  from 
denying  to  others  that  her  husband  was  her  agent  in  the  manage- 
ment of  her  property.'*  Xo  unauthorized  acts  of  her  husband 
can  preclude  her  from  asserting  her  rights.'^  Where  a  wife  rati- 
fies or  authorizes  her  husband's  use  of  her  property  to  pay  his 
de'bts,  she  cannot  recover  the  monev  from  the  creditor.**'  In 
Louisiana  a  wife  who  makes  a  nuncupative  will  by  public  act 
reciting  that  certain  property  is  the  separate  estate  of  her  husband 
is  not  estopped  thereby  to  assert  the  contrary.*^  Under  the  Wash- 
ington statute  requiring  the  administrator  of  a  deceased  partner 
to  inventory  the  partnership  property  separately,  it  was  held  that 
the  wife  of  such  a  partner  was  estopped  to  claim  a  partnership 
interest  in  her  husband's  business  where  in  her  verified  petition 
for  administration  she  stated  that  the  property  was  his,  and  so 
inventoried  it.®^ 

§  353.  By  Deed. 

Covenants  to  a  deed  of  land  will  not,  as  a  rule,  estop  her  from 
setting  up  an  after-^acquired  title,  if  the  title  were  defective,*^  or 
where  the  conveyance  was  void  because  of  coverture.**     Xor  is  she 

74.  Freison  v.  Bates  College,  128  81.  Succession  of  Muller,  106  La. 
Mass.  464.  89,  30  So.  329'. 

75.  Campbell  v.  Babcock,  27  Wis.  82. /n.  re  Alfstad 's  Estate,  27  Wash. 
512.  175,  67  P.  593. 

76.  Patterson   v.   Lawrence,   90   111.  83.   Barker  v.   Circle,   60   Mo.  258; 


174;    Levy    v.    Gray,    56    Miss.    318 
Meiley  v.  Butler,  26  Ohio  St.  535. 

77.  Norton  v.  Nichols,  35  Mich.  148 
Nixon  V.  Halley,  78  HI.  611. 

78.  Griffin  v.  Eansdell,  71  Ind.  440 


Morrison  v.  Balzar,  35  Tex.  Civ.  247, 
80  S.  W.  248;  De  Haven  v.  Mussel- 
man,  123  Ind.  62,  24  N.  E.  171; 
French  v.  McMillion  (W.  Va.),  91 
S.  E.  538,  L.  R.  A.  1917D  228;  Bums 


Anderson  v.  Armstead,  69  111.  452.  v.  Womble,   131  N.  C.  173,  42   S.  E. 

79.  Harle  v.  Texas  Southern  Ry.  Co.,  573 

39  Tex  Civ.  43,  86  S.  W.  1048.  84.   Bland   v.   Windsor  &  Cathcart, 

80.  Hollingsworth  v.  Hill,  116  Ala.  187  Mo.  108,  86  S.  W.  162;  Lazzell  v. 
184,  22  S.  460:  Alford  Bros.  &  White-  Keenan  (W.  Va.),  87  S.  E.  80;  George 
side  V.  Williams,  41  Tex  Civ.  436,  91  v.  Brandon,  214  Pa.  623,  64  A.  371; 
8.  W.  636;  First  Nat.  Bank  v.  Mor-  Bruce  v.  Goodbar,  104  Tenn.  638, 
ajrne,  128  Ala.  157,  30  So.  628.  58  S.  W.  282. 


§  353 


HUSBAND   AND    WIFE. 


374r 


estopped  to  set  up  an  after-acquired  title  by  covenants  in  a  mort- 
gage of  her  husband's  land  in  which  she  joins.*"  It  may  be  other- 
wise where  the  wife's  claim  was  in  existence  when  the  deed  was 
made.  Thus,  when  a  wife  joined  her  husband  in  a  mortgage  of 
land  as  his,  she  was  held  estopped  thereafter  ta  set  up  a  homestead 
title  in  herself  against  the  mortgagee,^®  or  where  she  joins  him  in 
a  quitclaim  deed  reciting  that  she  and  he  convey  all  right  and  title 
in  the  property.®^  But  the  present  rule,  in  some  States,  whose 
statutes  tend  to  make  the  married  woman  essentially  a  feme  sole, 
is  to  create  an  estoppel  against  the  wife  and  her  subsequent 
grantees,  to  the  same  extent  as  if  she  were  unmarried,  so  that  an 
after-acquired  title  under  her  warranty  will  enure  to  the  pur- 
chaser's benefit.®* 

Where  spouses  furnished  the  consideration  for  a  farm  in  equal 
shares  under  an  agreement  that  they  should  be  equal  owners,  the 
land  remaining  in  the  name  of  a  third  person  as  security  for 
unpaid  purchase  money,  and  the  third  person  having  given  a  bond 
for  a  deed  to  a  prior  purchaser,  it  was  held  that  the  wife  was  not 
estopped,  as  against  the  husband's  creditors,  to  assert  her  title,  by 
the  fact  that  when  she  learned  that  such  bond  had  been  assigned 
to  the  husband  she  merely  required  his  promise  that  the  deed 
should  be  made  to  both,  there  being  no  evidence  of  representations 
as  to  the  husband's  title  made  to  his  creditors  with  her  knowledge 
or  consent.*^ 

A  wife  delivering  a  deed  of  her  separate  property  to  her  hus- 
band which  expressed  full  consideration  but  did  not  recite  the 
relationship,  and  afterward  joining  him  in  a  mortgage  on  the 
same  property,  is  estopped,  as  against  the  mortgagee  who  did  not 
know  the  facts,  to  assert  that  the  deed  was  without  consideration.®** 

Where  spouses  joined  in  an  agreement  to  sell  land,  which  agree- 


85.  Burns  v.  Cooper,  140  F.  273,  72 
C.  C.  A,  225;  Threefoot  v.  Hillman, 
130  Ala.  344,  30  S.  513,  89  Am.  St.  R. 
39;  Barker  v.  Circle,  60  Mo.  258. 

86.  Martin  v.  Yager,  30  N.  D.  577, 
153  N.  W,  286. 

87.  State  v.  Kemmerer,  15  S.  D. 
504,  90  N.  W.  150. 

88.  Knight  v.  Thayer,  125  Mass.  25; 
King  V.  Eea,  56  Ind.  1.  But  see  Bar- 
ker V.  Circle,  60  Mo.  258.  The  wife's 
acceptance  of  a  deed  with  its  reserva- 
tions,  and  the.  assumption  of  an  in- 


cumbrance upon  it,  may  be  inferred 
from  such  facts  as  knowing  on  her 
part,  soon  after  the  deed  was  re- 
corded, that  the  land  had  been  con- 
veyed to  her,  and  claiming  to  be 
owner,  so  that  she  cannot  afterwards 
deny  knowledge  of  its  recitals.  Cool- 
idge  V.  Smith,  129'  Mass.  554. 

89.  In  re  Garner,  110  F.  123. 

90.  Osborne  v.  Cooper,  113  Ala.  405, 
21  So.  320,  59  Am.  St.  R.  117 ;  Kreps 
V.  Kreps,  91  Md.  692,  47  A.  1028. 


375  STATUTOEY  SEPARATE  ESTATE.  §  354 

ment  contains  an  express  undertaking  by  the  wife  to  release  statu- 
tory rights,  it  was  held  that  she  could  not  assert,  as  against  the 
contractee,  her  prior  mortgage  on  the  same  land  given  her  by  her 
husband.®^ 

Where  land  was  devised  in  trust  for  spouses  and  their  children, 
it  was  held  that  the  wife  was  not  estopped  to  assert  her  interest 
under  the  will  after  the  husband's  death  by  the  fact  that  she 
joined  him  in  a  deed  of  his  interest  in  consideration  that  the 
grantee  should  reconvey  the  husband's  interest  to  her  for  life,  her 
interest  to  cease  at  her  husband's  death.^^ 

Where  spouses  both  had  life  interests  in  land,  it  was  held  that 
she  was  estopped,  after  his  death  to  assert  her  interest  as  against  a 
mortgagee  to  whom  they  jointly  conveyed  the  lot,®^  as  well  as 
where  she  caused  her  land  to  be  deeded  to  herself  and  him  jointly, 
and  where  he  mortgaged  it  to  secure  a  debt  contracted  after  the 
conveyance.** 

Where  spouses  conveyed  land  of  the  wife  to  one  of  them  on  the 
understanding  that  it  should  be  reconveyed  to  the  husband,  neither 
spouse  understanding  the  contract,  and  it  was  so  conveyed,  it  was 
held  that  the  wife  was  not  estopped  to  assert  her  title  as  against 
the  husband's  creditor  who  had  contracted  with  him  after  the 
conveyance.*' 

Where  a  wife  conveys  her  separate  estate  to  her  husband  for  a 
recited  consideration  of  love  and  affection,  and  afterwards  joins 
him  in  a  deed  to  a  third  person,  being  present  when  the  purchase 
money  was  paid  to  him  and  making  no  objection,  she  is  estopped 
to  set  up  a  secret  lien  for  money  which  the  husband  was  to  have 
paid  her,  though  the  deed  to  him  was  executed  on  a  printed  form 
containing  a  reservation  of  lien  for  the  purchase  money.** 

§  354.  By  Record. 

A  wife's  failure  to  file  a  complete  inventory  of  her  separate 
property  as  required  by  the  Oklahoma  statute  will  not  preclude 
her  from  claiming  it,  or  give  her  husband  the  right  to  dispose  of 
it."     Where  she  filed  a  petition  in  Louisiana  that  she  and  certain 

91.  Cone  v.  Cone,  118  la.  458,  92  N.  95.  Kre  Huot  v.  Reeder  Bros.  Shoe 
W.  665.                                                                  Co.,    140   Mich.    162,    103   N.   W.    569, 

92.  Jackson  v.  Jackson,  22  Ky  Law,       12  Det.  Leg.  N.  98. 

536,  58  S.  W.  423,  597.  96.   Dewey  v.   Goodman,   107   Tenn. 

93.  Simmons  v.  Reinhardt,  25   Ky.       244,  64  S.  W.  45. 

Law,  1804,  78  S.  W.  890.  97'.    Caylor    Lumber    Co.    v.    Mays 

94.  Yokley  v.  Superior  Drill  Co.,  26  (Okla.),  174  P.  521;  Bagp  v.  Shoen- 
Ky.  Law,  302,  80  S.  W.  1153.  felt   (Okla.),  176  P.  511. 


§  356  HUSBAND  AND  WIFE.  376 

co-heirs  be  put  in  possession  of  certain  property  of  their  father, 
she  is  estopped  to  assert  title  to  all  the  property.^®  It  is  otherwise 
in  California,  where  in  a  petition  for  divorce  she  had  alleged  that 
certain  property  was  community  property,  in  which  case  she  may 
assert  her  title  to  the  property  as  against  a  purchaser  from  her 
husband  who  did  not  know  of  the  allegation. 


89 


§  355.  By  Fraudulent  Representations. 

In  various  recent  instances  it  is  held,  and  justly,  too,  that  where 
married  women  make  agreements  by  fraudulent  means  with  refer- 
ence to  their  separate  property,  and  thus  obtain  inequitable  advan- 
tages, a  court  of  chancery  will  hold  them  estopped  from  setting  up 
and  relying  on  their  coverture  to  retain  the  advantage,^  or  where 
they  have  deliberately  lied  as  an  inducement  to  the  consideration.* 
Joint  representations  by  spouses  to  a  third  party  that  a  transfer  by 
the  husband  to  the  wife  is  "  no  good,"  and  effect  a  sham,  on  which 
representations  the  husband  obtains  credit,  have  been  held  to  estop 
the  wife  from  asserting  her  title.^ 

Where  a  wife  made  a  lease  on  property  standing  in  her  own 
name,  describing  herself  as  the  authorized  agent  of  her  husband, 
it  was  held  that  she  was  not  estopped  from  asserting  her  title  as 
against  the  notary  who  took  the  acknowledgment  of  the  lease,  who 
two  years  later  loans  money  to  the  husband  on  the  supposition  that 
he  owned  the  property.* 

§  356.  By  Silence. 

Mere  silence  or  inaction  will  not  preclude  a  wife  from  asserting 
title  to  real  estate,^  unless  her  silence  is  intentional  and  deceives 
some  innocent  person.®  A  wife  is  not  estopped  to  assert  her  title 
to  property  by  the  fact  that  her  husband  makes  statements  in  her 
presence  adverse  to  those  rights,  which  she  does  not  deny,'  nor 
by  her  mere  presence  at  the  office  where  the  husband  is  having 
papers  prepared  and  executed  by  him  assigning  her  claim,  if  she 

98.  Priestly  v.  Chapman,  130  La.  4.  Laing  v.  Evans,  64  Neb.  454,  9 
480,  58  So.  156.                                                   N.  W.  246. 

99.  Coolidge  v.  Austin,  22  Cal.  App.  5.  Kinsey  v.  Feller,  64  N.  J.  Eq. 
334,  134  P.  357.                                               367,  51  A.  4°5;  Anders  v.  Eoark,  108 

1.  Patterson   v.    Lawrence,    90    lU.       Ark.  248,  156  S.  W.  1018. 

174;  Coolidge  v.  Smith,  129  Mass.  554.  6.  Harrop  v.  Xat.  Loan  &  Inv.  Co. 

2.  Read  v.  Hall,  57  N.  H.  482.  (Tex.),  204  S.  W.  878. 

3.  Thomas  v.  Butler,  16  Pa.  Super.  7.  Thomas  v.  Butler,  24  Pa.  Super. 
268.  305. 


377 


STATUTORY  SEPARATE  ESTATE. 


§  357 


had  no  knowledge  that  he  claimed  to  own  it,  or  intended  to  assign 
if 

§  357.  By  Failure  to  Assert  her  Title. 

A  wife  may  be  barred  by  laches  from  assertaing  her  title.®  Long 
delay  to  call  a  husband  to  account  for  her  money  which  with  her 
knowledge  he  has  applied  to  his  own  purpose  will  estop  the  wife, 
as  against  his  creditors,  from  recovering  the  money,^°  but  not  to 
other  property  of  the  same  nature  not  so  applied,  as  where  a  hus- 
band made  use  of  the  funds  derived  from  the  sale  of  part  of  a 
herd  of  cattle  belonging  to  the  wife.^^  Mere  knowledge  that  her 
husband  has  sold  her  horse  to  one  who  has  sold  it  to  another  will  not 
estop  the  wife  from  claiming  her  property,^"  nor  is  she  estopped 
where  she  for  a  long  time  fails  to  assert  her  title,  as  against  her 
husband's  lessee,  where  no  reliance  has  been  placed  on  her  failure 
to  assert  her  title.^^  The  fact  that  a  wife  took  possession  of  land 
as  her  husband's  administratrix  and  afterwards  delivered  it  to  her 
successor  as  such,  does  not  estop  her  from  asserting  title  to  the 
land.^*  Where  a  wife  without  objection  permitted  a  purchase  of 
the  interests  of  her  husband's  heirs  in  his  land  by  a  third  person,  it 
was  held  that  she  was  estopped  to  assert  her  lien  for  money  paid  in 
satisfaction  of  a  mortgage  in  which  she  had  joined  her  husband.^' 
Where  land  was  conveyed  to  spouses  equally  and  the  husband  de- 
vised his  interest  to  his  wife,  for  life,  with  remainder  to  their 
daughters,  she  being  ignorant  that  she  took  by  survivorship,  and 
supposing  that  she  took  under  the  will,  it  was  held  that  she  was 
not  estopped  to  assert  her  title  as  against  persons  whom  she  had 
advised  to  purchase  the  interest  of  the  daughters  under  the  will.'* 
A  wife  is  not  estopped  to  maintain  replevin  for  her  property  by 
the  mere  fact  that  she  saw  it  in  the  possession  of  one  who  obtained 
it  from  her  husband  bv  a  bill  of  sale.'^ 


8.  Hoshkowitz  v.  Sargoy,  125  N.  T. 
8.  913. 

9.  Kelly  v.  Kelly  (Term.),  58  S.  W. 
870  (30  years'  delay). 

10.  Holter  v.  Wassweiler,  19  Mont. 
169,  47  Pac.  806;  Davis  v.  Yonge,  74 
Ark.  161,  85  S.  W.  90  (20  years)  ; 
Ives  V.  Striker,  69  App.  Div.  601,  75 
N.  Y.  S.  135. 

11.  Harris  v.  Van  De  Vanter,  17 
Wash.  489,  50  P.  50;  Dance  v.  Craig- 
head, 134  La.  6,  63  So.  604. 


12.  Carrico    v.    Shepherd,    26    Ind. 
App.  207,  59  N.  E.  347, 

13.  Bolitho  V.  East,  45   Utah,  181, 
143  P.  584. 

14.  Donehoo   v.    Johnson,   120   Ala. 
438,   24   So.   888. 

15.  Taylor  v.  Dawson,  65   111  App. 
232. 

16.  Par  key   v.   Ramsey,    111    Tenn. 
302,  76  S.  W.  812. 

17.  Ingals   V.    Alexander,    138    Mo. 
358,  39  S.  W.  801. 


358 


HUSBAND   AND    WIFE. 


378 


§  358.  By  Clothing  Husband  with  Apparent  Title  or  Authority. 
A  wife  is  also  estopped  to  assert  ter  title  against  her  husband's 
creditors  where  she  has  placed  her  property  in  his  name  and  per- 
mitted him  to  obtain  credit  on  the  faith  of  his  apparent  title/' 
or  knowingly  permits  him  to  retain  a  title  to  land  purchased  with 
her  money,"  or  where  her  title  is  fraudulent  as  to  his  creditors,^'' 
or  where  the  property  is  kept  as  a  common  fund  and  is  used  by 
both,^^  or  where  she  permits  her  property  to  become  indistinguish- 
ably  mixed  with  his,^^  or  where,  with  her  knowledge  and  consent, 
he  deals  with  her  property  as  his  own,^^  even  where  title  is  con- 
veyed to  him  by  mistake,^*  where  the  creditor  does  not  know  the 
facts.^^     She  may  also  permit  him  to  use  her  land  in  such  fashion 


18.  Story  &  Clark  Piano  Co.  v. 
Kropsch,  231  111.  419,  83  N.  E.  190; 
McAdow  V.  Hassard,  58  Kan.  171,  48 
P.  846;  Lamb  v.  Lamb,  18  App.  Div. 
250,  46  N.  Y.  S.  219;  In  re  Trustees 
of  Board  of  Publication  and  Sabbath 
School  Work,  22  Misc.  645,  50  N.  Y. 
S.  171,  27  Civ.  Proc.  E.  109;  Mager- 
stadt  V.  Schaefer,  213  lU.  351,  72  N. 
E.  1063;  Eiley  v.  Vaughan,  116  Mo. 
169,  22  S.  W.  707,  38  Am.  St.  E. 
586;  Mertens  v.  Schlemme,  68  N.  J. 
Eq.  544,  59  A.  808;  Beecher  v.  Wil- 
son, 84  Va.  813,  6  S.  E.  209,  10  Am. 
St.  E.  883;  Goldberg  v.  Parker,  87 
Conn.  99,  87  Atl.  555,  46  L.  E.  A.  (N. 
S.)  1097;  Martin  v.  Franklin,  160 
Ky.  61,  169  S.  W.  540;  Homsby  v. 
City  Nat.  Bank  (Tenn.),  60  S.  W. 
160;  Sliney  v.  Davis,  11  Colo.  App. 
480,  53  P.  686;  Pahmeyer  v,  Meyer 
(Tenn.),  53  S.  W.  982;  Eosenbaum  v. 
Davis  (Tenn.),  48  S.  W.  706;  Gold- 
berg V.  Parker,  87  Conn.  99,  87  A. 
555,  46  L.  E.  A.  (N.  S.)  1097;  Eoane 
V.  Hamilton,  101  la.  250,  70  N.  W. 
181;  Hobbs  v.  Frazier,  61  Fla.  611, 
55  So.  848 ;  Buchannon  v.  James,  135 
Ga.  392,  69  S.  E.  543;  Hank  v.  Van 
Ingen,  97  111.  App.  642  (afF.,  196  111. 
20,  63  N.  E.  705)  ;  Eickett  v.  Bolton, 
173  Ky.  739,  191  S.  W,  471;  David 
Adler  &  Sons  Clothing  Co.  v.  Hell- 
man,  55  Neb.  266,  75  N.  W.  877; 
Johnson  County  v.  Taylor,  87  Neb. 
487,  127  N.  W.  862;  Murphy  v. 
Ganey,  23  Utah  633,  66  P.  190;  Con- 


ron  V.  Cauchois,  242  F.  909',  155  C.  C. 
A.  497;  Eobertson  v.  Schlotzhauer, 
243  F.  324,  156  C.  C.  A.  104;  Parish 
V.  Beebe  (Ariz.),  179  P.  51;  Julius 
Kessler  &  Co.  v.  De  Garmo  (la.),  127 
N.  W.  988;  Holland  v.  Jones,  48  S. 
C.  267,  26  S.  E.  606;  Burkitt  v.  Mox- 
ley  (Tex,),  206  S.  W.  373;  Moran  v. 
McDevitt  (E.  I.),  83  A.  1013. 

19.  Krueger  v.  MacDougald  (Ga.), 
96  S.  E.  867 ;  Ford  v,  Blackshear  Mfg. 
Co.,  140  Ga.  670,  79'  S.  E.  576;  Chaney 
V.  Gauld  Co.,  28  Ida.  76  152  P.  468; 
Wilkinson  v.  Posey,  113  Miss.  274,  74 
So.  125;  Duncansville  Bldg.  &  Loan 
Ass  'n  v.  Ginter,  24  Pa.  Super  42 ; 
Hines  v.  Meador  (Tex.),  193  S.  W. 
1111;  Blake  v.  Meadows,  225  Mo.  1, 
123  S.  W.  868. 

20.  Catlett  v.  Alsop,  99  "Va.  680,  3 
Va.  Sup.  Ct.  E.  491,  40  S.  E.  34. 

21.  Steel  V.  Fitz  Henry,  78  111.  App. 
400;  Mclntyre  v.  Farmers'  &  Mer- 
chants' Bank,  115  Mich.  255,  73  N. 
W.  233,  4  Det.  Leg.  N.  846. 

22.  In  re  Gorham,  173  N.  C.  272,  91 
S.  E.  950;  Kimble  v.  Wotring,  48  W. 
Va.  412,  37  S.  E.  606. 

23.  Mitchell  v.  Smith  &  Poe,  87  Ark. 
486,  111  S.  W.  806;  Wood  v.  Yant,  27 
Colo.  App.  189,  149  P.  854;  Arthur 
Lehman  &  Co.  v.  Slat,  208  111.  App. 
39;  Farmers'  State  Bank  v.  Keen. 
(Okla.),  167  P.  207. 

24.  Standard  Mercantile  Co.  v.  El- 
lis, 48  W.  Va.  309,  37  S.  E.  593. 

25.  Whitchard    v.    Exchange    Nat. 


379  STATUTOKY  SEPARATE  ESTATE.  §  358 

that  she  will  be  estopped  to  deny  his  title  of  the  crops.^*  The  rule 
applies  to  a  ease  where  a  wife  permits  the  husband  to  hold  himself 
out  as  owner  of  her  business  or  property  and  obtain  credit  on  the 
faith  of  such  ownership,'^  especially  where  she  clothes  him  with 
title  to  it,^*  and  to  a  case  where  she  permits  him  to  use  her  separate 
personal  property  as  owner  and  accepts  the  benefit  of  his  sale.^' 
and  to  a  case  where  she  permits  him  to  deposit  her  money  in  a 
bank  to  which  he  later  became  indebted.^"  Such  an  estoppel 
inures  to  the  purchaser  at  the  execution  sale.'^  The  rule  applies 
only  to  those  dealing  directly  with  the  husband  and  not  to  those 
who  take  his  obligation  by  assignment.^'  This  rule  does  not  hold 
where  the  only  persons  to  whom  the  representations  were  made 
were  the  husband's  sureties,  hence  neither  spouse  is  barred  to 
assert  her  title  against  general  creditors  of  the  husband,  to  whom 
no  such  representations  were  made,^'  nor  where  she  is  not  aware 
that  he  has  taken  title  in  his  own  name  to  property  purchased  with 
her  money,^*  nor  where  a  bond  for  the  deed  bad  been  for  a  short 
time  in  the  husband's  name,^^  nor  where  she  permits  a  strip  of 
her  land  to  be  used  by  the  tenants  of  her  husband's  adjoining  land, 
as  against  his  heir,^®  nor  does  the  rule  operate  in  favor  of  the  hus- 
band so  as  to  enable  him  to  rely  on  conduct  by  the  wife  leading 
him  to  believe  she  considered  land  conveyed  to  her  as  community 
property,  where  he  knew  the  facts  and  did  not  change  his  position 
or  omit  action  material  to  the  protection  of  his  interests.^^  The 
fact  that  a  deed  of  property  to  which  a  wife  is  entitled  was  with- 

Bank,  15  Ga.  App.  190,  82  S.  E.  770;  29.  Smith  v.  Gott,  51  W.  Va.  141, 

Laing  v.  Evans,  64  Neb.  454,  9  N.  W.  41  S.  E.  175. 

246.  30.  Talley  v.  Davis   (Ark.),  203  S. 

26.  Sanders  v.  Standard  Warehouse  W.  685. 

Co.,  101  S.  C.  381,  85  S.  E.  900.  31.   Wood   v.   Yant,   27   Colo.   App. 

27.  Roberts  v.  Bodman  Petitt  Lum-       189,  149  P.  854. 

ber  Co.,  84  Ark.  227,  105  S.  W.  258;  32.  Moore  v.  Eawlings,  137  la.  284, 

Haycock  v.  Tarver,  107  Ark.  458,  155  114  N.  W.  1040. 

8.  W.  918;  Farmers'  Oil  &  Fertilizer  33.   Citizens'  Bank  v.  Burrus,   178 

Co.  V.   Hester,   127   Ark.   618,   192   S.  Mo.  716,  77  S.  W.  748. 

W.  890;  McClintock  v.  C.  E.  Skinner  34.   McKeehan   v.   Vollmer-Clearwa- 

&  Co.,  126  Ark.  591,  191  S.  W.  230;  ter    Co.,    30    Ida.    505,    166    P.    256; 

Mack  v.  Engel,  165  IMich.  540,  131  N.  Mayer  v.  Kane,  69  N.  J.  Eq.  733,  61 

W.   92;   Million  v.  Commercial  Bank  A.    374;    Woolsey   v.    Henn,   85   App. 

of  BoonviUe,  159  Mo.  App.   601,  141  Div.  331,  S3  X.  Y.  S.  394. 

S.   W.   453;    Kyle   v.   Huddlestun,   80  35.  Carey  v    Wimpee,  217  F.  155, 

W.  Va.  439,  92  S.  E.  679.  38.  Bums  v.  Parker  (Tex.),  137  S. 

28.  Rioux  V.  Cronin,  222  Mass.  131,  W.  705. 

109  N.  E.  898.  37.  Bias  v.  Eeed,  169  Cal.  33,  145 

P.  516. 


§  358  HUSBAND  AND  WIFE.  380 

out  her  knowledge  made  to  the  spouses  jointly  does  not  estop  her 
to  claim  her  title  even  against  one  who  relied  on  the  husband's 
apparent  ownership,  even  though  on  learning  the  facts  she  took 
no  steps  to  correct  the  deed.^®  It  has  been  held  that  a  wife  was 
not  estopped  to  assert  title  to  a  piano  as  her  separate  estate  merelj 
because  her  husband  rented  it  as  her  agent.^^  Where  a  wife 
before  marriage  gives  negotiable  paper  to  her  husband  for  col- 
lection, which  he  without  authority  indorses  to  himself,  she  is 
estopped  from  asserting  her  title  to  the  notes  in  the  hands  of  a 
holder  for  value  if  she  was  informed  of  the  facts  before  marriage 
and  permitted  his  retention  of  the  notes,  but  not  if  she  did  not 
learn  the  facts  till  after  marriage.*"  Where  a  wife  gave  her  hus- 
band asignments  of  insurance  policies  to  a  bank  to  be  used  as 
security  for  present  and  future  loans,  and  left  them  there  without 
objection  for  some  years  till  her  husband  died,  during  which  time 
the  bank  kept  the  policies  alive,  it  was  held  that  she  was  estopped, 
as  against  the  bank,  to  deny  his  authority  to  pledge  them.*^  In 
Louisiana  a  wife's  paraphernal  property  is  not  liable  for  debts  con- 
tracted by  the  husband  where  he  uses  her  separate  property  a* 
his  own  in  administering  it  as  head  of  the  community.** 

38.  Simpson  v.  Biffle,  63  Ark.  289,  41.  Dewees  v.  Osborne,  178  IlL  39, 

38  S.  W.  345.  52  N.  E.   942;    Little  v.  Fearon,  252 

89.  Bagg  V.  Shoenfelt  (Okla.),  17G  Pa.  430,  97  A.  578  (securities). 

P.  511.  42.  Succession  v.  Sangpiel,  114  La. 

40.  Kempner  v.  Huddeston,  90  Tex.  767,  38  So.  554. 
182,  37  S.  W.  1066. 


381  STATUTOKY  SEPAKATE  ESTATE.  §  6'o\) 


CHAPTER  XIX. 

husband's   powers,   KIGIITS  AND   LIABILITIES   AS    TO   WIFE's 
STATUTOKY    SEPARATE    ESTATE. 

flRcnoN  359.  Powers,   Statutory   Limitation   of   Husband's   Right   to   induce 
Wife's  Property  to  Possession. 

360.  Statutory  Power  to  Control  Separate  Estate. 

361.  Effect  of  Fraud  of  Husband. 

362.  To  Diapose  of  Real  Estate. 

363.  Of  Personal  Property. 

364.  To  Bind  Separate  Estate  by  Mortgage. 

365.  By  Lease. 

366.  With  Liability  for  His  Sole  Fraud. 

367.  By  Contract. 

368.  By  Lien. 

369.  By  Release. 

370.  Rights  of  Purchasers  from  Husband. 

371.  Notice  to  Husband  as  Notice  to  Wife. 

372.  Rights  of  Husband's  Creditors;  In  General. 

373.  As  to  Value  of  Husband's  Services. 

374.  Effect  of  Husband's  Possession  of  Separate  Estate. 

375.  Transactions  in     Fraud  of  Creditors. 

376.  As  Wife's  Agent  in  General. 

377.  Scope  of  Agency  in  General. 

378.  Scope  of  General  Agency. 

379.  Implied  Authority  as  Agent. 

380.  Power  to  Bind  Wife  by  Declarations. 

381.  Evidence  of  Agency  in  General. 

382.  Burden  of  Proof. 

383.  Presumptions. 

384.  Admissibility  of  Evidence. 

385.  Estoppel  to  Deny  Agency. 

386.  Ratification  in  General. 

387.  What  Constitutes  Ratification. 

388.  Rights  to  Recover  for  Improvements. 

389.  To  Recover  for  Services. 

390.  To  Recover  for  Advances. 

391.  Liabilities;   For  Wife's  Money  Used  for  Weceasariea. 

392.  For  Wife's  Property  Received. 

393.  To  Third  Persons. 

§  359.  Powers,  Statutory  Limitation  of  Husband's  Right  to  in- 
duce Wife's  Property  to  Possession. 

The  husband  may  reduce  to  possession  1  is  wife's  outstanding: 
personals  in  action ;  but  out  of  regard  to  her  statutory  rights,  the 
doctrine  now  becomes  of  somewhat  novel  application,  and  evi- 
dence of  the  wife's  consent  is  properly  required  in  many  States 


360 


HUSBAND    AST)    WIPE. 


382- 


before  the  husband's  act  of  approj3riatioii  shall  be  considered 
complete.  For  while  she  maj  bestow  her  goods  and  chattels  upon 
him,  under  suitable  circumstances,  he  can  no  longer  go  to  work, 
as  he  could  at  the  common  law,  and  make  his  title  complete  with- 
out reference  to  her  wishes.*^  Under  the  Xorth  Carolina  Consti- 
tution mere  possession  of  the  wife's  property  will  not  give  the 
husband  title.**  Under  the  Ohio  Married  Women's  Act  a  hus- 
band has  the  burden  of  showing  that  his  wife's  property  wad  re- 
ceived by  him  with  her  express  consent.*" 

§  360.  Statutory  Power  to  Control  Separate  Estate. 

Under  the  Married  Women's  Acts  in  Colorado,  Georgia,  Iowa,. 
Michigan  and  West  Virginia,  the  husband  has  no  control  over  his 
wife's  propert}'.*^  The  same  appears  to  be  true  in  Kentucky.*^ 
Under  the  Florida  Married  Women's  Act  the  property  of  the  wife 
remains  in  the  control  of  the  husband,*^  but  she  may  terminate  that 
control  at  her  pleasure.*®  In  Louisiana  a  husband  may  administer 
his  wife's  property  and  appropriate  it  to  his  own  use  in  any 
manner.^"  Under  the  Connecticut  Married  Women's  Act  of  1849. 
applicable  when  spouses  do  not  take  advantage  of  the  act  of  1877, 
the  husoand  was  entitled  to  possession  of  the  wife's  personal 
estate  and  its  income  if  not  held  as  separate  estate.^^  Under  the 
Idaho  Married  Women's  Act  the  husband  has  the  management 
and  control  of  the  wife's  separate  estate.^^  He  is  a  statutory  agent. 
His  power  as  such  extends  to  all  her  separate  estate,  whether  in 


43.  Vreeland  v.  Vreeland,  1  C.  E. 
Green  (N.  J.),  512;  King  v.  Gott- 
sehalk,  21  la.  512;  Haswell  v.  Hill, 
47  N.  H.  407,  Under  the  Missouri 
Married  "Women 's  Act  he  can  reduce 
her  choses  to  possession  so  as  to  get 
title  only  with  her  Avritten  consent. 
Gordon  v.  Gordon,  183  Mo.  294,  82 
S.  W.  11.  The  same  is  true  where  she 
gives  him  a  note  indorsed  by  her  with 
authority  to  use  it  as  collateral  for  a 
jjarticular  purpose.  Hurt  v.  Cook, 
151  Mo.  416,  52  S.  W.  396. 

44.  Toms  V.  Flack,  127  N.  C.  420, 
37  S.  E.  471. 

45.  Yocum  v.  Allen,  58  Ohio  St.  280, 
50  X.  E.  909. 

46.  Sharshel  v.  Smith  (Colo.),  181 
P.  541 ;  Chicago  Bldg.  &  Mfg.  Co.  v. 
Butler,    139    Ga.    816,   78    S.   E.    244; 


Chamberlain  v.  Brown,  141  la.  540, 
120  N.  W.  334;  Agricultural  Ins.  Co. 
V.  Montague,  38  Mich.  548,  31  Am.  R. 
326;  Hall  v.  Hyer,  48  W.  Va.  353,  37 
S.  E.  594. 

47.  McGregor  v.  Overton's  Ex'rs, 
29  Ky.  Law,  1146,  96  S.  W.  1114. 

48.  McNeil  v.  Williams  (Fla.),  59 
So.   562. 

49.  Florida  Citrus  Exchange  v. 
Grisham,  65  Fla.  46,  61  So.  123, 

50.  Miltenberger  &  Co.  v.  Keys,  25 
La.  Ann.  287. 

51.  Wagner  v.  Mutual  Life  Ins.  Co., 
88  Conn.  536.  91  A.  1012. 

52.  SencerDox  v.  First  Nat.  Bank, 
14  Ida.  95,  93  P.  369^;  Bates  v.  Capi- 
tal State  Bank,  21  Ida.  141,  121  P. 
561. 

The  phrase  "management  and  con- 


383 


STATUTOKY  SEPARATE  ESTATE. 


§  361 


B6 


57 


or  out  of  her  possession  at  marriage.  If  she  has  just  cause  to  ap- 
prehend that  he  has  mismanaged  or  will  mismanage  it,  she  may 
have  a  trustee  appointed."  Under  the  Texas  Married  Women's 
Act  the  husband  has  the  sole  right  to  the  management  and  control 
of  the  wife's  separate  estate,^*  but  cannot  convey  it  without  her 
express  consent  or  ratification,^"'  nor  convert  it  to  his  own  use, 
nor  will  his  permission  validate  the  appropriation  of  it  by  others. 
His  right  of  management  terminates  on  tlieir  permanent  separa- 
tion.'^ 

§  361.  Effect  of  Fraud  of  Husband. 

Fraud,  coercion,  abuse  of  marital  confidence,  can  be  alleged  by 
the  wife  against  an  unworthy  husband  in  support  of  her  title, 
whether  she  transferred  absolutely,  or  as  security  for  his  debts.^® 

A  husband  has  no  right  to  agree  secretly  with  the  purchaser  of 
his  wife's  separate  property  for  a  portion  of  the  real  consideration, 
understanding  the  nominal  consideration  to  the  wife ;  for  this  is 


trol ' '  implies  the  possession  of  the 
thing  managed  or  controlled,  or  the 
right  to  possession  thereof.  Sencer- 
box  V.  First  Nat.  Bank,  14  Ida.  95,  93 
P.  369. 

53.  Sencerbox  v.  First  Nat.  Bank, 
14  Ida.  95,  93  P.  369';  Sencerbox  v. 
First  Nat.  Bank,  14  Ida.  95,  93  P. 
369. 

The  power  of  management  and  con- 
trol given  a  husband  as  to  the  wife's 
money  gives  him  the  right  to  its  pos- 
session, to  draw  it  out  of  the  bank 
where  it  is  deposited,  to  reinvest  or 
redeposit  it  in  another  bank  and  to 
check  it  out.  Sencerbox  v.  First  Nat. 
Bank,  14  Ida.  9'5,  93  P.  369. 

54.  Ochoa  v.  Edwards  (Tex.),  189 
S.  W.  1022;  Coleman  v.  First  Nat, 
Bank,  17  Tex.  Civ.  132,  43  S.  W.  938; 
So.  Tex.  Nat.  Bank  v.  Tex.  &  L.  Lum- 
ber Co.,  30  Tex.  Civ.  412,  70  S.  W. 
768.  The  phrase  "sole  management," 
in  Rev.  Stat.  Tex.  1835,  art.  2967, 
providing  that  during  the  marriage 
the  husband  shall  have  the  "sole  man- 
agement" of  all  his  wife's  separate 
property,  implies  the  power  of  con- 
trol and  possession,  as  personalty  can- 
not bo  managed  without  the  power  to 
control  and  possession  thereof  to  that 


end.  Bledsoe  v.  Fitts,  47  Tex.  Civ. 
578,  105  S.  W.  1142.  The  phrase 
"during  marriage,"  in  Rev.  Stat. 
1895,  art.  2967,  providing  that  "dur- 
ing marriage ' '  the  husband  shall  have 
the  sole  management  of  all  the  sep- 
arate property  of  his  wife,  means  as 
long  as  the  marriage  relation  exists, 
and  at  no  time  during  the  marriage 
relation  can  the  wife  deprive  the  hus- 
band of  his  right  of  control  and  pos- 
session; he  being  present  in  the  mar- 
riage relation.  Bledsoe  v.  Fitts,  47 
Tex.  Civ.  578,  105  S.  W.  1142. 

55.  Scruggs  V.  Gage  (Tex.),  182  S. 
W.  696;  Givens  v.  Carter  (Tex.),  146 
S.  W.  623;  Ligon  v.  Wharton  (Tex.), 
120  S.  W.  930;  Bledsoe  v.  Fitts,  47 
Tex.  Civ.  578,  105  S.  W.  1142; 
Hudspeth  v.  State,  54  Tex.  Cr.  371, 
112  S.  W.   1069. 

56.  Heintz  v.  Heintz,  56  Tex.  Civ. 
403,    120    P.    W.   941. 

57.  Therriault  v.  Compere  (Tex.), 
47  S.  W.  750. 

58.  Dority  v.  Dority,  30  Tex.  Civ. 
216,  70  S.  W.  338  (affd.,  96  Tex.  215, 
71  S.  W.  950,  oO  L.  R.  A.  941.) 

59.  Sharpe  v.  McPike,  62  Mo.  300; 
Darlington's  Appeal,   86  Pa.   512. 


§    363  HUSBAND   AND    WLFE.  384 

a  breach  of  faith  as  agent  or  trustee.®"  In  Michigan  a  husband 
who  acted  as  agent  of  his  wife  in  selling  her  land  and  taking  a 
mortgage  for  deferred  payments,  and  then  became  the  assignee  of 
the  mortgage,  has  been  treated  directly  as  vendor  and  mortgagee, 
as  to  equities  growing  out  of  fraud  or  deceit  on  his  part  in  the 
transaction.®^ 

§  362.  To  Dispose  of  Real  Estate. 

A  husband  cannot  sell  his  wife's  separate  real  estate  during  her 
life  by  his  own  deed,®^  nor  create  an  easement  in  her  land,  perma- 
nent or  otherwise.®^ 

In  some  States  the  husband  cannot  dispose  of  his  life-interest 
in  the  wife's  lands  at  all,  without  the  wife's  assent." 

§  363.  Of  Personal  Property. 

A  husband  cannot  dispose  of  his  wife's  personal  property  —  her 
capital  especially  —  at  his  own  discretion.®^  A  purchase  of  per- 
sonal property  by  a  husband  with  his  wife's  funds,  under  an  agree- 
ment to  act  as  her  agent,  but  taking  title  in  his  name,  vests  the 
title  in  her.®®  In  Xorth  Carolina  the  wife's  executor  is  entitled  to 
possession  of  her  personalty  as  against  her  husband,  in  the  same 
way  as  though  she  were  a  man.®'  Under  the  Indiana  Married 
Women's  Act  a  hus^band  cannot  bind  his  wife  by  an  investment 
of  her  money.®^  In  Louisiana  the  husband  may  administer  the 
wife's  property  as  mandatory  without  formal  power  of  attorney ,®® 
but  cannot  transfer  her  right  to  a  note  payable  to  her  nor  bring 
or  defend  a  suit  respecting  it  without  her."°  In  a  credit  sale  of 
the  wife's  paraphernal  property,  her  mortgage  attaches  only  from 
the  date  of  the  receipt  of  the  money  and  for  the  amount.^^     If 

60.  Beaudry  v.  Felch,  47  Cal.   183.  v.  Moore,  19  Ky.  Law,  1534,  43  S.  "W. 

61.  Burchard  v.   Frazer,   23   Mich.  697     (piano)  ;    Ago    v.    Canner,    167 
224.  Mass.  39'0,  45  N.  E.  754. 

62.  Prater     v.     Hoover,     1      Cold.  66.  Jones  v.  Chenault,  124  Ala.  610, 
(Tenn.)   544.  27  So.  515,  82  Am.  St.  K.  211. 

63.  Knoeh  v.  Haizlip,  163  Cal.  146,  67.  Kilpatrick  v.  Kilpatrick  (N.  C), 
124    P.    998;     Harrison    v.    City    of  96  S.  E.  988. 

Sulphur  Springs  (Tex.),  67  S.  W.  515  68.    Comer    v.    Hayworth,    30    Ind. 

(consent  to  a  ditch)  ;   Neumeister  v.  App.  144,  96  Am.  St.  R.  335. 

Goddard,  125  Wis.  82,  103  N.  W.  241.  69  In  re  Leeds  &  Co.,  49  La.  Ann, 

64.  Coleman  v.  Satterfield,  2  Head  501.  21  So.  617. 

(Tenn.),  259;  Jenney  v.  Grey,  5  Ohio  70.  Sterling  v.  Johnson,  5  Mart.  N. 

St.  45.     Aliter  in  some  States.     Cole-  5.  (La.)  362. 

man  v.  Semmes,  56  Miss.  321.  71.   Foster  v.   Her  Husband,  6  La. 

65.  O'Brien  v.  Foreman,  46  Cal.  80;  £2;  Robillard  v.  Poydras,  11  La.  279. 
Klein  v.  Seibold,  89  HI.  540 ;  De  Witt 


385 


STATUTORY  SEPARATE  ESTATE. 


§  365 


she  is  separated  from  him  properly  she  retains  the  right  to  re- 
cover any  amount  received  by  him  and  converted  to  his  own  use/^ 

§  364.     To  Bind  Separate  Estate  by  Mortgage. 

The  husband  cannot  mortgage  his  wife's  separate  property  for 
his  individual  debt,"  whether  such  property  be  land'*  or  person- 
alty." In  North  Carolina  a  husband  cannot  mortgage  his  wife's 
crops  without  her  joinder  in  the  deed,'®  nor  in  Florida  without  her 
written  consent."  For  it  is  a  general  principle  that  the  wife's 
separate  property  cannot  be  made  liable  for  the  debts  of  her  hus- 
band or  others  without  her  assent.'*  In  Louisiana  a  husband  can- 
not incumber  his  wife's  paraphernal  property  for  his  debts,  either 
by  mortgage  or  fictitious  sale,  to  obtain  the  apparent  security  of  a 
special  mortgage  and  a  vendor's  lien."  A  wife  is  bound  by  her 
husband's  notes  and  mortgage  of  her  land  under  power  of  attorney 
from  her,*°  or  by  his  pledge  of  her  personal  property  for  his  own 
benefit  where  he  has  a  general  agency  for  her  in  all  matters.*^ 
Where  a  wife  directed  her  husband  to  purchase  stock  with  her 
separate  estate,  she  was  held  bound  by  his  pledge  of  the  stock  for 
his  own  debt  after  taking  title  in  his  own  name,  where  the  pledgee 
had  no  notice  of  her  rights.*'  In  Louisiana  a  husband  cannot 
mortgage  his  wife's  property  in  his  own  name  and  to  secure  his 
debt  without  special  authority.*^ 

§  365.  By  Lease. 

Under  the  Minnesota  M/irried  Women's  Act  a  husband  cannot 
create  a  leasehold  in  the  wife's  land.**     Under  the  Xew  York 


72.  Lehman  v.  Conlon,  105  La.  431, 
29  So.  879. 

73.  Patterson  v.  Flanagan,  1  Ala. 
(S.  C.)   427. 

74.  Farmer  v.  American  Mortg.  Co., 
116  Ala.  410,  22  So.  426. 

75.  Parish  v.  Austin  (Tex.),  76  S. 
W.  583;  Klein  v.  Frerichs,  127  Minn. 
177,  149  N.  W.  2 ;  Knight  v.  Beckwith 
Commercial  Co.,  6  Wyo.  500,  46  P. 
1094. 

76.  Rawlings  v.  Neal,  122  N.  C.  173, 
29   S.  E.   93. 

77.  Shomaker  v.  Waters,  59  Fla. 
414,  52  So.  586. 

78.  Hutchins  v.  Colbv,  43  N.  H.  159  ; 
Hatz's  Appeal,  40  Pa.  209";  George  v. 
Ransom,    15    Cal.    322;    Cheuvete    v. 

25 


Mason,  4  Greene  (la.),  231;  Yale  v. 
Dederer,  18  N.  Y.  265;  Sharp  v. 
Wickliffe,  3  Litt.  10;  Johnson  v.  Run- 
yon,  21  Ind.  115. 

79.  Terry  v.  Gilkeson,  50  La.  Ann. 
1040,  24  So.  128. 

80.  Sav.  Bank  of  San  Diego  County 
V.  Daley,  121  Cal.  199,  53  P.  420; 
Temple  v.  Harrington  (Ore.),  176  P. 
430. 

81.  Lowy  V.  Boenert,  110  111.  App. 
16  (affd.,  209  lU.  405,  70  N.  E.  901), 

82.  Anderson  v.  Waco  State  Bank, 
(r2  Tex.  506,  71  Am.  St.  R.  867. 

83.  Aiken  v.  Robinson,  52  La.  Ann. 
925,  27  So.  529. 

84.  Van  Brunt  v.  Wallace,  88  Minn. 
116,  92  N.  W.  521. 


§  367  HUSBAND  AND  WIFE.  386 

Married  Women's  Act  a  husband  cannot  bind  liis  wife  by  a  lease 
of  her  land,  even  where  she  accepts  rent  under  the  lease,  without 
her  authority.*^  In  Texas  while  spouses  live  together  she  is  bound 
by  his  lease  of  her  land,  but  if  they  separate  she  may  have  his 
lease  cancelled.^® 

§  366.  With  Liability  for  His  Sole  Fraud. 

In  general,  if  the  wife's  property  is  not  liable  for  her  hus- 
band's debts,  much  less  can  it  be  made  so  for  his  frauds  regarding 
such  property,  without  her  participation.*' 

§  367.  By  Contract. 

A  husband  has  no  implied  authority  to  consent  to  the  taking  of 
his  wife's  land  by  a  railroad,*^  or  to  abide  by  a  public  survey  of  her 
land,®*  or  to  bind  her  by  an  agreement  relating  to  the  maintenance 
of  gates  on  her  land,®*  nor  where  she  has  by  deed  conveyed  the 
right  to  cut  timber,  by  his  agreement  to  extend  the  time  for  re- 
moving it,®^  nor  by  an  agreement  which  restricts  to  use  of  land 
conveyed  to  her  by  an  arrangement  made  by  him  as  her  agent, 
where  the  agreement  is  no  part  of  the  deed,  though  recorded,*' 
nor  by  his  agreement  as  to  boundaries,®'  nor  to  waive  the  statute 
of  limitations  on  her  mortgage,®*  or  to  agree  that  an  overseer  em- 
ployed by  him  as  her  agent  shall  hold  his  position  for  a  term  of 
y'ears,®^  or  to  bind  her  by  any  agreement  as  to  her  land.®*  He  can- 
not of  himself  bind  her  estate  by  employing  counsel  with  reference 
to  it.®'  But  a  husband  has  a  right  to  employ  counsel  to  set  aside 
a  deed  of  trust  in  the  joint  names  of  the  spouses,  where  their 
interests  are  identical,  and  there  is  no  fraud  or  misrepresentation.®* 
In  Alabama  the  husband's  rights  as  his  wife's  managing  attorney 
are  declared  not  to  extend  to  binding  her  by  the  submission  to 

86.  Carman  v.  Fox,  86  Mine.  Eep.  92.  Kurtz  v.  Potter,  167  N.  Y.  586, 

1&7,  149  N.  Y.  S.  213.  60  N.  E.  1114 

86.  Dority  v.  Dority,  30  Tex.  Civ.  93.  Lee  v.  Wheat,  33  Ky.  Law,  724, 
216,  70  S.  W.  338  (affd.,  96  Tex.  215,  111  8.  W.  307  (reh.  den.,  112  8.  W. 
71  S.  W.  950,  60  L.  R.  A.  941).  565). 

87.  See  Lawrence  v.  Finch,  2  C.  E.  94.  Bradley  v.  Bradley's  Adm'r, 
Green  (N.  J.),  234.  159  Ky.  84,  166  8.  W.  773, 

88.  Hazard  Dean  Coal  Co.  v.  Me-  95.  8eymoar  v.  Oelrichs,  156  CaL 
Intosh  (Ky.),  209  8.  W.  364.  782,  106  P.  88. 

89.  Marshall  v.  Benetti  (la.),  118  96.  Wilson  v.  Shocklee,  94  Ark.  301^ 
N.  W.  918.  126  8.  W.  832. 

90.  Bard  v.  Batsell  (Ky.),  211  8.  97.  Kerehner  v.  Kempton,  47  Md. 
W.  185.  568. 

91.  Harris  v.  Free,  6  Ala.  App.  113,  98.  Kennedy  v.  Security  Bldg.  & 
60  8o.  423.  Sav.  Ass'n  (Tenn.),  57  8.  W.  388. 


387 


STATUTORY  SEPARATE  ESTATE. 


§  369 


arbitration  of  questions  relating  to  the  corpus  of  her  separate 
estate.'*^  A  husband  cannot,  without  special  authority,  bind  his 
wife  by  a  lease  under  which  they  occupy  land.^  Where  a  husr 
band  had  authority  to  employ  a  foreman  on  a  house  she  was 
building,  and  employed  such  foreman  without  disclosing  Ids 
agency,  and  used  his  services  both  on  his  wife's  houses  and  h.is 
own,  tlie  foreman  doing  all  his  business  with  the  husband  and 
making  no  distinction  in  his  accounts  as  to  the  houses  he  worked 
on,  it  was  held  that  she  was  not  liable  for  the  foreman's  services 
except  where  rendered  on  her  own  house,  even  though  those  of 
her  husiband  were  subsequently  conveyed  to  hr.^  It  is  held  that 
where  the  wife's  lands  are  devoted  to  agriculture,  the  husband 
may  burden  tlie  estate  for  things  neceeeary  to  the  production  of 
crops.' 

§  368.  By   Lien. 

It  is  the  declared  rule  of  many  States  that  the  husband  cannot 
of  his  own  act,  and  without  his  wife's  consent,  subject  the  latter's 
separate  land  to  debts  for  improvements,  or  subject  it  to  a  me- 
chanic's lien,*  or  to  create  any  lien  for  improvements  thereon.* 

§  369.  By  Release. 

A  husband  has  no  implied  authority  to  release  his  wife's  claim 
for  damages  for  a  tort,®  or  to  yield  or  compromise  his  wife's 
action.'  A  husband  has  no  authority,  by  mere  implication  from 
the  facts  that  he  controls  and  manages  his  wife's  property,  to  con- 
sent that  a  judgment  in  her  favor  be  set  aside  and  a  judgment 
entered  in  favor  of  the  other  party  so  as  to  deprive  her  of  a  home- 
stead right.®     The  husband's  personal  receipt  of  his  wife's  sepa- 


99.  Sampley  v.  Watson,  43  Ala.  377. 
To  the  same  effect  see  Oldham  v. 
Medearis   (Tex.),  40  S.  W.  350. 

1.  Hooser  v.  Hooser,  3  Ky.  Law, 
796. 

2.  Newell  v.  Roberta,  54  N.  Y.  677. 

3.  Clopton  V.  ^latheny,  48  Miss. 
286;  Johnson  v.  Jones,  82  Misc.  483, 
34  So.  83 ;  Pocomoke  Guano  Co.  v. 
Colwell  (N.  C),  98  S.  E.  535;  Mc- 
Broom  v.  McBroom  (Ark.)  180  S.  W. 
210. 

4.  Briggs  V.  Titus,  7  R.  I.  441 ;  Spin- 
ning V.  Blackburn,  13  Ohio  St.  131; 
Warren  v.  Smith,  44  Tex.  2\:>;  Tell 
V.    Cole,    2    Met.     (Ky.)    252;    Selph 


V.  Howland,  23  Miss.  264 ;  Hughes  v. 
Peters,  1  Cold.  (Tenn.),  67;  Esslinger 
V.  Huebner,  22  Wis.  632;  Gamett  v. 
Berry,  3  Mo.  App.  197;  Holley  v. 
Huntington,  21  Minn.  325.  Nor  even 
for  necessary  repairs.  Dearie  v.  Alar- 
tin,  78  Pa.  55. 

5.  Larson  v.  Carter,  14  Ida.  511,  94 
P.  825. 

6.  Stephens  v.  Schmidt,  80  N.  J. 
Law,  193,  76  A.  332. 

7.  Bizzell  V.  McKinnon,  121  N.  C. 
186,  28  S.  E.  271. 

8.  Winter  v.  Texas  Land  &  Loan  Co. 
(Texas,  1900),  54  S.  W.  802  (judg- 
ment  reversed,    Texas   Land   &  Loan 


§  370 


HUSBAND   AND    WIFE. 


388 


rate  property  in  general  will  not  discharge  a  third  party  from 
liability  to  the  wife  where  the  circumstances  repel  a  presumption 
of  agency  on  the  husband's  part.®  His  receipt  of  money  payable 
on  her  separate  account  —  a  legacy  for  instance  —  without  her 
consent  or  authority  does  not  debar  her  of  her  legal  rights.^"  And, 
on  the  other  hand,  where  she  is  a  mortgagee  in  her  own  right,  the 
husband  cannot  alone  receive  payment  and  satisfaction  and  dis- 
charge the  mortgage.^^ 

Xor  has  the  detbtor  or  custodian  of  the  incorporeal  property, 
or  the  execut'Or  or  administrator  who  settles  the  estate  in  which 
the  married  woman  may  have  a  legacy  or  distributive  share  ac- 
cruing to  her,  the  right  to  recognize  the  husband  as  entitled  to 
her  exclusion,  or  to  pay  over  to  him  on  his  sole  and  unauthorized 
receipt.^^ 

§  370.  Rights  of  Purchasers  from  Husband. 

While  the  wife  may  avoid  a  fraud  upon  her  as  against  all  who 
participated  therein,  it  is  a  rule  that  a  valuable  creditor's  rights 
cannot  be  prejudiced  by  any  duress,  menace,  or  other  misbehavior 
of  the  husband,  which  procured  them  the  wife's  security,  if  it  was 
without  such  creditor's  instigation,  knowledge,  or  consent.^^    It  is 


Co.  V.  Winter,  93  Tex.  560,  57  S.  W. 
39). 

9.  Read  v.  Earle,  12  Gray  (Mass.), 
423;  Anderson  v.  Gregg,  44  Miss.  170. 
Possession  of  the  bond  or  incorporeal 
chattel  by  the  husband  is  evidence 
tending  to  prove  authority  to  receive 
the  money  for  his  wife,  but  not  con- 
clusive evidence.  Yazel  v.  Palmer,  81 
111.  82 ;  Carver  v.  Carver,  53  Ind.  241, 
And  see  Nevius  v.  Gourley,  95  HI. 
206;  Windsor  v.  Bell,  61  Ga.  671. 

10.  Gore  v.  Carl,  47  Conn.  291;  Nev- 
ius  V.  Gourley,  95  111.  206;  Read  v. 
Earle,  12  Gray  (Mass.),  423;  Wind- 
sor V.  Bell,  61  Ga.  671;  Anderson,  v. 
Gregg,  44  Miss.  170. 

11.  Savage  v.  Winchester,  15  Gray 
(Mass.),  453;  Hanford  v.  Bockee,  5 
C.  E.  Green  ("NT.  J.),  101;  Bank  of 
Albion  V.  Burns,  46  N.  T.  170 ;  Faulks 
V.  Dimock,  27  X.  J.  Eq.  65;  Hubbard 
V.  Ogden,  22  Kan.  363 ;  Purvis  v. 
Carstphan,  73  N.  C.  575.  But  see 
Zane  v.  Kennedy,  73  Pa.  182.    Where 


the  mortgagee  before  sale  is  allowed 
to  enter  and  take  the  rents  without 
the  wife's  consent,  he  must  account  to 
her,  and  cannot  credit  the  same  on 
the  husband's  debt.  Semple  v.  Brit- 
ish Columbia  Bank,  5  Sawyer  (U.  S.), 
394;  McKinney  v.  Hamilton,  51  Pa. 
63. 

12.  Aliter,  if  the  husband's  receipt 
was  authorized  by  the  wife.  Hoben- 
sack  v.  Hallman,  17  Pa.  154.  Some 
of  the  local  statutes  are  held  not  to 
restrain  the  husband  from  collecting 
and  reducing  to  possession  his  wife's 
choses  in  action.  Clark  v.  Bank  of 
Missouri,  47  Mo.  17. 

13.  Childs  V.  McChesney,  20  la. 
431;  Edgerton  v.  Jones,  10  Minn. 
427;  Nelson  v.  Holly,  50  Ala.  3; 
Singer  Man.  Co.  v.  Rook,  84  Pa.  442; 
Marston  v.  Brittenham,  76  HI.  511; 
Conn.  Life  Ins.  Co.  v.  McCormick, 
45  Cal.  480;  Hull  v.  Sullivan,  63  Ga. 
126. 


389  STATUTORY  SEPARATE  ESTATE.  §  371 

otherwise  if  tte  latter's  instigation,  knowledge,  or  consent  appear.^* 
In  such  case  the  wife  has  the  burden  of  showing  that  the  creditor 
had  knowledge  of  the  fraud  on  her/'^  But  when  the  husband 
makes  a  void  transfer  as  his  wife's  trustee,  it  is  held  that  she  can 
follow  the  investment  into  other  hands.'®  Or  she  may  have  him 
removed  from  his  trusteeship  for  suitable  cause.^^ 

§  371.  Notice  to  Husband  as  Notice  to  Wife. 

A  wife  is  not  generally  chargeable  with  notice  of  facts  merely 
because  her  husband  has  knowledge  of  them.'*  But  she  may  be 
so  chargeable,  especially  where  she  reaps  the  benefits  of  his  fraud,^° 
and  where  he  acts  as  her  agent.^"  In  Tennessee  it  is  held  that 
there  is  a  presumption  a  husband  who  has  knowledge  that  property 
conveyed  to  his  wife  was  burdened  with  an  easement  communi- 
cated this  knowledge  to  her.^^  Where  a  husband  attended  to  the 
shipment  of  the  wife's  goods,  which  were  consigned  to  her,  it  was 
held  that  the  carrier  properly  treated  him  as  the  owner,  and 
notified  only  him  of  an  attachment  of  the  property  for  his  debt.^^ 
Where  a  husband  caused  a  deed  to  be  made  to  his  wife,  but  signs 
notes  with  her  for  the  purchase  price  and  makes  payments  thereon, 
notice  of  the  assignment  of  the  mortgage  was  held  sufiicient  where 
made  to  him  alone.^'  Where  on  a  reconveyance  of  the  wife's  land 
after  payment  of  a  loan  to  her  on  the  security  of  her  conveyance  of 
property,  the  husband  takes  a  reconveyance  in  his  own  name,  she 

14.  Line  v.  Blizzard,  70  Ind.  23;  Co.  v.  Boeger,  74  Misc.  547,  132  N.  T. 
Haskit  V.  Elliott,  58  Ind.  493.  S.  286;  Tate  v.  Tate,  19  Ohio  Cir.  R. 

15.  Sparks  v.  Taylor,  9^  Tex.  411,  532,  10  O.  C.  D.  321;  Eowley  v.  Shep- 
90  S.  W.  485.  ardson    (Vt.),  99   A.  228;    Hathaway 

16.  George  v.  Ransom,  14  Cal.  658.  v.    Ernest   A.    Arnold    Land   Co.    157 

17.  Rainey  v.  Rainey,  35  Ala.  282.  Wis.  22,  145  N.  W.  780. 

So  with  any  other  trustee  of  her  sepa-  20.    Faircloth    v.    Taylor,    147    Ga. 

rate   property.      Johnson   v.   Snow,    5  787,  95  S.  E.  683;  Libby  v.  Pelham, 

R.  I.  72.  30  Ida.  614,  166  P.  575;  Loveland  v. 

18.  Young  V.  Allen,  207  F.  318,  125  Bump  (Mich.),  165  N.  W.  855;  Gra- 
C.  C.  A.  68 ;  Weightman  v.  Washing-  ham  Paper  Co.  v.  St.  Joseph  Times 
ton  Critic  Co.,  4  App.  D.  C.  136;  Printing  &  Publishing  Co.,  79  Mo. 
Francis  v  Reeves,  137  N.  C.  269,  49  App.  504. 

S.  E.  213;   Potter  v.  Mobley    (Tex.),  21.  Parker  v.  Meredith  (Tenn.),  59 

194  S.  W.  205;  Raleigh  v.  Lee,  26  Cal.  S.  W.  167;  Forsythe  v.  Brandenburg, 

App.  229,   146  P.   696;   H.  C.  Girard  1 "  f  Ind.  588,  57  N.  E.  247. 

Co.  V.  Lamoureux,  227  Mass.  277,  116  22.  Furman  v.  Chicago,  R.  I.  &  P. 

N.    E.    572;     Thompson    v.    Harmon  Ry.  Co.,  62  la.  395,  17  N.  W.  598. 

(Tex.),  152  S.  W.  1161.  23.  Cox  v.  Cayan,  117  Mich.  599,  76 

19.  Cullcn  V.  Veasey  (Del.),  95  A.  N.  W.  9-6,  5  Det.  Leg.  N.  346,  72  Am. 
655;    Hamblet   v.   Harrison,  80  Miss.  St.  R.  585. 

118,  31  So.  580;  Henry  Elias  Brewing 


§  372 


HUSBAND   AND    WIFE. 


390 


having  no  knowledge  of  the  fact,  she  is  not  charged  with  his 
knowledge  of  the  fact  though  he  acted  as  her  agent  in  securing  the 
loan,  as  he  acted  against  her  interest. 


24 


§  372.  Rights  of  Husband's  Creditors;  In  General. 

Though  it  is  not  against  public  policy  to  permit  a  wife's  prop- 
erty to  be  taken  for  her  husband's  debts,^^  yet  under  most  Married 
Women's  Acts  property  bona  fide  acquired  by  her  in  her  ovm.  name 
and  with  her  own  money  will  not  be  subject  to  such  debt,^®  whether 
acquired  before  or  after  the  debt  was  contracted,^^  especially 
where  she  had  no  interest  in  the  property  when  the  debt  was  con- 
tracted,"^ even  though  it  was  so  acquired  from  her  husband.^^ 
Thus  a  gift  of  real  estate  to  a  wife  by  her  father  is  not  subject 
to  her  husband's  debts  because  he  conveyed  it  to  the  father,  if  the 
conveyance  was  in  satisfaction  of  a  debt  really  owed  to  him.'° 
A  husband's  bona  fide  investment  of  money  in  improvements  upon 
his  wife's  estate  cannot  be  subjected  to  satisfaction  of  the  claims 
of  his  creditors.^^  The  basis  on  which  her  property  may  be  made 
liable  for  his  debts  is  faith  placed  by  a  creditor  in  his  apparent 
ownership  of  it,'^  therefore,  if  the  title  to  land  is  in  the  wife's 


24.  Huot  V.  Eeeder  Bros.  Shoe  Co., 
140  Mich.  162,  103  N.  W,  569,  12  Det. 
Leg.  N.  98. 

25.  Meier  &  Frank  Co.  v.  Bruee,  30 
Ida.  732,  168  P.  5. 

26.  Studebaker  Bros.  Mfg.  Co.  v. 
De  Moss,  62  Ind.  App.  635,  113  N.  E. 
417;  Morin  v.  Kirkland,  226  Mass. 
345,  115  N.  E.  414;  Stewart  v.  Stew- 
art, 207  Pa.  59,  56  A.  323;  Patterson 
V.  Gilliland  (Ala.),  82  So.  493;  Ean- 
kin  V.  West,  25  Mich.  195;  Hoover  v. 
Carver  (Minn.),  160  N.  W.  249; 
Evans  v.  Cullens,  122  N.  C.  55,  28 
S.  E.  961;  Farmers'  State  Bank  v. 
Keen  (Okla.),  167  P.  207;  Ernst  v. 
Wagner,  4  "Walk.  (Pa.)  229 ;  Frost  v. 
Knapp,  10  Pa.  Super.  296;  Ball  v. 
Prnn,  10  Pa.  Super.  544;  Emerson- 
Brantingham  Implement  Co.  v.  Broth- 
ers (Tex.),  194  S.  W.  60S;  Bum- 
ham  V.  Stoutt,  35  rtah,  250,  99  P. 
1070;  IMiller  v.  McLin,  147  Ky.  248, 
143  S.  W.  1008. 

27.  Big  Plum  Creek  Turnpike  Co.  v. 
N.  L.  Walker  &  Co.,  145  Ky.  269,  140 
S.  W.  304 ;  J.  M.  Houston  Grocer  Co. 


V.  McGinnis,  20  Ky.  Law,  157;  Chil- 
ton V.  Hannah,  107  Va.  661,  60  S.  E. 
87. 

28.  Barker  v.  Thayer,  217  Mass.  13, 
104  X.  E.  572. 

29.  McCormick  v.  Brown,  97  Neb. 
545,  150  N.  W.  827 ;  Morris  v.  Waring 
(N.  M.),  159  P.  1002. 

30.  First  Xat.  Bank  v.  Eice,  22 
Ohio  Cir,  Ct.  183,  12  O.  C.  D.  121. 

31.  McFerrin  v.  Carter,  3  Baxt. 
(Tenn.)  335.  In  Texas  it  is  held  that 
a  wife's  land  cannot  be  subjected  to 
the  husband's  debts  unless  the  im- 
provements were  made  with  either 
the  husband's  or  community  funds, 
and  with  an  intent  to  defraud  cred- 
itors, in  which  the  wife  knowingly 
participated.  Maddox  v.  Summerlin, 
92  Tex.  483,  49  S.  W.  1033;  Palmer 
Pressed  Brick  Works  v.  Stevenson 
(Tex.),  185  S.  W.  999;  Collins  v. 
Bryan,  40  Tex.  Civ.  88,  88  S.  W.  432. 

32.  O'Farrell  v.  Vickrage,  163  111. 
App.  519;  Eickett  v.  Bolton,  173  Ky. 
739,  191  S.  W.  471;  Deacon  v.  Al- 
sheimer  (N.  J.),  89  A.  512. 


391 


STATUTORY  SEPARATE  ESTATE. 


§  372 


name  of  record  when  the  debt  is  contracted,  the  creditor  must 
take  notice,  no  matter  what  representations  are  made  bj  the  hus- 
band,^^  and  she  is  not  bound  by  his  statements  to  creditors  as  to  her 
other  property.^*  She  need  not,  as  against  his  creditors,  show 
that  property  conveyed  to  her  was  paid  for  with  her  separate 
estate,^^  or  show  the  source  of  every  dollar  paid  for  it.^®  A  hus- 
band's creditor  takes  no  rights  in  the  wife's  property  assigned  to 
the  debtor  by  mistake/^  now  in  her  property  in  his  possession  as 
agent.^*  Where  a  wife  has  title  to  personal  property  bought  with 
the  proceeds  of  land  subject  to  her  husband's  debts  such  personal 
property  may  be  subjected  to  the  debts,^^  but  in  such  case  her 
other  property  will  not  be  liable  for  a  deficiency.^"  As  against 
the  creditors  of  a  husband  who  manages  a  business  belonging  to 
a  wife  empowered  to  trade  as  sole,  she  may  he  liable  for  the 
reasonable,  but  not  for  the  contract  value  of  his  services,  if  they 
cannot  validly  contract  with  each  other.*^  As  a  broad  principle  the 
wife's  separate  property  cannot  be  taken  for  her  husband's  debts 
or  subjected  to  the  demands  of  his  creditors  apart  from  her  con- 
sent. The  wife  may  enjoin  an  execution  in  favor  of  her  husband's 
creditors,  levied  on  her  separate  property,*^  and  the  fact  iJiat 
the  husband  uses  and  enjoys  some  of  the  benefits  of  the  wife's 
separate  property,  and  out  of  it  procures  the  means  for  the  support 
of  his  family  (a  consequence  almost  inevitable  where  matrimonial 
confidence  prevails  in  the  household,  even  though  the  wife  be  rich), 
and  consistently  liable  for  the  debts  of  the  husband.'*'  The  crops 
cannot  be  attached  by  his  creditors.**  ^or  the  betterments,  build- 
ings, and  rents.*^       Nor  is  his  use  upon  his  wife's  farm,  of  teams 


83.  Glaze  v.  Pullman  State  Bank, 
91  Wash.  187,  157  P.  488. 

34.  McDonnell  v.  Solomon  (Colo.), 
170  P.  ffSl. 

35.  Clark  v.  Meyers,  24  Ky.  Law, 
380,  68  S.  W.  853, 

86.  Ambrose  v.  Noell,  21  Ky.  Law 
388,  51  S.  W.  570. 

37.  Jones  v.  Nolen,  133  Ala.  567, 
31  So.  945;  Smith  v.  Farmers'  & 
Merchants'  Nat.  Bank,  57  Ore.  82, 
110  P.  410;  Smith  v.  Gott,  51  W.  Va. 
141,  41  S.  E.  175. 

38.  Tallman  v.  Jones,  13  Kan.  438; 
Bohner  v.  Cummings,  91  Pa.  55. 

39.  Mertens  v.  Schlemmo,  68  N.  J. 
Eq.  544,  59  A.  808. 


40.  Bennett  v.  Campbell,  43  App. 
Div.  617,  59  N.  T,  S.  326. 

41.  Smith  V.  Meisenheimer,  20  Ky. 
Law,  1718,  49  S.  W.  968. 

42.  Brevard  v.  Jones,  50  Ala.  221. 
And  see  Barclay  v.  Plant,  50  Ala.  50?. 

43.  Blood  V.  Barnes,  79  HI.  437; 
Yale  V.  Dederer,  68  N.  Y.  329 ;  Prim- 
mer V.  Clabaugh,  78  111.  94. 

44.  Mclntyre  v.  Knowlton,  6  Allen 
(Mass.),  565;  Lewis  v.  Johns,  24  Cal. 
98;   Allen  v.  Ilightower,  21  Ark.  316. 

45.  White  v.  Hildreth,  32  Vt.  265; 
Goss  V.  Cahill,  42  Barb.  (N.  Y.)  310; 
Wilkinson  v.  Wilkinson,  1  Head 
(Tenn.)  305;  Robinson  v.  Huffman, 
15  B.  Mon.  (Ky.)  80. 


§  373 


HUSBAND   AND    WIFE. 


392 


bought  witli  lier  money,  a  conversion  in  any  such  sense  as  to 
render  them  attachable  for  his  debts/®  One  seeking  to  subject  a 
wife's  separate  estate  to  a  debt  must  aver  the  debt  was  hers.*^ 
A  debt  due  from  a  husband  to  a  mortgagor  cannot  be  set  off  against 
the  mortgage  which  such  mortgagor  has  given  to  the  wife.**  Where 
one  having  claims  against  both  spouses  with  notice  receives  the 
money  of  the  wife  he  must  credit  it  on  her  debt.**  Property 
■conveyed  by  a  husband  to  his  wife  is  not  in  his  possession,  so  as 
to  be  subject  to  levy  for  his  debts,  her  possession  being  not  his."^" 
Where  under  the  Michigan  Married  Women's  Act  the  husband  had 
not  given  the  wife  the  right  to  her  own  earnings,  it  was  held  that 
the  mere  fact  that  the  wife  has  paid  part  of  the  purchase  price 
of  a  piano  did  not  give  her  title  as  against  his  creditors.^^  Under 
the  Tennessee  statute  furniture  bought  by  a  husband  with  money 
given  him  by  his  wife  was  held  subject  to  his  debts,  though  he 
gave  her  the  furniture.^"  In  Virginia  it  is  held  where  the  com- 
pensation of  the  husband  for  services  in  managing  the  wife's 
saparate  business  is  more  than  sufficient  to  support  the  family,  the 
excess  belongs  to  his  creditors,  if  there  was  no  contract  between 
the  spouses. 


53 


§  373.  As  to  Value  of  Husband's  Services. 

It  seems  to  be  the  well-settled  American  doctrine  that  by  work- 
ing upon  the  wife's  land  the  husband  acquires  no  beneficial  in- 
terest therein  which  can  be  enforced  in  equity  on  behalf  either  of 
himself  or  his  creditors,  in  absence  of  a  definite  agreement  for 
compensation;  unless,  possibly,  it  could  be  shown  to  exceed  in 
value  the  cost  of  supporting  the  whole  family,^*  nor  does  she  incur 


46.  Spooner  v,  Eeynolds,  50  Vt.  437. 

47.  Holt  V.  Gridley,  7  Ida.  416,  63 
P.  188. 

48.  Cole  V.  Darling,  123  Mich.  1,  81 
N.  W.  967,  6  Det.  Leg.  Notes,  967; 
O'Donnell  v.  Bray,  99"  Mich.  534,  58 
N.  W.  475. 

49.  Chason  v.  Anderson,  119  Ga. 
495,  46  S.  E.  629. 

50.  Wyatt  v.  Wyatt,  31  Ore.  531, 
49  P.  855. 

51.  Le  Blanc  v.  Sayers  (Mich.),  168 
N.  W.  445. 

52.  Bynum  v.  Johnston,  22^  F.  659, 
138  C.  C.  A.  183. 

53.  Catlett  v.   Alsop,   ff9   Va.   680, 


3  Va.  Sup.  Ct.  E.  491,  40  S.  E.  34; 
Penn  v.  Whitehead,  17  Grat.  (Va.) 
503,  94  Ann.  Dec.  478;  Atkinson  v. 
Solenberger,  112  Va.  667,  72  S.  E. 
727. 

54.  Buckley  v.  Wells,  33  N.  Y.  518 ; 
Webster  v.  Hildreth,  33  Vt.  457; 
Cheuvete  v.  Mason,  4  Greene  (la.), 
231;  Betts  v.  Betts,  18  Ala.  787; 
Commonwealth  v.  Fletcher,  6  Bush 
(Ky.),  171;  Kowe  v.  Drohen,  245  F. 
684;  Lister  v,  Vowell,  122  Ala.  264, 
25  So.  564;  Martin  v.  Banks,  89  Ark. 
77,  115  S.  W.  928  Sharp  v.  Fitzhugh, 
75  Ark.  562,  88  S.  W.  929;  Alsdurf 
V.   Williams,   196   111.   244,   63   N,   E. 


393 


STATUTORY  SEPARATE  ESTATE. 


§  373 


liability  by  the  fact  that  she  secures  his  services  as  agent,*^  nor  the 
fact  that  she  gives  him  power  to  sell  it  far  her,"'  nor  the  fact 
that  he  manages  her  property  in  his  own  name,  if  there  is  no  evi- 
dence that  the  creditor  acted  on  the  faith  of  his  supposed  title,"^ 
or  that  the  property  is  really  his  own.^® 

With  the  assent  of  the  husband  and  father,  the  labor  of  the 
wife  and  children  may  be  bestowed  upon  the  separate  property  of 
the  wife,  and  thus  enure  to  their  benefit.  There  is  no  known  rule 
of  law  which  requires  the  husband  and  father  to  compel  his  wife 
and  children  to  work  in  the  service  of  his  creditors.^^  And  it  is 
held  that  the  husband  may  stipulate,  though  insolvent,  that  the 
product  of  his  own  labor  shall  be  appropriated  to  his  wife's 
separate  use.®°  If  permitted  to  be  maintained  upon  his  wife's 
property,  he  does  not  necessarily  acquire  a  title  to  the  property 
or  its  products  merely  by  bestowing  his  voluntary  labor  upon  it."'' 
And  a  similar  principle  may  be  applied  to  a  wife  supported  from 
her  husband's  property.'^ 

But  it  is  held  that  the  husband's  occupation  and  cultivation  of 
his  wife's  lands  with  her  assent  may  be  considered  as  bestowed 
for  the  common  benefit  of  the  family,  or  so  as  to  give  him  the 


686;  Miller  v,  Beatty,  171  111.  App. 
72;  Elliott  v.  Atkinson,  45  Ind.  App. 
29'0,  90  N.  E.  779;  Wasam  v.  Baben, 
45  Ind.  App,  221,  90  N.  E.  636; 
Deere,  Wells  &  Co  v.  Bonne,  108  la. 
281,  79  N.  W.  59,  75  Am.  St,  E.  254; 
Guthrie  v.  Hill,  138  Ky.  181,  127  S. 
W.  767;  Thompson  &  Co,  v,  Taylor 
(Ky.),  124  S.  W.  357;  First  Natchez 
Bank  v.  Moss,  52  La.  Ann,  1524,  28 
So.  133;  Hibbard  v.  Heckart,  88  Mo. 
App.  544 ;  Frost  v,  Knapp,  10  Pa. 
Super.  296  Martin  v.  Eemington,  100 
Wis.  540,  76  N,  W,  614,  69  Am.  St. 
E.  941;  Oldershaw  v.  Matteson  &  Wil- 
liamson Mfg.  Co.,  19^  Cal.  App.  179, 
125  P.  263;  Pease  v.  Barkowsky,  67 
111.  App.  274;  Patton's-Ex'r  V.Smith, 
130  Ky.  819,  114  S.  W,  315  Davis  v. 
Francis,  22  Ky.  Law,  1618;  Black- 
burn V.  Thompson,  23  Ky.  Law,  1723, 
66  S.  W.  5,  56  L.  E.  A.  938;  J.  E. 
Hayner  &  Co.  v.  McKee,  24  Ky,  Law, 
1871. 

55.  Kennard  v.  Curran,  239  111.  122, 


87   N.   E.   913;    McDonald  Mfg.   Co. 
Williams,  96  111.  App.  395. 

56.  Eeed  v,  Kimsey,  98  111.  App. 
364, 

57.  Hall  V.  Warren,  5  Ariz.  127,  48 
P.  214;  First  Nat.  Bank  v.  Eice,  22 
Ohio  Cir.  Ct.  183,  12  O.  C.  D.  121. 

58.  Murphy  v.  Nilles,  166  111,  9^,  46 
N.  E.  772. 

59.  Johnson  v.  Vail,  1  McCart.  423. 

60.  Hodges  v.  Cobb,  8  Eich.  (S.  C.) 
50.  But  see  Penn  v.  Whiteheads,  12 
Gratt.  (Va.)  74, 

61.  Eush  V.  Vought,  55  Pa.  437; 
Boss  V.  Gomber,  23  Wis.  284;  Mer- 
rick V.  Plumley,  99  Mass.  566 ;  Gage 
V.  Dauchy,  34  N.  Y.  293;  Hazelbaker 
V.  Goodfellow,  64  111.  238;  Feller  v. 
Aldcn,  23  Wis.  301. 

62.  Burcher  v.  Eeam,  68  Pa.  421. 
See  Dean  v.  Bailey,  50  111.  481,  as  to 
the  liability  of  a  farm  and  stock, 
where  the  husband's  control  is  not  of 
a  character  inconsistent  with  the  com- 
mon interests  of  himself  and  wife. 


§  374  HUSBAND  AND  WIFE.  394 

right  to  tlie  products  of  his  own  toil  like  that  of  any  tenant,®^  and 
that  where  his  own  skill  and  service  were  the  chief  source  of  emolu- 
ment, the  wife  ought  not  to  claim  all  as  her  own  against  him.** 
Moreover,  if  by  contract  express  or  implied  the  wife  is  indebted 
to  her  husband  for  his  services  as  managing  agent,  it  is  held  that 
she  is  subject  to  garnishment  at  the  instance  of  his  creditors."' 
And  under  an  agency  in  the  management  of  the  wife's  lands  the 
produce  or  rent  of  the  lands  and  increase  of  animals  are  the  wife's 
property  as  fully  as  the  original  property  whence  they  are  derived ; 
and  the  husband's  purchase  of  lands  with  such  profits,  or  the  rais- 
ing of  a  crop  thereon  under  his  supervision,  does  not  necessarily 
subject  land  or  crop  to  his  debts. 


6S 


§  374.  EfiFect  of  Husband's  Possession  of  Separate  Estate. 

Mere  possession  of  a  wife's  property  by  a  husband  will  not 
eubject  it  to  his  debts,"'  nor  does  the  fact  that  he  takes  title  to 
her  land  in  his  name  necessarily  have  that  effect,'*  or  that  he  has 
her  property  billed  for  shipment  in  his  own  name."'*  If  the 
creditor  has  reasonable  cause  to  believe  that  money  received  from 
the  husband  is  that  of  the  wife  he  gets  no  title  to  it.'**  If  the 
hnsband  has  erroneously  returned  her  property  as  his  for  taxation 
he  may,  as  against  his  creditor,  show  the  fact.'^  Her  right  to 
her  property  is  not  affected  by  the  fact  that  the  debtor  sends  her 
money  to  the  bank  with  instructions  to  credit  it  to  the  husband,^' 
nor  by  the  fact  that  she  permits  a  note  for  the  purchase  price  of 
her  separate  estate  to  be  made  out  to  him  or  her  in  the  alternative, 
and  permits  him  to  keep  it,'^  or  by  the  fact  that  she  takes  in  pay- 
ment a  check  payable  to  her  husband's  order,'*  or  that  she  permits 
him  to  sign  checks  against  her  bank  account,'^  or  that  for  con- 

G3.  Elijah  v.  Taylor,  37  HI.  247.  HI.  App.  323    (affd.,  172  111.  625,  50 

64.  Glidden  v.  Taylor,  16  Ohio  St.  N.  E.  121)  ;  Glover  v.  Suter,  18  K7. 
809.  Law,  1018,  38  S.  W.  869, 

65.  Keller  v.  Mayer,  55  Ga.  406.  70.  Macon  &  B.  Ey.  Co.  v.  Lane,  « 

66.  Bongard  v.  Core,  82  111.  19.  Ga.  App.  549,  65  S.  E.  360. 

67.  Magerstadt  v.  Schaefer,  110  111.  71.  De  Loach  v.  Sarratt,  55  S.  C 
App.  166  (affd.,  213  111.  351,  72  N.  E.  254,  33  S.  E.  2,  35  S.  E.  441. 
1063);   State  ex  rel.  Smith  v.  Jones,  72.  First  Nat.  Bank  v.  Gatton,  172 
83  Mo.  App.  151.  111.  625,  50  N.  E.  121. 

68.  Gladstone  Lumber  Co.  v.  Kelly,  73.  Corry  v.  Jones,  114  Ala.  502,  21 
64   Ore.   163,  129  P.   763;   Nelson  v.  So.  815. 

Vanden,  9^9  Tenn.  224,  42  S.  W.  5;  74.  Norton  v.  Heed  (Tenn.),  42  S. 

Haley  v.   Abright    (Tex.),   43   S.  W.  W.  688. 

538.  75.  Kean  v.  Kean,  172  111.  App.  183. 

69.  First  Nat,  Bank  v.  Gatton,  71 


395  STATUTORY    SfiPAKATE   ESTATE.  §    376 

venience  she  takes  in  payment  a  note  payable  to  his  order,  where 
the  creditor  was  not  misled/® 

§  375.  Transactions  in  Fraud  of  Creditors. 

Yet  the  credit  the  husband  may  derive  from  his  own  business 
transactions  from  a  use  and  enjoyment  of  the  wife's  separate 
estate  should  be  well  considered  where  his  creditors  sue ;  and  it  is 
held  upon  high  authority  that  purchases  of  real  or  personal  prop- 
erty, made  during  coverture  by  the  wife  of  an  insolvent  debtor, 
should  be  suspiciously  regarded  and  not  allowed  to  prevail  in 
contests  between  his  creditors  and  her,  unless  she  can  show  that 
she  paid  bona  fide  from  her  separate  means.'"^  But  the  "  manag- 
ing agent "  doctrine  has  it  limits,  in  New  York,  as  elsewhere ; 
and  where  there  is  a  mere  shifting  of  property  from  husband  to 
wife,  and  from  wife  back  to  husband  as  her  managing  agent;  or 
where  the  husband,  doing  business  as  his  wife's  agent,  obtains 
goods  on  credit  under  false  pretences,  and  then  gets  her  to  make 
an  assignment  of  them,  such  an  artifice  for  evading  his  creditors 
is  likely  to  fail." 

§  376.  As  Wife's  Agent  in  General. 

A  wife  is  not  bound  by  her  husband's  unauthorized  or  unratified 
acts,'®  even  for  supplies  purchaised  for  land  of  which  he  had  a  life 
estate,  and  she  a  remainder  held  in  trust  without  trustees,  even 
though  he  assumed  to  act  as  "  agent  or  trustee,"*"  but  he  may 
now  be  employed,  either  with  or  without  compensation,  as  his 
wife's  agent  in  the  management  of  her  lands,*^  or  as  to  her  sepa- 
rate estate  generally,*^  without  formality  other  than  that  required 

76.  King  V.  Wells,  106  la.  649,  77  Bnmdage,  131  Minn.  29?,  154  N.  W. 
N.  W.  338.  1086;   Norfolk  Nat.  Bank  v.  Nenow, 

77.  Seitz  V.  Mitchell,  94  U.  S.  580.  50  Neb.  429,  69  N.  W.  936;  Curtis  v. 
The  uncorroborated  testimony  of  the  Olds,  250  Pa.   320,  95  A.   526. 
Hponses  themselves,  on  such  an  issue,  80.  Byne  v.  Corker,  100  Ga.  445,  28 
is    not     to     be     favored.     Besson     v.  S.  E.  443. 

Eveland,  26  N.  J.  Eq.  468.  81.    Walker   v.    Carrington,   74    HI. 

78.  Warner   v.   Warren,    46   N.    Y.  446;  Bongard  v.  Core,  82  111.  19. 
228;    Edgcrly   v.   Whalen,   106   Mass.  82.   Watring   v.    Gibson    (W.   Va.), 
307;   Little  v.  Willets,  55  Barb.    (N.  100  S.   E.   68;    Marbury  Lumber  Co. 
Y.)  125.  V.  Woolfolk  (Ala.),  65  So.  43;  Mager- 

79.  Blount  V.  Bugger,  115  Ga.  109,  stadt  v.  Schaefer,  110  111.  App.  166 
41  S.  E.  270;  McMillan  v.  Wilcox,  12  (affd.,  213  111.  351,  72  N.  E.  1063); 
Ga.  App.  721,  78  S.  E.  270;  Sencerboi  Taylor  v.  Minigus,  66  Til.  App.  70; 
V.  First  Nat.  Bank,  14  Tla.  95,  93  P.  Sutherin  v.  Chesnoy,  85  Kan.  122,  116 
369;  Meeks  v.  Indiana  Lumber  Co.  P.  254  ;  Hunt  v.  Rhodes  Bros.  Co.,  207 
(Ind.),    105    N.    E.    947;    Baker    v.  Mass.  30,  92  N.  E.  1001;  First  Com- 


§  377 


HUSBAND    AND    WIFE. 


396 


in  the  case  of  any  person  sui  juris.^^  Her  death  will  revoke  such 
an  agency.®*  As  such  he  may  perform  for  her  all  the  usual  serv- 
ices without  compensation,  without  subjecting  her  property  to  his 
debts.®^  Under  the  Alabama  Married  Women's  Act,  authorizing 
spouses  to  dispose  of  her  separate  estate  by  parol,  she  may  author- 
ize him  to  vote  her  stock  in  a  corporation.^®  In  Missouri  she  can- 
not have  an  agent,  even  her  husband,  as  to  land  owned  by  her  in 
fee." 

§  377.  Scope  of  Agency  in  General. 

The  general  principles  of  the  law  of  agency  apply  to  cases  where 
parties  are  husband  and  wife,^*  and  when  she  makes  him  her 
agent  she  is  bound  by  his  acts  within  the  scope  of  his  authority,*' 
whether  the  fact  of  agency  is  disclosed  or  not.®°  A  married  woman 
cannot  give  to  any  agent  a  power  which  she  does  not  herself  possess 
as  to  her  separate  estate.®^  She  may  give  him  a  power  of  attorney 
and  require  him  to  pursue  its  terms  carefully.®^  And  the  wife 
may  employ  other  agents,  who  will  not  be  held  answerable  to  him 
for  executing  her  orders.^ 


93 


mercial  Bank  v.  Newton,  117  Mich. 
433,  75  N,  W.  934,  5  Det.  Leg.  N. 
276;  Eankin  v.  West,  25  Mich.  195; 
City  of  Joplin  ex  rel.  Kee  v.  Freeman, 
125  Mo.  App.  717,  103  S.  W.  130; 
Stout  V.  Perry,  152  N.  C.  312,  67  S. 
E,  757;  Taplin  &  Eowell  v.  Clark 
(Vt.),  95  A.  491;  Dickey  v.  Vaughn 
(Ala.),  73  So.  507;  Nigh  v.  Dovel,  84 
111.  App.  228;  Wasam  v.  Kabeil,  45 
Ind.  App.  221,  90  N.  E.  636;  Baze- 
more  v.  Mountain  121  N.  C.  59;  Trap- 
nell  V.  Conklyn,  37  W.  Va.  242,  16 
S.  E.  570;  Harris  v.  Weir-Shugart  Co., 
51  Neb.  483,  70  N.  W.  1118. 

83.  Stout  V.  Perry,  152  N.  C.  312, 
67  S.  E.  757;  Barber  v.  Keeling 
(Tex.),  204  S.  W.  139. 

84.  Strong  v.  Gambler,  155  App. 
Div.  294;  140  N.  Y.  S.  410. 

85.  Torrey  v.  Dickinson,  213  111.  36, 
72  N.  E.  703;  Gibson  v,  Kimmit,  113 
111.  App.  611. 

86.  Hoene  v.  Pollak,  118  Ala.  617, 
24  So.  349,  72  Am.  St.  E.  189, 

87.  Spurlock  v.  Dornan,  182  Mo. 
242,  81  S.  W.  412. 

88.  Eunyoon  v.  Snell,  116  Ind.  164, 


18  N.  E.  522,  9  Am.  St.  E.  839;  Eoper 
V.  Cannel  City  Oil  Co.  (Ind.),  121  N. 
E.   96 

89.  Thompson  v.  Brown,  106  la. 
367,  76  N.  W.  819;  Meylink  v.  Ehea, 
123  la.  310,  98  N.  W.  779;  Thomas 
V.  Equitable  Building  &  Loan  Assn., 
215  Pa.  259,  64  A.  531;  Swatts  v. 
Harrison,  19  Ga.  App.  217,  91  S.  E. 
337;  Western  Carolina  Eealty  Co.  v. 
Eumbough,  18  N.  C.  641,  9^0  S.  E. 
931 ;  Bank  of  Kenton  v.  Preble,  87  Ore. 
230,  170  P.  302;  Leppel  v.  Engle- 
kamp,  12  Colo.  App.  79,  54  P.  403. 
Where  a  husband,  while  collecting  rent 
of  his  wife's  tenant,  and  in  her  ab- 
sence, committed  an  assault,  the  wife 
could  not  be  held  liable  therefor  in 
the  absence  of  proof  that,  in  appoint- 
ing her  husband  her  agent,  she  acted 
of  her  own  free  will.  O 'Carroll  v. 
Stark,  85  N.  J.  Law,  438,  89  A.  989. 

90.  Williamson  v.  O  'Dwyer  &  Ahem 
Co.,  127  Ark.  530,  192  S.  W.  899. 

91.  Kenton  ins.  Co.  v.  McClellan,  43 
Mich.  564. 

92.  Nash  v.  Mitchell,  71  N.  Y.  199. 

93.  Southard  v.  Plummer,  36  Me.  64. 


397  STATUTORY  SEPARATE  ESTATE.  §  378 

The  undoubted  right  of  the  wife,  on  general  principles,  to  treat 
her  husband  as  the  trustee  of  her  separate  property,  has  given  rise, 
under  the  Married  Women's  Acts,  to  perplexing  questions  as 
between  herself  and  his  creditors.  In  Xew  York,  her  privileges 
in  this  respect  are  carried  very  far;  for  she  may  employ  her 
husband  as  her  managing  agent  to  control  her  property,  without 
subjecting  it  to  the  claim  of  his  creditors;  the  application  of  an 
indefinite  portion  of  the  income  to  his  support  does  not  impair  her 
title  to  the  property ;  and  neither  he  nor  his  creditors  will  acquire 
an  interest  in  the  property  through  his  services  thus  rendered."* 
In  Illinois,  too,  it  is  well  recognized  that  the  wife  may  make  her 
husband  her  agent  to  collect  debts  due  her,  to  receive  from  others 
the  income  of  her  estate,  and,  like  other  agents,  to  manage  and 
control  her  separate  property  in  her  name.®^  Such,  too,  is  the 
rule  of  certain  other  States,  to  the  practical  disadvantage  of  the 
hushand's  creditors,  as  well  as  for  the  wife's  protection  against 
her  husband.®®  In  Maine  the  husband  may  sue  for  damages  to 
his  wife's  separate  estate  while  managing  it  for  her.®^ 

§  378.  Scope  of  General  Agency. 

A  husband  who  is  general  agent  for  his  wife  in  the  construction 
of  her  building  has  implied  authority  to  make  changes  in  the 
building  contract,®*  and  may  bind  her  by  a  note  given  for  money 
which  is  expended  in  grain  deals.^  A  husband  who  has  general 
power  to  manage  his  wife's  land  may  bind  her  by  an  agreement 
with  other  land  owners  for  joint  drainage  of  the  lands.^  A  gen- 
eral  agency  will  not  bind  the  wife  by  his  fraud  in  making  a  con- 
veyance for  her  as  such  agent  where  their  interests  are  antag- 
onistic.^ '  A  general  power  of  attorney  by  a  wife  to  her  husband 
for  the  sale  of  her  stock  does  not  empower  him  to  apply  the  pro- 
ceeds to  his  debt,  or  warrant  the  vendee  in  doing  do,*  nor  to  bind 
her  by  notes.^     General  authority  to  manage  her  property  does  not 

94.  Buckley  v.  Wells,  33  N.  Y.  518;  1.  Buchanan  Elevator  Co.  v.  Lees 
Knapp  V.  Smith,  27  N.  T.  277.  (N.  D.),  163  N.  W.  264. 

95.  Patten  v.  Patten,  75  111.  446.  2.  Irwin  v.  Hoyt,  162  la.  679,  144  N. 

96.  Aldridge  v.  Muirhead,  101  U.  S.  W.  584. 

397;    Coleman    v.    Semmes,    56    Miss.  3.  Manship  v.  Newton  (S.  C),  89  S. 

321;  Wells  v.  Smith,  54  Ga.  262.  E.  467. 

97.  Woodman  v.  Neal,  48  Mc.  266.  4.  Wilson  v  Wilson -Rogers,  181  Pa. 
But  only  in  her  name,  in  accordance  80,  37  A.  117. 

with  statute.  5.  Morris  v.  Friend   (Ark.),  173  S. 

98.  Bryan  v.  Hunnicutt   (Ala.),  76       W.  199. 
So.  471. 


§  379 


HUSBAND    AND    WIFE. 


398 


imply  power  to  bind  her  by  a  purchase  of  other  property  of  like 
nature,"  or  to  apply  rents  to  improvements  or  the  payment  of 
taxes.^  A  wife  is  not  bound  by  the  husband's  agreement  establish- 
ing her  boundary  lines,  even  though  he  is  her  general  agent  in  the 
management  of  her  lands  and  business.® 

§  379.  Implied  Authority  as  Agent. 

If  a  wife  has  once  authorized  her  husband  to  act  for  her,  she 
will  continue  to  be  liable  for  his  acts  to  anyone  knowing  of  the 
agency  till  she  has  notified  such  person  of  its  termination." 
Authority  to  a  husband  to  sell  his  wife's  property  implies  author- 
ity to  receive  payment,^''  but  without  special  authority  a  husband 
acting  as  his  wife's  agent  cannot  accept  anything  but  money  in 
pajTuent  for  her  real  estate,"  nor  on  her  promissory  note,"  nor 
appropriate  the  money  received  to  his  own  use.^^  Her  indorse- 
ment of  a  promissory  note  to  his  order  is  sufficient  authority  for 
him  to  collect  it  for  her.^*  A  power  to  collect  money  for  a  wife 
does  not  give  power  to  make  a  gift  of  it  to  a  third  person.^^  Her 
authority  to  pledge  her  property  will  not  authorize  a  sale.^* 
Authority  to  a  husband  to  make  his  wife  a  definite  specified 
contract  does  not  empower  him  to  make  other  contracts  not 
specified,  though  in  relation  to  the  same  subject  matter,^'  as  where 
he  contracts  to  pay  a  commission  for  the  sale  of  her  land,  he  acting 
as  her  agent  for  the  sale.^*  Where  a  wife  intrusts  a  deed  to  her 
husband  for  delivery,  he  has  implied  power  to  make  reasonable 
stipulations  as  to  the  delivery  which  are  within  her  instructions 
and  not  in  fraud  of  her  rights.^®  A  husband  having  authority 
from  his  wife  to  build  a  barn  may  employ  a  contractor  and  author- 
ize him  to  procure  materials.^"     It  has  been  held  that  where  a 


78, 


560, 


336, 


6.  Du  Eose  v.  Gladden,  75  S.  C. 
55  S.  E.  152. 

7.  Taylor  v.    Taylor,    54   Ore. 
103  P.  524. 

8.  McCombs  v.  Wall,  66  Ark. 
50  S.  W.  876. 

9.  Howard  v.    Strawbridge   &  Clo- 
thier, 165  Ky,  88,  176  S.  W.  977. 

10.  Long  V.  Martin,  71  Mo.  App. 
r,69. 

11.  Runyon  v.  Snell,  116  Ind.  164, 
18  N.  E.  522,  9  Am.  St.  E.  839. 

12.  Carver  v.  Carver,  53  Ind.  241. 

13.  Reynolds  v.  Nat.  Bank  of  Com- 
merce (Kan.),  178  Pa.  605. 


14.  Stone  v.  Gilliam  Exch.  Bank,  81 
Mo.  App.  9. 

15.  Mitchener  v.  Frazer,  168  Mo. 
App.  265,  153  S.  W.  488. 

16.  Morgan  v.  Hays  (Tex.),  147  S. 
W.  315. 

17.  Crawley  v.  Watt-Holmes  Hard- 
ware Co.,  12  Ga.  App.  367,  77  S.  E. 
106. 

18.  Harnwell  v.  J.  D.  Arnold  &  Co., 
128  Ark.  10,  193  S.  W.  506. 

19.  Bott  V.  Wright  (Tex.),  132  S. 
W.  960. 

20.  Elliott  V.  Bodine,  59  N.  J.  Law, 
567,  36  A.  1038. 


399 


STATUTORY  SEPARATE  ESTATE. 


§  361 


husband  was  executor  under  a  will  containing  a  legacy  to  his  wife, 
and  under  which  she  was  trustee,  had  authority  to  employ  counsel 
and  other  assistance  in  the  management  of  the  estate  and  property, 
including  the  trust  estate.^^  The  marital  relation  gives  a  husband 
no  authority  to  consent  to  a  surgical  operation  on  the  wife,  as  ahe 
is  capable  of  consenting.^^ 

§  380.  Power  to  Bind  Wife  by  Declarations. 

The  general  rule  that  a  principal  is  bound  by  the  representations 
of  an  agent  as  to  existing  facts  in  regard  to  the  subject  matter  of 
the  agency  applies  to  a  wife's  agent.^^  Thus  delivery  to  a  hus- 
band of  a  note  made  by  the  wife  as  surety  is  authority  for  his 
delivery  of  it  and  to  bind  her  by  hds  representation  that  she  made 
it  as  principal,^*  and  where  he  manages  her  business  he  has  implied 
authority  to  make  representations  as  to  her  financial  condition.''* 
A  wife  is  bound  by  her  husband's  admission  when  he  acts  as  her 
agent,^®  but  not  otherwise."^  Declarations  not  made  at  the  time 
of  a  transaction,  and  disconnected  with  his  act  as  her  agent,  are 
not  admissible  in  evidence  against  her,  even  though  they  might  be 
as  against  himself.^^  An  authority  to  declare  that  a  wife  is  in 
partnership  with  her  husband  cannot  be  inferred  from  his  author- 
ity to  attend  generally  to  her  business. 


29 


§  381.  Evidence  of  Agency  in  General. 

The  husiband's  agency,  whether  created  under  suspicious  circum- 
stances or  not,  as  regards  the  public,  is,  like  other  agencies, 
a  matter  of  fact  for  legal  ascertainment  upon  all  the  proof. 
A  husband's  agency  to  act  for  his  wife  must  in  some  way  affirma- 
tively   appear.^"      The    fact    of    agency    must    be    clearly    estab- 


21.  Sowles  V.  Hall,  73  Vt  55,  50  A. 
550. 

22.  Pratt  v.  Davis,  224  111.  300,  79 
N.  E.  562,  7  L.  R.  A.  (N.  S.)  609. 

23.  Watring  v.  Gibson  (W.  Va.), 
100  S.  E.  68. 

24.  Wm.  Dcering  &  Co.  v.  Veal,  25 
Ky.  Law,  1809,  78  S.  W.  886. 

25.  Morris  v.  Posner,  111  la.  335, 
82  N.  W.  755. 

26.  Arnold  v.  Loomia,  170  Cal.  95, 
148  P.  518. 

27.  Lohrman  v.  Gnindler,  168  111. 
App.  161  ;  Ewing  v.  Gray,  12  Tnd.  64; 
Green  v.  Pearlstein,  213  Mass.  360, 100 


N.  E.  625;  Ricks  v.  Wilson,  154  N.  C. 
282,  70  S.  E.  476. 

28.  Livesley  v.  Lasalette,  28  Wig. 
38;  Warner  v.  Warren,  46  N.  Y.  228. 

29.  First  Nat.  Bank  v.  Loland,  122 
Ala.  289,  25  So.  195. 

30.  Dussoulas  v.  Thomas  (Del.),  65 
A.  590;  Axson  v.  Belt,  103  Ga.  578, 
30  S.  E.  262;  Blackstone  v.  Widin- 
camp,  145  Ga.  689,  89  S.  E.  745;  Wait 
V.  Baldwin,  60  Mich.  622,  27  N.  W. 
697,  1  Am.  St.  R.  551;  Slaughter  v. 
Elliott,  138  Mo.  App.  692,  119  S.  W. 
481;  Gucnthor  v.  Moffett  (N,  J.),  71 
A.    153;    Snyder   v.    Sloane,    65    App. 


§  382 


HUSBAND    AND    WIFE. 


400 


lished.^^  His  possession  of  her  property  is  some  evidence  of 
agency  to  deal  with  it,^^  but  it  is  not  conclusive,^^  as  is  her  per- 
mitting him  to  do  business  generally  in  her  name.^*  Where  the 
transaction  in  question  concerns  their  household  goods,  slight 
evidence  will  establish  the  fact  of  agency.^^  The  same  is  true 
where  his  acts  in  regard  to  her  property  tend  to  carry  out  her 
knovTn  wishes.^®  Under  the  Alabama  statute  a  wife  may  only  con- 
tract in  writing  with  her  husband's  written  consent,  and  therefore 
cannot  authorize  him  orally  to  act  as  her  agent.^^ 

§  382.  Burden  of  Proof. 

Persons  dealing  with  a  husband  as  his  wife's  agent  are  at  their 
peril  to  know  that  he  has  authority.^*  Therefore  the  burden  of 
proof  is  on  the  party  relying  on  such  agency.^"     It  may  be  shown 


Div.  543,  72  N.  Y.  S.  981;  Horaberger 
V.  Feder,  30  Misc.  121,  61  N.  Y.  S. 
865;  Hewey  v.  Andrews,  82  Ore.  448, 
161  P.  108;  True  v.  Cudd,  106  S.  C. 
478,  91  S.  E.  856;  Henderson  v.  State, 
55  Tex.  Cr.  640,  117  S.  W.  825;  Enslen 
V.  Allen,  160  Ala.  529,  49  So.  430. 
Under  the  Mississippi  Married  Wo- 
men's Act  a  husband  cannot  charge 
his  wife's  property  with  a  liability 
without  her  written  consent.  Fair- 
banks Co.  V.  Briley  (Miss.),  25  So. 
354. 

31.  Roper  v.  Cannel  City  Oil  Co. 
(Ind.),  121  N.  E.  96;  Mead  v.  Spald- 
ing, 94  Mo.  43,  6  S.  W.  384;  Long  v. 
Martin,  152  Mo.  668,  54  S.  W.  473; 
Farley  v.  Stroeh,  68  Mo.  App.  85; 
Elliott  V.  Bodine,  59  N.  J.  Law,  567, 
36  A.  1038;  Shesler  v.  Patton,  114 
App.  Div.  846,  100  N.  Y.  S.  286. 

32.  Furman  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.,  62  la.  395  (husband  possess- 
ing wife's  bills  of  lading). 

33.  Morse  v.  Kelsey,  156  App.  Div. 
946,  141  N.  Y.  S.  1132. 

34.  Highland  v.  Ice  (W.  Va.),  84  S. 
E.  252.  The  use  in  an  instruction  of 
the  words  ' '  habitual ' '  and  ' '  habitu- 
ally," to  qualify  the  alleged  conduct 
of  the  husband  in  dealing  with  his 
wife's  land,  did  not  require  the  hus- 
band's acts  to  be  so  often  repeated  as 
to  form  a  habit,  but  they  meant  that. 


if  the  wife  ratified  all  contracts  as- 
sumed to  have  been  made  by  the  hus- 
band, his  agency  might  be  implied. 
Marks  v.  Herren,  47  Ore.  603,  83  P. 
385.  Though  a  wife  knew  her  hus- 
band waa  trying  to  bring  about  a  sale 
of  her  property  and  it  was  within  her 
right  to  approve  any  sale  he  might  ar- 
range for  if  she  found  it  satisfactory, 
that  does  not  render  her  individually 
liable  to  compensate  brokers  engaged 
by  the  husband.  Bierkamp  v.  Beu- 
thien  (la.),  155  N.  W.  819. 

35.  Furman  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.,  62  la.  395,  17  N.  W.  598. 

36.  Simes  v.  Rockwell,  156  Mass. 
372,  31  N.  E.  484. 

37.  First  Nat.  Bank  v.  Leland,  122 
Ala.  289,  25  So.  195;  Reeves  v.  Mc- 
Neill, 127  Ala.  175,  28  So.  623. 

38.  Kenton  Ins.  Co.  of  Ky.  v.  Mc- 
Clellan,  43  Mich.  564,  6  N.  W.  88. 

39.  Colt  V.  Lawrenceburg  Lumber 
Co.,  44  Ind.  App.  122,  88  N.  E.  720; 
Davidson  v.  Slack,  143  la.  104,  120 
N.  W.  109;  State  ex  rel.  Armour  Pack- 
ing Co.  V.  Dickmann,  146  Mo.  App. 
396,  124  S.  W.  29;  Kuenzel  v.  Nichol- 
son, 155  Mo.  280,  56  S.  W.  1076; 
Speiss  V.  Weinberg,  27  Misc.  774, 
57  N.  Y.  S.  761;  Citizens'  Sav.  Bank 
&  Trust  Co.  v.  Jenkins  (Vt.),  99  A. 
250. 


401 


STATUTORY  SEPARATE  ESTATE. 


§  383 


by  any  evidence  from  which  agency  can  be  reasonably  and  logically 
inferred/"  if  the  evidence  fairly  indicates  that  his  acts  were  with 
her  knowledge  and  acquiescence.*^  The  evidence  should  be 
direct.*^  In  Missouri  it  is  said  that,  to  establish  an  agency  of 
the  husband  on  his  wife's  behalf,  the  evidence  must  be  more  cogent 
and  strong,  and  more  satisfactory  than  would  be  required  between 
persons  occuppng  different  positions,*^  especially  where  the  con- 
tract is  to  manage  her  separate  estate  and  calls  for  compensation 
to  him  for  services  which  the  relation  obliges  him  to  do  for  noth- 
ing." It  may  be  established  by  circumstantial  evidence,*^  but  it 
need  not  usually  be  in  writing.*®  Her  silence  when  in  her  pres- 
ence he  makes  a  contract  for  her  is  usually  sufficient  evidence  of 
agency.*^  Her  failure  to  object  when  she  has  knowledge  of  his  deal- 
ings with  her  property  as  her  agent,*®  or  where  the  facts  put  her  on 
inquiry  to  learn  his  acts,  are  both  evidence  of  agency.*^  The  wife's 
denial  of  the  fact  of  agency  may  be  controlled  by  other  evidence, 
including  her  previous  inconsistent  declarations.®" 

§  383.  Presumptions. 

No  presumption  of  such  agency  arises  merely  from  the  fact  of 
the  relation."     The  courts  in  Illinois  go  so  far  as  to  hold  that  the 

40.  Lunge  v.  Abbott,  114  Me.  177, 
95  A.  942;  Bigelow  v.  Woolverton,  65 
Misc.  178,  119  N,  Y.  S.  630. 

41.  Chamberlain  v.  Brovm,  141  la. 
540,  120  N.  W.  334;  Newton  Centre 
Trust  Co.  V.  Stuart,  201  Mass.  288, 
87  N.  E.   630. 

42.  Cox  T.  St.  Louis,  M.  &  S.  E.  Ey. 
Co.,  Ill  Mo.  App.  394,  85  S.  W.  989. 

43.  Brown  v.  Daugherty,  120  F.  526; 
Brown  v.  Connecticut  Fire  Ins.  Co., 
197  Mo.  App.  317,  195  S.  W.  62; 
Eystra  v.  Capelle,  61  Mo.  578.  See, 
further,  Aldridge  v.  Muirhead,  101  TJ. 
S.  397;  Paine  v.  Farr,  118  Mass.  74; 
Beutel  V.  Standau,  7  Kan.  App.  813, 
53  P.  836. 

44.  In  re  Simonson  's  Estate,  164 
"Wis.  590,  160  N.  W.  1040. 

45.  Bauer 's  Law  &  Collection  Co.  v. 
Berthiaume,  21  Cal.  App.  670,  132  P. 
596. 

46.  Lister  v.  Vowell,  122  Ala.  264, 
25  So.  564;  Long  v.  Martin,  152  Mo. 
668,  54  8.  W.  473;  Stenson  v.  Lan- 
caster, 178  Mo.  App.  340,  165  S.  W. 

26 


1158;    Burchett    v.    Hamill,    5    Okla. 
300,  47  P.  1053. 

47.  Foertsch  v.  Germuiller,  9  App. 
D.  C.  351;  Shimer  v.  Ronk,  139  App. 
Div.  137,  123  N.  Y.  S.  479 ;  Kissinger 
V.  Jacobs,  113  N.  Y.  S.  819;  Laycock 
V.  Parker,  103  Wis.  161,  79  N.  W. 
327. 

48.  Brooks  v.  Greil  Bros.  Co.  (Ala.), 
81  So.  549;  Journal  Pub.  Co.  v.  Bar- 
ber, 165  N.  C.  478,  81  S.  E.  694; 
Barry  v.  Stover,  20  S.  D.  459,  107  N. 
W.  672;  Horr  v.  Hollis,  20  Wash. 
424,  55  P.  565;  Shanks  &  March  v. 
Michael,  4  Cal.  App.  533,  88  P.  596. 

49.  Phillips  V.  PhiUips,  163  Cal.  530, 
127  P.  346. 

50.  Korf  V.  Korf,  125  Mich.  259,  84 
X.  W.  130,  7  Det.  Leg.  N.  491. 

51.  Furman  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.,  62  Ta.  395,  17  N.  W.  598; 
Detroit  Lumber  Co.  v.  ClcfF,  164  Mich. 
276,  128  N.  W.  231,  17  Det.  Leg.  N. 
878;  J.  L.  Thompson  Co.  v.  Coats, 
174  N.  C.  193,  93  S.  E.  724;  Bryan  v. 
Orient   Lumber   &   Coal   Co.    (Okla.t, 


§  384 


HUSBAND    AND    WIFE. 


402 


husband's  dealings  with  his  wife's  separate  property  will  now  be 
presumed,  in  the  absence  of  proof  to  the  contrary,  to  be  in  the 
character  of  agent,  even  as  to  the  proceeds  and  income  thereof; 
and  hence  rendering  him  liable  to  account  like  other  agents,  with 
allowance  of  his  reasonable  compensation,  but  so  as  to  require  him 
to  establish  any  claim  he  may  make  of  a  gift  or  legal  transfer  to 
him,  by  due  proof  that  the  wife  so  assented  and  understood;  in 
short,  that  the  common-law  rights  of  the  husband  to  the  wife's 
property  are  swept  away.^^  But  in  such  a  presumption  other 
States  by  no  means  concur.  The  fact  that  the  acts  of  the  husband 
as  agent  were  done  with  the  wife's  knowledge  and  concurrence  will 
raise  a  presumption  of  agency, ^^  but  it  has  been  held  that  his 
cultivation  of  her  lands  will  not  raise  such  a  presumption.'* 
Under  the  Arkansas  statute  making  the  husband  having  the  control 
of  the  wife's  separate  property  presumptively  her  agent,  there  is 
an  implication  of  agency  where  the  wife  accepts  the  benefits  of 
his  acts  as  such.^^ 


§  384.  Admissibility  of  Evidence. 

The  husband's  testimony  is  competent  on  the  question  of  hid 
agency,^®  even  though  the  wife  was  present  at  the  transaction," 
but  it  is  not  conclusive,   especially  where  the  wife  denies  the 


156  P.  897;  Eed  Eiver  Nat.  Bank  v. 
Bray  (Tex.),  132  S.  W.  968;  (1909) 
Stroter  v.  Brackenridge,  102  Tex.  386, 
118  S.  W.  634;  Wagoner  v.  Silva,  139 
Cal.  559;  Steele  v.  Gold  Fissure  Gold 
Min.  Co.,  42  Colo.  529,  95  P.  349; 
Rheam  v.  Martin,  26  App.  D.  C.  181 ; 
McLeod  V.  Poe,  142  Ga.  254,  82  S.  E. 
663;  Woodward  v.  Fuller  (Ga.),  88 
S.  E.  974;  Van  Kleeck  v.  Channon, 
175  111.  App.  626;  Turgrimson  v. 
Wahl,  169  ni.  App.  462;  Brown  v. 
Honeyfield,  139  la.  414,  116  N.  W. 
731;  Bianchi  v.  Del  Valle,  117  La. 
587,  42  So.  148;  Harvey  v.  Squire, 
217  Mass.  411,  105  N.  E.  355;  Sut- 
ton V.  Brekke,  117  Minn.  519,  34  N. 
W.  289;  Baker  v.  Thompson,  214  Mo. 
500,  114  S.  W.  497;  McCollum  v. 
Boughton,  132  Mo.  601,  30  S.  W.  1928, 
U  S.  W.  476,  34  S.  W.  480,  35  L.  R.  A. 
480;  Henry  v.  Sneed,  99  Mo.  407,  12 
R.  W.  663,  17  Am.  St.  R.  580;  Francis 
V.   Reeves,   137  N.   C.   269,  49  S.  E. 


213;  Sciolaro  v.  Asch,  137  App.  Div. 
667,  946,  122  N.  Y.  S.  518;  Garber  v. 
Spivak,  114  N.  T.  S.  762;  Clarke  v. 
Wells,  83  Misc.  93,  144  N,  Y.  S.  629; 
Cushman  v.  Masterton  (Tex.),  64  S.  W. 
1031;  Fulton  Bank  v.  Mathers  (la.), 
166  X.  W.  1050;  Crane  v.  Ross,  168 
Mich.  623,  135  N.  W.  83. 

52.  Patten  v.  Patten,  75  111.  446. 

53.  Bankard  v.  Shaw,  199  Pa.  623, 
49  A.  230. 

54.  Jones  v.  Harrell,  110  Ga.  373, 
35  S.  E.  690;  Carolina  Chemical  Co. 
V.  Wisenbaker,  18  Ga.  App,  528,  89 
S.  E.  1053. 

55.  American  Exp.  Co.  v.  Lankford, 
2  Ind.  T.  18,  46  S.  W.  183. 

56.  Rogers  v.  Smith,  184  Ala.  506, 
63  So.  530;  Christian  v.  Smith,  85 
Mo.  App.  117;  Lake  Grocery  Co.  v. 
Chiostri,  34  N.  D.  386,  158  N.  W.  998. 

57.  Chicago,  R.  I.  &  P.  Ry.  Co.  ▼. 
Cotton  (Okla.),  162  P.  763. 


403 


STATUTORY  SEPARATE  ESTATE. 


§  385 


agency/^  Evidence  of  similar  previous  transactions  in  which  ho 
is  shown  to  have  been  authorized  to  act  as  agent  are  not  of  them- 
selves sufficient  to  establish  the  agency  in  the  particular  case,''  but 
are  competent  as  tending  to  prove  agency.®"  Evidence  that  a  wife 
had  given  directions  how  she  wanted  a  house  built  is  not  competent 
in  an  action  on  a  contract  made  by  her  husband  for  materials  for 
the  house,  to  prove  his  agency.®^  In  an  action  against  a  wife  to 
charge  her  for  overdrafts  by  her  husband  as  her  agent,  evidence  of 
contracts  for  the  purchase  of  property  by  him  in  which  she  partici- 
pated was  held  competent  as  tending  to  show  an  agency  in  regard 
to  her  bank  account.®^ 

§  385.  Estoppel  to  Deny  Agency. 

Where  the  wife  has  permitted  her  husband  to  deal  with  her 
property  as  her  agent,  she  may  be  estopped  to  deny  his  authority 
where  he  exceeds  it,®^  and  though  his  act  results  in  damage  to  her,®* 
unless  she  shows  that  (he  creditor  knew  that  the  agency  was  lim- 
ited.®^ She  may  be  liable  for  his  contracts  for  materials  for  finish- 
ing her  dwelling  house  where  he  acted  as  agent  and  parties  believed 
him  to  be  the  owner.®®  The  mere  fact  that  a  wife  gets  the  benefit 
of  goods  bought  by  her  husband  in  her  name  will  not  of  itself  make 
her  liable  for  the  price,®^  but  where  such  is  the  fact,  slight  evidence 


58.  Drake  v.  Drake,  142  Wis.  602, 
126  N.  W.  19;  Just  v.  State  Sav. 
Bank,  132  Mich.  600,  94  N.  W.  200, 
10  Det.  Leg.  N.  36. 

59.  Nunn  v.  Carroll,  83  Mo.  App. 
135. 

60.  Hawkins  v.  Windhorst,  77  Kan. 
674,  96  P.  48;  Eahm  v.  Newton,  87 
Minn.  415,  92  N.  W.  408. 

61.  Eussell  T.  Stoner,  18  Ind.  App. 
543,  47  N.  E.  645. 

62.  First  Commercial  Bank  v.  New- 
ton, 117  Mich.  433,  75  N.  W.  924,  5 
Det.  Leg.  N.  276. 

63.  Brookes  v.  Griel  Bros.  Co.,  179 
Ala.  459,  60  So.  387;  Class  v.  Cincin- 
nati Tobacco  "Warehouse  Co.,  142  Ky. 
505,  134  S.  W.  897;  Corn  v.  Meredeth, 
160  Kj.  677,  170  S.  W.  22;  Maxcy, 
&c.,  Co.  V.  Bumham,  89  Me.  538,  36 
A.  1003,  56  Am.  St.  R.  436;  Cannon  v. 
Bannon,  136  N.  Y.  S.  139;  Gleason  v. 
Bell,  91  Ohio  St.  268,  110  N.  E.  513; 


Co.,  85  Vt.  167,  81  A.  613;  Barry  v. 
Stover,  20  S.  D.  453,  107  N.  W.  672; 
Do\vning  v.  Lewis,  59  Neb.  38,  80  N. 
W.  261  (where  wife  permitted  hus- 
band to  receive  joint  consideration). 
Where,  with  knowledge  of  wife,  a  deed 
by  third  person  to  her  was  delivered 
to  husband,  who  recorded  it  with  her 
knowledge  and  consent,  it  was  held 
there  was  sufficient  evidence  to  war- 
rant the  conclusion  of  a  delivery  to 
and  acceptance  by  the  wife.  Battle  v. 
Claiborne  (Tenn.),  ISO  S.  W.  584. 

64.  Camrcn  v.  Squires,  174  Mo.  App. 
272,  156  S.  W.  773. 

65.  I\rcMuUen  v.  Ritchie,  64  F.  522 
(mod.,  79  F.  522,  25  C.  C.  A.  50.) 

66.  Maxcy  Mfg.  Co.  v.  Bumham,  89 
Me.  538,  36  A.  1003,  56  Am.  St.  R. 
436;  Friedman  v.  D'Amico,  123  N. 
T.  S.  953. 

67.  Hightower  v.  Walker,  97  Ga. 
748,   25   S.  E.   386.  Porter  v.   Terrell, 


McLean  v.  Windham  Light  &  Lumber       2  Ga.  App.  269,  53  S.  E.  493. 


§  386 


HUSBAND    AXD    WIFE. 


404 


will  be  sufficient  to  establish  his  agency,**  such  as  the  fact  that  the 
wife  learned  of  the  transaction  and  caused  certain  alterations  to  be 
made  in  the  work.®*  She  cannot  reap  the  benefit  of  his  acts  and 
claim  she  did  not  know  that  they  were  fraudulent'**  Where  a  wife 
permitted  her  husband  to  pawn  her  jewelry  in  his  name  and  author- 
ized him  to  redeem  it,  he  has  sufficient  apparent  authority  to 
authorize  a  third  person  to  redeem  and  hold  it  as  security  for  the 
amount  advanced.'^  Where  a  wife  permitted  her  husband,  a  note 
broker,  to  take  and  transfer  notes  and  securities  in  her  name,  she 
was  held  bound  by  his  act  in  receiving  payment  from  a  mortgagor 
who  had  executed  a  non-negotiable  note  and  mortgage  to  her, 
which  her  husband  transferred  to  another.'^  A  wife  cannot  take 
the  benefit  of  part  of  an  unauthorized  contract  made  by  her  hus- 
band, and  repudiate  the  balance,'^  nor  can.  she  escape  liability  for 
his  fraudulent  conduct  as  her  agent  by  denying  his  agency  where 
she  takes  the  benefit  of  the  contract.'^*  She  will  be  estopped  to 
deny  his  agency  to  raise  money  for  her  benefit  where  she  gives  him 
negotiable  securities  for  the  purpose.'^  Where  a  wife  for  twenty 
years  had  permitted  her  husband  to  control  her  real  estate  and  to 
appropriate  the  rents,  she  was  held  estopped  to  claim  rent  notes 
which  he  had  taken  in  his  own  name  and  assigned  to  a  bona  fide 
holder  for  value.^*  A  wife  is  not  estopped  to  deny  her  husband's 
agency  by  the  mere  fact  that  she  has  permitted  him  to  manage  her 
land  and  dispose  of  the  products.'^ 

§  386.  Ratification  in  General. 

It  would  appear  that  in  general  the  agency  of  the  husband  in 
selling,  exchanging,  or  managing  his  wife's  separate  statutory 
property  may  be  previously  conferred  or  ratified  afterwards  by 


68.  Pinkston  v.  Cedar  Hill  Nursery 
&  Orchard  Co.,  123  Ga.  302,  51  S.  E. 
387 ;  Home  Fertilizer  &  Chemical  Co. 
V.  Dickerson,  12  Ga.  App.  149,  76  S. 
E.  1040. 

69.  In  re  Berkebile,  144  F.  572; 
Holden  v.  Kutscher,  17  Misc.  540,  40 
N.  T.  S.  737;  Whipple  v.  Webb,  101 
App.  Div.  612  (building  control),  92 
N.  Y.  S.  1150. 

70.  Allen  v.  Garrison,  92  Tex.  546, 
50  S.  W.  335;  Barber  v.  Keeling 
(Tex.),  204  S.  W.  139. 

71.  Lesser  v.  Steindler,  110  App. 
T)iv.  262,  97  N.  Y.  S.  255. 


72.  Barry  v.  Stover,  20  S.  D.  459, 
107  N.  W.  672. 

73.  Chamberlain  v.  Brown,  141  la. 
540,  120  N.  W.  334;  Smith  v.  Oli- 
varri    (Tex.),  27  S.  W.  235. 

74.  Watring  v.  Gibson  (W.  Va.), 
100  S.  E.  68. 

75.  Gardner  v.  Hughes  (Ark.),  206 
S.  W,  678;  Whitaker  v.  Lee  (Tenn.), 
57  S.  W.  348. 

76.  Brooks  v.  Greil  Bros.  (Ala.),  81 
So.  549. 

77.  Saunders  v.  King,  119  la.  291, 
93  N.  W.  272. 


405 


STATUTORY  SEPARATE  ESTATE. 


§  387 


the  wife/*  but  only  where  the  husband  represents  himself  as  her 
agent/*  Katification  of  his  unauthorized  acts  as  attorney  may  be 
presumed  in  some  instances  by  her  acts  and  conduct;  to  his  vio- 
lation of  private  instructions  should  apply  the  usual  rules ;  ®°  but 
evidence  to  bind  the  principal  should  perhaps  be  stronger  where 
a  wife  is  concerned  than  in  the  ordinary  case  of  an  agent.®^  The 
party  relying  on  a  ratification  has  the  burden  of  showing  it/^ 

§  387.  What  Constitutes  Ratification. 

In  an  action  wherein  plaintiff  relied  on  a  wife's  ratification  of 
her  husband's  unauthorized  contract,  it  was  held  error  to  refuse 
an  instruction  as  to  what  constituted  a  ratification.*^  The  follow- 
ing facts  have  been  held  to  operate  as  a  ratification :  participation 
in  her  husband's  unauthorized  building  contract  in  her  name ;  ** 
execution  of  a  deed  to  carry  out  her  husband's  unauthorized  con- 
tract to  sell  her  land ;  ®^  disposal  of  part  of  the  property  she 
secures  by  his  contract ;  *'  occupation  of  land  to  the  line  agreed 
on  by  him ;  *'  knowledge  of  his  unauthorized  act  and  her  failure 
to  repudiate  it ;  ®*  a  promise  to  pay  for  materials  bought  by  him 
for  use  on  her  land ;  ®^   giving  a  note  in  payment  for  goods  unau- 


78.  Lichtenberger  v.  Graham,  50  Ind. 
288;  Young  v.  Inman  &  Nelson,  146 
la.  492,  125  N.  W.  177;  Black  v. 
McQuaid  (N.  J.),  68  A.  102;  Lichten- 
berger V.  Graham,  50  Ind.  288.  See 
§  455. 

79.  Delaware  &  Atlantic  Telegraph 
&  Telephone  Co.  v.  Jordan  (Del.),  78 
A.  401;  Steward  v.  Church,  108  Me. 
83,  79  A.  11.  But  see,  contra,  Kuen- 
zel  V.  Nicholson,  155  Mo.  280,  56 
8.  W.  1076. 

80.  Griffin  v.  Eansdell,  71  Ind.  440 ; 
Jordan  v.  Delaware  &  A.  Telegraph 
&  Telephone  Co.  (Del.),  75  A.  1014. 

81.  Ladd  v.  Hildebrant,  27  Wis. 
135;  Wells  v.  Thorman,  37  Conn.  318; 
McLaren  v.  Hall,  26  la.  297;  Lichten- 
berger V.  Graham,  50  Ind.  288;  Mer- 
rill V.  Parker,  112  Mass.  250.  And 
see  Chappell  v.  Boyd,  61  Ga.  662. 

82.  Sanders  v.  Brown,  145  Ala.  665, 
39  So.  732. 

S3.  Morrill  v.  McNeiU,  74  Neb.  291, 
104  N.  W.  105. 

84.  In  re  Berkebile,  144  F.  572. 

85.  Schader  v.  White,  173  Cal.  441, 


160  P.  557;  Czarnecki  v.  Derecktor, 
81  Conn.  339,  71  A.  354;  Coonrod  v. 
Studebaker,  53  Wash.  32,  101  P.  489; 
Nugent  V.  City  of  New  York,  58 
Misc.  453,  111  N.  Y.  S.  438;  Heine- 
mann  v.  Sullivan,  57  Wash.  346,  106 
P.  9'11. 

86.  Hoene  v.  Pollak,  118  Ala.  617, 
24  So.  349,  72  Am.  St.  R.  189;  An- 
tony V.  Dickel,  167  N.  Y.  539,  60 
N.  E.  1106. 

87.  Matthews  v.  French,  194  Mo. 
553,92  8.  W.  634. 

88  Santa  Cruz  Rock-Pavement  Co. 
V.  Lyons,  133  Cal.  114,  65  P.  329; 
Richards  v.  John  Spry  Lumber  Co., 
169  111.  238,  48  N.  E.  63;  Bethea  v. 
Beaufort  County  Lumber  Co.  (8.  C), 
96  S.  E.  717. 

89.  Vetault  v.  Kennedy,  178  App. 
Div.  228,  165  N.  Y.  8.  203.  It  was 
held  otherwise  where  in  the  case  of  a 
contract  for  materials  she  had  given 
him  the  money  to  pay  cash  and  did 
not  know  of  the  sale  on  credit.  Young 
V.  Swan,  100  la.  323,  69  N.  W.  566. 


§  388 


HUSBAND   AND    WIFE. 


406 


tliorizedlj  purchased  for  her  by  him ;  ®**  giving  testimony  in  an 
action  brought  by  the  husband  to  enforce  an  unauthorized  con- 
tract; °^  claiming  rent  under  a  lease  made  by  a  husband  without 
authority."^  Where  she  accepts  the  benefit  of  his  unauthorized 
fraudulent  acts  she  ratifies  the  acts  and  becomes  liable  for  the 
fraud.®^  Bringing  action  on  an  insurance  policy  will  ratify  state- 
ments of  her  husband  as  her  agent  made  in  the  application.*^ 
Mere  silence,  of  itself,  will  not  operate  as  a  ratification,®^  but  the 
inference  of  ratification  is  more  easily  drawn  from  that  fact  when 
parties  are  spouses  than  in  other  cases."  Where  a  husband  took 
title  to  her  land  in  his  own  name,  it  was  held  that  her  acquiescence 
for  five  years  with  knowledge  of  the  fact  and  acceptance  of  the 
application  of  the  land  to  her  debts  was  a  sufficient  ratification.*^ 
Where  a  husband  accepted  a  payment  from  a  debtor  of  his  wife's 
who  was  in  default  in  his  payments  on  a  contract  to  sell  land,  it 
was  held  that  her  failure  to  refund  the  payments  opverated  as  a. 
ratification  of  his  waiver  of  the  default®*  The  immediate  return 
of  goods  unauthorizedly  purchased  for  a  wife  by  a  husband,  the 
package  being  unopened,  has  been  held  a  good  repudiation."" 
Though  the  Missouri  Married  Women's  Act  requires  the  written 
consent  of  a  wife  to  enable  her  husband  to  lease  her  land,  she  may, 
after  divorce  or  his  death,  effectively  ratify  a  lease  made  by  him^^ 
without  such  assent.^ 


§  388.  Rights  to  Recover  for  Improvements. 

Generally  a  husband  cannot  recover  for  improvements  made  by 
him  on  his  wife's  land  during  coverture  without  an  express  agree- 
ment that  he  is  to  be  repaid  for  them,^  nor  for  money  paid  for  land 


90.  Norton  v.  Birmingham  Fertilizer 
Co.  (Ala.),  74  So.  97;  Swearingen  v. 
Virginia-Carolina  Chemical  Co.,  19 
Ga.  App.  658,  91  S.  E.  1050. 

91.  Harrington  v.  GisB,  45  Mich. 
374,  8  N.  W.  87. 

92.  Shull  V.  Cummings,  174  Mo. 
App.  569,  161  S.  W.  360. 

93.  Quarg  v.  Scher,  136  Cal.  406, 
69  P.  96;  Atherton  v.  Barber,  113 
Minn.  523,  128  N.  W.  827;  Bell  v. 
Jones,  151  N.  C.  85,  65  S,  E.  646; 
Lewis  V.  Hoeldtke  (Tex.),  76  S.  W. 
309;  Watring  v.  Gibson  (W.  Va.), 
100  S.  E.  68;  Barber  v.  Keeling 
(Tex.),  204  S.  W.  139. 


94.  Queen  of  Arkansas  Ins.  Co.  v. 
Dumas  (Ark.),  168  8.  W,  561. 

95.  Kelly  v.    Cook    (Ala.),  73   Bo. 
220. 

96.  Bethea    v.     Beaufort     County 
Lumber  Co.  (S.  C),  95  S.  E.  717. 

97.  Thompson  v.   Stringfellow,   119' 
Ala,  317,  24  So.  849. 

98.  Robberson    v.    Clark,    173    Mo. 
App,  301,  158  S.  W,  854. 

99.  National  Perfume  Co,  v,  Jacob- 
Bon,  137  N.  Y.  S.  856. 

1,  Shull  V,  Cummings,  174  Mo,  App, 
569,  161  S.  W.  360, 

2,  Larson  v.  Carter,  14  Ida,  511,  94 
P.   825;   Eeuter  v,   Stuekart,   181  111. 


407  STATUTORY  SEPARATE  ESTATE.  §  389 

to  whicli  title  is  taken  in  her  name,'  even  though  he  has  authority 
to  manage  and  control  her  land,*  especially  where  he  receives  the 
rents  and  profits,^  or  where  under  a  joint  conveyance  he  takes  the 
entire  title  by  survivori^hip.^  It  is  presumed  that  they  are  a  gift 
to  her,'  and  that  he  is  reimbursed  by  the  use  and  enjoyment  of  the 
land.*     Such  improvements  become  her  separate  estate.® 

It  has  been  held  otherwise  where  he  purchased  land  with  hia 
own  money  and  took  title  in  her  name  on  a  void  contract  with  her 
that  he  should  have  a  half  interest  in  case  of  her  death,  and  where 
he  afterward  improved  such  property,^"  and  also  where  in  making 
the  improvements  he  honestly  believed  that  he  was  improving  his 
own  land.^^  Her  express  promise  to  reimburse  him  for  improve- 
ments will  not  be  enforced  where  rents  and  profits  received  by  him 
have  already  done  so.^^  Where  a  wife  sues  to  set  aside  a  deed  to 
him,  the  court  may  make  such  allowance  for  his  improvements  as 
will  adjust  the  rights  of  the  parties.^' 

§  389.  To  Recover  for  Services. 

A  wife  may  validly  employ  her  husband  to  render  services  to 
her,  either  with  or  without  compensation,^*  but  without  a  special 
agreement  his  services  rendered  in  farming  her  land  will  not  give 
him  title  to  the  crops  or  render  them  subject  to  his  debts,^"*  nor 
can  he  recover  for  keeping  her  livestock  on  his  farm.^'     In  Vir- 

529,  54  N.   E.   1014;   Rau   v,  Rowe'fl  P.  1012;  Hood  v.  Hood,  83  N.  J,  Eq. 

Adm'x,  168  Ky.  704,  182  S.  W.  846;  695,  93  A  797. 

Carpenter  v.  Hazelrigg,  103  Ky.  538,  10,  Stroud  v.  Ross,  118  Ky.  630,  26 

20  Ky.  Law,  231,  45  S.  W.  666;  Curd  Ky.  Law,  521,  82  S.  W.  254;  but  see, 

T.  Brown,  148  Mo.  82,  49  S.  W.  990;  contra,  Miller  v.  Miller,  156  Ky.  267, 

Holman  v.  Holman  (Mo.),  183  S.  W.  160  S.  W.  923. 

•23.  11.  Anderson  v.  Anderson  (N.  C), 

8.  Woodard  v.  Woodard,   148   Mo.  99  S.  E.  106. 

£41,  49  S.  W.  1001.  12.  Nail  v.  Miller,  95  Ky.  448,  15 

4.  Larson  v.  Carter,  14  Ida.  511,  94  Ky.  Law  862,  25  S.  W.  1106. 

P.  825.  13.  Fay  v.  Fay,  165  Cal.  469,  132 

5.  Watkina  v.  Watkins   (Tex.),  119       P.  1040. 

8.  W.  145.  14.   Bank   of  Tipton  v.  Adair,  172 

6.  Friedrieh  v.  Huth,  155  Wis.  196,       Mo.  156,  72  S.  W.  510. 

144  N.  W.  202.  15.   Fink  v.  McCue,  123  Mo.   App. 

7.  Kearney  v.  Vann,  154  N.  C.  311,  313,  100  S.  W.  549;  Pocomoke  Guano 
70  S.  E.  747;  Nelson  v.  Nelson  (N.  Co.  v.  Colwell  (N.  C),  98  S.  E.  535; 
C),  96  S.  E.  986;  Scheiner  v.  Arnold,  Olson  v.  O 'Conner,  9  N.  D.  504,  84 
142  Wis.  564,  126  N.  W.  17.  N.  W  359,  81  Am.  St.  R.  595;  Thurs- 

8.  Ketterer  v.  Nelson,  146  Ky.  7,  ton  v.  Osborne-Mc^nilan  Elevator  Co., 
141  S.  W.  409.  13  N.  D.  r,08,  101  N.  W.  892. 

9.  Shaw  V.  Bernal,  163  Cal.  262,  124  16.  Smith's  Ex 'r  v.  Johns,  154  Ky. 

274,    157   S.  W.   21. 


§  391  HUSBAND  AND  WIFE.  408 

ginia  it  has  been  held  that  an  expectation  of  payment  for  services 
will  enable  a  husband  to  recover  for  them  without  an  express 
contract.^'' 

§  390.  To  Recover  for  Advances. 

A  husband  cannot  recover  for  money  advanced  to  pay  off  his 
wife's  mortgages/^  or  her  taxes,  even  though  he  was  acting  as 
executor  under  a  will  naming  her  as  residuary  legatee.^®  In  order 
to  recover  for  money  advanced  to  pay  a  wife's  debts  a  husband 
has  the  burden  of  showing  that  he  used  his  own  money.^**  In 
Louisiana  payment  of  a  wife's  note  and  mortgage  renders  him  her 
creditor,  but  without  subrogation,  as  the  payment  extinguishes  the 
mortgage.^^  In  the  same  State,  where  he  has  a  claim  against  her 
for  an  advance,  it  is  held  to  be  his  duty  to  apply  to  its  satisfaction 
money  received  by  him  from  her  inheritance,  and  not  to  wait  and 
prove  the  debt  against  her  succession.^^ 

§  391.  Liabilities;  For  Wife's  Money  Used  for  Necessaries. 

Again,  the  wife  is  permitted  to  bestow  her  statutory  separate 
property  upon  her  husband,  or  waive  her  statutory  rights  to  a  con- 
siderable extent.  Thus,  it  is  held  that  money  used  by  the  husband 
with  the  wife's  knowledge  and  consent,  in  payment  of  ordinary 
household  expenses  and  without  any  agreement  for  repayment  to 
her  on  his  part,  cannot  be  recovered  from  his  estate  afterwards,^' 
no  promise  to  pay  being  implied,  either  at  law  or  in  equity,^*  and 
the  wife's  consent  being  presumed.^^  Thus,  if  the  wife's  separate 
estate  is  received  by  the  husband  with  her  consent,  it  will  be  pre- 

17.   Browning's   Ex'r   v.   Browning       his  claim  for  the   enhanced  value  of 


(Va.),   36   S.  E.   108    (affd.,  reh.,   36 
S.  E.  525). 

18.  Vazis  V.  Zimmer  (Mo.),  209  S. 
W.  909. 

19.  Bean  v.  Bean,  135  N.  C.  92,  47 
S.  E.  232. 

20.  Gosnell  v.  Jones,  152  Ind.  638, 
53  N.  E.  381;  Morin  v.  Kirkland,  226 
Mass.  345,  115  X.  E.  414. 

21.  Aiken  v.  Eobinson,  52  La.  Ann. 
925,  27  So.  529, 

22.  Succession  of  Barrow,  118  La. 
1031,  43  So.  667.  If  a  husband  pend- 
ing his  marriage  expends  separate 
funds  of  his  own  on  the  separate  prop- 
erty of  his  wife,  and  is  by  her  will 


the  property  through  the  expenditures 
is  merged  in  the  acquisition  made  by 
him  under  the  will  of  the  property, 
and  if  the  forced  heir  of  the  wife  has 
the  legacy  reduced  to  the  wife 's  dis- 
posal portion,  the  claim  for  enhance- 
ment is  merged  to  the  extent  of  the 
interest  continued  to  be  held  by  the 
husband.  Succession  of  Barrow,  118 
La.  1031,  43  So.  667. 

23.  Cartwright  v.  Cartwright,  53 
la.  57;  Bubb  v.  Bubb,  201  Pa.  212, 
50  A.  759. 

24.  Stockslager  v.  Mechanics'  Loan 
&  Savings  Inst.,  87  Md.  232,  39  A.  742. 

25.  Denny  v.  Denny,  123  Ind.  240, 


left  all  the  property  belonging  to  her,       23  N.  E.  519. 


409 


STATUTORY  SEPARATE  ESTATE. 


§  392 


20 


sumed  to  have  been  expended  in  accordance  with  her  wishes, 
especially  where  he  expends  it  for  the  family  benefit'^  The  fact 
that  he  receives  it  as  "  agent "  does  not  tend  to  show  that  she 
objected  to  its  receipt  by  him.^*  In  Missouri  it  is  held  that  a  wife 
cannot  recover  from  her  husband  the  income  from  her  farm  on 
which  they  cohabited,  even  though  she  gave  no  written  consent  to 
his  use  of  the  money,  as  required  by  the  Married  Women's  Act  in 
that  State,  if  he  supported  the  family,"**  nor  is  he  liable  to  her 
collateral  heirs  for  her  rents  and  profits  where  he  is  entitled  to 
them  as  tenant  by  the  curtesy  after  her  death,  and  where  before 
death  they  cohabited  and  he  never  denied  to  her  the  right  to  control 
her  rents  and  profits,  and  where  no  contract  was  made  for  their 
repayment.^" 


§  392.  For  Wife's  Property  Received. 

A  husband  who  uses  his  wife's  separate  estate  without  her  con- 
sent is  liable  to  her  for  the  money  used,^^  as  well  as  for  the  pur- 
chase price  of  property  conveyed  to  him  by  her  procurement.^^ 
His  promissory  notes  given  for  a  loan  from  her  may  also  be  en- 
forced against  him  or  his  estate.^^  Where  a  husband  takes  title 
to  land  in  his  own  name,  for  which  the  wife  has  paid  part  of  the 
consideration,  he  holds  in  trust  for  her  to  the  extent  of  her 
payment.^*  Where  a  husband  invests  the  wife's  money  in  land, 
taking  title  in  his  own  name,  but  under  an  agreement  to  hold  it  in 
trust  for  her,  such  a  trust  is  enforceable,^"'  as  is  a  contract  between 
spouses  that  the  husband  should  collect  rents  and  pay  necessary 


26.  Carpenter  v.  Hazelrigg,  103  Ky. 
538,  20  Ky.  Law,  231,  45  S.  W.  666; 
Holt  V.  Colyer,  71  Mo.  App.  280. 

27.  Bristor  v.  Bristor,  93  Ind.  281; 
Young  V.  Valentine  78  App.  Div.  633, 
79  N.  Y.  S.  536  (affd.,  177  N.  Y.  347, 
69  N.  E.  643). 

28.  Faircloth  v.  Borden,  130  N.  C. 
263,  41  S.  E.  381. 

29.  Crowley  v.  Crowley,  167  Mo. 
App.  414,  151  S.  W.  512. 

30.  Donovan  v.  Griffith,  215  Mo.  149, 
114  S.  W.  621. 

31.  Morrish  v.  Morrish  (Pa.),  105 
A.  83;  Tison  v.  Gass,  46  Tex.  Civ. 
163,  102  S.  "W.  751. 

32.  Atkins  v.  Atkins'  Estate,  69 
Vt.  270,  37  A.  746. 


33.  Logan  v.  Hall,  19  la.  491;  Bry- 
ant V.  Bryant,  3  Bush  (Ky.),  155. 

34.  Bell  V.  Stewart,  98  Ga.  669-,  27 
S.  E.  153;  Jones  v.  Elkins,  143  Mo. 
647,  45  S.  W.  261;  Cleghorn  v.  Obcr- 
nalte,  53  Neb.  687,  74  N.  W.  62;  Eay 
V.  Long,  128  X.  C.  90,  38  S.  E.  291; 
Kingman-Texas  Implement  Co.  v.  Her- 
ring Nat.  Bank  (Tex.),  153  S.  W. 
394;  Sparks  v.  Taylor,  99  Tex.  411, 
90  S.  W.  485,  6  L.  R.  A.  (N.  S.)  381; 
Strnad  v.  Strnad,  29  Tex.  Civ.  124, 
68  S  "W.  69. 

35.  Boyer  v.  Libey,  88  Ind.  235; 
Schwartz  v.  Castlcn,  22  Ky.  Law, 
1063;  Stockwell  v.  Stockwell's  Estate 
(Vt.),    105    A.    30. 


§  392 


HUSBAND    AND    WIFE. 


410 


expenses  therefrom  and  account  to  his  wife  for  the  balance.'®  If 
he  has  received  her  money  as  trustee  she  may  in  equity  compel 
him  to  account  without  proving  a  contract.^^  A  consent  that  the 
husband  may  use  the  money  for  a  short  time  is  not  a  waiver  of 
the  wife's  right  to  an  account/^  nor  is  a  mere  permission  to 
represent  her  in  collecting  rents.^*  No  lapse  of  time  will  bar  a 
wife's  right  to  an  account  for  her  property  which  he  uses  for  her 
benefit  and  which  he  admits  she  owns.*"  Where  she  consents  to 
his  use  of  her  property  he  is  not  liable  for  interest,  in  the  absence 
of  a  special  agreement.*^  In  Louisiana  a  husband  is  not  liable 
for  interest  on  his  wife's  estate,  either  dotal  or  paraphernal,  deliv- 
ered to  him  under  an  antenuptial  contract,  till  after  demand.** 
Under  the  Missouri  statute  providing  that  a  husband  may  not 
reduce  his  wife's  choses  in  action  to  possession  without  her  written 
consent,  a  wife  may  treat  her  husband  either  as  trustee  or  debtor 
where  he  obtains  her  money  without  the  statutory  consent,*' 

On  the  whole  there  is  and  must  be,  throughout  this  transition 
period,  conflict  in  the  authorities  as  to  the  effect  of  a  husband's 
receiving  the  proceeds  of  his  wife's  share  in  inherited  property, 
or  of  some  sale  or  investment  in  her  sole  right ;  States  which  abide 
by  the  common  law  of  coverture  inclining  to  sustain  his  ancient 
right  of  reduction  into  possession,  and  presuming  in  his  favor,** 
and  States,  on  the  other  hand,  under  the  impress  of  the  new  legis- 
lative policy,  reserving  her  title,  unless  she  plainly  and  voluntarily 
divests  herself  of  separate  rights.*^ 

Certain  States,  following  the  English  equity  doctrine,  avoid 
close  inquisition  into  the  husband's  management  of  his  wife's 
property,  by  limiting  the  time  during  which  the  husband's  receipt 
of  the  rents,  profits,  or  income  shall  charge  him.**  It  is  held,  too, 
that  a  wife,  by  allowing  her  husband  for  a  long  series  of  years  to 


36.  Griffith  v.  Griffith,  187  Pa.  306, 
41  A.  30,  42  W.  N.  C.  447. 

37.  McConville  v.  National  Valley 
Bank,  98  Va.  9,  34  S.  E.  891. 

38.  Stockwell  v,  Stockwell's  Estate 
(Vt.),  105  A.  30;  Keller  v.  Washing- 
ton (W,  Va.),  98  S.  E.  880. 

39.  Smith's  Ex'r  v.  Johns,  154  Ky. 
274,  157  S.  W.  21. 

40.  Barber  v.  Barber,  125  Ga.  226, 
53  S.  E.  1017;  Parrish  v.  Williams 
(Tex.),  53  S.  W.  79. 

41.  In  re  Remmerde,  206  P.  826. 


42.  Murphy  v.  McLoughlin,  247  P. 
385,  159  C.  C.  A.  439. 

43.  Algeo  V.  Algeo  (Mo.),  207  S. 
W.  842;  Smith  v.  Settle,  128  Mo.  App. 
379,  107  S.  W.  430. 

44.  Eeade  v.  Earle,  12  Gray  (Mass.), 
423;  Windsor  v.  Bell,  61  Ga.  671; 
Nevius  V.  Gourley,  95  111.  206;  Jacobs 
V.  Hesler,  113  Mass.  157. 

45.  Nissley  v.  Heisey,  78  Pa.  418; 
Penn  v.  Young,  10  Bush  (Ky.),  626; 
Moyer's  Appeal,  77  Pa.  482. 

46.  One  year  from  date  of  such  re- 


411  STATUTORY  SEPARATE  ESTATE.  §  393 

appropriate  to  his  own  use,  or  their  joint  use,  the  income  of  her 
separate  estate,  forfeits  her  right  to  compel  him  to  account,  until 
at  all  events  she  revokes  such  permission,  and  then  only  from  the 
date  of  revocation,**^  a  rule  desirable  for  preserving  domestic  peace, 
and  ensuring  the  husband's  estate  after  death  against  dubious 
claims;  for  otherwise,  as  we  have  intimated,  and  apart  from  the 
wife's  delay,  or  her  presumed  assent  to  household  expenses  or  to 
a  gift  to  her  husband,  and  after  deducting  his  charge  for  services, 
the  husband,  where  regarded  as  purely  an  agent,  is  obligated  to 
account.  But  even  admitting  the  income  his,  he  may  show  and 
execute  an  intention  of  preserving  such  income  as  his  wife's 
separate  property/* 

§  393.  To  Third  Person. 

A  husband  acting  as  his  wife's  agent  in  causing  furniture  to  be 
conveyed  to  their  house  has  been  held  liable  for  conversion,  though 
he  disclaimed  all  personal  interest*®  A  husband  who  orders 
repairs  on  his  wife's  automobile  without  disclosing  the  fact  of  her 
ownership  is  liable  therefor,^"  as  well  as  for  labor  performed  for 
him  on  her  farm,°^  as  well  as  where  he  sells  grass  from  her  land 
which  he  does  not  deliver.''^  Where  a  husband  contracted  to  give 
land  for  target  practice  and  to  pay  for  improvements  made  by  a 
shooting  society  thereon  if  they  should  discontinue  the  use  of  the 
land,  it  was  held  that  he  could  not  defend  against  an  action  on  the 
contract  by  showing  that  his  wife  owned  the  land.^^  Where  a 
husband  exercised  dominion  over  his  wife's  land,  inter  alia  chang- 
ing the  course  of  a  stream  thereon,  it  was  held  that  he  was  liable 
for  negligence  in  so  doing. °*  In  the  absence  of  an  agreement  he 
is  not  liable  for  compensation  for  selling  her  interest  in  land  which 
they  own  jointly,®^  especially  where  he  expressly  acts  as  agent  for 
the  wife,^*  nor  for  plans  for  her  building  for  which  he  contracted 

ceipt    is    the    Mississippi    limitation.  51.  Winebremer  v.  Eberhardt,  137 

Hill  V.   Bugg,   52   Miss.   397.  Mo.  App.  659,  119  S.  W.  530. 

47.  Lyon  v.  Green  Bay  R.,  42  Wis.  52.  Kreisle  v.  Wilson  (Tex.),  148 
548;  Reeder  v.  Flinn,  6  Rich.  (S.  C.)  S.  W.  1132;  Florida  Citrus  Exchange 
216;  Lishey  v.  Lishey,  2  Tenn.  Ch.  5.  v.  Grisham,  65  Fla.  46,  61  So.  123. 

48.  Gill  V.  Woods,  81  111.  64;  Patten  53.  Ackerman  v.  Ackorman  Schuet- 
y.    Patten,    75    111.    446;    Bongard   v.  zen  Verein   (Tex.),  60  S.  W.  366. 
Core,  82  111.  19.  54.  Garrett  v.  Beers,  97  Kan.  255, 

49.  Edgerly   v.   Whalen,   106  Mass.  155  P.  2. 

307.  55.  Hansbrough  v.  Neal,  94  Va.  722, 

50.  Sidney  B.  Bowman  Auto  Co.  v.       27  S.  E.  593. 

Stiner,  177  N.  Y.  S.  186.  56.  Stevens  v.  Bacher,  162  Mo.  App. 

284,  141  8.  W.  1143 


§    393  HUSBAND    AND    WIFE.  412 

expressly  as  her  agent,^^  nor  as  partner  for  the  debts  of  a  store 
wherein  she  lias  an  interest. °*  It  is  a  question  for  tlie  jury  to  say 
to  whom  advances  made  under  a  wife's  contract  were  to  be  charged, 
where  they  were  actually  made  to  the  husband,  and  where  the  wife 
actually  owns  the  land  and  claims  the  crops.^^ 

57.  Eauer's  Law  &  Collection  Co.  v.  58.    Horton    v.    Haralson,    130    La. 

Berthiaume,  31  Cal.  App.  670,  132  P.       1003,  58  So.  858. 
£96.  59.  Watson  v.  Herring,  115  Ala.  271, 

22  So.  28. 


413  STATUTOfiY  SEPARATE  ESTATE.  §  394: 


CHAPTER  XX. 

VALIDITY  OF  WIFE's  CONTRACTS  RELATING  TO  STATUTORY 

SEPARATE  ESTATE. 

Section-  394.  Power   to   Contract  —  Under   Statutes   Limiting   Wife's   Power 
to  Contract. 

395.  Effect  of  Statute  of  Frauds. 

396.  By  Agent. 

397.  Xecessity  of  Joinder  or  Assent  of  Husband. 

398.  Release. 

399.  In  Judicial  Proceedings. 

400.  Jointly  with  Husband. 

401.  For  the  Purchase  of  Property  in  General. 

402.  On  Credit. 

403.  For  Improvements  and  Repairs. 

404.  Submission  to  Arbitration. 

405.  Promissory  Notes. 

406.  Jointly   with  Husband. 

407.  Consideration. 

408.  For  Insurance. 

409.  As  Stockholder  in  Corporation  or  Joint  Stock  Company. 

410.  Loans  and  Advances. 

411.  Leases. 

412.  To  Secure  Husband's  Debts. 

413.  Suretyship  in  General. 

414.  For  Third  Persons. 

415.  What  Constitutes  Contract  of  Suretyship  in  General. 

416.  Illustrations. 

417.  Eights  of  Wife  as  Surety. 

418.  Enforcement. 

419.  Ratification. 

420.  Avoidance. 

§  394.  Power  to  Contract  —  Under  Statutes  Limiting  Wife's 
Power  to  Contract. 
Where  the  statute  limits  the  wife's  power  to  contract  to  contracts 
for  the  benefit  of  her  separate  estate,  the  wife's  bond  for  pavnient 
of  money  does  not  bind  her  personally.®*^  The  wife  cannot  become 
a  general  borrower,  even  though  she  give  a  promissory  note  or 
security  in  the  same  connection.®^  Her  general  engagements,  in  a 
word,  without  the  scope  of  the  general  rules  we  have  stated,  will 
create  no  charge  upon  her  separate  property  enforceable  in  equity 


«s 


©0.    Huntley  v.   Whitner,   77   N.   C.       Way  v.   Peck,  47  Conn.  23;   Viser  v. 
392.  Scruggs,  49  Miss.  705. 

61.  O 'Daily  v.  Morris,  31  Ind.  Ill;  62.    Williams    v.    Hugunin,    69    111. 


§  396 


HUSBAND    AND    WIFE. 


414 


There  is  some  difficulty  in  the  piu'chase,  by  a  married  woman, 
of  property,  whether  real  or  personal,  on  credit,  arising  out  of  the 
circumstance  that  she  cannot  make  a  contract  for  payment  which 
will  be  personally  binding.  In  New  Hampshire  it  was  held  that 
a  married  woman  could  not,  under  the  statutes  as  they  stood  a  few 
years  ago,  make  a  contract  for  money  or  property  in  anticipation 
of  the  purchase  of  separate  estate;  and  hence  that  her  note  given 
for  money  borrowed,  wherewith  to  make  such  purchase,  was  void.®^ 
The  early  Married  Women's  Act  in  Michigan  empowered  a  wife 
to  contract  only  as  to  her  property  owned  at  the  time  of  contract."* 
It  has  been  held  that  the  Illinois  Married  Women's  Act  did  not 
empower  a  wife  to  adopt  a  child,  support  it  and  provide  for  it  out 
of  her  estate.®^  Under  the  District  of  Columbia  statute,  a  wife's 
contract  for  the  exchange  of  her  real  estate  and  for  the  purchase  of 
personal  property  is  prima  facie  presumed  to  be  for  the  benefit  of 
her  separate  estate.**  A  wife's  agreement  to  devise  property  has 
been  held  within  the  Oalifomia  statute  as  to  contracts  "  concerning 
or  relating  "  to  her  separate  estate.*^ 

§  395.  Effect  of  Statute  of  Frauds. 

The  statute  of  frauds  must  apply  to  her  oral  promise  to  be 
liable  for  another.*® 

§  396.  By  Agent. 

In  the  absence  of  statutory  power  to  contract,  a  wife  is  not 
bound  by  contracts  made  by  her  agent.*^  Hence  in  such  case  she 
cannot  be  liable  for  the  negligence  of  such  an  agent.'^"  But  she  is 
•bound  by  such  a  contract  where  the  statute  has  removed  her 
disability.'^     Under  Married  Women's  Acts,  by  virtue  of  which 


214;  Huyler  v.  Atwood,  26  N.  J.  Eq. 
504 ;  Stillwell  v.  Adams,  29-  Ark.  346. 

63.  Ames  v.  Foster,  42  N.  H.  381. 
But  see  later  statutes  of  this  State. 
Batchelder  v.  Sargent,  47  N.  H.  262; 
Blake  v.  Hall,  57  N.  H.  382.  A  simi- 
lar rule  applies  in  some  other  States. 
Thompson  v.  Weller,  85  111.  197, 

64.  Menard  v.  Campbell,  180  Mich. 
583,  147  N.  W.  556. 

65.  Thompson  v.  Minnich,  227  HL 
430,  81  N.  E.  336. 

66.  Dobbins  v.  Thomas,  26  App.  D. 
C.  157. 

67.  Steinberger  v.  Tonng  (Oal.), 
165  P.  432. 


68.  Lennox  v.  Eldred,  65  Barb.  (N. 
Y.),  410. 

69.  Troy  Fertilizer  Co.  v.  Zachry, 
114  Ala.  177,  21  So.  471;  Appeal  of 
Freeman,  68  Conn.  533,  37  A.  420,  57 
Am.  St.  R.  112,  37  L.  R.  A.  452. 

70.  Collier  v.  Struby,  99  Tenn.  241, 
47  S.  "W.  90. 

71.  Porter  v.  Taylor,  64  Fla.  100, 
59  So.  400;  Baker  v.  Thompson,  214 
Mo.  500,  114  S.  W.  497;  Kirkpatrick 
V.  Pease,  202  Mo.  471,  101  S.  W.  651; 
Wyatt  V.  Walton  Guano  Co.,  114  Qa. 
375,  4  S.  E.  237. 


415 


STATUTORY  SEPARATE  ESTATE. 


§  400 


ehe  may  invest  her  estate  in  a  business,  she  may  employ  agents  to 

carry  it  on/^ 

§  397.  Necessity  of  Joinder  or  Assent  of  Husband. 

In  some  States  the  husband's  joinder  or  assent  is  essential  to 
validate  his  wife's  oontracts.^^  Under  the  former  Indiana  Mar- 
ried Women's  Act,  requiring  the  husband's  consent  to  the  wife's 
contracts  or  transfers  of  her  personal  estate,  she  was  not  bound  by 
her  contract  without  such  assent.'*  In  Tennessee  a  husband's 
written  approval  of  a  wife's  contract  of  accord  and  satisfaction 
validates  it  and  binds  her.''' 

§  398.  Release. 

In  Delaware  a  woman  divorced  a  mensa  et  ihoro  may  execute  a 
release  of  an  annuity.' 


re 


§  399.  In  Judicial  Proceedings. 

A  wife  may  be  bound  by  her  contracts  made  in  judicial  pro- 
ceedings." 
§  400.  Jointly  with  Husband. 

The  joint  contract'*  or  joint  note  of  herself  and  her  husband  is 
now  binding  on  her,  as  where  the  spouses  make  an  express  joint 
contract  to  repay  a  third  person  who  has  paid  the  debt  of  the 
husband,"  or  to  sell  their  farm  in  return  for  support  by  the 
grantee.*'*  She  may  be  jointly  liable  with  her  husband  for  an 
advance  made  to  them  jointly,  but  not  where  the  advance  is  made 
to  him,  even  if  she  later  obtains  the  money.*^     An  oil  and  gas 


72.  Taylor  v.  Wands,  55  N.  J.  Eq. 
491,  37  A.  315,  62  Am.  St,  R.  818. 

73  Wright  v.  Brown,  44  Pa.  224; 
Camden  v.  Vail,  23  Cal.  633;  Maclay 
V.  Love,  25  Cal.  367;  Pentz  v.  Simon- 
son,  2  Beasl.  (N.  J.)  232;  Major  v. 
Symmes,  19  Ind.  117;  Miller  v.  Hine, 
13  Ohio  St.  565 ;  Haugh  v.  Ely  the,  20 
Ind.  24;  Dodge  v.  Hollinshead,  6 
Minn.  25;  Eaton  v.  George,  42  N.  H. 
375;  Miller  v.  Weatherby,  12  la.  415; 
Ezelle  V.  Parker,  41  Miss.  520;  O'Neal 
V.  Robinson,  45  Ala.  526;  Bressler  v. 
Kent,  61  111.  426;  Greenholz  v.  Haef- 
fer,  53  Md.  184;  Cole  v.  Van  Riper, 
44  111,  58;  Armstrong  v.  Ross,  5  C. 
E.  Green  (N.  J.),  109;  Farmers'  Bank 
V.  Richardson,  171  Ky.  340,  188  S. 
W.  406. 


74.  Hileman  v.  Hileman,  85  Ind.  1. 

75.  Brundige  v.  Nashville,  C.  &  St- 
L.  R.  R.,  112  Tenn.  526,  81  S.  W. 
1248;  Montague  v.  Buchanan  (Tenn.), 
211  S.  W.  211. 

76.  Bied  v.  Stiley,  1  Horn.  (Del.) 
339. 

77.  Blagge  v.  Shaw  (Tex.),  41  S. 
W.  756. 

78.  Pierce  v.  Kittredge,  115  Mass. 
374;  Post  v.  Shafer,  63  Mich.  85,  29 
N.  W.  519;  Basford  v.  Pearson,  7 
Allen   (Mass.),  504. 

79.  Hill  V,  Cooley,  112  Ga,  115,  37 
S.  E,   109. 

80.  Lavoie  v.  Dube,  229  Maes.  87, 
118  N.  E.  179. 

81.  Di  Orio  v.  Venditti,  39  R.  I. 
101,  97  A.  599. 


§  402 


HUSBAND    AND    WIFE. 


416 


lease  of  a  husband's  land  executed  by  the  spouses  jointly  as  "  par- 
ties of  the  first  part,"  to  whom  rentals  are  payable,  has  been  held 
a  joint  obligation,  so  that  payment  of  rent  to  the  wife  is  sufficient.** 
Where  the  wife  signs  with  the  husband  a  contract  as  to  their 
joint  property  the  failure  to  name  her  as  a  party  to  the  contract 
does  not  prevent  its  binding  her  interest.^^  Their  joint  contract 
to  purchase  land  raises  the  presumption  that  both  are  principals." 
In  West  Virginia,  where  spouses  join  in  a  conveyance  of  her  land 
for  a  price  to  be  paid  to  them  in  the  future,  the  vendee  may  pay 
the  price  to  either,  if  both  are  alive,  or  to  the  survivor.*^ 

§  401.  For  the  Purchase  of  Property  in  General. 

A  married  woman  may  now  bind  herself  by  her  separate  contract 
for  the  purchase  of  real  estate,*®  or  personal  property,*^  or  property 
of  any  kind,**  even  if  as  a  result  of  the  purchase  a  husband's 
previous  contract  is  to  be  cancelled.*' 

Under  the  Vermont  Married  Women's  Act  a  wife  is  liable  on 
her  contract  to  buy  real  estate,  whether  she  has  a  .•^parate  estate 
or  not.^'*  Under  the  Texas  Married  Women's  Act  a  wife  is  not 
bound  by  a  purchase  of  goods  not  for  her  separate  estate.'^ 

§  402.  On  Credit. 

The  current  of  negative  authority  on  this  point  turns  much 
towards  the  purchase  of  real  estate  by  the  wife;  and,  upon  what 
ought  to  be  deemed  more  fundamental  reasons  than  those  of  cash 
or  credit,  it  is  held  that  a  married  woman  is  incapable  of  acquiring 
real  property  to  her  separate  use  under  such  circumstances.^" 
This,  however,  is  by  no  means  a  uniform  doctrine;   for  a  married 


82.  Jens-Marie  Oil  Co.  v.  Rixse 
(Okla.),   178   P.   658. 

83.  Agar  v.  Streeter  (Mich.),  150 
N.  W.  160,  L.  E.  A.  1915D  196. 

84.  Tipton  v.  Ellsworth,  18  Ida. 
207,  109  P.  134. 

85.  Freeman  v.  Swiger  (W.  Va.), 
98  S.  E.  440. 

86.  Faucett  v.  Currier,  109  Mass. 
79.  For  the  New  Jersey  rule,  see 
Pierson  v.  Lum,  25  N.  J.  Eq.  390. 

87.  Caldwell  v.  Blanchard,  191  Mass. 
489,  77  N.  E.  1036. 

88.  Kriz  v.  Peege,  IIQ'  Wis.  105,  95 
N.  W.  108;  Nadel  v.  Weber  Bros. 
Shoe  Co.  (Fla.),  70  So.  20;  Marcellua 
V.  Wright,  51  Mont.  559,  154  P.  714; 


Smith  V.  J.  F.  Brown  &  Co.  (6a.),  85 
S.  E.  950;  Furrow  v.  Chapin,  13  Kan. 
107 ;  Bush  &  Lane  Piano  Co.  v.  Wood- 
ard  (Wash.),  175  P.  329;  Davis  v. 
Leonard,  66  Fla.  351,  63  So.  584, 

89.  Simmons  v.  International  Har- 
v^ester  Co,  (Ga.),  96  S.  E.  9;  Bateman 
V.  Cherokee  v.  Feritlizer  Co.  (Ga.),  93 
S.  E.  1021, 

90.  Seaver  v.  Lang  (Vt.),  104  A. 
877. 

91.  Wright  V.  Couch  (Tex.),  113  8. 
W.  321. 

92.  Ames  v,  Foster,  42  N.  H.  381; 
Carpenter  v.  Mitchell,  50  111.  470; 
Dunning  v.  Pike,  46  Me.  461 ;  Miller  V. 
Albertson,   73   Ind.   343. 


417 


STATUTOKY    SKPAliATE   ESTATE. 


§  403 


woman  may,  as  several  State  jurisdictions  rule,  acquire  and  hold 
real  property  to  her  separate  use  upon  suitable  consideration, 
whether  she  purchase  it  on  credit  or  not/^^  Some  of  these  decisions 
go  only  to  the  point  of  forbidding  a  suit  at  law  on  such  purchases.®* 
And  it  is  held  that  where  a  mai'ried  woman  borrows  money  with 
which  she  purchases  a  piece  of  land,  taking  a  deed  in  her  own  name, 
and  furnishing  no  note  or  other  written  obligation  for  the  loan, 
the  lender  may  in  equity  follow  his  loan  into  the  land.'^^  Some 
States,  under  their  liberal  enabling  acts,  repudiate  such  restrictions 
upon  the  jus  di^ponendi.^^  But,  on  the  other  hand,  the  New  York 
doctrine  is  that  she  may  purchase  property  on  credit ;  and  if  the 
vendor  will  run  the  risk  of  being  able  to  obtain  payment  of  the 
consideration  of  the  sale,  the  transfer  remains  valid,  and  no  estate 
will  pass  to  the  husband,  whether  the  wife  had  previously  any 
separate  estate  or  not.®^  Under  the  Michigan  Married  Women's 
Act  a  wife  may  bind  herself  by  a  purchase  of  goods  on  credit  for 
her  separate  business.^^  In  Wisconsin  the  fact  that  a  creditor  to 
whom  a  wife  pledges  her  credit  to  acquire  property  knows  that 
she  intends  to  devote  the  property  to  the  use  of  her  husband  will 
not  invalidate  her  contract  to  pay  the  amount  agreed. 


99 


§  403.  For  Improvements  and  Repairs. 

Independently  of  enabling  statutes,  the  written  contract  of  a 
married  woman,  by  which  she  acknowledges  an  indebtedness  for 
materials  and  labor  used  to  improve  her  separate  estate,  is  void 
at  law.^  It  is  a  reasonable  doctrine,  and  justified  by  some  State 
decisions,  that  where  lumber  is  purchased,  or  other  materials,  and 
used,  or  labor  bestowed,  with  the  wife's  acquiescence,  in  benefiting 
and  enhancing  her  separate  estate,  and  with  full  knowledge  on  her 
part  that  it  is  unpaid  for,  and  equitable  obligation  may  be  inferred, 
she  is  bound  to  recompense  accordingly." 


93.  Shields  v.  Keys,  24  la.  298 
Darby  v.  Calligan,  16  N.  Y.  21;  Chap 
man  v.  Foster,  6  Allen  (Mass.),  136 
McVey  v.  Green  Bay  R.,  42  Wis.  532 

94.  Carpenter   v.    Mitchell,    50    Dl 
470. 

95.  Donovan's    Appeal,    41    Conn. 
551. 

96.  See  Allen  v.   Fuller,  118   Mass. 
402;    Knapp  v.  Smith,  27   N.  Y.  277. 

97.  Darby  v.  Callipan,  16  N.  Y.  21 ; 
Knapp  V.  Smith,  27  N.  Y.  277.     So  in 

27 


other  States.  Chapman  v.  Foster,  6 
Allen  (Mass.),  136;  Shields  v.  Keys, 
24  la.  298. 

98.  Rankin  v.  West,  25  Mich.  195; 
Canton  v.  Grinnell,  138  Mich.  590, 
101  N.  W.  Sll,  11  Det.  Leg.  N.  658. 

99.  Kriz  v.  Peege,  119  Wis.  105,  95 
N.  W.  108. 

1.  Williams  v.  Wilbur,  67  Ind.  42. 

2.  Miller  v.  HoUingsworth,  36  la. 
163 ;  Anderson  v.  Armstead,  69  Dl. 
452 ;     Shannon    v.    Bartholomew,    53 


I  403 


HUSBAND   AND    WIFE. 


418 


Upon  the  ground  that  the  wife's  separate  estate  should  be  bound 
by  contracts  for  its  benefit,  or  upon  its  express  credit,  her  debte 
for  improvements  upon  lands  conveyed  to  her  sole  and  separate  use 
have  been  enforced  in  several  late  instances.^  But  all  States  do 
not  go  so  far.  The  disposition  of  the  courts  in  such  cases,  where 
the  contract  was  made  by  the  husband,  is  frequently  to  infer  an 
agency  on  the  wife's  behalf  for  that  purpose;  and  yet  he  might 
prove  no  agent,  and  if  only  sole  credit  were  given  to  the  husband 
himself  for  repairs  on  his  wife's  premises,  it  would  appear  that  the 
creditor  cannot  resort  to  the  wife's  separate  estate  for  remunera- 
tion, agency  not  being  inferable  from  the  marital  relation  alone.* 

Apart  from  permanent  improvements,  a  married  woman's  real 
estate  may  well  be  rendered  liable  for  repairs  made  to  her  separate 
estate  at  her  own  request,  and  as  necessary  for  its  due  preservation 
and  enjoyment,''  and  on  her  sole  note  or  sole  contract,  for  lumber 
and  materials  to  be  used  thereon.^  And  where  she  contracts  for 
services  or  materials,  or  the  work  and  labor  is  done,  at  her  request, 
in  and  about  the  improvement,  care,  management,  or  cultivation 
of  the  premises,  or  in  farm  stock,  she  will  be  held  liable  accord- 
ingly, where  the  premises  and  farm  stock  are  her  sole  and  separate 
property.'' 

Under  a  statute  providing  that  the  lands  of  a  married  woman 
shall  be  her  separate  property,  but  that  she  shall  have  no  power 
to  convey  or  encumber  them  without  the  joint  deed  of  her  husband. 


Ind.  54.  But  cf.  Emery  v.  Lord,  26 
Mich.  431;  Capp  v.  Stewart,  38  Ind. 
479. 

S.  Conway  v.  Smith,  13  Wis.  125; 
Marshall  v.  Miller,  3  Met.  (Ky.)  333; 
Fowler  v.  Seaman,  40  N.  Y.  592 ;  Car- 
penter V.  Leonard,  5  Minn.  155;  Per- 
kins V.  Baker,  38  Tex.  45;  Britter  v. 
Robertson,  11  Tex.  142.  In  Heugh 
V.  Jones,  32  Pa.  432,  it  is  held  that 
Onless  the  materials  are  actvally  so 
used  the  debt  cannot  be  enforced 
against  the  estate.  And  see  as  to  the 
Pennsylvania  rule,  which  does  not  fa- 
vor such  debts,  Brunner's  Appeal,  47 
Pa.  67. 

4.  Holmes  v.  Bronson,  43  Mich.  562 ; 
Willard  v.  Magoon,  30  Mich.  273; 
Price  V.  Seydel,  46  la.  696;  Lauer  v. 
Bandow,  43  Wis.  556;  Crickmore  v. 
Breckenridge,   51   Ind.   29'4;   Lobman 


V.  Kennedy,  51  Ala.  163;  Eoberts  v. 
Kelley,  51  Vt.  97.  A  promise  by  the 
married  woman  to  pay  for  materials 
bought  and  used  by  the  husband  in 
erecting  buildings  on  her  land  wiU  not 
be  inferred  from  her  contemporaneous 
knowledge  alone.  Ferguson  v.  Spear, 
65  Me.  277. 

5.  Lippincott  v.  Leeds,  77  Pa.  420. 
Coverture  of  the  owner  is  no  reason 
why  land  should  not  be  assessed  for 
cost  of  street  improvement.  Ball  v. 
Balfe,  41  Ind.  221. 

6.  Parker  v.  Kane,  4  Allen  (Mass.), 
346;  Major  v.  Symmes,  19  Ind.  117; 
Eckert  v.  Renter,  4  Vroom  (N.  J.), 
266;  Langenbaeh  v.  Schell,  40  Conn. 
224. 

7.  Terry  v.  Hammonds,  47  Cal.  32; 
Cookson  V.  Toole,  59  HI.  515. 


419  STATUTORY  SEPARATE  ESTATE.  §  405 

she  may  make  a  valid  contract  alone  for  the  exploration  of  her  land 
for  natural  gas  and  oil.  Such  a  contract  is  not  an  encumbrance 
within  the  meaning  of  the  statute.*  A  loan  made  to  a  wife  to 
improve  land  which  the  lender  knows  her  money  paid  for,  and 
which  he  thinks  she  owns,  cannot  be  defeated  by  showing  that  the 
title  was  in  the  spouses  jointly.®  A  wife's  liability  for  services 
rendered  in  improving  her  land  is  not  affected  by  the  fact  that  the 
creditor  sends  a  bill  to  the  husband.^" 

§  404.  Submission  to  Arbitration. 

Under  the  Michigan  statute,  a  wife  may  agree  to  a  common-law 
arbitration.^^  Under  the  North  Carolina  Ck)nstitution  such  an 
agreement  is  invalid  without  the  written  assent  of  her  husiband.^^ 

§  405.  Promissory  Notes. 

In  general  it  is  held  that  a  married  woman  cannot  become  per- 
sonally liable  on  her  general  or  executory  promise  except  it  concern 
expressly,  under  general  rules,  her  benefit  or  her  separate  estate. 
Hence  a  note  given  by  her  upon  any  other  consideration  is  void," 
even  though  it  be  in  the  hands  of  a  horia  fide  holder ;  ^*  and  quite 
generally  her  simple  indorsement  of  a  bill  or  note  is  held  to  be 
inoperative  beyond  divesting  her  of  a  title  therein.^^  Fraud  will 
not  avail  a  wife  as  a  defense  against  her  note  in  the  hands  of  a 
holder  for  value  in  good  faith,^*  especially  if  the  fraud  is  prac- 
ticed by  one  not  a  party  to  the  record  or  interested  in  the  prop- 
erty,^' nor  will  secret  instructions  to  her  husband,  acting  as  her 
agent,  have  that  effect,  though  he  disregards  them.^*  Whether  a 
wife  is  a  principal  or  not  in  a  note  which  she  signs  depends  on 
the  nature  of  the  contract  with  the  payee,  and  not  on  the  manner 
in  which  she  signs.^®     Therefore,  where  a  statute  forbids  a  wife 

8.  Kokomo  Natural  Gas  Co.,  v.  Mat-  14.  Wright  v.  Fox  (Ind.),  103  N. 
lock  (Ind.),  97  N.  E.  787,  39  L.  E.  A.  E,  442;  Kenton  Ins.  Co.  v.  McClellan, 
(N.  S.)    675.  43  Mich.  564. 

9.  June  V.  Labadie,  138  Mich.  52,  15.  Moreau  v.  Branson,  37  Ind.  195. 
100  N.  W.  996,  11  Det.  Leg.  N.  469.  16.   Hart  v.   Church,   126   Cal.   471, 

10.  Vetault  V.   Kennedy,   178   App.       58  P.  910,  77  Am.  St.  R.  195. 

Div.  228,  165  N.  T.  S.  203.  17.    Williams   v.    Farmers'   &   Dro- 
ll. Hoste  V.  Dalton,  137  Mich.  522,  vers'  Bank,  20  Ky.  Law,  1273,  49  S. 
100  N.  W.  750,  11  Det.  Leg.  N.  392.  W.  183. 

12,  Smith  V.  Bruton,  137  N.  C.  79,  18.  Wyatt  v.  Walton  Guano  Co.,  114 
49  8.  E.  64.  Ga.  375,  40  8.  E.  237. 

13.  Kenton  Ins.  Co.  v.  McClellan,  43  19.  Young  v.  McFadden,  125  Ind. 
Mich.  564;   Pippen  v.  Wesson,  74  N.  254,  25  N.  E.  284. 

C.  437;   Stokes  v.  Shannon,  55  Mias. 
583. 


§  407  husba:^td  and  wife.  420 

to  be  surety  for  her  husband,  the  court  will  look  to  the  substance 
and  not  the  form  and  disregard  the  presumption  that  the  first 
signer  of  a  note  as  obligor  is  the  principal  debtor.^"  Under  the 
INorth  Carolina  Constitution,  a  wife's  indorsement  of  a  note,  to 
pass  title,  must  have  the  written  assent  of  her  husband.^^ 

§  406.  Jointly  with  Husband. 

A  joint  note  by  spouses  to  pay  off  a  mortgage  on  the  husband's 
land  has  been  held  a  benefit  to  the  wife's  dower  right,  and  there- 
fore binding  on  her."'  A  note  given  by  the  wife  jointly  with  her 
husband  to  pay  dues  and  assessment  on  his  life  insurance  policy 
wherein  she  is  beneficiary  is  not  void  as  being  given  to  secure  a 
debt  of  a  husband."^  Where  spouses  executed  a  joint  note  before 
the  Married  Women's  Act,  and  after  the  act,  and  without  new 
consideration,  renewed  it,  the  promise  of  the  wife  was  supported 
by  the  consideration  originally  moving  to  the  husband.^*  Under 
the  Massachusetts  statute  a  joint  note  of  the  spouses  for  borrowed 
money  paid  by  the  wife's  direction  to  her  husband  binds  her, 
though  a  portion  of  such  money  had  been  previously  advanced  to 
the  husband,  with  her  consent.^^  A  wife's  note  jointly  with  her 
husband  is  no  consideration  for  the  confirmation  by  the  payee,  her 
husband's  creditor,  of  a  transfer  to  her  in  fraud  of  his  creditors.^® 

§  407.  Consideration. 

Inquiry  into  consideration  is  always  pertinent  under  the  equity 
rule,  and  in  States  where  the  wife  is  not  invested  with  plenary 
power  of  legal  disposition  under  appropriate  statutes.  This 
applies  to  the  wife's  promissory  note,  which,  as  the  law  stands, 
apart  from  statute,  cannot  be  a  safe  investment  for  anyone ;  for 
its  value  consists  in  the  proof  that  it  was  a  contract  on  her  part, 
and  a  binding  contract,  relative  to  her  separate  property,  within 
the  general  rule.  Even  in  ^Massachusetts,  where  the  wife's  mort- 
gage on  real  estate  duly  executed  is  upheld,  a  note  secured  by  it, 
if  for  unbeneficial  consideration,  such  as  the  husband's  indebted- 

20.  Mutual  Benefit  Life  Ins.  Co.  v.  23.  Crenshaw  v.  Collier,  70  Ark.  5, 
First  Nat.  Bank,  160  Ky.  538,  169  S.       65  S.  W.  709. 

W.  1028.  24.  Lackey  v.  Boruff,  152  Ind.  371, 

21.  Walton    v.   Bristol,    125   N.    C.       53  N.  E.  412. 

419,  34  S.  E.  544;  Vann  v.  Edwarda,  25.  Goodnow  v.  Hill,  125  Mass.  587; 

128  N.  C.  425,  39  S.  E.  66.  State  Trust  Co.  v.  Owen  Paper  Co., 

22.  Crevier  v.  Berberdick,  60  N.  J.  162  Mass.  156,  38  N.  E.  438. 
Law,  389,  37  A.  959.  26,  Heaton  v.  White,  85  Ind.  376. 


421 


STATUTORY  SEPARATE  ESTATE. 


§  409 


ness,  could  not  be  enforced."  But  later  legislation  in  Massachu- 
setts does  not  require  the  consideration  of  a  wife's  contract  to 
enuro  to  her  own  benefit,  and  her  joint  note  with  her  husband,  or 
her  indorsement,  binds  her  to  quite  or  nearly  the  same  extent  as 
that  of  any  single  woman."®  Drafts  drawn  by  a  wife  on  her 
trustee  for  her  separate  use  are  based  on  a  consideration  where 
drawn  for  a  loan  to  her  or  husband  at  her  request.^* 

§  408.  For  Insurance. 

Her  contract  for  insurance  on  her  separate  property  is  not 
enforceable  against  her,  as  conservative  States  rule,^*^  though  this 
would  appear  to  be  a  beneficial  contract ;  and  at  all  events  it  is 
held  that  her  contract  of  insurance  on  her  property  cannot  be 
defeated  by  third  persons.^^ 

§  409.  As  Stockholder  in  Corporation  or  Joint  Stock  Company. 
A  married  woman  is  not  personally  liable,  unless  legislation  be 
positive,  for  the  debts  of  a  corporation  in  which  she  holds  stock, 
more  than  upon  her  contracts  of  suretyship.^^  To  hold  a  married 
woman  liable  on  her  subscription  to  stock  is  not  always  favored,^^ 
but  its  purchase  or  subscription  may  often  be  upheld  as  a  beneficial 
transaction.^*  Thus,  the  acceptance  of  stock  in  a  corporation  has 
been  held  to  create  a  binding  contract  rendering  a  ^\'ife  liable  for 
unpaid  portions  of  the  subscription  and  for  assessments  to  which 
stockholders  were  liable  at  the  time  of  acceptance.^^  In  Arkansas 
it  has  been  held  that  a  wife  who  is  elected  president  of  a  corpora- 
tion, and  whose  stock  is  part  of  her  separate  estate,  is  thereby 
freed  from  the  disability  of  coverture  so  as  to  be  liable  for  the 
statutory  penalties  for  failure  to  file  statements  required  by  law.^' 
Under  the  Louisiana  statute  a  wife  may,  for  her  separate  estate, 
subscribe  for  and  borrow  on  stock  of  a  building  and  loan  association 
without  the  consent  of  her  husband." 


27.  Heburn  v.  Warner,  112  Mass. 
271.  And  see  Wright  v.  Dresser,  110 
Mass.  51. 

28.  Major  v.  Holmes,  124  Mas3. 
108 ;  Kenworthy  v.  Sawyer,  125  Mass. 
28;   Goodnow  v.   Hill,  125  Mass.   587. 

29.  Bain  v.  Buff's  Adm'r,  76  Va. 
371. 

30.  American  Ins.  Co.  v.  Avery,  60 
Ind.    566. 

31.  Bernheim  v.  Beer,  56  Miss.  149. 


32.  Russel,  v.  People's  Sav.  Bank, 
39  Mich.  671. 

33.  Eiee  v.  Columbus  E.,  32  Ohio 
St.   380. 

34.  Williams  v.  King,  43  Conn.  56?. 

35.  Bidwell  v.  Beckwith,  86  Conn. 
462,  85  A.   682. 

36.  Arkansas  Stables  v.  Samstag,  73 
Ark.   517,  94  S.  W.  699. 

37.  Rolloman  v.  Alexandria  &  Pine- 
ville  Bldg.  &  Loan  Ass'n,  137  La. 
970,  69  So.  764. 


§  412 


HUSBAND    AND    WIFE. 


422 


§  410.  Loans  and  Advances. 

A  wife  is  now  liable  for  loana  which  have  been  passed  to  her  as 
her  own,  whether  used  for  herself  or  another,^^  and  that  other  her 
husband,  if  in  obtaining  the  loan  she  acts  in  good  faith,  and  not  as 
a  surety.^^  In  Louisiana  she  is  not  liable  for  a  loan  unless  there 
is  evidence  that  the  consideration  inured  to  her,  though  she  re- 
ceived a  certificate  from  a  judge  entitling  her  to  borrow.*" 

The  loan  of  money  to  a  married  woman,  with  which  she  paid  off 
a  mortgage  on  her  land,  gives  no  lien  on  such  land  to  the  lender, 
notwithstanding  her  oral  promise  to  substitute  him.*^ 

According  to  the  more  liberal  doctrine,  one  who  advances  money 
to  a  married  woman,  whether  on  her  bond,  promissory  note,  or 
otherwise,  is  not  bound  to  see  to  the  application  of  the  money,  but 
may  recover  upon  the  instrument  or  contract  on  showing  the 
avowed  purpose  of  the  transaction  on  her  part,  as  in  due  compli- 
ance with  the  general  rule  as  to  a  married  woman's  jvs 
disponendi. 


42 


§411.  Leases. 

Under  some  Married  Women's  Acts  a  lease  to  her,   and  ite 
covenants,  as  for  rent  or  taxes,  are  held  binding  upon  the  wife.'' 


4> 


§  412.  To  Secure  Husband's  Debts. 

A  married  woman's  promissory  note  does  not,  as  a  rule,  secure 
her  husband's  debts,  nor  does  she,  by  executing  it,  bind  herself 
lawfully  as  his  surety  or  guarantor  on  a  contract  not  relating  to 
her  separate  estate,  nor  for  its  benefit,  so  as  to  render  herself  liable 
to  suit." 


38.  Arnold  v.  McBride,  78  Ark.  275, 
93  S.  "W.  989 ;  Lloyd  v.  State  ex  rel. 
Banta,  134  Ind.  506,  34  N.  E.  311; 
Bogie  V.  Nelson,  151  Ky.  443,  152 
S.  W.  250.  To  make  a  married  woman 
liable  for  money  borrowed  by  her,  it 
is  only  necessary  that  it  shall  have 
passed  to  her  as  her  own  property  to 
do  with  as  she  pleased.  It  is  not 
necessary  that  she  actually  used  it  for 
her  own  own  purposes  and  benefit. 
Arnold  v.  McBride,  78  Ark.  275,  93 
S.  W.  989. 

39.  Exchange  Bank  of  Valdosta  v. 
Newton  (Ga.),'  99  S.  E,  705;  Yeany 
V.  Shannon,  256  Pa.  135,  100  A.  527. 


40.  Dayries  v.  Lindsly,  128  La.  259, 
54  So.  791. 

41.  Owens  v,  Johnson,  8  Baxt. 
(Tenn.),   265. 

42.  McVey  v.  CantreU,  70  N.  Y. 
205.  But  see  Heugh  v.  Jones,  32  Pa. 
432,  which  tends  more  strongly  to  the 
protection  of  married  women  in  such 
transactions. 

43.  Worthington  v.  Cooke,  52  Md. 
297;  Marshall  v.  Marshall,  4  Thomp. 
&  C.  (N.  Y.),  449;  Harris  v.  Wil- 
liams, 44  Tex.  124.  As  to  wife's 
lease  to  her  husband,  see  Albin  v. 
Lord,  39  N.  H.  196.  But  see  Eusta- 
phieve  v.  Ketchum,   13  N.  Y.   621. 

44.  Parker    v.    Simonds,    1    Allen 


423 


STATUTORY  SEPARATE  ESTATE. 


§  413 


Oonsistentlj  with  the  principle  of  the  wife's  non-1  iabilitj  as 
surety,  it  is  held  that  she  cannot  be  held  liable  to  a  pledgee,  to 
whom  she  has  pledged  stock  so  as  to  secure  her  husband's  debt,  for 
money  received  by  her  upon  a  subsequent  sale  of  the  stock  contrary 
to  the  pledgee's  rights.*^ 

The  tendency  of  some  of  the  late  cases  is  to  exempt  promissory 
notes  which  are  drawn  payable  to  a  married  woman  or  order  from 
all  liability  for  the  husband's  engagements ;  a  presumption  being 
thus  afforded  that  the  money  is  due  to  her  and  not  to  her  husband.*" 
In  Georgia  she  is  liable  where  she  borrows  money  with  the  object 
of  raising  money  for  paying  her  husband's  debts,  though  the  fact 
is  known  to  the  lender.*^  It  has  also  been  there  held  that  a  wife's 
note  given  to  settle  litigation  against  the  spouses  jointly  was  bind- 
ing on  her,  where  the  creditor  claims  a  joint  liability,  even  though 
the  debt  was  that  of  the  husband  alone,  the  real  consideration  of 
the  note  being  the  settlement  of  the  litigation.^ 


48 


§  413.  Suretyship  in  General. 

A  wife  may  now  become  a  surety  or  guarantor,**  by  force  of 
statute,  not  only  in  New  York  but  in  some  other  States.^"  In 
other  States  the  wife's  capacity  to  make  a  contract  of  suretyship 
or  guaranty  is  still  denied.^^  In  those  States  such  a  transaction  is 
binding  only  where  she  receives  an  independent  consideration  for 
her  contract,^^  or  where  the  mortgagee  knows  nothing  of  the  inten- 
tion to  evade  the  law,  and  there  is  nothing  in  the  record  title  to  put 
him  on  inquiry.^^     To  bind  her  by  such  a  contract  the  consider- 


(Mass.),  258;  Shannon  v.  Canney,  44 
N.  H.  592;  Keaton  v.  Scott,  25  Ga. 
652;  Tale  v.  Dederer,  18  N.  Y.  265; 
Emery  v.  Lord,  26  Mich.  431 ;  Schmidt 
-V.  Postel,  63  111.  58 ;  Sweazy  v.  Ram- 
mer, 51  la.  642;  King  v.  Thompson, 
59  Ga.  380;  Athol  Machine  Co.  v. 
Fuller,  107  Mass.  437;  Wolff  v.  Van 
Meter,  19  la.  134 ;  Sweeney  v.  Smith, 
15  B.  Men.  (Ky.),  325.  And  see 
Sawyer  v.  Fernald,  59  Me.  500;  De 
Aeries,  v.  Conklin,  22  Mich.  255;  Van- 
kirk  V.  Skillman,  5  Vroom  (N.  J.), 
109. 

45.  Piatt  V.  Hawkins,  43  Conn.  139, 

46.  See  Cowles  v.  Morgan,  34  Ala. 
535;  Lewis  v.  Harris,  4  Met.  (Ky.), 
353;   Chapman  v.  Williams,   13   Gray 


(Mass.),  416;  Paine  v.  Hunt,  40  Barb. 
(X.  Y.)  75;  Tooke  v.  Newman,  75  111. 
215. 

47.  Chastian  v.  Peak,  111  Ga.  889, 
36  S.  E.  967, 

48.  Thornton  v.  Lemon,  114  6a.  155, 
39  S.  E,  943;  Kile  v.  Kilner,  37  Pa. 
Super.  90, 

49.  Woolsey  v.  Brown,  74  N.  Y.  82, 

50.  Hart  v.  GrigsBy,  14  Bush  (Ky.), 
542;  Northwestern  Life  Lis.  Co.  v. 
Allis,  23  Minn.  337. 

51.  Kussel  V.  People 's  Sav.  Bank,  39 
Mich,  671. 

52.  Hamilton  v.  Hamilton,  162  Ind. 
430,  70  N.  E.  535. 

53.  Grzesk  v.  Hibberd,  149  Ind. 
354,  48  N.  E.  361. 


§  413  HUSBAND  AND  WIFE.  424 

ation  must  be  actually  received  by  her,  and  nominal  receipt,  where 
the  receipt  is  for  the  use  of  her  husband,  will  not  avail  to  bind 
her.^*  Thus,  where  the  proceeds  of  such  a  note  are  invested  in 
land  in  her  name  she  is  bound/^  and  none  the  less  so  where  she  has 
a  right  of  dower  in  the  property  incumbered.^^  Such  obligations 
are  valid  only  to  the  extent  to  which  her  separate  es^tate  is  benefited 
thereby,^'  and  to  which  they  are  supported  by  a  valid  consideration 
running  to  her'^''* 

In  Missouri  a  wife  is  not  liable  as  surety  for  her  husband  in 
the  absence  of  an  express  promise  to  pay  the  debt,  a  mere  recital 
that  she  is  surety  being  insufficient.^*  In  New  Jersey,  to  validate 
the  accommodation  note  of  a  wife  she  must  be  shown  to  have 
obtained  therefore  something  of  value  to  her  own  use  or  to  the  use 
of  her  estate. '^^  In  Indiana  statute  provides  that  she  is  bound  by 
a  contract  executed  as  surety  where  she  makes  an  affidavit  that 
she  is  contracting  for  her  separate  use.^°  In  such  States  where 
the  creditor  knows  that  she  is  acting  as  a  surety  he  cannot  recover 
against  her,*^  because  he  is  bound  to  know  the  limitation  placed 
by  the  law  on  her  ability  to  contract,®^  even  though  the  obligee,  in 
consideration  of  her  obligation,  releases  the  husband's  liability, 
and  even  though  she  makes  affidavit  that  the  loan  is  just 


68 

UlUbJ, 

64 


54.  Feather  v.  Feather's  Estate,  116  69.  Vliet  v.  Eastburn,  63  N.  J.  Law, 
Mich.  384,  74  N.  W.  524,  4  Det.  Leg.  450,  43  A.  741. 

N.  1209.  60.   Ludlow  v.  Colt,  41   Ind.   App. 

55.  Smith  v.  Hardman,  99  Ga.  381,  138,  83  N.  E.  643. 

27  S.  E.  731;  Thomas  v,  Boston  Bank-  61.  Warren  v.  Crow  (Ala.),  73  So. 

ing  Co.,  157  Ky.  473,  163  S.  W.  480.  989;  Jones  v.  Weichselbaum,  115  Ga. 

56.  Andrysiak  v.  Satkowski,  159  369,  41  S.  E.  615;  Munroe  v.  Haas, 
Ind.  428,  63  N.  E.  854,  65  N.  E.  286.  105  Ga.  468,  30  S.  E.  654;  Govt.  Bldg. 

57.  Bley  v.  Lewis  (Ala.),  66  So.  &  Loan  Inst.  v.  Denny,  154  Ind.  261, 
454;  Mills  v.  Hudmon  &  Co.,  175  Ala.  65  N.  E.  757;  Weil  v.  Waterhouse, 
448,  57  So.  739  ;  Kelley  v.  York,  183  46  Ind.  App.  690,  91  N.  E.  746 ;  Manor 
Ind.  628,  109  N.  E.  772 ;  Wredman  v.  Nat.  Bank  v.  Lowery,  242  Pa.  559, 
Falls  City  Sav.  &  Loan  Ass 'n,  40  Ind.  89  A.  678;  Algeo  v.  Fries,  24  Pa. 
App.  478,  82  N.  E.  476;  Vogel  v.  Super.  427;  Harper  v.  O'Neill,  194 
Leichner,  102  Ind.  55,  1  N.  E.  554;  Pa.  141,  44  A.  1065;  First  Nat.  Bank 
Pritchett  v.  McGaughey,  151  Ind.  638,  v.  Taylor,  38  Utah,  516,  114  P.  529; 
52  N.  E.  39^7;  Fitts  v.  A.  F.  Messick  Ritter  v.  Bruss,  116  Wis.  55,  93  N.  W. 
Grocery  Co.,  144  N.  C.  463,  57  S.  E.  361. 

164 ;   Equitable  Trust  Co.  v.  Torphy,  62.  Field  v.  Campbell,  164  Ind.  389, 

37  Ind.  App.  220,  76  N.  E.  639;  Me-  72  N.  E.  2G0,  108  Am.  St.  R.  301, 

Kay  V.  Corine  (Ind.),  118  N.  E.  978.  63.   Russell   v.   Rice,    19    Ky.    Law, 

57o.    Washburn    v.    Gray,    49    Ind.  1613,  44  S.  W.  110. 

App.  271,  97  N.  E.  190.  64.  Neighbors  v.  Davis,  34  Ind.  App. 

58.  Newman  v.  Newman,   152  Mo.  441,  73  N.  E.  151. 
398,  54  S.  W.  19f. 


425 


STATUTOKY  SEPARATE  ESTATE. 


§  416 


§  414.  For  Third  Persons. 

The  same  may  be  said,  thougli  perhaps  with  more  reserve,  of 
her  undertakings  for  the  benefit  of  third  parties ;  as  a  mere  accom- 
modation indorser,  for  instance.*^  In  Louisiana  a  married  woman 
may  bind  herself  as  surety  for  any  one  except  her  husband.""  The 
Texas  statute  by  implication  empowers  the  wife  to  become  surety 
or  joint  maker  with  a  third  person  with  her  husband's  joinder.' 


67 


§  415.  What  Constitutes  Contract  of  Suretyship  in  General. 

Statutes  prohibiting  a  wife  from  being  a  surety  for  her  husband, 
being  for  her  benefit,  should  not  permit  technicality  or  misrepre- 
sentation to  defeat  the  rights  of  creditors  not  at  fault."*  The  test 
as  to  whether  a  wife  is  a  surety  or  not  is  the  intention  of  the 
parties,"^  and  depends  on  whether  the  benefit  of  the  contract  inures 
to  her  or  her  estate,  to  which  extent  she  is  a  principal.'^''  It  does 
not,  within  the  meaning  of  such  statutes,  depend  on  the  form  of 
the  obligation,  especially  where  there  is  an  intent  to  evade  the 
statute,^^  but  on  her  actual  relation  to  the  obligation." 

§  416.  Illustrations. 

The  fact  that  a  wife  is  surety  may  be  shown  by  any  competent 
evidence."     The  fact  that  the  husband  and  not  the  wife  receives 


65.  Shannon  v.  Canney,  44  N.  H. 
592;  Crane  v.  Kelley,  7  Allen  (Mass.), 
250;  Kohn  v.  Eussell,  91  111,  138; 
Bailey  v.  Pearson,  9  Fost.  (N.  H.) 
77;  Lytle's  Appeal,  36  Pa.  131; 
Peake  v.  La  Baw,  6  C.  E.  Green  (N. 
J,),  269 ;  Bauer  v.  Bauer,  40  Misc.  61. 

66.  Wiekliflfe  v.  Dawson,  19  La. 
Ann.  48. 

67.  Red  River  Nat.  Bank  v.  Fergu- 
son  (Tex.),  206  S.  W.  9-23. 

68.  Tombler   v,   Eeitz,   134   Ind.   9, 

33  N.  E.  789. 

69.  McCollom  v.  Boughton,  132  Mo. 
601,    30   S.   W.    1028,   33    S.   W,    476, 

34  S.  W.  480,  35   L.  R.  A.   480. 

70  Leschen  v.  Guy,  149  Ind.  17,  48 
N.  E.  344;  Gillett  v.  Citizens'  Nat. 
Bank  (Ind.),  104  N.  E.  775;  First 
Nat.  Bank  v.  Bertoli,  87  Vt.  297,  89 
A.  359;  McCoy  v.  Barns,  136  Ind. 
378,  36  N.  E.  134;  Berdenkoff  v. 
Brazee,  28  Ind.  App.  646,  63  N.  E. 
577,  61  N.  E.  954;   Feld  v.  Noblett, 


154  Ind.  357,  56  N.  E.  841;  Cook  v. 
Bubrlage,  159  Ind.  162,  64  N,  E.  603 ; 
Guy  V.  Lieberenz,  160  Ind.  524,  65 
N.  E.  186;  Harbough  v.  Tanner,  163 
Ind.  574,  71  N.  E.  145;  Field  v. 
Campbell,  164  Ind.  389,  72  N.  E.  260; 
John  C.  Groub  Co.  v.  Smith,  31  Ind. 
App.  685,  68  N.  E.  1030;  Brady  v. 
Equitable  Trust  Co.,  178  Ky.  693, 
199  S.  W.  1082. 

71.  Sibley  v.  Robertson,  212  Pa.  24, 
61  A.  426;  Keystone  Brewing  Co.  v. 
Varzaly,  39  Pa.  Super.  155;  Lackey  v. 
Boruff,  152  Ind.  371,  53  N.  E.  412; 
Wm.  Deering  &  Co.  v.  Veal,  25  Ky. 
Law,  1809,  78  S.  W.  886;  Hamilton  v. 
Hamilton,  162  Ind.  430,  70  N.  E. 
535. 

72.  McKay  v.  Corwine  (Ind.),  119 
N.  E.  471 ;  First  Nat.  Bank  v.  Bertoli, 
88  Vt.  421,  92  A.  970. 

73.  Black  v.  McCarley's  Ex'r,  31 
Ky,  Law,  1198,  104  S.  W.  987. 


§416  HUSBAND   AND    WIFE.  426 

the  consideration  conclusively  establishes  the  fact  that  she  is  a 
surety/*  as  well  as  where  her  mortgage  secures  his  debt.''     Where 
the  only  consideration  of  a  wife's  note  is  the  conveyance  of  prop- 
erty to  another,  she  is  a  surety  and  the  contract  is  void.'''     She  is 
a  surety  where  she  gives  a  new  note  without  new  consideration  in 
lieu  of  her  husband's  note  to  which  she  was  not  a  party.''     A 
renewal  of  a  note  given  as  surety  wherein  the  wife  appears  as 
maker  does  not  validate  such  a  transaction.'*     Where  a  wife  causes 
property  to  be  conveyed  to  herself  and  gives  a  note  and  mortgage 
for  it,  she  is  not  a  surety  though  the  vendor  has  refused  to  sell  it 
to  her  husband  because  he  could  give  no  security.'^     An  absolute 
deed  of  trust  of  a  wife's  separate  estate  providing  that  the  land  be 
sold  and  the  proceeds  applied  to  pay  the  husband's  debts  has  been 
held  not  a  contract  of  suretyship.*"     In  Georgia  it  has  also  been 
held  that  where  a  husband  became  tenant  of  land,  and  afterward 
the  wife  by  an  original  undertaking  became  tenant  of  the  same 
land,  she  was  not  a  surety.*'-     Where  a  wife  borrows  money  with 
intention  to  use  it  to  pay  her  husband's  debts  she  does  not  act  as 
surety,*^  nor  where  she  gives  a  mortgage  of  her  separate  estate  in 
consideration  of  the  transfer  to  her  of  his  note,*'  nor  where,  after 
a  conveyance  to  her  of  all  his  property,  she  promises  to  pay  his 
debt  to  relieve  herself  of  a  creditor's  attack  on  the  conveyance  as 
in  fraud  of  him,**  nor  where  she  agrees  with  him  to  pay  his  note 
in  consideration  of  a  conveyance  of  his  property  to  her,*'  nor  where 
she  agrees  with  the  creditor  to  pay  her  husband's  note  in  consider- 

74.  Leachen  v.  Guy,  143  Ind.  17,  48       v.  MaUoj,  21  Ind.  App.  287,  52  N.  E. 
N.  E.  344;   Vorei3  v.  Nussbaum,  131       245. 

Ind.  267,  31  N.  E.  70,  16  L.  R.  A.  79,   McDonald   v.   Bluthenthal,   117 

45;  Oswald  v.  Jones,  254  Pa.  32,  98  Ga.  12-0,  43  S.  E.  422. 

A.  784,  80.   Eogers  v.   Shewmaker,  27   Ind. 

75.  Harbaugh  v.  Tanner,  163  Ind.  App.  631,  60  N.  E.  462,  87  Am.  St. 
574,  71  N.  E.  145;  Barrett  v.  Davis,  R.  274. 

104  Mo.  549,  16  S.  W.  377;  McGowan  81.  Burgess  v.  Torrence    (Ga.),  98 

V.  Davenport,   134  N.  C.   526,  47   S.  S.  E.  170. 

E.  27.  82.    Taylor    v.    American    Freehold 

76.  Cook  V.  Buhrlage,  159  Ind.  162,  Land-Mortgage  Co.,  106  Ga.  238,  32 
64  N.  E.  603.  S.  E.  153;  Lowenstein  v.  Meyer,  114 

77.  Deposit    Bank    of    Carlisle    v.       Ga.  709,  40  S.  E.  726. 

Stitt,  107  Ky.  49,  21  Ky.  Law,  671,  83.  Sample  v.  Guyer,  143  Ala.  613, 

52  S.  W.  950.  42.  So.  106. 

78.  Continental  Nat,  Bank  v,  Clarke,  84.  Welpley  v.  Stoughton,  112  Mich. 
117  Ala.  292,  22  So.  988;  Union  594,  70  N.  W.  1098,  4  Det.  Leg.  N. 
Stock  Yards  Nat.  Bank  v.  CofFman,  137. 

101  la.  594,  70  N.  W.  693;  Sponhaur  85.  Bryant  v.  Jones  (Ky.),  209  S. 

W.  30. 


427  STATUTOKY  SEPARATE  ESTATE.  §  417 

ation  of  a  conveyance  of  land  to  her,*"  nor  where  she  gives  her  note 
to  his  creditor  to  induce  the  creditor  to  forbear  an  action  against 
the  husband/^  nor  where  she  pays  his  shortage  at  a  bank  to  avoid 
his  exposure/^  nor  where,  in  order  to  get  a  good  title  to  land 
which  is  incumbered  with  a  lien  for  his  debts,  she  pays  them  and 
removes  the  incumbrance,®"  nor  where  in  a  conveyance  of  her 
separate  land  she  gives  a  warranty  in  discharge  of  his  debt,  since 
the  debt  was  thereby  extinguished,®"  nor  where  the  spouses  jointly 
agree  to  devise  part  of  their  property  held  by  the  entirety  to  one 
who  has  rendered  services  and  made  expenditures  in  their  behalf,®'' 
or  where  they  jointly  executed  an  obligation  to  pay  for  clothing  for 
her  and  the  children,®^  nor,  in  Georgia,  where  she  procures  a  third 
person  to  pay  his  debt,  and  contracts  to  reimburse  such  third 
person.^' 

§  417.  Rights  of  Wife  as  Surety. 

Where  a  wife  is  a  surety  only,  she  can  only  be  held  liable  as 
such®*  and  is  entitled  to  the  rights  of  a  surety,*"  such  as  exoner- 
ation out  of  his  estate."®  The  wife's  right  to  exoneration  from  his 
estate  as  a  creditor  after  his  death  applies  with  reference  to  mort- 
gages of  her  separate  lands  for  the  benefit  of  herself  and  her  heirs." 
But  she  cannot,  as  against  a  bon  fide  holder  of  the  note,  compel  him 
to  marshal  the  assets  of  the  payee  before  foreclosure.®*  Lapse  of 
time  is  no  defence  against  a  wife's  bill  against  her  husband's 
executors  for  reimbursement  for  money  raised  by  her  mortgage  to 
pay  her  husband's  debt,  where  the  bill  is  brought  before  the  mort- 
gage debt  has  matured.®®    The  contract  of  a  wife  who  had  received 

86.  Hamilton  v.  Parent,  152  Mich.  94,  Smith  v.  Herman  (Cal.),  180  P. 
587,  15  Det.  Leg.  N.  318,  116  N.  W.  640;  Pitcher  v.  Griffiths,  216  Mass. 
367.  174,  103  N.  E.  471;   Dibble  v.  Eich- 

87.  King  V.  Hansing,  88  Minn.  401,  ardson,  171  N.  Y.  131,  63  N.  E.  829; 
93  N.  W.  307.  Thurmond  v.  Woods'  Ex'r,  27  Grat. 

88.  Adams  v,  Davidson    (Ala.),  68  (Va.)    727. 

8o.  267.  95.  Foster  v.  Davis,  75  N.  C.   541, 

89.  Atlanta  Suburban  Land  Corp.       95  S.  E,  917. 

V.  Austin,  122  Ga.  374,  50  S.  E.  124.  96.  Browne  v.  Bixby,  190  Mass.  69, 

90.  Nichol   V.   Hays,  20   Ind.  App.       76  N.  E.  454. 

369,  50  N.  E.  768.  97.   /&.;   Kinner  v.  Walsh,   44   Mo. 

91.  Gifford  v.   Gifford    (Ind.),   107       65. 

N.  E.  308.  98.   Davies   v.   Simpson    (Ala.),   79 

92.  Reynolds   v.    Starks    (Ga.)    85       So.  48. 

8.  E.  950.  99.  Shea  v.  McMahon,  16  App.   D. 

93.  Third  Nat.  Bank  v.  Poe,  5  Ga.       C.  65. 
113,   62   S.   E.    826;    Druckamiller   v. 

Coy,  42  Ind.  App.  500,  85  E.  1028. 


§  420 


IiUSBA2«D    AKD    WIFE. 


428 


certain  benefits  thereby  to  mortgage  property,  which,  the  contract 
provided  should  be  conveyed  to  her,  to  pay  her  husband's  debts, 
has  been  held  unenforceable  by  a  surety  of  her  husband  who  had 
paid  one  of  such  debts.^  Where  title  to  property  mortgaged  jointly 
by  spouses  stood  in  the  husband's  name,  but  where  the  wife  had  an 
equitable  undivided  part  of  it,  it  was  held  that  she  could  not  en- 
force her  right  as  surety  to  the  extent  of  her  interest  against  the 
mortgagee  who  had  no  notice  of  her  interest  other  than  the  fact 
that  she  joined  in  the  covenant  of  seizin." 

§  418.  Enforcement. 

Specific  performance  is  decreed  against  her  on  her  written  prom- 
ise to  convey ;  provided  the  contract  be  executed  with  the  formali- 
ties requisite  in  her  conveyance.^  Where  she  buys  with  notice  of 
an  existing  contract  of  sale  held  by  another,  she  will  be  compelled 
to  perform.*  The  fact  that  her  contract  cannot  be  specifically  en- 
forced does  not  prevent  its  enforcement  in  other  ways,  as  by  en- 
forcing a  lien  on  her  property  for  the  return  of  money  paid  to  her 
under  the  contract.^ 

§  419.  Ratification. 

In  some  States  her  ratification  of  a  defective  conveyance, 
whether  directly  or  by  acts  presumptive,  is  pronounced  valid.® 

§  420.  Avoidance. 

A  wife  who  joins  suitably  with  her  husband  or  trustee  in  a 
conveyance  of  her  separate  or  general  property,  so  as  legally  to 
convey  it  in  conformity  with  statute,  cannot  afterwards  assert  her 
equitable  title  so  as  to  avoid  altogether  or  change  from  an  abso- 
lute to  a  security  title,  as  against  a  bona  fide  purchaser  for  value, 
having  no  notice  of  her  equitable  claim,^  nor,  according  to  the 
growing  opinion,  assert  a  present  or  subsequent  title  after  duly 
conveying  her  entire  interest.*     The  recitals  of  her  acknowledg- 


1.  Hamilton  v.  Hamilton,  162  Ind. 
430,  70  N.  E.  535. 

2.  Hemert  v.  Taylor,  73  Minn.  339, 
76  N.  "W.  42. 

3.  Woodward  v.  Seaver,  38  N.  H. 
29;  Baker  v.  Hathaway,  5  Allen 
(Mass.),  103.  See  Eumfelt  v.  Clem- 
ens, 46  Pa.  455;  Stevens  v.  Parish,  2? 
Ind.  260;  Love  v.  Watkins,  40  Cal. 
547. 

4.  Fee  v.  Sharkey,  59  N.  J.  Eq.  284, 


44  A.  674,  decree  affirmed,  60  N.  J. 
Eq.   446. 

5.  Vance  v.  Jacksonville  Realty  & 
Mortgage  Co.    (Fla.),  67  So.  636. 

6.  Spafford   v.   Warren,   47   la.   47. 

7.  Pepper  v.  Smith,  54  Tex.  115; 
Comegys  v.  Clarke,  44  Md.  108. 

8.  Knight  v.  Thayer,  125  Mass.  25; 
King  V.  Rea,  56  Ind.  1.  But  see  Bar- 
ker V.  Circle,  60  Mo.  258. 


429 


STATUTORY  SEPARATE  ESTATE. 


§  420 


ment  in  the  magistrate's  certificate  may  be  relied  upon  by  a  bona 
fide  purchaser  or  mortgagee.®  And  equity  will  not  permit  the  wife 
to  avoid  a  sale  without  refunding  the  purchase-money/"  There  is 
much  logical  confusion  on  this  point;  and  the  true  equity  rule 
appears  to  be  to  regard  not  so  much  the  credit  as  the  consideration 
of  that  credit,  whether  it  were  for  her  benefit  or  on  express  credit 
of  the  separate  property.  Where  the  wife  cannot  be  sued  upon  her 
promise  to  buy  upon  credit,  she  will  not  in  equity  be  allowed  to 
decline  and  yet  keep  the  property  too;  and  hence  lands  or  per- 
sonal property  sold  her  on  her  credit,  and  for  the  benefit  of  her 
separate  estate,  have  been  treated  as  subject  to  the  vendor's  lien, 
even  though  the  notes  she  gave  by  way  of  executory  contract  could 
not,  as  such,  be  enforced  against  her."  And,  once  again,  it  is 
asserted,  and  quite  fairly,  that  the  sale  to  a  married  woman  on 
credit  is  a  voidable  contract  on  her  part;  that  she  may  either 
recede  from  the  bargain  and  claim  its  annulment,  or  allow  it  to 
stand  with  a  right  in  the  vendor  to  subject  the  specific  property 
to  the  payment  of  the  debt.^^  A  wife's  contract  can  be  avoided  on 
the  ground  that  she  acted  as  surety  only  by  her  privies  in  blood 


9.  Singer  Man.  Co.  v.  Rook,  84  Pa. 
442;  Marston  v.  Brittenham,  76  111. 
611;  Conn.  Life  Ins.  Co.  v.  McCor- 
mick,  45  Cal.  580;  Homceopathic  Life 
Ins.  Co.  V.  Marshall,  32  N.  J.  Eq,  103. 

10.  Kolls  V.  De  Leyer,  41  Barb.  (N. 
Y.)   208. 

11.  Pemberton  v.  Johnson,  46  Mo. 
342;  Bruner  v.  Wheaton,  ii.  363;  Car- 
penter V.  Mitchell,  54  111.  126 ;  Hunter 
V.  Duvall,  4  Bush  (Ky.),  438;  Smith 
V.  Doe,  56  Ala.  456;  Boland  v.  Klink, 
63  Ga.  447. 

12.  Nicholson  v.  Heiderhoff,  50 
Miss.  56.  Beyond  this,  the  court  here 
observes,  the  vendor  cannot  go,  nor 
can  he  coerce  payment  out  of  her 
other  property;  but  she  cannot  retain 
possession  of  the  legal  title,  and  plead 
her  own  disability  in  annulment  of 
her  obligation  and  security  for  the 
purchase-money.  lb.  Sixbee  v.  Bowen, 
91  Pa.  149,  asserts  the  rule  of  void- 
able contract  on  the  wife  's  part  so  as 
to  permit  her  to  stand  by  it  as  against 
her  husband's  creditors. 

A  wife  who  induces  a  third  person 


to  buy  her  lands  by  her  oral  promise, 
with  her  husband's  concurrence,  that 
he  may  deduct  from  the  price  a  debt 
due  him  from  her  husband,  cannot, 
after  full  conveyance,  repudiate  this 
promise.  Meiley  v.  Butler,  26  Ohio 
St.  535. 

It  is  held  in  New  York  that  a  mar- 
ried woman  is  not  liable  for  property 
obtained  upon  her  credit  and  contract, 
but  delivered  to  her  husband  and  for 
his  use,  and  which  is  used  by  him  and 
not  for  the  benefit  of  her  estate,  where 
the  intent  to  charge  her  separate  es- 
tate is  not  expressed  in  the  contract. 
Manhattan  Co.  v.  Thompson,  58  N.  Y. 
80,  In  some  States  the  test  of  the 
wife's  liability  is  by  statute  limited 
expressly  to  purchases,  etc.,  ' '  for  the 
benefit"  of  the  wife's  separate  prop- 
erty, etc.  Wallace  v.  Finberg,  46  Tex. 
35 ;  National  Bank  v.  Smith,  43  Conn. 
327. 

A  Pennsylvania  statute  authorizes 
a  married  woman  to  loan  money  of 
lier  separate  estate  through  the  inter- 
vention of  a  trustee;   and  the  power 


§  420  HUSBAND  AND  WIFE.  430 

and  representation/'  Therefore  her  creditor  cannot  avoid  them/* 
.Where  she  chooses  to  avoid  them  she  need  not  return  the  con- 
sideration/^ Where  a  w^ife  seeks  cancellation  of  a  note  and 
mortgage  on  the  ground  that  she  acted  as  a  surety  she  has  the 
burden  of  showing  that  such  was  the  fact/^  there  being  no  pre- 
sumption that  the  wife  is  a  surety,  where  the  spouses  are  appar- 
ently joint  debtors,  and  she  has  the  burden  of  showing  the  fact 
affirmatively."  She  may  defend  against  a  contract  secured  by 
threats  of  criminal  prosecution  against  her  husband,  though  there 
was  ground  for  the  prosecution/*  Merely  stating  to  a  wife  that 
unless  she  binds  herself  as  a  surety  for  her  husband  he  will  suffer 
loss  and  detriment  is  not  sufficient  to  show  duress.^® 

thus  conferred,  when  freely  and  volun-  15.  Opperman  v.  Citizens'  Bank,  44 

tarily  exercised,  gives  to  the  transac-  Ind.  App.  401,  85  N.  E.  931. 

tion  the  form  of  a  contract  equally  16.  Bartholomew    v.    Pierson,    113 

binding  on  both  parties.     Flattery  v.  Ind.  430,  14  N.  E.  249. 

Flattery,  91  Pa.  474.  17.  Atkins  v.  Grist,  44  Pa.  Super. 

13,  Plant  V.  Storey,  131  Ind.  46,  30  310. 

N.    E.    886;    Lindsley    v.    Patterson  18.  Hensinger  v.  Dyer,  147  Mo.  219, 

(Mo.),  177  S.  W.  826,  L.  E.  A.  1915F,  48  S.  W.  912. 

680.  19.   United  States  Banking  Co.   ▼. 

14.  Lackey  v.  BorufE,  152  Ind.  371,  Veale,  84  Kan.  385,  114  P.  229. 
53  N.  E.  412. 


431  STATDTOBY  SEFAKATE  ESTATE.  §  ^31 


CHAPTER  XXI. 

WIFE'S    POWEK    TO    CHAEGE     STATUTOEY    SEPAEATE     ESTATE     WITH 

LIABILITY   FOK   DEBT. 

SicnoN  421.  Power  to  Charge  in  General. 

422.  VJhat  Constitutes  Charge. 

423.  Limitation  of  Power  to  Charge. 

424.  What  Contracts  are  for  Benefit  of  Separate  Estate. 

425.  What  Contracts  are  not  for  Benefit  of  Separate  Estate. 

426.  Property  Subject  to  Liability. 

427.  Extent  of  Liability  for  Joint  Debt. 

428.  Necessity  of  Intention  to  Charge. 

429.  Evidence  of  Intention  to  Charge. 

430.  Necessity  of  Joinder  or  Assent  of  Husband. 

431.  Effect  of  Separation  or  Abandonment. 

432.  By  Contract  in  General. 

433.  Evidence  of  Debt  in  General. 

434.  Necessity  of  Erpress  Contract. 

435.  By  Mortgage. 

436.  By  Equitable  Mortgage. 

437.  By  Assumption  of  Existing  Mortgage. 

438.  By  Deficiency  Decree. 

439.  By  Confession  of  Judgment. 

440.  By  Vendor's  Lien. 

441.  By  Mechanic's  Lien. 

442.  Joratly  with  Husband. 

443.  For  Purchase  of  Land. 

443a.  For  Improvements  and  Materials. 

444.  For  Services  Rendered. 

445.  For  Debt  of  Husband. 

446.  Statutory  Liability  for  Support  of  Husband. 

447.  Liability  for  Breaches  of  Trust. 

448.  Debts  Contracted  in  Separate  Business. 

449.  By  Contract  of  Guaranty  or  Suretyship. 

450.  Rule  of  Yale  v.  Dederer. 

451.  Loans. 

452.  By  Promissory  Note. 

453.  Proceedings  to  Charge  Separate  Estate;  In  Equitj. 

454.  At  Law. 

455.  Ratification. 

456.  Estoppel  to  Deny  Validity. 

457.  Avoidance. 

§  421.  Power  to  Charge  in  General. 

There  is  now  little  or  no  limit  upon  the  wife's  le^l  capacity  to 
bind  her  statutory  estate  to  the  discharge  of  liabilities  created  on 


§  422 


HUSBAND    AND    WIFE. 


432 


account  thereof,  in  several  States."  In  some  States  her  right  to 
deal  with  her  separate  estate  is  as  complete  as  though  she  were 
sole,^^  even  including  contracts  to  the  prejudice  of  such  estate,  or 
for  the  benefit  of  a  third  person  solely,^^  or  for  the  benefit  of  her 
husband.^^  Under  the  Alabama  Married  Women's  Act  a  wife 
may  make  all  contracts  relating  to  her  separate  estate,  unless  such 
contract  is  directly  or  indirectly  with  her  husband.^*  In  Illinois 
it  is  said  that  capacity  to  make  contracts  respecting  her  separate* 
property  is  an  implication  of  law  and  not  of  equity,  and  conse- 
quently all  contracts  made  by  her  within  the  scope  of  that  legal 
capacity  are  legal  contracts  and  cognizable  in  the  courts  of  law.^' 
The  equitable  rule  in  which  American  cases,  together  with  the 
latest  English  cases^^  generally  agree,  whether  with  reference  to 
the  equitable  or  statutory  separate  property  of  the  wife,  is,  that 
the  separate  estate  of  a  married  woman  becomes  chargeable  with 
the  due  performance  of  her  engagements  or  obligations  made  or 
incurred  upon  its  express  credit  or  for  its  benefit.^^  Benefit  i:J  not 
the  sole  test ;  but  to  the  extent  of  her  power  of  disposition  over  her 
separate  estate  the  wife  may  charge  it  with  such  engagements 
as  she  sees  fit  to  make,  provided  the  evidence  of  intention  be  satis- 
factory (upon  which  point  States  differ)  and  provided,  of  course, 
that  the  transaction  were  voluntary  on  her  part  and  not  fraudu- 
lently procured. 

§  422.  What  Constitutes  Charge. 

An  indorsement  by  tihe  wife  on  the  back  of  her  promissory  note 
"  I  hereby  bind  my  separate  estate  "  has  been  held  a  sufficient 
charge.^*  Under  the  Kentucky  statute  providing  that  a  wife  may 
not  charge  her  separate  estate  to  answer  the  debt  of  another,  unless 
set  apart  for  that  purpose  by  mortgage  or  other  conveyance,  it 
was  held  that  her  written  assignment  of  an  insurance  policy  to 


20.  Eighter  v.  Livingston,  214  Pa. 
28,  63  A.  195;  Mercantile  Exch.  Bank 
V.   Taylor,    51    Fla.   473,   41   So.   22 
Patrick   v.   Littell,    36   Ohio    St.   79 
Kouskop    V.    Shontz,    51    Wis.    204 
Knight  V.  Thayer,  125  Mass.  25;  Re 
Kinkead,  3  Biss.   (U.  S.)   405;  Wells 
V.  Caywood,  3  Col.  487. 

21.  Knaggs  v.  Mastin,  9  Kan.  532; 
Merrell  v.  Purdy,  129  Wis.  331,  109 
N.  W.  82. 

28.  Dages  v.  Lee,  20  W.  Va.  584. 


2S  Wimpee  v.  McHenry  &  Porter, 
18  Ga.  App.  475,  89  S.  E.  607. 

24.  Sample  v.  Guyer,  143  Ala.  613, 
42  So.  106. 

25.  Williams  v,  Hugenin,  69  111.  214. 

26.  Supra,  §  274. 

27.  Patrick  v.  Littell,  36  Ohio  St. 
79. 

28.  Nat.  Exch.  Bank  v.  Cumberland 
Lumber  Co.,  100  Tenn.  479,  47  S.  W. 
85. 


433  STATUTORY  SEPARATE  ESTATE.  §  424 

secure  a  loan  to  her  husband  was  binding.^®  In  Xorth  Carolina, 
as  between  the  parties,  a  debt  may  be  charged  on  a  wife's  land 
otherwise  than  by  mortgage.^" 

§  423.  Limitation  of  Power  to  Charge. 

In  some  States,  in  order  to  charge  her  separate  estate  by  a 
contract,  it  must  appear  that  the  contract  is  reasonably  calculated 
to  benefit  or  improve  it,  or  secure  its  use  and  enjoyment,^^  and,  in 
Nebraska,  it  must  be  made  with  reference  to,  and  be  upon  the 
faith  and  credit  of,  such  estate.^"  In  such  States  her  contract 
cannot  be  supported  merely  because  it  is  only  incidentally  bene- 
ficial to  her  separate  estate.^^  Whether  such  a  contract  does  in 
fact  benefit  her  separate  estate  is  a  question  of  fact,^*  and  where 
the  statute  limits  the  power  of  the  wife  to  contract  the  creditor 
must  show  that  the  particular  contract  is  within  the  statute.^^ 
In  Wisconsin  it  must  appear  that  her  becoming  party  to  a  note 
is  necessary  or  convenient  to  the  use  and  enjoyment  of  her  sepa- 
rate estate,  or  to  carrying  on  her  separate  business,  or  is  related  to 
her  personal  services,  a  mere  intention  to  charge  such  estate,  or 
the  existence  of  equitable   grounds  therefor  being  insufficient.®* 

§  424.  What  Contracts  are  for  Benefit  of  Separate  Estate. 

The  following  have  been  held  to  be  contracts  for  the  benefit  of 
a  wife's  separate  estate ;  money  borrowed  to  pay  off  incumbrances 
on  her  separate  real  estate,®^  money  advanced  to  a  wife  to  enable 
her  to  pay  for  land  held  under  a  bond  for  a  deed  and  actually  so 
used,®*  plans  and  specifications  for  a  building  on  her  land,®®  the 

29.    New    York    Life    Ins.    Co.    v.  Mich.  498,  68  N.  W.  295,  3  Det.  Leg. 

MUler,   22   Ky.   Law,   230,    56   S.   W.  N.  467,  35  L.  E.  A.  96. 

975.  34.  Stenger  Benev.  Ass'n  v.  Stenger, 

80.  Wachovia  Nat.  Bank  v.  Ireland,  54  Neb.  427,  74  N.  W.  846;  Crockett 

122  N.  C.  571,  29  S.  E.  835.  v.  Doriot,  85  Va.  240,  3  S.  E.  128. 

31.  Thebo  v.  MeConnell,  62  Fla.  578,  35.  Gilbert  v.  Brown,  123  Ky.  703, 
56  So.  566;  Copeland  v.  Cunningham,  29  Ky.  Law,  1248,  97  S.  W.  40,  7  L. 
31  Ind.  116;  Smith  v.  Howe,  31  Ind.  R.  A.   (N.  S.)   1053. 

233;  First  Nat.  Bank  v.  Rutter   (N.  36.  Bailey  v.  Fink,   129  Wis.  373, 

J.),  106  A.  371;  J.  L.  Thompson  Co.  109  N.  W.  86. 

v.  Coat,  174  N.  C.  193,  93  S.  E.  724.  37.  Cupp  v.  Campbell,  103  Ind.  213, 

32.  Farmers'  Bank  v.  Normand,  3  2  N.  E.  565;  Scott  v.  Collier,  166  Ind. 
Neb.  (Unof.)  643,  9^  N.  W.  723;  644,  78  N.  E.  184 ;  Towusend  v.  Hunt- 
Kloke  V.  Martin,  55  Neb.  554,  76  zinger,  41  Ind.  App.  223,  83  N.  E. 
N.  W.  168.  619. 

S3.   Russel  V.   People's   Sav.   Bank,  38.  Ames  v.  Foster,  3  Allen  (Mass.  1, 

39  Mich.  671,  33  Am.  R.  444;  Detroit        541. 

Cham.    Commerce    v.    Goodman,    110  39.  Emerson  v.  Kneezell  (Tex.),  62 

S.  W.  551. 

28 


§  425 


HUSBAND    AND    WIFE. 


434 


wages  of  persons  engaged  in  cultivating  her  land,*"  a  contract  for 
drilling  a  well  on  her  separate  land,*^  money  advanced  to  a  wife 
to  improve  her  land  under  a  contract  void  because  of  coverture,** 
the  assumption  of  debts  which  are  a  charge  on  an  estate  conveyed  to 
her  in  satisfaction  of  her  own  debt,*'  a  note  given  to  a  landlord  to 
induce  him  to  release  her  property  situated  on  premises  rented 
by  her  husband,  and  occupied  by  the  family,  from  its  legal  lia- 
bility for  payment  for  rent,**  a  contract  whereby  a  wife  is  re- 
leased from  her  statutory  liability  to  support  her  mother,*'  a  con- 
tract for  a  garage  for  a  corporation  in  which  the  wife  is  a  stock- 
holder, indirectly  increasing  the  value  of  her  stock,*®  where  a  wife 
who  has  no  separate  estate  borrows  money  and  afterwards  pays 
cash  for  goods  for  use  in  her  separate  business  there  was  suffi- 
cient evidence  to  warrant  a  finding  that  the  loan  was  for  the 
benefit  of  her  separate  etate,  so  as  to  validate  the  mortgage,*^  and 
where  a  wife  secured  a  loan  to  pay  off  a  purchase-money  mortgage 
and  gave  a  bond,  secured  by  mortgage  of  her  separate  estate,  it 
was  held  that  the  mortgage  was  valid  for  the  amount  of  the  loan 
though  not  for  that  of  the  bond,  which  was  void.**  Where  it 
appeared  that  a  husband,  acting  as  his  deceased  wife's  agent,  ne- 
gotiated a  loan  for  which  she  signed  a  note,  and  that  she  was 
then  actively  conducting  a  farm,  keeping  accounts  and  paying  the 
help,  it  was  held  that  there  was  some  evidence  that  she  contracted 
for  the  benefit  of  her  separate  estate.* 


49 


§  425.  What  Contracts  are  Not  for  Benefit  of  Separate  Estate. 

The  following  have  been  held  not  for  the  benefit  of  a  wife's 
separate  estate:  a  note  given  to  protect  a  father's  estate  against 
suit  for  a  debt  for  which  it  was  claimed  the  father  was  surety,"" 
a  note  given  for  the  purchase  of  a  judgment  against  land  con- 
veyed to  the  wife,  where  the  land  was  incumbered  for  more  than 


40.  Miller   v.    Miller's   Adm'r,    92 
Va.  510,  23  S.  E.  891. 

41.  Lemons  v.  Biddy    (Tex.),   149^ 
S.  W.  1065. 

42.  Daily  v.  Cain,  11  Ky.  Law,  936, 
13  S.  W.  424. 

43.  Hugo  &  Schmeltzer  Co.  v.  Hirsch 
(Tex.),  63  S.  W.  163. 

44.  Kama  v.  Moore,  5  Pa.  Super, 
381. 

45.  Payne  v,  Payne,  129  Wis.  450, 
109  N.  W.  105. 


46.  Nystrom  v.  Barker,  88  Conn. 
382,  91  A.  649. 

47.  Singleton  v.  Singleton,  60  S.  C. 
216,  38  S.  E.  462, 

48.  Equitable  Bldg.  &  Loan  Ass'n 
V.  King,  48  Fla.  252,  37  So.  181. 

49.  Webb.  v.  Feather's  Estate,  119 
Mich.  473,  78  N.  W.  5^0,  5  Det.  Leg. 
N.  884. 

50.  West  V.  Laraway,  28  Mich.  464. 


435 


STATUTORY  SEPARATE  BSTATB. 


§  426 


its  value,^^  a  contract  to  plant  and  cultivate  an  orchard  on  land 
whereon  the  spouses  live,  the  title  to  which  is  in  a  third  person,'^ 
money  advanced  for  supplies  for  agricultural  purposes  to  third 
persons,  who  are  to  farm  certain  land  belonging  in  part  to  the 
wife,"  a  note  by  a  wife  having  a  revisionary  interest  in  the  estate 
of  her  father  to  a  legatee  under  his  will  who  had  released  his 
legacy  prior  to  the  making  of  the  note,  there  being  no  evidence  that 
the  release  was  in  consideration  of  the  note,°*  and  in  Texas,  under 
a  statute,  a  lease  of  her  separate  land  are  not  for  her  benefit."" 

§  426.  Property  Subject  to  Liability. 

Before  the  Ohio  Married  Women's  Act  a  wife  could  charge 
only  her  separate  esetate  owned  at  the  time  of  the  contract." 
Therefore,  since  an  expectant  right  to  receive  money  as  beneficiary 
under  a  life  insurance  policy  is  not  property,  she  could  not 
charge  it  by  her  contract.^^  The  rule  has  been  abrogated  by  the 
Married  Women's  Act  making  all  after  acquired  property  of  a 
wife  liable  for  her  debts.^*  In  West  Virginia  the  general  creditors 
of  a  wife  can  subject  the  rents  of  her  real  estate  to  her  debts  only  so 
long  as  she  is  entitled  to  them.'^  Under  the  Tennessee  Married 
Women's  Act,  which  fully  relieves  a  wife  from  common-law  dis- 
abilities of  coverture,  she  can  have  no  separate  estate  as  such  so 
that  all  her  property  is  subject  to  her  debts.'"  Prior  to  that  statute 
real  property  not  shown  to  be  the  separate  estate  of  the  wife  could 
not  be  charged  as  such  even  for  benefits  accruing  to  her  interest.'^ 
Under  the  Missouri  statute  providing  that  the  property  of  the 
wife  acquired,  inter  alia,  by  "  purchase  with  her  separate  means  or 
estate,"  shall  be  liable  to  her  debts  contracted  before  marriage, 
property  purchased  with  her  separate  estate  is  subject  to  a  joint 
and  several  note  executed  by  the  spouses  before  marriage 


02 


51.  Johnson  v.  Scott  (Tex.),  208  S. 
W.  671. 

52.  Edison  v.  Babka,  111  Mich.  235, 
69  N.  W.  499,  3  Det.  Leg.  N.  630. 

53.  Simon  v.  Sabb,  56  S.  C.  38,  33 
8.  E.  799. 

54.  Merrell  v.  Purdy  129  Wis.  331, 
109  N.  W.  82. 

55.  Taylor  v.  Thomas   (Tex.),  145 
8.  W.  1061. 

56.  Manahan  v.  Hart,  24  Ohio  Cir. 
Ct.  527. 


57.  Sticken  v.  Schmidt,  64  Ohio  St. 
354,  60  N.  E.  561. 

58.  Klinckhamer  Brewing  Co.  v. 
Cassman,  21  Ohio  Cir.  Ct.  465,  12  O. 
C.  D.  141. 

59.  Cox  V.  Horner,  43  W.  Va.  786, 
28  S.  E.  780. 

60.  Henderson  Grocery  Co.  v.  John- 
son (Tenn.),  207  S.  W.  723. 

61.  City  Lumber  Co.  v.  Bamhill, 
129  Tenn.  676,  168  8.  W.  159, 

62.  Conrad  v.  Howard,  89  Mo.  217, 
1.  8.  W.  212. 


§  429  HUSBAND  AXD  WIFE.  436 

§  427.  Extent  of  Liability  for  Joint  Debt. 

Where  a  wife  pledges  her  property  for  a  debt  wbicb  is  part  her 
own  and  part  that  of  her  husband,  she  is  liable  for  that  part  of 
the  debt  which  is  hers,  where  the  parts  are  ascertainable,  but  not 
for  that  of  her  husband.®^ 

§  428.  Necessity  of  Intention  to  Charge. 

In  order  to  bind  a  wife  on  a  contract  relating  to  her  separate 
estate  it  must  appear  that  there  was  an  intention  to  bind  such 
separate  estate,  as  well  as  a  sufficient  consideration  for  that  pur- 
pose,®* but  in  Kansas  it  is  no  defense  in  an  action  against  a  wife 
on  a  note  given  to  pay  her  husband's  debt  that  at  the  time  of 
giving  the  note  she  refused  to  charge  her  separate  estate  with  it."^ 

§  429.  Evidence  of  Intention  to  Charge. 

Whether  a  wife  contracts  by  promissory  note,  bond,  oral  or 
written  promise,  the  instrument  and  the  proof,  taken  together, 
must  disclose  the  intention^®  to  charge  her  separate  estate  ex- 
pressly, or  else  some  beneficial  object  for  which  the  money  was 
raised.  If  a  loan  is  made  to  the  wife,  the  purpose  of  that  loan 
must  be  established  by  the  lender  as  the  test  of  his  rig'ht  to  re- 
cover.*^ The  same  is  true  of  contracts  generally.^®  So,  too, 
if  she  gives  a  bond,  whether  as  surety  or  otherwise,^^  or  signs  or 
indorses  a  promissory  note.'^"  And  in  some  States,  even  in  equity, 
as  to  her  properly  executed  conveyance  of  real  estate.'^ 

In  order  to  charge  the  separate  estate  of  a  married  woman  with 
a  debt,  as  the  cases  now  to  be  examined  will  show,  a  specifis 
agreement  to  that  effect  is  not  indispensable;  but  the  intent,  or 
the  creditor's  right  to  procure  such  charge,  may  be  inferred  from 
the  surrounding  circumstances.'^     A  purchase  money  note  duly 

63.  Johnston  v.  Gulledge,  115  Ga.  estate.  Williams  v.  King,  43  Conn. 
gSl,  42  S.  E.  354.  569. 

64.  Mercantile  Nat.  Bank,  v,  Ben-  67.  Way  v.  Peck,  47  Conn.  23;  Viser 
bow,  150  N.  C.  781,  64  S.  E.  891;  Rit-  v.  Scruggs,  49  Miss.   705. 

ter  V.  Bruss,  116  Wis.  55,  92  N.  W.  68.    Farmer's    Bank    v.    Boyd,    67 

361;  West  v.  Laraway,  28  Mich.  464;  Neb.  497,  93  N.  W.  676;   Mercantile 

Merrell  v.  Purdy,  129  Wis.   331,  109  Xat.  Bank  v,  Benbow,  150  N.  C.  781, 

N.  W.   82.  64  S.  E.  891. 

65.  Wicks  V.  Mitchell,  9  Kan.   80.  69.  Gosman  v.  Cruger,  69  N.  T.  87. 

66.  The  presumption  is  that  a  con-  70.  U.  S.  cases,  supra;  Flanders  v. 
tract  entered  into  by  a  married  wo-  Abbey,  6  Bis.  (IT.  S.)  16;  Conrad  v. 
man  having  a  separate  estate,  for  its  Le  Blanc,  29  Ann.  123. 

benefit    or   for   her   exclusive   benefit,  71.  Sutton  v.  Aiken,  62  Ga.  733. 

was  contracted  upon  the  credit  of  her  72.   Breese   v.    Smith,   4   Ky.   Law, 


437 


STATUTOKY  SEPARATE  ESTATE. 


§  430 


executed  by  a  wife  specifying  the  property  on  which  it  is  a  lien 
and  duly  recorded  has  been  held  not  sufficient  evidence  of  a  gen- 
eral charge  against  her  separate  estate  under  the  West  Virginia 
Married  Women's  Act,  prescribing  how  and  when  a  wife  may 
charge  her  property  for  her  debts.''* 

Under  the  West  Virginia  Married  Women's  Act  every  charge 
on  a  wife's  separate  estate  must  be  evidenced  by  a  writing,  ac- 
knowledged and  recorded.'* 

§  430.  Necessity  of  Joinder  or  Assent  of  Husband. 

Under  the  Alabama  and  Florida  Married  Women's  Acts  a  wife 
cannot  bind  herself  by  a  contract  affecting  her  separate  estate 
without  the  joinder  of  her  husband."  In  Florida  the  husband's 
consent  need  not  be  expressed  in  a  separate  instrument  but  is 
sufficient  if  &he  executes  a  mortgage  of  her  property  to  secure  his 
debts,'®  but  the  creditor  must  aver  an  agreement  in  writing  in 
that  State."  The  statue  does  not  apply  in  Florida  where  the  wife 
has  been  made  a  free  dealer.'® 

In  iSTorth  Carolina,  prior  to  1911,  a  wife  could  not  bind  herself 
by  an  executory  contract  without  her  husband's  written  assent 
except  for  her  necessary  personal  expenses  or  to  pay  antenuptial 
debts,'®  and  a  deed  executed  by  both  spouses  making  such  charge 
need  not  recite  the  assent.®"  It  was  also  held  that  a  husband's 
act  in  writing  to  a  creditor  as  her  agent  asking  for  a  shipment  of 
goods  to  her  was  sufficient  as  a  written  assent  within  the  statute, 
though  not  expressly  given  in  the  letter,®^  but  that  such  consent 
was  not  validly  given  where  he  merely  deposited  her  note  indorsed 
bv  her  in  blank  as  collateral  for  his  debt.®"     Under  that  statute 


347;  Conlin  v.  Cantrell,  64  N.  Y.  217; 
Harshberger  v.  Alger,  31  Gratt.  (Va.) 
52. 

73.  Harvey  v.  Curry,  47  W.  Va.  800, 
35  S.  E.  838. 

74.  Fouse  v.  Gilfillan,  45  "W.  Va. 
213,  32  S.  E.  178. 

75.  Cowan  v.  Motley,  125  Ala.  369, 
28  So.  70 ;  Equitable  Building  &  Loan 
As3'n  V.  King,  48  Fla.  252,  37  So. 
181. 

76.  Ocklawaha  River  Farms  Co.  v. 
Young  (Fla.),  74  So.  644. 

77.  King  V.  Hooton,  56  Fla.  805,  47 
So.  394. 


78.  Lerch  v.  Barnes,  61  Fla.  672, 
54  So.  763. 

79.  J.  L.  Thompson  Co.  v.  Coats, 
174  N.  C.  193,  93  S.  E.  724;  Sander- 
lin  V.  Sanderlin,  122  N.  C.  1,  29  S.  E. 
55;  Sheppard  v.  Paquin,  140  N.  C.  83, 
52  S.  E.  410,  3  L.  R.  A.   (N.  S.)  307. 

80.  Causey  v.  Snow,  120  N.  C.  279, 
26  S.  E.  775;  Wachovia  Nat.  Bank  v. 
Ireland,  122  N.  C.  571,  29  S.  E.  835; 
Bazemore  v.  Mountain,  126  N.  C.  313, 
35  S.  E.  542. 

81.  Brinkley  v.  Ballance,  126  N.  C. 
393,  35  S.  E.  631. 

82.  Walton  v.  Britsol,  125  N.  C. 
419,  34  S.  E.  544. 


§    432  HUSBAND    AND    WIPE.  438 

it  was  lield  that  an  order  to  pay  money  to  be  cliarged  by  th& 
drawee  as  a  payment  on  the  contract  price  of  a  house  which  the 
drawer  was  building  for  the  drawee  created  no  charge  on  the  land 
of  the  drawee,  a  wife.*^  The  statute  did  not  apply  to  a  crop  lien." 
In  Louisiana  a  wife  may  contract  and  bind  her  separate  estate 
with  the  assent  of  her  husband,^^  or  the  authority  of  the  court, 
but  will  be  bound  by  misstatements  made  to  it  to  obtain  such 
authority,  as  against  those  relying  on  them.®* 

§  431.  Effect  of  Separation  or  Abandonment. 

If  the  wife  lives  apart  from  her  husband,  all  the  more  readily 
will  her  separate  property  be  charged  with  debts  contracted  for 
her  benefit  or  on  the  credit  of  such  property.®'  Under  the  former 
North  Carolina  statute  a  wife  whose  husband  has  abandoned  her 
had  power  to  contract  and  thereby  bind  her  separate  estate  with- 
out waiting  to  secure  a  divorce  on  the  ground  of  the  abandonment'*^ 

§  432.  By  Contract  in  General. 

Under  Married  Women's  Acts  a  wife  may  charge  her  separate 
estate  with  the  payment  of  her  debts,®^  even  where  the  contract  is 
made  for  her  by  an  agent.®"  She  may  bind  such  estate  by  a  con- 
tract to  pay  a  commission  for  the  sale  of  her  own  real  estate.®^ 

S3.    Lachary   v.    Perry,    130   N.   C.  242,  84  S.  E.  265 ;  Lapham  v.  Collmfl> 

289,  41  S.  E.  533.  78  N.  H.  548,  103  A,  306;   Green  ▼. 

84.  Eawlings  v.  Neal,  126  N.  C.  271,  Green,  255  Pa.  224,  99  A.  801;  Pat- 
35  S.  E.  597.  ton  v.  Merchants'  Bank,  12  W.  Va. 

85.  Priestly  v.  Chapman,  130  La.  587;  Manzy  v.  Manzy,  79"  Va.  537; 
480,  58  So.  156.  Dezendorf  v.  Humphreys,  95  Va.  473, 

86.  Kohlman  v.  Cochrane,  123  La.  28  S.  880;  Duval  v.  Chelf,  92  Va. 
219,  48  So.  914.  489,   23    S.   E.    893;    Bain   v.   Buff's 

87.  Johnson  v.  Cummins,  1  C.  E.  Adm'r,  76  Va.  371;  Russell  v.  Phelps, 
Green  (N.  J.),  97;  Leonard  v.  Mason,  73  Vt.  390,  50  A.  1101;  Camden  v. 
1  Lea  (Tenn.),  384;  Hodgson  v.  Wil-  Hiteshew,  23  W.  Va.  236;  Hughes 
liamson,  42  L.  T.  676;  Hazelbaker  v.  v.  Hamilton,  19  W.  Va.  366;  Merrell 
Goodellow,  64  111.  238 ;  Lane  v.  Moon,  v.  Purdy,  129  Wis.  331,  10?  N.  W.  82; 
46  Tex.  Civ.  625,  103  S.  W.  211.  In  re  Breed's  Estate,  125  Wis.  100, 

88.  Vandiford  v.  Humphrey,  139  N.  103  N.  W.  271.  The  Texas  Married 
C.  65,  51  S.  E.  893;  Bushnell  v.  Ber-  Women's  Act  does  not  give  to  a  wife 
tolett,  153  N.  C.  564,  69  S.  E.  610.  a  general  power  to   bind  themselves 

89.  Nadel  v.  Weber  Bros.  Shoe  Co.  personally  or  their  separate  estates  by 
(Fla.),  70  So.  20;  Eobertson  v.  Rob-  contracts.  Aiken  v.  First  Nat.  Bank 
ertson,  24  Ky.  Law,  2020,  72  S.  W.  (Tex.),  198  S.  W.  1017;  Johnson  v. 
813;  Rogers  v,  Eaton,  181  Mich.  620,  Scott  (Tex.),  208  S.  W.  671. 

148    N.    W.    348;     Bolthouse    v.    De  90.  Wuertz  v.  Braun,  113  App.  Div. 

Spelder,  181  Mich.  153,  147  N.  W.  589 ;  459,  99  N.  Y.  S.  340. 

Feather  v.  Feather's  Estate,  116  Mich.  91.  Isphording  v.  Wolf,  36  Ind.  App. 

384,  74   N.  W.   524,   4   Det.  Leg.  N.  250,  75  N.  E.   598. 

1209;  Bowen  v.  Daugherty,  168  N.  C. 


439  STATUTORY  SEPARATK  ESTATE.  §  435 

§  433.  Evidence  of  Debt  in  General. 

Agreeably  to  English  chancery  rules,  it  is  held  immaterial  by 
the  better  authorities  whether  the  wife's  debt  chargeable  on  her 
personal  property  be  evidenced  by  written  instrument  or  parol 
promise.®^  But  a  written  expression  of  actual  consideration  is  not 
readily  to  be  contradicted  by  parol  evidence  to  the  contrary.*^  In 
case  of  security  generally,  equity  may  well  consider  which  is  prin- 
cipal and  which  accessory  upon  the  point  of  parol  evidence.^* 

§  434.  Necessity  of  Express  Contract. 

In  Indiana  it  is  held  that  there  must  be  an  express  contract  to 
charge  a  wife's  separate  estate  with  liability  for  materials  used 
to  improve  it,®^  and  such  seems  to  be  the  law  in  Kentucky.®"  Under 
the  Florida  Married  Women's  Act  a  wife  may  bind  her  separate 
estate  for  a  payment  of  money  only  by  an  agreement  in  writing.'^ 

§  435.  By  Mortgage. 

A  mortgage  given  by  a  married  woman  upon  her  separate  estate, 
acknowledged  in  conformity  with  the  statute,  and  with  the  joinder 
of  the  husband,  is  a  valid  security  and  capable  of  enforcement;  not 
alone  where  she  had  it  mortgaged  to  secure  her  own  or  her  hus- 
band's debt,  but  also,  in  a  case  free  from  fraud  or  undue  influence, 
where  it  was  mortgaged  for  the  benefit  of  a  third  person.®^  But 
in  some  States  her  mortgage  is  valid  only  if  given  for  the  benefit 

92.  Miller  v.  Brown,  47  Mo.  505;  429-;  Bartlett  v.  Bartlett,  4  Allen 
Elliott  V.  Gower,  12  E.  I.  79.  (Mass.),  440.    But  in  Mississippi  she 

93.  Johnson  v.  Sutherland,  39  Mich.  cannot  mortgage  for  her  husband's 
579.  debts  beyond  the  extent  of  her  sepa- 

94.  Thacher  v.  Churchill,  118  Mass  rate  income,  though  her  husband  may 
108.  be  bound  to  the  usual  extent.     Fox- 

95.  Dame  v.  Coffman,  58  Ind.  345.  worth  v.  Magee,  44  Miss.  430;  Hand 

96.  Benson  v.  Simmers,  21  Ky.  Law,  v.  Winn,  52  Miss.  784.  See  Wilkinson 
1060,  53  S.  W.  1035.  v.  Cheatham,  45  Ala.  337;  Coleman  v. 

97.  Springfield  Co.  v.  Ely,  44  Fla.  Smith,  55  Ala.  368;  Conrad  v.  Le 
319,  32  So.  892;  Cobb  v.  Bear,  57  Blanc,  29  La.  Ann.  123;  Keller  v. 
Fla.  370,  49  So.  29;  Equitable  Bldg.  Ruiz,  21  La.  Ann.  283,  which  lay  down 
&  Loan  Ass'n  v.  King,  48  Fla.  252,  a  strict  rule  on  this  point. 

37  So.  181;   Micou  v.  McDonald,   55  As  to  giving  security  by  means  of 

Fla.  776,  46  So.  291.  an  absolute  deed,  and  the  title  becom- 

98.  Galway  v.  Fullerton,  2  C.  E.  ing  absolute  in  the  lender  by  reason 
Green  (N.  J.),  389;  Marlow  v.  Bar-  of  a  breach,  see  Mashburn  v.  Gouge, 
lew,  53  Cal.  456;  Beals  v.  Cobb,  51  61  Ga.  512.  A  wife's  separate  statu- 
Me.  348;  Jeffrees  v.  Green,  79  N.  C.  tory  estate  in  her  reality  is  not,  in 
330;  Voorhies  v.  Granberry,  5  Baxt.  Rhode  Island,  subject  to  an  equitable 
(Tenn.)  704;  First  Nat.  Bank  v.  charge  for  her  individual  contracts  in 
Haire,  36  la.  443 ;  Haffey  v.  Carey,  favor  of  her  creditors.  Angell  v.  Mc- 
73  Pa.  431;  Jordan  v.  Peake,  38  Tex.  Cullough,  12  R,  I.  47.     A  wife  may 


§  436 


HUSBAND    AND    WIFE. 


440 


of  her  iijeparate  estate.^^  Where  the  law  permits  her  to  be  a 
partner,  she  may  join  with  her  partner  in  mortgaging  the  firm 
property  to  secure  a  firm  debt/  and  if  the  transaction  is  otherwise 
valid,  its  wisdom  is  immaterial.^ 

Where  the  statute  limits  the  purposes  for  which  a  wife  maj 
mortgage  her  separate  estate,  the  burden  is  on  the  mortgagee  to 
show  that  the  purpose  of  the  mortgage  in  question  was  within  the 
statute.^  In  Louisiana  a  wife  is  not  bound  by  a  mortgage  of  her 
separate  estate  which  shows  on  its  face  that  it  is  intended  for 
use  in  cultivating  a  plantation  carried  on  by  her  husband  for  the 
benefit  of  the  community,^  but  if  authority  has  been  duly  obtained 
by  the  wife  to  borrow,  the  mortgage  will  not  be  avoided  by  evi- 
dence that  she  gave  the  money  to  her  husband  and  that  he  used 
it  in  his  business.^  In  the  same  State  valid  contracts  by  a  wife 
during  coverture  may  be  secured  on  her  paraphernal  property.' 

In  Missouri,  Wisconsin  and  North  Carolina  the  statute  does 
not  permit  a  wife  to  become  personally  bound  by  a  mortgage  of 
her  separate  estate,  the  debt  being  chargeable  only  on  the  mortr 
gaged  estate,  but  she  may  be  sued  in  so  far  as  to  enable  the 
mortgagee  to  foreclo^je.'^ 

§  436.  By  Equitable  Mortgage. 

Equity  will  charge  a  debt,  and  even  one  with  mortgage  or  other 
collateral  security  upon  specific  property,  upon  the  wife's  separate 
property  generally,  so  long  as  the  debt  was  contracted  for  the 
benefit  of  the  wife's  separate  property.*    At  law,  of  course,  there 


charge  her  separate  estate  by  a  mort- 
gage to  secure  a  loan  made  by  a  build- 
ing association  to  her  husband  as  a 
member.  Juanita  Association  v.  Mixell, 
84  Pa.  313 ;  Mercantile  Exch.  Bank  v. 
Taylor,  51  Fla.  473,  41  So.  22;  Till  v. 
Collier,  27  Ind.  App.  333,  61  N.  E. 
203 ;  Blakemore  v.  Blakemore,  19  Ky. 
Law,  1619,  44  S.  W.  96;  Hughes  v. 
Farmers'  Sav.  &  Bldg.  &  Loan  Ass'n 
(Tenn.),  46  S.  W.  362;  Etheridge's 
Adm'r  v.  Parker,  76  Va.  247. 

99.  Booth  Mercantile  Co.  v.  Murphy, 
14  Ida.  212,  9^3  P.  777;  Littler  v. 
Dielmann,  48  Tex.  Civ.  392, 106  S.  W. 
1137;  Tinkham  v.  Wright  (Tex.),  163 
S.  W.  615. 

1.  Hackley  Nat.  Bank  v.  Jeannot, 


143   Mich.   454,   106  N.   W.   1121,   13 
Det.  Leg.  N.  7. 

2.  Washburn  v.  Gray,  49  Ind.  App. 
271,  97  N.  E.  190. 

3.  Schamp  v.,  Security  Sav.  &  Loan 
Ass'n,  44  W.  Va.  47,  28  S.  E.  709. 

4.  Berwick  v.  Frere,  49  La.  Ann. 
201,  21  So.  69^. 

5.  Johnson  v.  Pesson,  49  La.  Ann. 
109,  21  S.  177. 

6.  Johnson  v.  Pesson,  49  La.  Ann. 
109,  21  S.  177. 

7.  Hagerman  v.  Sutton,  91  Mo.  519, 
4  S.  W.  73;  Edwards  v.  Jefferson 
Standard  Life  Ins.  Co.,  173  N.  C.  614, 
93  S.  E.  695;  Loizeaux  v.  Fremder, 
123  Wis.  193,  101  JST.  W.  423. 

8.  Armstrong  v.  Eoss,  5  C.  E.  Green. 
(N.  J.),  109. 


441  STATUTORY  SEPARATE  ESTATE.  §  436 

may  be  no  sucli  remedy ;  and  yet  it  should  be  borne  in  mind  that 
local  legislation  frequently  extends  the  legal  rights  of  a  married 
woman  in  this  same  direction.  For  the  charge  of  a  debt,  suitably 
contracted  by  a  married  woman  upon  her  separate  estate,  is  not 
a  specific  lien;  but  equity  charges  it  upon  all  the  property,  real 
or  personal,  she  may  have  when  satisfaction  is  demanded  and 
sought.^  But  on  the  other  hand  the  general  property  rights  of 
married  women  being  now  recognized  by  sundry  statutes,  their 
right  in  equity  to  make  contracts  affecting  their  pmperty  is  no 
longer  limited  to  property  settled  to  a  sole  and  separate  use;  and 
although  in  numerous  instances  statutory  requisites  for  making 
the  contract  binding  in  law  may  be  wanting,  equity  will  bind  her 
property,  nevertheless,  where  she  or  her  estate  has  received  the 
benefit  of  the  transaction/"  We  speak  here  with  a  constant  reser- 
vation of  feme  sole  liabilities  acquired  under  local  statutes  which 
may  affect  all  such  issues. 

One  who  makes  improvements  on  a  wife's  land  on  the  faith  of 
her  void  sale  to  him  may  have  a  lien  in  equity  for  their  value." 

An  intent  to  create  a  mortgage  being  an  essential  of  an  equitable 
mortgage  a  wife's  written  statement  on  a  note  which  she  signed 
that  ste  bound  her  separate  estate  for  the  payment  of  the  loan 
does  not  create  a  lien  on  her  separate  property  so  as  to  give  the 
holder  priority  over  other  creditors,  though  the  note  would  be 
enforceable  in  equity  against  the  wife.^^  So  a  letter  by  a  wife 
pledging  her  separate  estate  for  her  husband's  debts  is  not  valid 
as  an  equitable  mortgage  where  it  failed  to  identify  or  describe 
the  particular  property  to  which  the  lien  was  to  attadh.^^ 

In  New  Jersey  a  deed  by  a  wife  charging  her  separate  estate 
with  a  debt  owed  by  the  spouses  is  void  at  law,  but  is  enforceable 
in  equity  against  her  separate  estate  to  the  extent  specified  in  the 
deed.^*  It  is  held  in  New  Jersey  that  a  married  woman  cannot 
charge  her  separate  real  estate  by  an  appointment  in  writing ;  but 
can  only  convey  or  charge  it  by  deed  duly  executed  with  her  hus- 
band and  acknowledged,  save  in  certain  cases  where  she  and  her 
husband  live  apart.     But  it  appearing  that  her  real  estate  mort- 

9.  Maxon  v.  Scott,  55  N.  Y.  247;  Union  Bank,  91  Md.  613,  46  A.  960. 
Dale  V.  Robinson,  51  Vt.  20.  13.  Goldsmith  Bros.  Smelting  &  Ee- 

10.  Donovan's  Appeal,  41  Conn.  fining  Co.  v.  Moore,  108  Ark.  362,  157 
551.  S.  W.  733, 

11.  Dailey  v.  Cain,  11  Ky.  Law,  936,  14.  Pape  v.  Ludeman  (N.  J.),  59  A. 
13  S.  W.  424.                                                    9. 

12.  Western    Nat.    Bank    v.    Nat. 


§  439 


HUSBAND    AND    WIFE. 


442 


gage  was  void,  in  whicli  the  husband  had  not  joined,  equity  never- 
theless charged  the  mortgage  debt  upon  her  separate  property 
generally  where  the  debt  was  contracted  for  the  benefit  of  that 
property.^^  Under  the  Kentucky  statute  a  lien  against  the  wife's 
separate  estate  can  be  created  only  as  provided  by  the  statute, 
which  does  not  permit  equitable  liens.^* 

§  437.  By  Assumption  of  Existing  Mortgage. 

A  wife  may,  as  part  of  the  consideration  of  a  conveyance  to 
her,  assume  an  existing  mortgage  on  the  premises.^^  It  was  held 
otherwise  in  Michigan  where  the  estate  is  conveyed  jointly  to 
spouses,  since  under  the  Married  Women's  Act  in  that  State  her 
interest  in  such  land  is  not  her  separate  estate  which  alone  can  be 
bound  by  such  a  lien.^* 

Such  obligations  are  enforceable  when  the  wife  assumes  them 
at  the  time  of  taking  title  to  the  property  incumbered  by  them.** 

§  438.  By  Deficiency  Decree. 

In  seme  States  a  wife  is  now,  by  statute,  rendered,  liable  for  a 
deficiency  on  the  foreclosure  of  her  mortgage,^"  So,  under  New 
York  statutes,  liability  for  a  deficiency  is  found  under  a  mort- 
gage foreclosure,  a  bond  and  mortgage  having  been  duly  executed.** 
which,  of  course,  is  contrary  to  the  earlier  and  modem,  equity 
rule." 

§  439.  By  Confession  of  Judgment. 

A  wife  may  be  bound  by  a  judgment  confessed  as  part  of  the 
agreement  under  which  she  takes  land.^' 


15.  Armstrong  v.  Eoss,  5  C.  E.  Green 
(N.  J.),  109;  Homoepathic  Life  Ins. 
Co.  V.  Marshall,  32  N.  J.  Eq.  103. 

16.  Luigart  v.  Lexington  Turf  Club, 
130  Ky.  473,  113  S.  W.  814. 

17.  Huyler  v.  Atwood,  26  N.  J.  Eq. 
504.  And  see  Fenton  v.  Lord,  128 
Mass.  466;  Coolidge  v.  Smith,  129 
Mass.  554 ;  Rhodes  v.  People  *3  Sav.  & 
Bldg.  Ass'n,  107  Ky.  119,  21  Ky.  Law, 
747,  52  S.  W.  1050;  Vizard  v.  Moody, 
119  Ga.  918,  47  S.  E.  348;  Cushman 
V.  Henry,  75  N.  Y.  103;  Huyler  v. 
Atwood,  26  N.  J.  Eq.  404;  Blakeley 
V.  Adams,  113  Ky.  392,  24  Ky.  Law, 
263,  68  S.  W.  393;  Citizen's  Loan  & 
Trust  Co.  V.  Witte,  116  Wis.  60,  92 
N.  W.  443. 


18.  Doane  v.  Feather's  Estate,  119 
Mich.  691,  78  N.  W.  884,  6  Det.  liCg. 
N.  25. 

19.  Conkling  v.  Levie,  66  Neb.  132, 
94  N.  W.  9'87  (affd.,  66  Neb.  132,  94 
N.  W.  988). 

20.  Henley  v.  Wheatley,  68  Kan. 
271,  74  P.  1125;  First  Nat.  Bank  v. 
Leonard,  36  Ore.  390,  59  P.  873 ;  Mar- 
low  V.  Barlew,  53  Cal.  456;  Cushman 
V.  Henry,  75  N.  Y.  103.  But  not 
where  the  wife  joins  in  executing  the 
mortgage  and  not  the  note.  Kirby  v. 
Childa,  10  Kan.  639, 

21.  Ballin  v.  Dillaye,  37  N.  Y,  35. 

22.  Brick  V,  Scott,  47  Ind.  299", 

23.  Quinn's  Appeal,  86  Pa.  41. 


443 


STATUTORY  SEPARATE  ESTATE. 


§  442 


I  440.  By  Vendor's  Lien. 

A  wife's  land  is  subject  to  a  vendor's  lien/*  whether  the  notes 
were  executed  by  her  or  bj  the  spouses  jointly.^'  The  lien  fol- 
lows the  notes  into  the  hands  of  any  assignee,  however  remote.^' 

Where  the  consideration  of  the  deed  to  her  is  other  land,  and 
where  her  deed  conveys  incumbered  land  with  a  warranty  against 
incumbrances,  a  vendor's  lien  will  attach  to  the  land  conveyed  to 
ier  for  the  amount  necessary  to  clear  the  incumbrances,  though 
the  warranty  is  not  enforceable.^^  Under  the  Texas  Married 
Women's  Act  a  wife  may  bind  herself  by  a  renewal  of  purchase- 
money  notes,  and  thereby  keep  the  lien  alive, 


28 


§  441.  By  Mechanic's  Lien. 

The  mechanic's  statutory  right  of  lien  generally  extends  to  a 
married  woman's  lands  Where  she  contracted  in  person  or  by  agent, 
and  perhaps,  too,  where  the  contract  was  for  the  benefit  of  the 
land.^*  Under  the  Tennessee  Married  Women's  Act  a  wife's 
separate  estate  cannot  be  charged  for  mechanic's  or  furnishers' 
liens  either  of  contractors  or  subcontractors,  except  by  a  written 
contract  signed  by  her.^° 

§  442.  Jointly  with  Husband. 

Under  Married  Women's  Acts  in  some  States  a  wife  may  now 
bind  her  separate  estate  by  a  contract  made  jointly  with  her 
husband.^^    So  where  spouses  joined  in  a  mortgage  of  her  separate 


24.  Weller  v.  Monroe,  21  Ky.  Law, 
1705 ;  Micou  v.  McDonald,  55  Fla.  776, 
46  So.  291;  Frank  v.  Lacey,  3  Ky. 
Law,  335;  Adams  v.  Feeder,  19  Ky. 
Law,  581,  41  S.  W.  275;  Eoehl  v. 
Nieter  (N.  D.),  172  N.  W.  114;  Bur- 
bridge  V.  Sadler,  46  W.  Va.  39,  32  S. 
E.  1028;  Weinberg  v.  Eempe,  15  W. 
Va.  829. 

25.  Faught  v.  Henry,  13  Bush 
<Ky.),  471. 

26.  Hite  V.  Hewitt,  7  Ky.  Law,  454. 

27.  Harvey  v.  Gallaher  (Tenn.),  48 
S.  W.  298. 

28.  Proetzel  v.  Eabel,  21  Tex.  Civ. 
559,  54  S.  W.  373. 

29.  Vail  V.  Meyer,  71  Ind.  159;  Ex 
parte  Schmidt,  62  Ala.  252;  Burdick 
V.  Moon,  24  la.  418;  "Woodward  v. 
Wilson,  68  Pa.  208 ;  Anderson  v.  Arm- 
stead,  69  m.  452;   Schwartz  v.  Saun- 


ders, 46  m.  18;  Lindley  v.  Cross,  31 
Ind.  106;  Marsh  v.  Alford,  5  Bush 
(Ky.),  392.  The  mechanic's  lien 
claim  must,  in  some  States,  show  on 
its  face  all  the  requisites.  Loomis  v. 
Fry,  91  Pa.  396. 

30.  Cage  v.  Lawrence  (Tenn.),  57 
S.  W.  192 ;  City  Lumber  Co.  v.  Barn- 
hill,  129  Tenn.  676,  168  S.  W.  159. 

31.  Cook  V.  Hightower  &  Co.,  13 
Ga.  App.  309,  79  S.  E.  165 ;  Tipton  v. 
Ellsworth,  18  Ida.  207,  109  P.  134; 
Ellis  V.  Abbott,  69  Ore.  234,  138  P. 
488;  Kriz  v.  Peege,  119  Wis.  105,  95 
N.  W.  108.  Prior  to  the  Ohio  Married 
Women 's  Act  a  wife  could  not  create 
a  liability  for  which  a  personal  judg- 
ment against  her  could  be  rendered  by 
a  joinder  with  her  husband  in  a  note 
for  the  repayment  of  a  loan.  Sticken 
V.  Schmidt,  64  Ohio  St.  354,  60  N.  E. 


§  443a 


HUSBAND    AND    WIFE. 


444 


estate,  the  wile  receiving  part  of  the  money,  and  paying  such  por- 
tion of  the  note  from  her  separate  estate,  she  was  held  liable  for 
money  which  the  husband  used  to  pay  the  balance  of  the  note, 
where  she  knew  that  he  used  trust  funds  for  the  purpose.^^  And 
where  a  joint  judgment  in  favor  of  spouses  was  incumbered  by  an 
attorney's  lien  for  services  the  wife  was  held  jointly  liable  to  an 
assignee  who  took  the  judgment  without  notice  of  the  lien  for  the 
expense  of  discharging  it,  and  of  defending  an  action  to  enforce 


33 


It. 

§  443.  For  Purchase  of  Land. 

In  various  States,  a  wife  is  bound  by  her  bond  or  note  to 
secure  the  price  of  land  conveyed  to  her  sole  and  separate  use.'* 

§  443a.  For  Improvements  and  Materials. 

A  wife  may  charge  her  separate  estate  with  the  cost  of  its  im- 
provement,^^ as  well  as  the  improvement  of  land  owned  jointly  by 
the  spouses,^^  if  shown  to  be  necessary  to  the  enjoyment  of  her 
separate  estate,^'  even  for  improvements  contracted  for  by  her 
husband  without  authority,  if  she  acquesces  and  accepts,^*  or  prom- 
ises to  pay  for  them,'®  or  if  they  are  so  constructed  with  her 
knowledge  and  consent,*"  or  by  her  express  authority,*^  and  even 
where  the  creditor  supposes  the  land  to  be  that  of  her  husband,*^ 
and  charges  the  cost  to  him.*' 


561.  And  under  the  Texas  Married 
Women  '3  Act  a  wife  cannot  bind  her- 
Belf  jointly  with  her  husband  either  as 
maker  of  surety.  Red  Eiver  Nat. 
Bank  v.  Ferguson  (Tex.),  206  S.  W. 
923.  Nor  will  her  request  for  an  ex- 
tension of  time  on  a  joint  note  bind 
her,  even  after  his  death.  W.  C. 
Belcher  Land  Mortgage  Co.  v.  Taylor 
(Tex.),  173  S.  W.  278. 

32.  Gray  v.  Huffaker  (Cal.),  169  P. 
1038. 

33.  Montana  Coal  &  Iron  Co.  v. 
Hoskins,  88  Ore.  523,  172  P.  118. 

34.  Eogers  \.  Ward,  8  Allen 
(Mass.),  387;  Chapman  v.  Foster,  6 
Allen  (Mass.),  136;  Garland  v.  Pamp- 
lin,  32  Gratt.  (Va.)  305;  First  Nat. 
Bank  v.  Haire,  36  la.  443. 

35.  Johnson  v.  Tutewiler,  35  Ind. 
353;  Schickhaus  v.  Sanford,  83  N.  J. 
Eq.  454,  91  A.  878. 


36.  Curtis  v.  Crowe,  74  Mich.  99,  41 
N.  W.  876. 

37.  McGill  V.  Art  Stone  Const.  Co., 
57  Fla.  498,  49  So.  539;  Crickmore  v. 
Breckenridge,  51  Ind.  294. 

38.  Tarr  v.  Muir,  107  Ky.  283,  21 
Ky.  Law,  9'88,  53  S.  W.  663;  Gate  v. 
Rollins,  69  N.  H.  426,  43  A.  122. 

39.  Salisbury  v.  Wellman  Electrical 
Co.,  173  Ky.  462,  191  S.  W.  289; 
Mitchell  V.  Jodon,  22  Pa.  Super.  304. 

40.  Micou  V.  McDonald,  55  Fla.  776, 
46  So.  291. 

41.  Reid  v.  Miller,  205  Mass.  80,  91 
N.  E.  223. 

42.  Heller  v.  Hohman,  12  Ohio  Cir. 
Ct.  216,  5  O.  C.  D.  338. 

43.  Popp  V.  Connery,  138  Mich,  84, 
101  N.  W.  54,  11  Det.  Leg.  N.  478, 
110  Am.  St.  304. 


445  STATUTORY  SEPARATE  ESTATE.  §  444 

She  is  not  liable  for  materials  furnished  on  the  sole  credit  of 
her  husband,  though  used  in  such  improvements,**  nor  where  the 
creditor  knows  that  the  property  is  hers.*^  Under  the  Kentukcy 
and  Pennsylvania  Married  Women's  Acts  a  wife  may  bind  herself 
by  a  contract  for  the  erection  of  a  house  on  her  land  without  her 
husband's  consent.*®  Under  the  Xorth  Carolina  Married  Women's 
Act  a  wife's  separate  estate  cannot  be  charged  for  improvements  by 
a  verbal  contract.*^ 

§  444.  For  Services  Rendered. 

Now,  to  apply  the  test  of  incurring  debt  upon  the  credit  or 
for  the  benefit  of  a  wife's  separate  estate  to  the  latest  American 
decisions,  and  with  more  or  less  reference  to  local  statute.  A  mar- 
ried woman's  written  agreement  to  pay  for  services  rendered  in 
procuring  a  loan  to  discharge  a  mortgage  upon  her  separate  estate 
is  held,  in  Ohio,  enforceable  against  her  separate  estate.**  But  in 
Rhode  Island  it  is  held  that  compensation  of  the  wife's  solicitor 
for  prosecuting  a  suit  in  equity  regarding  her  separate  leaseholds 
cannot  be  recovered  from  her  separate  estate.*^ 

As  to  legal  fees  for  the  wife's  divorce,  some  States  still  disin- 
cline to  charge  her  estate ;  in  absence,  at  all  events,  of  an  express 
undertaking  on  her  part  to  that  effect.'^''  But  in  New  York,  pro- 
fessional sei-vices  rendered  a  married  woman,  as  in  collecting  de- 
mands arising  out  of  transactions  permitted  her  by  the  statute,  are 
recoverable  under  the  general  rule  against  her  separate  estate,  as 
rendered  by  her  procurement  on  its  credit  and  for  its  benefit.^'- 
Contracts  by  the  wife  for  employing  counsel  in  her  property  suits 
or  in  divorce  cases  are  in  other  States  sustained  more  or  less 
liberally."  She  is  not  liable  for  services  of  counsel  employed  by  her 

44.  Fries  v.  Acme  White  Lead  &  46.  Ware  v.  Long,  24  Ky.  Law,  696, 
Color  Works  (Ala.),  7?  So.  45;  Mc-  69  S.  W.  797;  Bankard  v.  Shaw,  liT9 
Cray  v.  Wotkyns   (Cal.),  182  P.  972;        Pa.  623,  49  A.  230. 

Fisher  v.  Darsey  (Ga.),  94  S.  E.  839;  47.  Weathers  v.  Borders,  121  N.  C. 

Poe  V.  Ekert,  102  la.  361,  71  N.  W.  387,  28  S.  E.  524. 

579 ;  Shrieveport  Nat.  Bank  v.  Maples,  48.  Patrick  v.  Littell,  36  Ohio  St. 

119  La.  41,  43  So.  905;   Morrison  v.  79. 

Berry,  42  Mich.  389,  4  N.  W.  731,  36  49.  Cozzens  v.  Whitney,  3  R.  I.  79. 

Am.  R.  446;   Schiaffino  v.  Christ,  96  50.  Pfirshing  v.  Falsh,  87  111.  260; 

Miss.  801,  51  So.  546;  City  Nat.  Bank  Drais  v.  Hogan,  50  Cal.  121;  McCabe 

V.  Cobb,  58  S.  C.  231,  36  S.  E.   569;  v.   Britton,   79  Ind.   225;    Whipple   v. 

Hanley   v.    Nat.   Loan   &   Investment  .Giles,  55  N.  H.  139;  Wilson  v.  Burr, 

Co.,  44  W.  Va.  450,  29  S.  E.  1002.  25  Wend.    (N.  Y.)    336. 

45.  Hesselbach  v.  Savage,  57  App.  51.  Owen  v.  Cawley,  36  N.  Y.  600. 
Div.  632,  69  N.  Y.  S.  429.  52.  Major  v.  Symmes,  19  Ind.  117; 


§  445 


HUSBAND    AND    WIFE. 


446 


husband  without  her  authority  to  defend  a  suit  affecting  her  sepa- 
rate estate/^  and  in  New  York  a  husband's  fine  for  not  paying  ali- 
mony pendente  lite  is  not  subject  to  a  lien  for  the  services  of  the 
wife's  counsel.  °* 

§  445.  For  Debt  of  Husband. 

In  some  States  a  wife  may  charge  her  separate  estate  with  the  pay- 
ment of  her  husband's  debts  either  by  mortgage,'^^  or  pledge.^®  In 
other  States  such  a  transaction  is  not  binding  either  by  mortgage,*^ 


Thresher  v.  Barry,  69  Conn.  470,  37 
A.  1064;  Merchant  v.  Cook,  7  App. 
D.  C.  391;  Porter  v.  Haley,  55  Miss. 
66;  Tyler  v.  Winder  (Neb.),  131  N. 
W.  592,  34  L.  R.  A.  (N.  S.)  1080; 
Patrick  v.  Morrow,  33  Colo.  509,  81  P. 
242,  108  Am.  St.  R.  107;  MeCurdy  v. 
Dillon,  135  Mich.  678,  9S  N.  W.  746, 
10  Det.  Leg.  N.  927;  Wolcott  v.  Pat- 
terson, 100  Mich.  227,  58  N.  W.  1006, 
24  L,  R.  A.  629;  Tyler  v.  Winder 
(Neb.),  131  N.  W.  592,  34  L.  R.  A. 
(N.  S.)    1080. 

53.  Cushman  v.  Masterson  (Tex.), 
64  S.  W.  1031;  Parker  v.  Wood,  25 
Tex.  Civ.  506,  61  S.  W.  940. 

54.  Turner  v.  Woolworth,  221  N.  Y. 
425,  117  N.  E.  814. 

55.  Kaiser  v.  Stickney,  131  U.  S. 
Append.,  clxxxvii,  26  L.  Ed.  176; 
Walker  v.  Arkansas  Nat.  Bank,  256 
P.  1;  Harper  v,  McGoogan,  107  Ark. 
10,  154  S.  W.  187;  Goldsmith  v.  Le- 
■wine,  70  Ark.  516,  69  S.  W.  308;  Good- 
rum  V.  Merchants'  &  Planters'  Bank 
of  England,  102  Ark.  326,  144  S.  W. 
198;  Johnson  v.  Graham  Bros.  Co.,  98 
Ark.  274,  135  S.  W.  853;  Oeklawaha 
River  Farms  Co.  v.  Young  (Fla.),  74 
So.  644;  Thomson  v.  Kyle,  39  Fla. 
582,  23  So.  12,  63  Am.  St.  R.  193; 
Philadelphia  Sav.  Fund  Society  v. 
Lasher,  144  111.  App.  653;  Hubbard 
V.  Ogden,  22  Kan.  363;  Hite  v.  Rey- 
nolds, 163  Ky.  502,  173  S.  W.  1108; 
Ehle  V.  Looker  (Mich.),  148  N.  W. 
378;  Lewis  v.  Doyle  (Mich.),  148  N. 
W.  407;  Hach  v.  Hill,  106  Mo.  18,  16 
S.  W.  948;  White  v.  Smith,  174  Mo. 
186,  73  S.  W.  610;  Jones  v.  Edeman, 
223  Mo.  312,  122  S.  W.  1047 ;  Bell  v. 


Bell,  133  Mo.  App.  570,  113  S.  W. 
667;  Northwestern  Mutual  Life  Ins. 
Co.  V.  Mallory,  93  Neb.  579,  141  N. 
W.  19t);  Bode  v.  Jussen,  93  Neb.  482, 
140  N.  W.  768;  Wilson  v.  Neu,  1 
Neb,  (Unof.)  42,  95  N.  W.  502; 
Holmes  v.  Hull,  50  Neb.  656,  70  N.  W. 
241;  Marsh  v.  Marsh,  92  Neb.  189, 
137  N.  W.  1122;  Hallowell  v.  Daly 
(N.  J.),  56  A.  234;  Colonial  Bldg.  & 
Loan  Ass'n  v.  Griffin,  85  N.  J.  Eq. 
455,  96  A.  901;  Seigman  v.  Streeter, 
64  N.  J.  Law,  169,  44  A.  888;  Lawshe 
V.  Trenton  Banking  Co.,  87  N.  J.  Ch. 
56,  9^  A.  617;  Bliss  v.  Cronk,  68  N. 
J.  Eq.  655,  60  A.  1133;  Strong  v. 
Gambier,  155  App.  D.  294,  140  N.  Y. 
S.  421;  Young  v.  Brown,  136  Tenn. 
184,  188  S.  W.  1149;  Red  River  Nat. 
Bank  v.  Ferguson  (Tex.),  206  S.  W. 
923;  Bird  v.  Bird  (Tex.),  212  S.  W. 
253,  257;  Bearing  v.  Jordan  (Tex.), 
130  S.  W.  876;  Krause  v.  Reichel,  167 
Wis.  360,  167  N.  W.  817;  Merrell  v. 
Purdy,  129  Wis.  331,  109  N.  W.  82; 
Bailey  v.  Fink,  129  Wis.  373,  109  N. 
W.  86. 

56.  Springfield  Co.  v.  Ely,  44  Fla. 
319,  32  So.  892;  Just  v.  State  Sav. 
Bank,  132  Mich.  600,  94  N.  W.  200, 
10  Det.  Leg.  N,  36. 

57.  Copeland  v.  Hornik,  216  F.  117; 
Eubanks  v.  Anniston  Mercantile  Co. 
(Ala.),  55  So.  98;  Webb  v.  Globe  Se- 
curities Co.  (Ala.),  82  So.  476;  Camp- 
bell V,  Hughes,  155  Ala.  591,  47  So, 
45;  Corinth  Bank  &  Trust  Co.  v. 
King,  182  Ala.  403,  62  So.  704; 
Prince  v.  Prince,  67  Ala.  565;  Ameri- 
can Mortg.  Co.  of  Scotland  v.  Hart- 
«og,  74  F.  9^3 ;  Henderson  v.  Brunson, 


447 


STATUTORY  SEPARATE  ESTATE. 


§  445 


59 


or  pledge/®  whether  the  transaction  is  direct  or  indirect, 
nor  can  she  bind  herself  bj  a  conveyance  of  property  to  him  so 
that  he  can  pay  His  debts  with  it.®°  In  some  States  such  a  trans- 
action is  wholly  void,*^  so  that  its  invalidity  can  be  shown  in 
ejectment  without  a  cancellation.®^ 

Where  the  statute  provides  that  transfers  of  a  wife's  separate 
estate  to  pay  her  husband's  debts  shall  be  void,  a  conveyance  of 
which  the  consideration  is  in  part  legal  and  in  part  illegal  under 
the  statute  is  wholly  void  as  to  the  wife,®'  and  a  deed  of  a  wife  to 
secure  both  her  own  and  her  husband's  debts  has  been  held  not 
binding,  though  for  the  purpose  of  compromising  a  doubtful  claim 
against  her  own  estate.®*  Other  courts  hold  such  a  transaction 
valid  in  so  far  as  its  benefit  inures  to  the  wife.®^  Where  such  a 
mortgage  is  merely  voidable,  a  creditor  of  the  wife  cannot  attack 
it  for  invalidity  if  she  does  not.®® 

In  some  States  a  wife  may  borrow  on  mortgage  of  her  separate 
estate  and  pay  her  husband's  debts  with  the  proceeds,®^  unless 
there  is  a  scheme  to  evade  the  statute  to  which  the  lender  is  a 
party,®®  or  may  pay  his  debts  with  such  estate.®^     Under  such  a 


141  Ala.  674,  37  So.  549;  Gross  v. 
Whiteley,  128  Ga.  79,  57  S.  E.  94; 
Sharpe  v.  Denmark,  143  Ga.  156,  84 
S.  E.  554;  Boyd  v.  Eadabaugh,  150 
Ind.  394,  50  N.  E.  301;  Indianapolis 
Brewing  Co.  v.  Behnke,  41  Ind.  App. 
288,  81  N.  E.  119;  McClelland  v. 
Hamilton 's  Adm  'r,  5  Ky.  Law,  58 ; 
Keating  v.  Wilbert,  119  La.  461,  44 
So.  265;  Aiken  v.  Eobinson,  52  La. 
Ann.  925,  27  So.  529. 

58.  Corinth  Bank  &  Trust  Co.  v. 
Pride  (Ala.),  79  So.  255. 

59.  Trotter  Bros.  v.  Downs  (Ala.), 
75  So.  906;  Osborne  v.  Cooper,  113 
Ala.  405,  21  So.  320,  59  Am.  St.  R. 
117;  Hughes  v.  Shannon,  113  Ky. 
Law,  782. 

60.  Morrison  v.  Morrison 's  Assignee, 
113  Ky.  507,  24  Ky.  Law,  340,  68  S. 
W.  467;  Same  v.  Morrison,  113  Ky. 
507,  24  Ky.  Law,  786,  69  S.  W.  1102. 

61.  Hamilton  v.  Moore,  136  La.  631, 
67  So.  523;  Shannon  v.  Ogletree 
(Ala.),  76  So.  865;  Vinegar  Bend 
Lumber  Co.  v.  Leftwich  (Ala.),  72  So. 
538;  Russell  v.  Feavy,  131  Ala.  563, 


32  So.  492;  Harper  v.  T.  N.  Hays 
Co.,  149  Ala.  174,  43  So.  360;  Allen 
V.  Pierce,  163  Ala.  612,  50  So.  924; 
Trotter  Bros.  v.  Downs  (Ala.),  75 
So.  906. 

62.  Richardson  v.  Stephens,  122 
Ala.  301,  25  So.  39. 

63.  Pond  V.  Sullivan,  133  Ga.  160, 
65  S.  E.  376. 

64.  Mickleberry  v.  O'Neal,  98  Ga. 
42,  25  S.  E.  933. 

65.  Johnson  v.  Jouchert,  124  Ind. 
105,  24  N.  E.  580,  8  L.  R.  A.  795; 
Christensen  v.  Wells,  52  S.  C.  497,  30 
S.  E.  611. 

66.  Hawes  v.  Glover,  126  Ga.  305, 
55  S.  E.  62. 

67.  Johnson  v.  Leffler  Co.,  122  Ga. 
670,  5  S.  E.  488;  McGee  v.  Cunning- 
ham, 69  S.  C.  470,  48  S.  E.  473. 

68.  Bank  of  Eufaula  v.  Johnson,  146 
Ga.  791,  92  S.  E.  631. 

69.  Davidson  v.  Biddleman,  82  N. 
J.  Law  92,  81  A.  366;  Patton  v.  Mer- 
chants' Bank,  12  W.  Va.  587;  Bush- 
ard  V.  McCay  (Ala.),  77  So.  699; 
Fitzgerald  v.  Dunn,  112  Wis.  37. 


71 


'§  446  HUSBAND  AND  WIFE.  448 

statute  a  mortgage  given  for  funds  wherewith  to  build  a  house  on 
her  land  is  not  invalid  merely  because  the  mortgagee  deals  with  her 
husband  as  her  agent.'" 

Where  a  wife  has  secured  the  necessary  judicial  authority  to 
borrow  money,  a  holder  of  the  note  in  due  course  and  before  ma 
turity  will  be  protected  though  the  husband  used  the  money, 
and  a  mortgage  of  her  land  to  secure  their  joint  and  several  note 
may  be  regarded  as  his  sole  debt  where  the  facts  warrant  such  a 
conclusion."  Under  the  Kentucky  statute  neither  a  wife's  land 
nor  its  rents  can  be  subjected  to  the  debts  of  her  husband  unless 
set  apart  for  that  purpose  as  required  by  the  statute."  In  Michi- 
gan a  wife  may  secure  the  price  of  property  owned  by  the  spouses 
jointly  by  a  mortgage  of  her  separate  real  estate,'^*  and  under  the 
Mississippi  statute  a  wife  may  mortgage  her  land  to  the  extent 
of  its  income  to  secure  her  husband's  debts."  Under  the  Penn- 
sylvania statute  she  may  charge  her  property  for  his  debt  by 
mortgage  or  pledge  but  cannot  render  herself  personally  liable  for 
it/®  as  where  she  assigns  her  interest  in  an  insurance  policy  on 
his  life."  Similar  statutes  exist  in  Kentucky,  Rhode  Island  and 
Wisconsin.'* 

After  her  husband's  death  a  wife  may  bind  herself  by  an  assump- 
tion of  his  debts.'^ 

§  446.  Statutory  Liability  for  Support  of  Husband. 

Under  the  California  statute  providing  that  spouses  contract 
mutual  duties  of  support,  a  wife  may  be  compelled  to  support  her 
infirm  husband,  which  duty  must  be  enforced  by  contempt  pro- 
ceedings, thereby  being  no  remedy  at  law.^°     In  North  Dakota 


70.  Christensen   v.  Wells,   52   S.   C. 
497,  30  S.  E.  611. 

71.  Josephson  v.  Powers,  123  La. 
5,  48   So.   564. 

72.  In  re  Minot,  164  Mass.  38,  41 
N.  E.  63. 

73.  Patton's  Ex'r  v.  Smith,  130 
Ky.  819,  114  S.  W.  315. 

74.  Wineman  v.  Phillips,  93  Mich. 
223,  53  N.  W.  168. 

75.  Foxworth  v.  Magee,  44  Miss. 
430. 

76.  Righter  v.  Livingston,  214  Pa. 
28,  63  A.  195;  Herr  v.  Reinoehl,  209 
Pn.  483,  58  A.  862;  Bartholomew  v. 
AUentown  Nat.   Bank,   260   Pa.    509, 


103  A.  954;  Siebert  v.  Valley  Nat. 
Bank,  186  Pa.  233,  40  A.  472,  42  W. 
N.  C.  319. 

77.  Dusenberry  v.  Mutual  Life  Ins. 
Co.,  188  Pa.  454,  41  A.  736. 

78.  Brady  v.  Equitable  Trust  Co.  of 
Dover,  178  Ky.  693,  199  S.  W.  1082; 
Thacker  v.  Medbury,  33  R.  I.  37,  80 
A.  186;  Goll  V.  Fehr,  131  Wis.  141, 
111  N.  W.  235. 

79.  Walker  v.  Walker,  139  Ga.  547, 
77  S.  E.  795;  Booker  v.  A.  T.  Small 
&  Sons,  147  Ga.  566,  94  S.  E.  999. 

80.  Livingston  v.  Superior  Court  of 
Los  Angeles  County,  117  Cal.  633,  49 
P.  836,  38  L.  R.  A.  175. 


449 


STATUTORY  SEPAKATK  ESTATE. 


§  448 


she  may  bo  compelled  to  support  him,  where  amply  able  to  do  so, 
if  he  is  old  and  unable  to  earn  a  living,  if  she  has  not  been  aban- 
doned by  him,  which  duty  is  enforceable  in  equity.^^  Under  the 
Louisiana  statute  a  wife  cannot  recover  for  her  paraphernal  funds 
used  to  support  her  sick  husband  who  has  no  property/ 


82 


§  447.  Liability  for  Breaches  of  Trust. 

Where  a  married  woman  as  trustee  wastes  the  trust  estate, 
English  practice  recognizes  remedies  against  her  separate  prop- 
erty.^^  Appointing  a  married  woman  trustee  may  be  considered 
objectionable  (apart  from  equity  rules  of  constructive  trust)  while 
the  law  yet  fails  to  divest  her  of  all  coverture  disabilities,  so  as  to 
make  her  both  efficient  and  responsible  in  the  legal  sense.  Yet 
it  is  held  in  some  States  that  a  married  woman  may,  under  the 
statutes,  hold  an  estate  in  trust,  and  make  contracts  accordingly.** 

§  448.  Debts  Contracted  in  Separate  Business. 

Where  a  wife  carries  on  a  separate  business,  her  separate  estate 
is  liable  for  debts  incurred  in  such  business.*^  *®  A  wife  is  not  a 
"  public  merchant,"  within  the  meaning  of  the  Louisiana  statute, 
merely  by  passively  permitting  her  brothers  to  operate  a  store  in 
the  name  of  an  estate  wherein  she  has  an  interest,  so  as  to  make 
her  liable  for  its  debts." 

The  Xorth  Carolina  statute  providing  that  a  wife  shall  be 
deemed  a  free  trader  where  she  conducts  a  business  through  an 
agent  without  displaying  her  Christian  name,  does  not  apply  to 
cases  where  the  seller  of  goods  knows  the  real  facts,  the  statute 
being  intended  to  prevent  her  from  deceiving  persons  into  think- 
ing that  they  are  dealing  with  legally  responsible  persons.®*  Lender 
the  West  Virginia  statute,  debts  incurred  by  a  wife  in  her  separate 
business  will  bind  only  the  property  used  in  the  business  unless 


81.  Hagert  v.  Hagert,  22  N.  D.  290, 
133  N.  W.  1035. 

82.  Succession  of  Turgeau,  130  La. 
650,  58  So.  497. 

83.  Pemberton  v.  McGill,   1   Dr.  & 
Sm.  266. 

84.  Springer  v.  Berry,  47  Me.  330. 
85-86.  First  Nat.  Bank  v.  Hirschko- 

-witz,  46  Fla.  588,  35  So.  22;  West  v. 
Be  Moss,  50  La.  Ann.  1349,  24  So. 
325;  First  Commerci.il  B.ank  v.  New- 
ton, 117  Mich.   433,  75  N.  "W.  934,  5 

29 


Det.  Leg.  N.  276;  Jones  v.  Bruens,  26 
Misc.  Eep.  741,  57  N.  Y.  S.  77;  Peo- 
ple's Trust  Co.  V.  Merrill,  78  N.  H. 
540,  102  A.  827;  Nadcl  v.  Weber 
Bros.  Shoe  Co.  (Fla.),  70  So.  20. 

87.  Horton  v.  Haralson,  130  La. 
1003,  58  So.  858. 

88.  Weld,  Colburn  &  Wilckens  v. 
La  Marguerite  Shop  Co.,  147  N.  C. 
588,  61  S.  E.  573;  Scott-Sparger  Co. 
V.  Ferguson,  152  N.  C.  346,  67  S.  E. 
750. 


§    449  HUSBAIs'D    AXD    WIFE.  450 

there  is  a  wrting,   executed,  acknowledged  and  delivered  as  re- 
quired by  the  statute.®^ 

§  449.  By  Contract  of  Guaranty  or  Suretyship. 

A  guaranty  executed  by  the  wife  and  her  husband  on  the 
transfer  of  her  mortgage,  to  extricate  the  title,  and  as  part  of  the 
consideration,  is  enforceable,  an  intention  to  charge  or  for  direct 
benefit  duly  appearing.^" 

"SVhere  a  married  woman  having  separate  estate  executes  a 
promissory  note  as  surety  for  another,  such  estate  is  presumably 
charged  with  is  payment  in  some  States.®^  But  the  rule,  as  we 
have  seen,  is  otherwise  in  other  States,^^  even  though  part  of 
the  proceeds  were  used  to  improve  her  heal  estat-e.®^  In  some  States 
such  a  transaction  is  wholly  void,  so  that  neither  ratification  or 
failure  to  set  it  aside  will  validate  it.^*  It  is  otherwise  where  the 
property  mortgaged  is  placed  in  her  hands  by  him  for  the  purpose 
of  defrauding  his  creditors.®'^ 

Under  the  Indiana  statute  a  mortgage  given  by  a  wife  as  surety 
IS  not  void  but  merely  voidable  by  her  affirmative  action,^^  and  in 
Massachusetts  such  contracts  are  enforceable  only  in  equity  against 
the  wife's   property,®^   and  in  Pennsylvania   are  binding  where 

89.  Oney  v.  Ferguson,  41  "W.  Va.  "be  sued  at  law  on  such  a  promissory 
568,  23  S.  E.  710.  note.     Vankirk  v.  Skillman,  5  Vroom 

90.  White  v.  McXott,  33  N.  Y.  371.  (X.  J.),   109;    Veal  t.   Hurt,   63   Ga. 

91.  Avery  v.  Van  Sickle,  35  Ohio  728;  Saulsbury  v.  Weaver,  5?  Ga. 
St.  271;  Mayo  v.  Hutchinson,  57  Me.  254;  Robertson  v.  Willburn,  1  Lea 
546;  Lincoln  v.  Eowe,  51  Mo.  571;  (Tenn.),  633;  State  Sav.  Bank  v. 
Metropolitan  Bank  v.  Taylor,  53  Mo.  Scott,  10  Xeb.  83.  See  Harris  v.  Fin- 
444.     See  Wicks  v.  Mitchell,  9   Kan.  berg,  46  Tex.  79. 

80;    Wood   v.    Orford,    52    Cal.    412;  93.    Eichardson    v.    Stephens,    122 

Alphin  V.  Wade  89  Ark.  354,  116  S.  Ala.  301,  25   So.  39;   Harrison  Bldg. 

W.  667.  &  Deposit  Co.  v.  Lackey,  149  Ind.  10, 

92.  Central  Bank  &  Trust  Corpora-  48  X.  E.  234. 

tion  V.  Almand,  135  Ga.  231,  69  S.  E.  94.  Trotter  Bros.  v.  Dovnis   (Ala.), 

Ill;    Webb    v.    John    Hancock    Mut.  75     So.     906;     Smith     v.     Thompson 

Life  Ins.  Co.,  162  Ind.  616,  69  X.  E.  (Ala.),   82   So.   101;    Street  v.  Ales- 

1006,  66  L.  R.  A.  632;  Yale  v.  Ded-  ander  City  Bank   (Ala.),  82  So.  Ill; 

erer,  22   X.  Y.   450;    s.  c,  68  X.  Y.  Corinth  Bank   &   Trust   Co.   v.   Pride 

329.     But  see  Woolsey  v.  Brown,  74  (Ala.),  79  So.  £55;    Evans  v.   Fair- 

X.    Y.    82;    Willard   v.    Eastham,    15  cloth-Byrd   Mercantile    Co.,    165    Ala. 

Gray  (Mass.),  328;  Sibert  v.  Hughes,  176,  51  So.  785. 

174  Ala.  426,  56  So.  1012;  Johnson  v.  95.   Webb   v.    Globe   Securities  Co. 

Jouchert,  124  Ind.  105,  24  X.  E.  580,  (Ala.),  82  So.  476. 

8   L.  R.  A.  795;   Washburn  v.   Gray,  96.  Field  v.  Campbell  (Ind.),  68  X. 

49    Ind.    App.    271,    97    X.    E.    190;  E.   911. 

Perkins  v.  Elliott,  7  C.  E.  Green  (X.  97.   Heburn   v.   Warner,  112  Mass. 

J.),   127.     A  married  woman   cannot  271,  17  Am.  E.  86. 


451  STATUTORY  SEPARATE  ESTATE.  §  450 

made  by  way  of  mortgage,®*  and  in  Georgia  where  given  to  ex- 
tinguish the  debt.®®  In  Louisiana  where  a  husband  makes  a  trans- 
fer of  property  to  a  third  person  to  enable  his  wife  to  become 
surety  for  such  person,  but  really  for  himself,  a  mortgage  given 
by  her  on  such  property  is  void,  if  the  mortgagee  knows  the  facts.^ 
and  in  that  State,  though  a  wife  may  not  bind  herself  as  surety 
for  her  husband,  her  act  as  surety  for  a  partnership  of  which  he 
is  a  member  is  valid,  the  partnership  being  a  personality  distinct 
from  her  husband.^  In  Nebraska  a  wife's  mortgage  of  her  sepa- 
rate property,  other  than  a  homestead,  to  secure  her  husband's 
debt  is  valid,  though  not  duly  acknowledged,  as  between  the 
parties.^  In  New  Jersey,  on  the  other  hand,  where  no  such  power 
was  given  under  statute  for  the  married  women  to  dispose  of  her 
separate  property  as  has  been  conferred  by  the  New  York  legis- 
lature, equity  has  refused  to  recognize  any  power  in  a  married 
woman,  independently  of  appropriate  legislation,  to  charge  her 
separate  satutory  estate  by  any  writing,  even  though  it  contain 
words  which  show  a  clear  intention  to  bind  such  estate,  except  by 
a  mortgage  acknowledged  as  required  by  law,  or  for  debts  con- 
tracted for  the  benefit  of  her  separate  estate,  or  for  her  own  bene- 
fit on  the  credit  of  it ;  and  hence  it  declines  to  impose  a  lien  on  the 
wife's  separate  estate  because  of  her  note  as  surety,  even  though 
by  express  words  she  charges  the  payment  of  that  note  on  her 
■separate  property.*  It  is  now  held  in  that  State  that  such  con- 
tracts cannot  be  avoided  if  executed.^ 

§  450.  Rule  of  Yale  v.  Dederer. 

The  obstinate  case  of  Yale  v.  Dederer  is  an  important  one,  as 
establishing  in  a  leading  xVmerican  State,  under  cover  of  modem 
legislative  policy,  a  new  doctrine,  at  variance  with  that  of  English 
equity  courts,  and  apparently  contrary  to  its  own  precedents.^  In 
this  case  New  York  statutes  of  1848  and  1849  were  to  be  con- 
strued, which  in  terms  permitted  the  wife  to  hold  to  separate  use, 

98.  Kuhn  v.   Ogilvie,   17S   Pa.  303,  3.  Fisk  v.  Osgood,  58  Neb.  486,  78 
35   A.  957.  N.  W.  924. 

99.  Tindol  v.  Breedlove  (Ga.),  90  4.  Perkins  v.  Elliott,  7  C.  E.  Green 
S.  E.  977.  (N.  J.),  127;  Kohn  v.  Russell,  91  111. 

1.  Martinez  v.  Gallois,  Man.  Unrep.  138;  Dunbar  v.  Mize,  53  Ga,  435. 
Cas.   (La.)   401.  5.  Shipman  v.  Lord,  58  N.  J.  Eq. 

2.  Stothart  v.  William  T.  Hardle  &  380  (affd.,  N.  J.  Eq.  484,  46  A.  1101). 
Co.,  no  Ln.  606,  34  So.  740.  6.  Yale  v.  Dederer,  18  N.  Y.  265; 

s.  p.,  N.  Y.  450. 


§  450 


HUSBA?fD    AA'D    WIFE. 


452 


and  to  "  convey  and  devise  "  as  if  sole,  but  left  her  promissory 
note  as  void  as  it  always  had  been  at  the  common  law.  It  ap- 
peared that  the  husband  had  offered  his  promissory  note  to  the 
plaintiff  in  payment  of  certain  cows  which  he  wished  to  purchase ; 
that  the  plaintiff,  doubting  his  solvency,  required  him  to  procure 
his  wife  to  unite  in  a  note  with  him.  This  he  did.  The  note  was 
subsequently  renewed.  At  the  time  of  signing  the  note  Mrs. 
Dederer  remarked  that  if  her  husband  was  not  able  to  pay  it,  she 
was.  The  husband  turned  out  insolvent  afterwards,  and  judgment 
on  the  note  was  returned  nulla  bona  as  against  him.  It  was  estab- 
lished that  the  wife  had  sufficient  real  estate,  held  in  her  own 
right,  to  satisfy  the  claim;  and  the  judge,  who  heard  the  evidence, 
stated  in  his  finding  that  "  the  defendant,  Mrs.  Dederer,  intended 
to  charge,  and  did  expressly  charge,  her  separate  estate  for  the 
payment  of  the  note."  The  Court  of  Appeals  nevertheless  held 
that  Mrs.  Dederer  was  a  mere  surety  for  her  husband ;  and  that 
being  such,  although  it  was  her  intention  to  charge  her  separate 
estate,  such  intention  did  not  take  effect. 

A  question  properly  raised  here  was  whether,  notwithstanding 
her  legal  disabilities  to  contract  remained  substantially  as  before 
the  statute,  the  married  woman  might,  as  incidental  to  the  complete 
right  of  property  and  jus  disponendi  which  she  took  under  the 
statute,  charge  her  estate  for  the  purposes  and  to  the  extent  which 
rules  of  equity  had  heretofore  sanctioned  with  reference  to  her 
equitable  separate  estate.  The  decision  was  adverse,  and  the  prin- 
ciple of  the  decision  was  this:  that,  in  order  to  create  a  charge 
upon  the  separate  estate  of  a  married  woman,  the  intention  to  do  so 
must  be  declared  in  the  very  contract  which  is  the  foundation  of  the 
charge,  or  else  the  consideration  must  be  obtained  for  the  direct 
benefit  of  the  estate  itself.  Later  Xew  York  decisions  followed 
the  rule  of  this  case,  and  required  a  distinct  written  obligation  to 
bind  the  wife  where  the  debt  is  not  contracted  for  the  direct  benefit 
of  the  estate.^ 


7.  White  V.  McNett,  33  N.  Y.  371 ; 
Ledlie  v.  Vroman,  41  Barb.  (N,  Y.) 
109;  White  v.  Story,  43  Barb.  (IST. 
Y.)  124;  Merchants'  Bank  v.  Scott, 
59  Barb.  (N.  Y.)  641. 

We  may  add  that  Yale  v.  Dederer 
■was  passed  upon  by  the  New  York 
Court  of  Appeals  three  several  times. 
After  the  first  appeal  (18  N.  Y.  265), 


when  it  was  ruled  that,  in  order  for  a 
married  woman  to  charge  her  separate 
estate  with  a  debt  not  contracted  for 
the  benefit  of  that  estate,  it  was  neces- 
sary that  there  should  be  evidence  of 
an  intention  to  charge  it,  the  court 
below,  which  would  at  first  have  en- 
tered judgment  to  sell,  found  that  the 
wife  actually  intended  to  charge  her 


453  STATUTORY    SEPAliATE    ESTATE.  §    450 

The  decision  in  Yah  v.  Dederer,  on  its  second  appeal,  made  a  pro- 
found impression  among  chancery  jurists,  the  novelty  of  the 
Married  Women's  Act  favoring  this  result,  and  likewise  the  cir- 
cumstance that  chancery  jurisdiction  had  hitherto  been  taken  more 
liberally  in  New  York  than  in  other  States  in  the  Union.  Opin- 
ions differed  as  to  the  merits  of  the  decision,  but  not  as  to  the 
boldness  of  the  innovation  upon  chancery  precedents. 

It  does  not  appear  that  this  doctrine  has  found  favor  in  all  the 
other  States.  In  Wisconsin,  the  decision  of  Yale  v.  Dederer  was 
unsparingly  condemned  soon  after,  in  the  course  of  judicial  dis- 
cussion.* And  for  several  years  the  more  common  equitable  rule 
in  this  country  still  seemed  to  be  that  the  wife's  separate  estate 
would  be  held  liable  for  all  debts  which  she  by  implication  or 
expressly,  by  writing  or  parol,  charged  thereon,  even  if  not  con- 
tracted directly  for  the  benefit  of  the  estate.''  For  the  wife's  debts 
are  charged  in  justice  upon  her  separate  estate,  not  because  of  her 
power  to  make  a  valid  written  or  verbal  contract,  but  because  it  is 
right  that  her  debts  should  be  paid.^° 

But  influences  were  at  work  to  bring  other  jurisdictions  to  reject 
the  loose  discretionary  powers  which  English  precedents  appeared 
to  have  established  against,  as  well  as  favorably  to,  the  interests  of 
married   woman.     In   Massachusetts,    at   a    term    of    18G0,    the 

separate  estate   with  the   promissory  rate  estate;  but  it  was  held  that  the 

note  in  question.    Hence  the  principle  findings  as  to  the  circumstances  and 
so  broadly  asserted  as  to  evidence  in    '   intent  were  not  inconsistent  with  the 

writing   on   the   second   appeal    (Yale  idea   that   the   defendant   had   signed 

V.   Dederer,   22   N.  Y,   450)  ;    Selden,  as  surety,  and  that  the  purchase  was 

J.,     observing    that    hereafter    mar-  not   for  the   benefit  of  her   separate 

ried  women  were  not  to  be  indebted  estate. 

to  equity  merely  for  protection  in  8.  Todd  v.  Lee,  15  Wis.  365. 
their  separate  estate,  and  that,  dis-  9  Pentz  v.  Simonson,  2  Beasl.  232 
carding  the  fictitious  theories  of  the  Grapengether  v.  Fejervary,  9  la.  163 
English  courts,  there  was  no  rea-  Rogers  v.  Ward,  8  Allen  (Mass.),  3S7 
eon  why  the  wife's  acts  in  this  re-  Mayo  v.  Hutchinson,  57  Me.  546 
spect  should  not  be  tested  by  the  Major  v.  Symmes,  19  Ind.  117;  Oak- 
same  principles  and  rules  of  evi-  ley  v.  Pound,  1  MeCart.  178;  Miller 
dence  as  apply  to  similar  questions  v.  Xewton,  23  Cal.  554 ;  2  Kent,  Com. 
in  other  cases.  A  third  time  (see  164 ;  2  Story  Eq.  Juris.,  §§  1398,  1401. 
Yale  V.  Dederer,  68  N.  Y.  329),  See  Koontz  v.  Nabb,  16  Md.  549; 
or  about  1877,  the  case  went  up  Knox  v.  Jordan,  5  Jones  Eq.  (N.  C.) 
on  appeal;  tlie  effort  upon  the  last  175;  McFadden  v.  Grumpier,  20  Tex. 
trial  being  made  to  take  the  case  out  374;  Phillips  v.  Graves,  20  Ohio  St. 
of  the  rule  by  evidence  tending  to  371 ;  Avery  v.  Vansickle,  35  Ohio  St. 
show  that  the  property  was  purchased  -70. 

by  the  husband  as  agent  of  the  defen-  10.    Cummins    v.    Sharpe,    21    Ind. 

dant,  and  for  the  benefit  of  her  sepa-  331;  Pentz  v.  Simonson,  2  Beasl.  232; 


§  450  HUSBAND  AND  WIFE.  454 

Supreme  Court,  called  for  the  first  time  to  exercise  full  equity 
powers  under  a  statute  then  recent,  followed  the  rule  of  Yale  v. 
Dederer,  in  a  similar  case  of  married  women's  suretyship."  The 
English  chancery  itself,  finding  occasion  in  1861  to  consider  the 
subject  of  separate  estate  liability  for  a  wife's  unbeneficial  deal- 
ings,^" showed  a  new  inclination  to  discriminate  for  the  protection 
of  a  wife's  separate  estate  in  such  instances.  On  the  whole,  there- 
fore, while  the  lines  of  American  and  English  decisions  of  late  do 
not  run  parallel,  and  States  themselves  are  discordant  as  to  burden 
of  proof  and  as  to  admitting  or  denying  the  ISTew  York  and  Massa- 
chusetts doctrine, —  some  States  holding  it  immaterial  in  equity 
whether  the  wife's  debt  be  evidenced  by  a  written  instrument  or 
parol  promise,^^  and,  of  course,  to  the  extent  only  to  which  the 
wife's  power  of  disposal  may  go.^* 

The  tendency  on  both  sides  of  the  water  is  towards  the  conclu- 
sion that  the  debts  of  a  married  woman  having  separate  property 
are  only  to  be  surely  charged  by  a  court  of  equity  upon  that 
separate  property,  and  payment  enforced  out  of  it,  when  it  was 
contracted  by  her  for  its  benefit,  or  expressly  made  a  charge 
thereon  or  expressly  contracted  on  its  credit.^^ 

Since  the  second  decision  in  Yale  v.  Dederer  the  New  York 
Glass  V.  Warwick,  40  Pa.  140.     But      well  v.  Adams,  29  Ark.  346;  Pippen 
see    Maclay    v.    Love,    25    Cal.    367;       v.  Wesson,  74  N.  C.  437. 
Hanly  v.  Downing,  4  Met.  (Ky.)   95.  The   doctrine   of   Yale   v.   Dederer, 

11.  Willard  v.  Eastham,  15  Gray  whether  by  statute  or  judicial  de- 
(Mass.),  328.  The  volume  of  Eeports  cision,  finds  more  direct  support  from 
containing  this  opinion  was  not,  how-  Cozzens  v.  Whitney,  3  E.  I.  79 ;  Jones 
ever,  published  before  1869.  v.  Crosthwaite,  17  la.  393;  Perkins  v. 

12.  That  is,  for  buying  stock  in  Elliott,  7  C.  E.  Green  (N.  J.),  127; 
trade  for  her  separate  business.  This  Maguire  v.  Maguire,  3  Mo.  App.  458 ; 
case  was  Johnson  v.  Gallagher,  3  De  Hodson  v.  Davis,  43  Ind.  258;  Chat- 
G.  F.  &  J.  49^4.  terton  v.   Young,   2    Tenn.   Ch.   768 ; 

13.  Miller  v.  Brown,  47  Mis.  505.        Nelson  v.  Miller,  52  Miss.  410.     But 

14.  See  Hix  v.  Gosling,  1  Lea  other  cases  are  to  the  contrary.  Met- 
(Tenn.)    560.  ropolitan  Bank  v.  Taylor,  62  Mo.  338; 

15.  Armstrong  v.  Boss,  5  C.  E.  Mayo  v.  Hutchinson,  57  Me.  546; 
Green  (N.  J.),  109;  Kantrowitz  v.  swpra,  p.  302.  The  rule  is  regarded  as 
Prather,  31  Ind.  92;  Hasheagan  v.  settled  in  New  York,  that,  in  order  to 
Specker,  36  Ind.  413 ;  Perkins  v.  El-  charge  the  estate  of  a  married  woman 
liott  7  C.  E.  Green  (N.  J.),  127;  Pat-  with  a  debt  not  contracted  for  the  ben- 
rick' v.  Littell,  36  Ohio  St.  79,  and  efit  of  her  separate  estate,  the  intent 
authorities  cited;  Westgate  v.  Munroe,  to  charge  such  estate,  where  the  obli- 
100  Mass.  227 ;  Nash  v.  Mitchell,  71  N.  gation  is  in  writing,  must  be  ex- 
Y.  199 ;  Wilson  v.  Jones,  46  Md.  349 ;  pressed  in  the  instrument.  Yale  v. 
Wallace  v.  Finberg,  46  Tex.  35 ;  Wil-  Dederer,  68  N.  Y.  329. 

liams  V.  Hugunin,  69  HI.  214;  Stil- 


455  STATUTOEY  SEPARATE  ESTATE.  §  451 

Statute  of  1860  provides  that  any  married  woman  possessed  of  real 
estate  as  her  separate  property  may  bargain,  sell,  and  convey  such, 
property,  and  "  enter  into  any  contract "  in  reference  to  the  same. 
By  way  of  construing  this  statute,  together  with  the  prior  acts  of 
1848  and  1849,  the  Xew  York  Court  of  Appeals  has  charged  a 
married  woman  as  party  without  consideration  to  a  promissory 
note,  where  she  added,  as  promisor  or  special  indorser,  express 
words  charging  the  payment  of  the  note  on  her  separate  property.^" 

§  451.  Loans. 

Generally  a  wife  is  liable  to  repay  borrowed  money/^  if  the  loan 
was  used  for  the  benefit  of  her  separate  estate,^*  and  if  a  wife  is 
duly  authorized  to  borrow,  the  lender  need  not  inquire  as  to  the 
purpose  of  the  loan.^® 

The  requirement  that  she  secure  authority  from  the  judge  in 
order  to  borrow  is  intended  as  a  protection  to  her  and  to  those 
dealing  with  her,  and  her  legal  capacity  to  incur  debts  and  to 
mortgage  her  property  is  not  essentially  dependent  on  it.^°  Where 
such  a  wife  admits  in  her  examination  by  the  judge  as  a  prelim- 
inary to  granting  authority  to  borrow  that  the  loan  is  for  her 
separate  advantage,  she  will  be  bound  by  it  though  she  puts  the 
money  to  another  us,  where  the  lender  does  not  know  of  such  use.^^ 

Where  a  lender  declined  to  loan  money  to  a  husband  who  was 
general  agent  for  a  wife,  but  offered  to  let  him  have  the  money 
if  he  would  induce  his  wife  to  give  a  mortgage  on  her  land  to 
secure  it,  the  transaction  was  to  be  construed  as  a  loan  to  the  wife.^* 
So  one  who  loans  money  to  a  wife  on  the  authority  of  her  husband 
can  recover  it  only  by  showing  affirmatively  that  the  loan  inured 
only  to  the  separate  benefit  of  the  wife,  and  that  it  was  not  bor- 
rowed for  the  purpose  of  paying  the  husband's  debts  or  for  the 
community.  ^^ 

Under  the  Texas  Married  Women's  Act  a  wife  has  no  power  to 
borrow  money  for  investment,"*  and  in  Vermont  one  loaning  a 

16.  Corn  Exchange  Ins.  Co.  v.  Bab-  20.  Kohlman  v.  Cochrane,  123  La. 
cock,  42  N.  Y.  613.  21?,  48  So.  914. 

17.  Hamilton  v.  Parent,  152  Mich.  21.  Saufley  v.  Joubert,  51  La.  Ann. 
587,  116  N.  W.  367,  15  Det.  Leg.  N.  1048,  25  So.  934. 

318.  22.  Gibson  v.  "Wallace,  147  Ala.  322, 

18.  Blair  v.  Teel  (Tex.),  152  S.  W.       41  So.  960. 

878.  23.  National  City  Bank  v.  Barringer 

19.  Saufley  v.  Joubert,  51  La.  Ann.       (La.),  78  So.  134. 

1048,  25  So.  934.  24.  Mills  v.  Frost  Nat.  Bank  (Tex.), 

208  S.  W.  698. 


§  452 


HUSBAJSTD   AND    WIFE. 


456 


wife  money  wLicli  is  in  fact  used  for  the  benefit  of  her  separate 
estate  is  entitled  to  an  equitable  lien  thereon."  The  Kentucky 
statute  providing  that  a  wife  shall  not  be  surety  for  her  husband 
was  not  intended  to  prevent  a  wife  from  borrowing  money  to  pay 
her  husband's  debts  or  to  dispose  of  borrowed  money  as  she  pleases, 
so  that  a  lender  is  not  required  to  inquire  into  the  disposition  of 
the  money,  if  the  transaction  is  not  a  scheme  to  evade  the  statute, 
or  to  secure  her  obligation  as  surety."^  In  order  to  secure  the 
permission  of  a  judge  to  enable  a  wife  to  borrow  money  in  Louis- 
iana, she  must  satisfy  the  judge  that  the  loan  is  for  the  benefit  of 
her  separate  estate.^^  In  the  same  State,  while  a  substantial 
variation  in  a  wife's  mortgage  from  the  authority  granted  by  the 
judge,  which  is  to  her  disadvantage,  does  not  avoid  it,  it  compels 
the  mortgagee  to  show  that  it  inured  to  her  separate  estate,^^  as 
well  as  where  the  loan  was  not  properly  authorized  in  other 
respects.^® 

§  452.  By  Promissory  Note. 

A  promissory  note  whose  consideration  inures  to  the  benefit  of 
the  wife's  separate  estate,  or  was  given  upon  its  express  credit,  is 
enforceable,^"  and  the  wife's  estate  may  be  bound  by  her  indorse- 
ment of  a  note  with  suitable  extension  of  the  instrument.^^ 

The  purchase  of  a  piano  as  her  separate  property,  and  a  note 
given  therefor,  is  held,  in  Ohio,  enforceable  against  the  wife's 
separate  estate :  an  intention  to  charge  being  inferable  from 
execution  of  the  note,^"  or  her  note  given  for  purchase  of  a  sewing- 
machine.^^     And   where  the  wife   acquires  title  to   property  by 


25.  Fletcher  v.  Brainerd,  75  Vt.  300, 
55  A.  608. 

26.  Third  Nat,  Bank  v.  Tierney,  128 
Ky.  836,  110  S.  W.  293,  33  Ky.  Law, 
418. 

27.  Barth  v.  Bone,  Man.  Unrep.  Gas. 
(La.)  431;  O'Keefe  v.  Handy,  Man. 
TJnrep.  Cas.    (La.)    369. 

28.  West  V.  De  Moas,  50  La.  Ann. 
1349,  24  So.  325. 

29.  Opelousas  Nat.  Bank  v.  Fahey, 
129  La.  225,  55  So.  772. 

30.  See  "Wright  v.  Dresser,  llO 
Mass.  51 ;  Quassaic  Nat.  Bank  v.  Wad- 
dell,  3  Thomp.  &  C.  (N.  Y.)  680. 

31.  Third  Nat.  Bank  v.  Blake,  73 
N.  Y.  260. 


32.  Graves  v.  Phillips,  20  Ohio  St. 
371. 

33.  Williamson  v.  Dodge,  5  Hun  (N. 
Y.),  497. 

As  to  a  hana  fide  holder  for  value 
before  maturity,  it  is  held  in  Virginia 
that  a  married  woman's  signature  or 
indorsement  of  a  blank  note  holds  her 
to  the  extensive  obligations  which  the 
law  imposes  upon  parties  sui  juris,  so 
far  as  charging  her  separate  estate  is 
concerned.  Frank  v.  Lilienfeld,  33 
Gratt.  (Va.)  377.  But  this  seems  con- 
trary to  the  general  tenor  of  American 
decisions  independently  of  broad  stat- 
utes and  the  equitable  rule  requiring 
her  contract  to  be  beneficial  to  her, 


457 


STATUTORY    SEPAliATE    ESTATE. 


§  453 


purchase  (which  by  force  of  statute  becomes  her  separate  prop- 
erty) and  executes  a  promissory  note,  the  implication  is  that  she 
intended  to  charge  her  separate  estate  with  its  payment.** 

In  Massachusetts  it  is  deemed  that  the  intent  and  the  facts  on, 
which  it  rests  are  not  affected  by  the  giving  of  collateral  security. 
Hence  payment  may  be  enforced  out  of  a  married  woman's  sep- 
arate estate  upon  a  bond  or  promissory  note  given  by  her  for  the 
price  of  land  conveyed  to  her  sole  and  separate  use.*^  And  while, 
in  that  State,  a  wife  is  not  legally  liable  upon  a  promissory  note 
made  by  her  payable  to  her  husband's  own  order,  and  by  him 
indorsed  over,**  she  is  held  liable  upon  a  promissory  note  signed 
by  her  upon  consideration  moving  from  her  as  tenant  in  common 
with  her  husband,*^  or  another,  or  given  for  goods  sold  her  on  her 
sole  credit,  although  she  received  no  benefit  therefrom.*^ 

Where  a  wife  gives  her  note  to  a  husband's  creditor  to  pay  his 
debt  and  secures  it  with  a  deed  of  land  conveyed  to  her  by  her 
husband,  the  creditor  may,  on  her  failure  to  pay  the  note,  recover 
the  land  in  ejectment.*®  In  the  same  way,  where  in  a  division  of 
land  among  heirs  a  wife's  share  was  conveyed  to  herself  and  her 
husband,  they  giving  a  note  to  other  heirs  for  a  surplus,  it  was 
held  that  she  was  liable  to  her  husband  for  an  amount  paid  by  him 
on  the  note,  and  for  interest  thereon.*^  The  Indiana  statute  pro- 
viding that  if  a  wife  executing  a  note  for  a  loan  shall  be  bound  by 
her  statement  that  the  loan  is  for  her  separate  use,  applies  only 
where  the  lender  pays  the  loan  in  cash,  or  by  check  or  draft. 


41 


§  453.  Proceedings  to  Charge  Separate  Estate;   In  Equity. 

The  Married  Women's  Acts  in  some  States  make,  as  might  be 
anticipated,  a  radical  change  in  the  character  of  the  practice  for 
reaching  the  wife's  separate  property. 

According  to  the  English  practice,  and  that  prevalent  in  most 


&c. ;  and  it  rather  appears  that  in 
such  cases  all  who  rely  upon  a  mar- 
ried woman 's  signature  or  indorse- 
ment are  bound  to  take  notice  of  the 
consideration  upon  which  it  was  pro- 
cured. 

34.  Exhaustion  of  the  proceeds  in 
payment  of  prior  liens  does  not  affect 
a  creditor's  right  to  recover  out  of 
the  residue  of  the  estate.  Avery  v. 
Van  Sickle,  35  Ohio  St.  296. 

35.  Rogers     v.     Ward,     8     Allen 


(Mass.),  387;  Estabrook  v.  Earle,  97 
Mas3.  302. 

36.  Roby  v.  Phelon,  118  Mass.  541. 

37.  Burr  v.  Swan,  118  Mass,  588. 

38.  Allen  v.  Fuller,  118  Mass.  402. 

39.  Strickland  v.  Gray,  98  Ga.  667, 
27  S.  E.  155. 

40.  Propes  v.  Propes,  171  Mo.  407, 
71  S.  W.  685. 

41.  Union  Nat.  Bank  v.  Finley,  180 
Tnd.  470,  103  N.  E.  110. 


454 


HUSBAXD    AXD    WIFE. 


458 


States,  there  was  no  personal  judgment  against  a  married  woman. 
But  a  chancery  decree  was  directed  against  the  separate  property 
of  the  wife,  declaring  the  separate  estate  vested  in  the  wife  at  the 
date  of  the  decree,  which  it  was  within  her  power  to  dispose  of, 
chargeable  with  the  payment  of  the  debt.*^  The  debt  was  not  a 
lien  upon  the  wife's  separate  estate  until  made  so  by  decree  of  the 
court  of  equity,  and  the  lien  was  by  virtue  of  such  decree.*^ 
Under  such  proceedings  there  was  only  a  sort  of  equitable  execu- 
tion, the  decree  reaching  only  property  which  the  wife  had  power 
to  bind,  and  no  personal  judgment  being  awarded  against  her, — 
nothing  from  which  direct  personal  liability  on  her  part  could  be 
predicated. 

A  proceeding  in  equity  to  enforce  a  wife's  debts  against  her 
separate  estate  is  in  the  nature  of  a  proceeding  in  rem**  resting 
on  her  inability  to  bind  herself  in  personam  or  to  bind  herself  by 
her  sole  act  or  agreement.^^  In  such  case  an  injunction  is  a 
sufficient  incipient  sequestration  of  her  visible  separate  estate, 
such  estate  being  then  specifically  proceeded  against  by  the 
creditor  in  equity.*® 

The  proceeding  in  Florida  by  a  creditor  to  subject  a  wife's 
goods  to  her  debt  contracted  in  her  separate  business  is  not  a 
creditor's  bill,  but  is  sui  generis,  the  appointment  of  a  receiver 
operating  as  an  equitable  attachment,  creating  a  lien.*^  Such  a 
bill  is  demurrable  if  it  does  not  aver  that  the  contract  was  for  the 
benefit  of  the  wife's  separate  estate. ■** 

§  454.  At  Law. 

Under  the  recent  married  women's  legislation  the  same  judg- 
ment is  required,  with  the  same  process  for  its  enforcement,  as 
would  be  awarded  if  the  woman  were  sole;   saving,  perhaps,  the 


42.  Johnson  v.  Gallagher,  3  De  G. 
F.  &  J.  520;  Picard  v.  Hine,  L.  R.  5 
Ch.  App.  274;  CoUett  v.  Dickenson,  L. 
E.  11  Ch.  D,  687;  Davies  v.  Jenkins, 
L.  E.  6  Ch.  D.  730;  Patrick  v.  Lit- 
tell,  36  Ohio  St.  79;  Armstrong  v. 
Eos3,  20  N.  J.  Eq.  109. 

43.  Armstrong  v.  Eoss,  5  C.  E.  Green 
(N.  J.),  109;  Terry  v.  Hammonds,  47 
Cal.  32;  Wilson  v.  Jones,  46  Md.  349; 
Gage  V.  Gates,  62  Mo.  412.  A  creditor 
cannot  procure  an  interim  injunction 
to  restrain  a  married  woman  from 
dealing  with  her  separate  estate  pend- 


ing the  trial  of  an  action  to  estab- 
lish a  charge  against  it.  Eobinson  v. 
Pickering,  44  L.  T.  165. 

44.  Hughes  v.  Hamilton,  19  W.  Va. 
366. 

45.  West  V.  Laraway,  28  Mich.  464; 
Kelliher  v.  Kennard  (Ma.),  79  So. 
28. 

46.  Osborn  v.  Glasscock,  39  Wa.  Va. 
749,  20  S.  E.  702, 

47.  First  Nat.  Bank  v.  Hirschko- 
witz,  46  Fla.  588,  35  So.  22. 

48.  King  V.  Hooton,  56  Fla.  805,  47 
So.  394. 


459  STATUTOKY  SEPAEATE  ESTATE.  §  454 

usual  exemptions,  and  treating  the  wife's  property  in  such  case 
substantially  as  the  husband's  property  might  be  treated  were  the 
judgment  rendered  against  him  and  the  liability  his.  And  where 
such  is  the  practice,  no  equitable  circumstances  can  usually  be 
alleged  calling  for  the  intervention  of  a  court  of  equity.'*''  Legal 
attachment  on  mesne  process,  or  by  way  of  legal  execution  against' 
a  married  woman,  may  be  made  under  such  statutes,^"  or  in  appro- 
priate instances  the  foreign  attachment  or  trustee  process  applied,^^ 
but  a  wife's  property  cannot  be  attached  in  Nebraska  in  a  proceed- 
ing against  the  husband  alone,  though  she  agreed  to  pay  the  debt.^^ 
In  North  Carolina  property  of  a  non-resident  wife  may  be  attached 
for  her  debt  if  valid  in  the  State  where  it  was  made.^^ 

On  the  whole,  policy  still  disinclines  to  permit  a  personal  judg- 
ment to  be  rendered  against  a  married  woman  even  on  what  pur- 
ports to  be  her  personal  obligation.^*  The  subjection  of  the  wife's 
property,  furthermore,  under  these  acts,  extends  to  all  her  statu- 
tory separate  estate,  or,  as  might  generally  turn  out,  by  the  chang- 
ing of  equitable  into  statutory  estates  by  operation  of  legislation, 
all  her  separate  property.  And  by  this  means  the  old  distinction 
between  the  real  and  personal  separate  estate  becomes  well-nigh 
obliterated." 

49.  Stevens  v.  Eeed,  112  Mass.  515;  to  charge  the  wife's  separate  estate 
Patrick  v.  Littell,  36  Ohio  St.  79;  with  the  payment  of  the  note  in  a  sub- 
Cookson  V.  Toole,  59  111.  515;  Andrews  sequent  action.  Avery  v.  Vansickle, 
V.  Monilaws,  15  N.  Y.  65.  35  Ohio  St.  270.    Coverture  is  in  gen- 

50.  See  language  of  Hoar,  J.,  in  eral,  like  infancy,  a  matter  of  defence 
Willard  v.  Eastham,  15  Gray  (Mass.),  which  the  married  woman  may  plead 
328.  or  not;   it  need  not  be  set  up  by  a 

51.  Powers  v.  Totten,  42  N.  J.  L.  plaintiff.  Smith  v.  Dunning,  61  N. 
442.  Y.  249;   Aetna  Ins.  Co.  v.  Baker,  71 

52.  Simmonds  v.  Fenton,  95  Neb.  Ind.  102.  After  judgment  the  defence 
771,  146  N.  W.  944.  of  coverture  cannot  be  interposed  to 

53.  Nat.  Exchange  Bank  v.  Rook  prevent  the  sale  of  a  married  woman 's 
Granite  Co.,  155  N.  C.  43,  70  S.  E.  property  on  the  execution.  MeDaniel 
1002.  V,  Carver,  40  Ind.  250. 

54.  See  Norton  v.  Meader,  4  Saw-  A  married  woman,  though  not  liable 
yer  (U.  S.),  603;  Mallett  v.  Parham,  in  the  action,  may  charge  her  separate 
52  Miss.  921;  ^Miner  v.  Pearson,  16  estate  by  directing  her  attorney  to 
Kan.  27;  Richards  v.  O'Brien,  64  Ind.  allow  judgment  to  be  taken  against 
418;  Andrews  v.  Monilaws,  15  N.  Y.  her;  and  the  acts  of  her  counsel,  in 
65.  the  absence  of  fraud,  should  bind  her. 

55.  Patrick  v.  Littell,  36  Ohio  St.  Palen  v.  Starr,  14  N.  Y.  422;  Glover 
79,  V.  Moore,  60  Ga.  189;  Vick  v.  Pope, 

A  judgment  against  the  husband  81  N.  C.  22.  Judgment  against  a 
upon  the  joint  promissory  note  of  him-  married  woman  is  not  the  less  con- 
eelf  and  wife  does  not  merge  the  right      elusive  because  rendered  as  part  of  a 


§    456  HUSBAND    A^D    WIFE,  460 

§  455.  Ratification. 

Pajments  made  on  a  mortgage  void  because  of  coverture  do  not 
operate  as  a  ratification  bj  the  wife  or  stop  tbe  running  of  the 
statute.^**  So  where  a  wife  joined  her  husband  in  a  quitclaim 
deed  of  her  land  she  did  not  thereby  ratify  his  previous  unauthor- 
ized mortgage  of  the  same  land,  even  though  she  never  disclaimed 
his  act,  since  there  was  no  reason  for  her  disclaiming  his  act  or 
defending  against  a  foreclosure  where  she  had  parted  with  her 
title." 

§  456.  Estoppel  to  Deny  Validity. 

A  wife  is  estopped  to  deny  the  validity  of  a  deed  of  trust  of  her 
land,  as  against  the  beneficiaiy  where  she  did  not  read  it  but 
executed  it  on  the  faith  of  her  husband's  false  statement  that  it 
covered  land  in  which  she  had  only  a  right  of  dower,^*  and  where 
she  gives  a  mortgage  to  pay  off  liens  on  her  separate  property  to 
which  coverture  might  have  been  a  defence,  but  which  she  treated 
as  valid,^^  but  she  is  not  estopped  to  assert  her  title  to  land  mort- 
gaged by  her  husband  as  his  merely  by  the  fact  that  she  joins  to 
release  dower  and  homestead,  where  the  statute  prohibits  her  from 
directly  or  indirectly  mortgaging  her  property  for  his  debt,^°  nor 

compromise    arrangement.      Lewis    v.  issue  against  the  husband,  and  be  re- 

Gunn,  63  Ga.  542.     Her  gross  laches,  turned  unsatisfied,  before  the   wife's 

too,  or  her  negligence,  as  in  defaulting  estate  can  be  held  liable.     Berger  v. 

after  a  personal  service,  should  disable  Clark,  79  Pa.  340.    But  in  some  States 

her  from  maintaining  a  bill  in  equity  che  husband  is  treated  as  a  formal,  not 

to    set    the    adverse    judgment    aside.  a  substantial  party.  Ross  v.  Linder, 

Wilson    V.    Coolidge,    42'    Mich.    112 ;  12  S.  C.  592. 

Landers  v.  Douglas,  46  Ind.  522.     Or  After-acquired  property  may  be  tak- 

from  collaterally  attacking  it.     Burk  en  upon  a  judgment  against  the  wife 

V.  Hill,  55  Ind.  419.     But  American  rendered  upon  a  legal  contract.     Van 

practice  is  not  agreed  as  to  the  valid-  Metre  v.  Wolf,  27  la.  341.     A  mar- 

ity  of  a  judgment  against  a  married  ried    woman    is    not    bound    by    her 

woman.    Some  States  hold  that  such  a  answer  in  chancery  made  jointly  with 

judgment  is  absolutely  null  and  void  her  husband.     Kerchner  v.  Kempton, 

unless  the  record  shows  it  to  be  with-  47  Md.  568.     See  Robinson  v.  Trofit- 

in  the  special  cases  authorized  by  law,  ter,  109  Mass.  478. 

so  that  proceedings  to  enforce  it  may  56.   Radican   v.   Radiean,   22   R.   I. 

be    stayed    by    injunction.      Gary    v.  405,  48  A.  143. 

Dixon,  51  Miss.  593.     Other  decisions  57.  Waughtal  v.  Kane,  108  la.  268, 

favor  setting  judgment  aside  on   ap-  79  N.  W.  91. 

peal   or   review,   where   the   cause   of  58.  Hyatt  v.  Lion,  102  Va.  909,  48 

action     was     unsuitable.       Swing     v.  S.  E.  1. 

Woodruff,  41  N.  J.  L.  469;   Emmett  59.  Till  v.  Collier,  27  Ind.  App.  333, 

V.  Yandcs,  60  Ind.  548.     Practice  re-  61  N.  E.  203. 

quiring  husband  and  wife  to  be  sued  60.  Gibson  v.  Clark,  132  Ala.   370, 

together,  an  execution,  it  is  held,  must  31.  So.  472. 


461  STATUTOKY  SEPARATE  ESTATE.  §  456 

where  sbe  gives  him  a  deed  running  to  herself  for  record  and  he 
changes  it  before  recording  so  that  his  name  appears  as  joint 
grantee,  even  though  she  later  joins  him  in  mortgaging  it,®^  nor 
by  the  fact  that  after  her  second  marriage  she  executes  her  mort- 
gage by  the  name  she  bore  when  a  widow,®^  nor  by  the  fact  that 
the  proceeds  of  a  second  mortgage  were  used  to  pay  off  a  previous 
mortgage  which  was  void  because  given  as  surety.*^ 

She  may  be  estopped  to  deny  her  liability  for  goods  purchased 
on  her  husband's  account  where  she  represents  to  the  creditor  that 
it  is  her  own  debt,®*  and  where  a  wife  obtains  credit  on  the  faith 
of  statements  that  the  purchase  is  for  the  benefit  of  her  separate 
estate,  she  is  estopped  to  deny  her  liability  for  the  price,  though 
the  property  obtained  was  not  so  used.®^  It  is  otherwise  where  the 
creditor  knows  that  she  receives  no  benefit.^® 

A  wife  is  estopped  to  deny  the  validity  of  a  transaction  whereby 
she  conveys  her  property  to  another  in  order  that  he  may  mortgage 
it  to  secure  his  own  debt,  as  against  one  who  accepts  the  mortgage 
on  the  faith  of  the  mortgagor's  apparent  title,®'  as  well  as  where 
she  joins  him  in  a  mortgage  of  land  belonging  to  him,  but  which 
he  had  conveyed  to  her  by  an  unrecorded  deed,  where  the  mort- 
gagee supposed  that  it  was  still  his  property.®^ 

A  mortgage  given  to  secure  an  extension  of  a  previous  mortgage 
which  was  voidable  for  defective  acknowledgment  will  not  operate 
as  a  ratification  or  estoppel  against  the  first  where  there  was  noth- 
ing in  the  second  mortgage  indicating  such  an  intention.®^  But 
where  a  wife  knowingly  executed  a  mortgage  with  her  husband  on 
land  wherein  she  had  an  equitable  interest,  she  cannot  assert  her 
equitable  right  against  the  mortgagee,'®  and  she  may  be  precluded 
from  denying  the  validity  of  a  pledge  of  her  property  for  a  debt 

61.  Bank  of  Coffee  Springs  v.  Austin  66.  First  Nat.  Bank  v.  Butter   (N. 
(Ala.),  75  So.  301.                                           J.),   104  A.   138,  106  A.   371. 

62.  Wilkins  v.  Lewis  (Fla.),  82  So.  67.  Bragg  v.  Lamport,  96  F.  630,  38 
762.  C.  C.  A.  467, 

63.  Bank  of  Coffee  Springs  V.  Austin  68.  Galvin  v.  Britton,  151  Ind.  1, 
(Ala.),  75  So.  301.  49    N.   E.    1064;    Slagel   v,   Milligan, 

64.  Wolff  V.  Hawes,  105  Ga.  153,  31  150  Ind.  582,  50  K.  E.  564,  65  Am. 
S.  E.  425.  St.  R.  382. 

65.  Vosburg  v.  Brown,  119  Mich.  69.  Evans  v.  Dickenson,  114  F.  284, 
6OT,  78  N.  W.  886,  6  Det.  Leg.  N.  40;        52  C.  C.  A.  170. 

Nat.    Lumberman's    Bank    v.    Miller,  70.  Neslor  v.  Grove  (N.  J.),  107  A. 

131  Mich.  564,  91  N.  W.  1024,  9  Det.       281. 
Leg.  N.  435,  100  Am.  St.  R.  623. 


§  457  HUSBAND  AND  WIFE.  462 

of  her  husband  by  demanding  and  receiving  surrender  of  a  draft 
given  by  the  husband  in  part  payment  of  the  claim.'^^ 

A  wife  subjected  her  property  used  in  her  separate  business  to 
the  lien  of  her  husband's  assignee  in  insolvency  for  his  services, 
where  such  property  was  in  her  husband's  hands  as  her  agent  and 
was  by  him  assigned  to  the  assignee,  and  where  she  joined  with 
her  husband  in  asking  the  assignee  to  act  as  his  trustee  and  in 
fixing  the  terms  on  which  he  should  act."  So  a  wife  may  be  bound 
on  contracts  inuring  to  the  benefit  of  her  separate  estate  where  to 
hold  otherwise  would  enable  her  to  work  a  fraud.^^  But  an  ex- 
press recital  in  a  mortgage  that  it  was  given  for  the  benefit  of  a 
wife's  separate  estate  would  not  estop  her  from  denying  its  validity 
as  against  the  mortgagee  or  his  assigns,^*  but  it  was  held  otherwise, 
as  against  a  holder  of  the  note  in  due  course  and  before  maturity, 
where  there  was  an  express  recital  of  her  intention  to  charge  her 
separate  estate.'^^  Under  the  former  South  Carolina  statute  a 
creditor  of  a  wife  need  only  show  that  she  contracted  with  refer- 
ence to  her  separate  estate,  and  not  that  the  property  was  used  for 
the  benefit  of  such  estate.''^ 

§  457.  Avoidance. 

Where  a  wife  seeks  to  cancel  a  mortgage  on  the  ground  that  it 
was  given  as  surety,  she  has  the  burden  of  showing  that  fact,'^'  as 
well  as  that  the  mortgage  included  property  belonging  to  her." 
In  some  States  she  must  also  show  that  the  mortgagee  knew  that 
she  was  a  surety,"  or  had  knowledge  of  facts  putting  him  on 
inquiry.^''     It  is  otherwise  in  Louisiana,  even  where  the  wife  is 

71  Knowlton  v.  Boss,  114  Me.  18,  So.  695;  Gafford  v.  Speaker,  125  Ala. 
^5  ^    281  '^^^>  2'^  ^^-  ^°^^'   Taylor  v.  Maxwell 

72  '  Belden  v.  Sedgwick,  68  Conn.  (Ala.),  75  So.  959;  Birmingham  Trust 
560    37  A    417.  *  ^^^-  ^^-  '^-  Lowell   (Ala.),  79   So. 

73  Ackerman  v.  Lamer,  116  La.  377;  Street  v.  Alexander  City  Bank 
101  '40  So.  581.  (Ala.),  82  So.  Ill;  Guy  v.  Liberenz, 

74  Egan  v.  Raysor,  49  S.  C.  469,  27  160  Ind.  524,  65  N.  E.  186;  Aldridge 
g    J,    475  V.  Clasmeyer   (Ind.),  123  N.  E.  825. 

'75.'  White   V.   Goldsberg,   49    S.   C.  78.  Burgesa  v.  Blake,  128  Ala.  105, 

530   27  S   E    517  28  So.  963,  86  Am.  St.  E.  78. 

76   Darwin  v.  Moore,  58  S.  C.  164,  79.  Temples  v.  Equitable  Mortg.  Co., 

3g  g    J.    539  100  Ga.  503,  28  S.  E.  232,  62  Am.  St. 

77*   Cox   v'.   Brown    (Ala.),   73   So.       R.  326;  Webb  v.  John  Hancock  Mut. 
964;  Mohr  v.  Griffin,  137  Ala.  456,  34       Life  Ins.  Co.,  162  Ind.  616,  69  N.  E. 
So  '378;   Pulliam  v.  Hicks,  132   Ala.       1006,  66  L.  R.  A.  632. 
134    31  So.  456;   Lunaford  v.  Harri-  80.  Field  v.  Campbell,  IC.  I  Ind.  389, 

son,'   131    Ala.    263,   31    So.    24;    Mc-       72  N.  E.  260,  108  Am.  St.  R.  301. 
Crary  v.  Williams,   127   Ala.   251,  28 


463  STATUTORY  SEPARATE  ESTATE.  §  4 


0  , 


separated  in  property,  since  the  creditor  has  the  burden  of  showing 
that  the  consideration  moved  to  the  wife.^^ 

In  Ohio  the  fact  that  a  joint  mortgage  by  the  spouses  secures  the 
husband's  debt  is  sufficient  to  put  the  burden  on  the  mortgagee  to 
show  the  true  relation  of  the  wife  to  the  note.^^  But  where  in 
Louisiana  a  wife  sold  land  to  pay  the  debt  of  her  husband,  reserv- 
ing a  right  to  redeem,  and  her  husband  afteinvards  made  a  dation 
en  payment  to  her,  conveying  property  in  part  consideration  of  the 
land  conveyed  to  the  creditor,  she  could  not  recover  the  land  from 
the  creditor  without  showing  that  she  was  imposed  on  in  signing 
the  dation  en  payment .^^ 

Where  a  wife  joins  in  a  void  deed  of  her  land  to  secure  a  debt, 
an  offer  to  pay  the  debt  is  not  a  prerequisite  to  her  right  to  a 
cancellation.®* 

Acquiescence  may  bar  a  wife's  right  to  cancellation  of  deed 
voidable  because  given  as  surety.*^ 

81.  Erwin  v.  McCalop,  5  La.  Ann.  84.  Shook  v.  Southern  Bldg.  &  Loan 
173.  Assn.,  140  Ala.  575,  37  So.  409. 

82.  Insurance  Co.  of  North  America  85.  Kogers  v.  Shewmaker,  27  Ind. 
V.  Miller,  24  Ohio  Cir.  Ct.  667.  App.  631,  60  N.  E.  462,  87  Am.  St. 

83.  Sealy  v.  Cook,  51  La.  Ann.  723,  E.  274. 
25  So.  316. 


§  458  HUSBAND  AND  WIFE.  464 


CHAPTER  XXII. 

CONVEYANCE,  MORTGAGE  OK  LEASE  OF  STATUTORY  SEPARATE 

ESTATE. 

Section  458.  Wife's  Power  to  Dispose  of  Separate  Estat*  in  General. 

459.  What  Law  Governs. 

460.  Consideration. 

461.  Form  and  Exquisites  in  General. 

462.  Execution   by  Wife. 

463.  Necessity  of  Husband's  Joinder. 

464.  Effect   of   Abandonment,   Separation,   Divorce,   or   Insanity    of 

Husband. 

465.  When  Husband's  Joinder  not  Enquired. 

466.  Presumption  as  to  Husband's  Assent. 

467.  Evidence  of  Assent. 

468.  Acknowledgment. 

469.  Delivery  in  Escrow. 

470.  Eecord. 

471.  Conveyance. 

472.  Mortgage  or  Deed  of  Trust. 

473.  Declaration  of  Trust. 

474.  Gift. 

475.  Lease. 

476.  By  Equitable   Assignment. 

477.  Dedication  to  Public  Use. 

478.  Parol  Transfers. 

479.  By  Power  of  Attorney. 

480.  Construction   and  Operation. 

481.  Liability  on  Covenants  in  Conveyance. 

482.  Extent  of  Lien  or  Liability. 

483.  Effect  of  Extension  of  Time  on  Novation. 

484.  Conveyances  in  Fraud  of  Creditors. 

485.  Eights  and  Liabilities  of  Purchasers. 

486.  Laches. 

487.  Estoppel  to  Deny  Validity. 

488.  Eatification. 

489.  Avoidance. 

§  458.  Wife's  Power  to  Dispose  of  Separate  Estate  in  General. 

The  doctrine  of  the  wife's  dominion  over  her  separate  estate  is 
at  this  day  more  generally  asserted,  in  the  United  States  at  least, 
with  reference  to  the  Married  Women's  Acts ;  and  some  of  the 
later  cases  show  important  variations  from  the  equity  rule,  as  we 
shall  proceed  to  notice.  The  decided  change  seems  to  date,  in 
American  chancery,  from  the  passage  of  the  important  Married 
Women's  Acts,  or  about  1848,  and  in  most  States  at  this  day  to 


465  STATUTORY  SEPAEATE  ESTATE,  §  460 

affect  equitable  remedies  with  reference  to  both  the  statutory  and 
equitable  separate  estate  of  the  wife.®^ 

Under  the  Married  Women's  Acts  in  Arkansas,  Colorado,  Con- 
necticut, Idaho,  Missouri,  Oklahoma,  South  Carolina,  Utah  and 
Wisconsin  the  wife  has  a  complete  power  of  disposition  of  her 
separate  estate.*^  Under  the  Indiana  Married  Women's  Act  a 
wife  may  sell  and  dispose  of  her  personal  property  in  her  own 
name  as  though  sole.^^  The  Virginia  Married  Women's  Act  se- 
cures to  a  wife  as  her  separate  estate  all  property  acquired  during 
coverture,  however  it  was  acquired.®^  Under  that  statute  choses 
in  action  accruing  before  coverture,  but  not  reduced  to  possession 
till  after  marriage,  are  her  separate  estate.®°  Under  the  Vermont 
Married  Women's  Act  the  wife  has  full  power  of  disposition  of 
her  personal  property,  however  acquired,  including  gifts  from  her 
husband,  if  it  is  kept  separate  from  his  property.®^  The  Missouri 
Married  Women's  Act  does  not  apply  to  estates  by  the  entirety,®* 
nor  did  the  early  Married  Women's  Act  in  that  State  empower  a 
wife  to  convey  her  remainder  in  land.®^ 

§  459.  What  Law  Governs. 

The  question  whether  a  mortgage  of  a  wife  is  valid  depends  on 
the  law  of  the  State  wherein  lies  the  land  encumbered,"*  as  well 
as  the  question  whether  a  wife's  warranty  estops  her  to  claim  the 
land.'^' 

§  460.  Consideration. 

A  debt  owing  by  a  husband  to  the  grantee  is  sufficient  to  support 
a  conveyance  by  his  wife,®*  or  for  a  mortgage  of  her  property  to 

86.  Supra,  §  286  et  seq.  88.    Townsend    v.    Huntzinger,    41 

87.  Wagner  v.  Mutual  Life  Ins.  Co.,       Ind.  App.  223,  83  N.  E,  619. 

88  Conn.  536,  91  A.  1012;  In  re  Car-  89.  Williams  v.  Lord,  75  Va.  390. 

penter,  179   F.  743;   Wyatt  v.  Scott,  90.  Riggan's  Adm'r  v.  Riggan,  93 

84  Ark.  355,  105  S.  W.  871;  Deutsch  Va.  78,  24  S.  E.  ?20. 

V.   Eohlfing,   22   Colo.   App.   543,   126  91.  In  re  Hill,  190  F.  390;   Gowan 

P.   1123;    MeFarland  v.   Johnson,   22  v.  Stevens,  83  Yt.  358,  76  A.  147. 

Ida.    694,    127    P.    911;    Stewart    v.  92.  Frost  v.  Frost,  200  Mo.  474,  98 

Weiser  Lumber  Co.,  21  Ida.  340,  121  S.  W.  527. 

P.  775;  Barnes  v.  Plessner,  121  Mo.  93.  O'Reilly  v.  Kluender,  193  Mo. 

App.    677,    97    S.    W.    626;     Caylor  576,  91  S.  W.  1033. 

Lumber  Co.  v.  Mays  (Okla.),  174  P.  94.  Thomson  v.  Kyle,  39  Fla.  582, 

521;  Morrison  v.  Clark,  20  Utah,  432,  23  So.  12,  63  Am.  St.  R.  193;  Otis  v. 

59    P.    235,    77     Am.    St.     R.    924;  Gregory,  111   Ind.  504,  13  N.  E.  39. 

Schneider  v.  Breier's  Estate,  129  Wis.  95.  Smith  v.  Ingram,  132  N.  C.  959, 

446,  109  N.  W.  99-,  6  L.  E.  A.  (X.  S.)  44  S.  E.  643,  95  Am.  St.  R.  680,  61 

917.  L.  R.  A.  878. 

96.  Wagner  v.  Phillips,  78  N.  J.  Eq. 


30 


§  461 


HUSBAND   AND    WIFE. 


466 


secure  his  debt,^^  especially  if  completed,®*  even  where  such,  con- 
sideration is  his  pre-existing  debt/®  as  is  the  community  liability 
of  spouses  for  a  partnership  liability  of  one  of  them/  unless,  in 
Georgia,  the  transaction  is  part  of  a  scheme  to  induce  a  wife  to 
pay  such  debts,^  if  participated  in  by  the  grantee.*  It  is  held 
otherwise  in  Xorth  Dakota  and  Missouri.* 

Where  a  husband  had  depleted  a  bank's  funds,  the  advance  of 
a  large  sum  of  money  by  its  officers  to  enable  it  to  carry  on  business 
was  not  held  a  sufficient  consideration  for  a  wife's  conveyance, 
though  the  husband  was  a  principal  stockholder  in  the  bank.° 

Where  a  note  given  by  a  wife  for  her  husband's  debt  is  voidable 
when  made,  because  she  is  a  surety,  an  agreement  by  the  payee  to 
forbear  an  action  against  the  husband's  estate  after  his  death  is 
not  a  sufficient  consideration  for  the  widow's  note  renewing  the 
voidable  note.^ 

§  461.  Form  and  Requisites  in  General. 

A  wife's  mortgage  is  not  invalid  for  want  of  an  express  promise 
to  pay  the  amount  loaned,  if  there  is  a  sufficient  description  and 
identification  of  the  debt  secured,'  as  well  as  where  it  unequivo- 
cally appears  that  she  contracted  and  received  the  exclusive  benefit 
of  the  loan,*  nor  for  want  of  an  express  recital  that  she  is  the 


33,  78  A.  806;  Lemay  v.  Wickert,  98 
Mich.  628,  57  N.  W.  827;  Kieldson  v. 
Blodgett,  113  Mich.  655,  72  N.  W.  9; 
Steinmeyer  v.  Steinmeyer,  55  S.  C.  9, 
33  S.  E.  15;  Pratt  Land  &  Improve- 
ment Co.  V.  McClain,  135  Ala.  452, 
33  So.  185,  93  Am.  St.  E.  35;  Nelms 
V.  Keller,  103  Ga.  745,  30  S.  E.  572; 
Thomas  v.  Halsell  (Okla.),  164  P. 
458;  'Le^\is  v.  Doyle  (Mich.),  148  N. 
W.  407;  Thornton  v.  Esco,  181  Ala. 
241,  61  So.  255;  Bowron  v.  Curd,  28 
Ky.  Law,  58,  88  S.  W.  1106. 

97.  Ocklawaha  Eiver  Farms  Co.  v. 
Young  (Fla.),  74  So.  644,  L.  R.  A. 
1917F,  337;  Smith  v.  Hernan  (Cal.), 
180  P.  640 ;  Sigel  Campion  Live  Stock 
Commission  Co.  v.  Haston,  68  Kan. 
749,  75  P.  1028;  Linton  v.  Cooper, 
63  Neb.  400,  73  N.  W.  731;  Ham  v. 
Missouri  State  Life  Ins.  Co.  (Okla), 
173  P.  214;  Knickerbocker  Co.  v. 
Hawkins  (Wash.),  173  P.  628. 


98.  Citizens'  Bank  v.  Opperman 
(Ind.),  115  N.  E.  55. 

99.  Ocklawaha  Eiver  Farms  Co.  v. 
Young  (Fla.),  74  So.  644. 

1.  Lumbermen's  Nat.  Bank  v.  Ellis 
H.  Grose  Co.,  37  Wash.  18,  79  P.  470. 

2.  Hickman  v.  CornweU,  145  Ga. 
368,  89  S.  E.  330 ;  Eiviere  v.  Ray,  100 
Ga.  626,  28  S.  E.  391. 

3.  Bond  V.  Sullivan,  133  Ga.  160, 
65  S.  E.  376. 

4.  Finnerty  v.  John  S.  Blake  &  Bro. 
Realty  Co.  (Mo.),  207  S.  W.  772; 
Maas  V.  Eettke  (N.  D.),  170  N.  W. 
309. 

5.  Eostad  v.  Thorsen,  83  Ore.  489, 
163  P.  987,  L.  E.  A.  1917D,  1170,  163 
P.  423,  L.  E.  A.  1017D,  1170. 

6.  Turner  v.  Sheridan,  32  Misc.  233, 
65  N.  Y.  S.  791. 

7.  Gregory  v.  Van  Voorst,  85  Ind. 
108. 

8.  Jouchert  v.  Johnson,  108  Ind. 
436,  9  N.  E.  413, 


467 


STATUTORY  SEPARATE  ESTATE. 


§  463 


grantor,  even  where  the  first  part  of  the  deed  is  so  dra\vii  as  to 
make  it  appear  that  the  husband  owned  the  land,  if  later  recitals 
show  that  she  is  the  real  grantor.^  Under  the  Alabama  statute 
requiring  a  wife's  sale  of  her  separate  estate  to  be  bj  an  instrument 
in  writing  with  two  witnesses,  it  was  held  that  such  an  instrument 
having  only  one  witness  was  void."  Under  the  Kentucky  statute 
a  deed  setting  apart  the  wife's  property  for  her  husband's  debt 
need  not  state  the  wife's  purpose.^^  In  Pennsylvania  it  has  been 
held  that  a  wife's  mortgage  is  binding  though  it  was  blank  as  to 
the  consideration  when  delivered  and  afterwards  filled  up  as  to 
the  consideration  in  her  presence  alone,  if  otherwise  as  provided 
by  the  statute.^^ 

§  462.  Execution  by  Wife. 

A  wife  is  bound  by  a  deed  which  she  authorizes  another  to  sign 
for  her  and  which  he  does  so  sign  in  her  presence,  especially  where 
she  later  acknowledges  it  as  required  by  law/^  and  by  a  deed 
which  she  signs  after  it  has  been  left  at  a  bank  by  the  grantee  in 
pursuance  of  an  arrangement  between  him  and  her  husband.^ 


14 


§  463.  Necessity  of  Husband's  Joinder. 

The  rule  in  many  States,  under  the  IMarried  "Women's  Acts,  is 
that  the  husband  must  join  the  wife  in  contracts  and  conveyances 
relating  to  her  separate  property.  Particularly  is  this  true  of 
transactions  concerning  the  wife's  real  estate.  Conveyances  other- 
wise made  are  not  considered  bindins:.^^ 


9.  Harper  v.  McGoogan,  107  Ark. 
10,  154  S.  W.  1S7. 

10.  Clements  v.  Motley,  120  Ala. 
575,  24   So.   947. 

11.  Staib  V.  German  Ins.  Bank,  179 
Ky.   118,  200   S.  W.   322, 

12.  In  re  Hogan's  Estate,  181  Pa. 
500,  37  A.  548. 

13.  Godsey  v.  Virginia  Iron,  Coal  & 
Coke  Co.,  26  Ky.  Law,  657,  82  S.  W. 
386. 

14.  Manning  v.  Foster,  49  Wash. 
541,  96  P.  233. 

15.  "Wright  V.  Brown,  44  Pa.  224; 
Camden  v.  Vail,  23  Cal.  633;  Maclay 
V.  Love,  25  Cal.  367;  Pentz  v.  Simon- 
son,  2  Beasl.  (N.  J.)  232;  Major  v. 
Symmea,  19  Ind.  117;  ■^finer  v.  Hine, 
13  Ohio  St.  565;  Haugh  v.  Blythe,  20 
Ind.    24;     Dodge    v.    Hollinshead,    6 


Minn.  25;  Eaton  v.  George,  42  N.  H. 
375;  Miller  v.  Wetherby,  12  Iowa, 
415;  Ezelle  v.  Parker,  41  Miss.  520; 
O'Neal  V.  Eobinson,  45  Ala.  526; 
Bressler  v.  Kent,  61  111.  426;  Green- 
holtz  V.  Haeffer,  53  Md.  1S4;  Cole  v. 
Van  Eiper,  44  111.  58;  Armstrong  v. 
Boss,  5  C.  E.  Green  (N.  J.),  109.  And 
see  Wickliffe  v.  Dawson,  19  La.  Ann. 
48.  But  see  Stacker  v.  Whitlock,  3 
Met.  (Ky.)  244,  where  the  right  to 
sell  or  encumber  is  strictly  construed. 
Brown  v.  Hunter,  121  Ala.  210,  25  So. 
924 ;  Interstate  Building  &  Loan 
Ass'n  V.  Agricola,  124  Ala.  474,  27 
So.  247 ;  Hamil  v.  American  Freehold 
Land  Mortg.  Co.,  127  Ala.  90,  28  So. 
558;  Wilkins  v.  Lewis  (Fla.),  82  So. 
762;  Gregory  v.  Van  Voorst,  85  Ind. 
108;    Starkey    v.    Starkey,    166    Ind. 


HUSBAND    AND    WIFE. 


468 


§  463 

The  Alabama  statute,  requiring  the  husband's  joinder  to  vali- 
date his  wife's  deed,  applies  to  her  conveyance  of  a  life  estate," 
but  not  to  a  conveyance  by  the  wife  to  the  husband,"  nor  where 
either  or  both  of  the  spouses  are  non-resident,^*  or  where  the  wife 
has  been  judicially  declared  a  feme  sole,^^  nor  to  the  payment  by 
her  of  his  debt  with  her  separate  estate,  since  another  statute  per- 
mits the  disposition  of  her  personal  effects  by  the  spouses  jointly, 
by  parol  or  otherwise.^"     A  wife's  mortgage  of  her  separate  estate 
without  her  husband's  joinder  is  a  good  equitable  conveyance  in 
Connecticut.^^     The  Idaho  statute  requiring  the  joinder  of  the 
husband  to  validate  his  wife's  deed  was  intended  to  protect  her 
from  fraud  and  duress,  and  not  to  protect  those  who  would  cheat 
her."     The  husband's  joinder  is  required  in  Illinois  in  a  mortgage 
of  household  goods.^^     The  Indiana   statute  requiring  the  hus- 
band's joinder  in  the  wife's  conveyance  or  incumbrance  of  her 
separate  estate  does  not  apply  to  her  contract  granting  an  exclusive 
right  to  explore  her  land  for  oil  and  gas."     In  Louisiana,  before 
St.  1916,  No.  94,  a  wife  could  not  alienate  or  incumber  her  sep- 
arate estate  without  the  assent  of  her  husband  or  of  a  competent 
court."     A  wife  may  sell  her  paraphernal  estate  with  the  consent 


140,  76  N.  E.  876;  Bogie  v.  Nelson, 
151  Ky.  443,  152  S.  W,  250;  Deusch 
V.  Questa,  116  Ky.  474,  25  Ky.  Law, 
707,  76  S.  W,  329;  Weber  v.  Tanner, 
23  Ky.  Law,  1107,  64  S.  W.  741 
(mod.  reh.,  23  Ky.  Law,  1694); 
Eealty  Title  &  Mortgage  Co.  v. 
Schaaf,  81  N.  J.  Eq.  115,  85  A.  602; 
Beso  V.  Eastern  Building  &  Loan 
Ass'n,  16  Pa.  Super.  222;  Maury  Co. 
Bldg.  &  Loan  Assn.  v.  Cowley  (Tenn.), 
52  S.  W.  312;  Bledsoe  v.  Fitts,  47 
Tex.  Civ.  1907;  105  S.  W.  1142; 
Morton  v.  Calvin  (Tex.),  164  S. 
W.  420;  Latner  v.  Long  (Tenn.), 
47  S.  W.  1111;  Pyles  v.  Wil- 
liams (Tenn.),  39  S.  W.  232; 
Dietrich  v.  Hutchinson,  73  Vt.  134, 
50  A.  810,  87  Am.  St.  R.  698;  Bum- 
gardner  v.  Edwards,  85  Ind.  117; 
Thomason  v.  Hays  (Tenn.),  62  S.  W. 
336;  Wethered  v.  Conrad,  73  W.  Va. 
551,  80  S.  E.  953;  Collins  v.  Sherbet, 
114  Ala.  480,  21  So.  997;  Farley  v. 
Stacy,  177  Ky.  10?,  197  S.  W.  636. 


16.  Young  v.  Sheldon,  139"  Ala.  444, 
36  So.  27,  101  Am.  St.  R.  44. 

17.  Crosby  v.  Turner  (Ala.)  75  So. 
937. 

18.  Bell  V.  Burkhalter,  176  Ala.  62, 
57  So.  460;  Collier  v.  Doe  ex  dem. 
Alexander,  142  Ala.  422,  38  So.  244; 
Hughes  v.  Rose,  163  Ala.  368,  50  So. 
899;  High  v.  Whitfield,  130  Ala.  444, 
30  So.  449. 

19.  Jackson  Lumber  Co.  v.  Bass, 
181  Ala.  169,  61  So.  271. 

20.  Hollingsworth  v.  Hill,  116  Ala. 
84,  22  So.  460. 

21.  Lynch  v.  Moser,  72  Conn.  714, 
46  A.  153;  Tice  v.  Moore,  82  Conn. 
244,  73  A.  133. 

22.  Karlson  v.  Hanson  &  Karlson 
Sawmill  Co.,  10  Ida.  361,  78  P.  1080. 

23.  Pease  v.  L.  Fish  Furniture  Co., 
176  111.  220,  52  N.  E.  9^32. 

24.  Kokomo  Natural  Gas  &  Oil 
Company  v.  Matlock,  177  Ind.  225, 
97  N.  E.  787. 

25.  Douglas  v.  Nicholson,  140  l«u 
1099.  74    So.   566. 


469  STATUTORY  SEPARATE  ESTATE.  §  463 

of  her  husband  in  that  State  and  make  whatever  use  of  the  pro- 
ceeds she  sees  fit.^*  The  joinder  by  the  husband  in  a  deed  of  the 
wife's  separate  estate,  required  by  the  Missouri  Married  Women's 
Act  to  validate  such  deed,  does  not  recognize  any  title  in  the 
husband.^^  In  ISTew  Jersey  a  deed  wherein  the  husband  does  not 
join  has  been  held  operative  as  an  equitable  pledge."*  Under  the 
constitution  and  statutes  of  North  Carolina,  a  wife  may  convey 
her  property  as  though  sole,  with  the  written  assent  of  her  hus- 
band,*^ but  no  title  is  passed  where  the  husband's  consent  is  not 
proved  and  recorded  till  after  her  death.'"  There  is  a  suflScient 
compliance  with  the  statute  to  validate  her  assignment  of  her 
interest  in  an  insurance  policy  where  the  husband  signs  his  name 
as  a  witness,'^  as  well  as  to  her  note  which  is  delivered  after  he 
has  indorsed  it  in  blank.'^  In  that  State  it  has  been  decided,  on 
equity  principles,  that  where  a  wife  after  marriage,  supposing  the 
whole  interest  in  her  land  was  in  her,  made  a  conveyance  to  a 
trustee  for  her  sole  and  separate  use,  which  her  husband  signed 
as  a  party,  and  by  various  clauses  manifested  a  concurrence  in  her 
act,  but  did  not  profess  directly  to  convey  any  estate,  the  recital 
in  the  deed  that  ten  dollars  was  paid  by  the  trustee  to  the  wife 
raised  a  use,  and  in  that  way  passed  the  husband's  interest  to  the 
trustee.^' 

The  language  of  the  Married  Women's  Acts  in  many  States 
authorizes  the  inference  that  nothing  further  than  the  written  con- 
currence of  the  husband  is  requisite  to  complete  the  validity  of  the 
wife's  transfer  of  separate  personal  property ;  the  voluntary  con- 
veyance of  the  wife  with  her  hushand  passes  her  separate  estate, 
real  or  personal ;  nor  is  the  husband's  joinder  always  essential  to 
her  transfer  of  personal  property.'*  And  in  some  States  the  assent 
of  the  husband  to  the  wife's  transfer  or  conveyance  is  held  so 
strictly  a  personal  trust,  that  the  husband  cannot  delegate  it  by 
letter  of  attorney  to  another. 


S5 


26.  Caldwell  v.  Trezevant,   111   La.  31.  Jennings  v.  Hinton,   126  N.  C. 
410,  35  So.  619.  48,  35  S.  E.  187. 

27.  East  V.  Davis  (Mo.),  204  S.  W.  32.  Coffin  v.  Smith,  128  N.  C.  252, 
402.  38  S.  E.  864. 

28.  Wright  v.  Pell  (N.  J.),  105  A.  33.   Barnes  v.   Haybarger,   8   Jones 
20.  (N.  C),  76. 

29.  Slocumb  v.  Eay,  123  N.  C.  571,  34.  Trader  v.  Love,  45  Md.  1. 

31  S.  E.  829,  68  Am.  St.  R.  830.  35.  Meagher  v.   Thompson,  43  Cal. 

30.  Green  v.  Bennett,  120  N.  C.  394,  189.     But  see  Douglass  v.   Fulda,   50 
27  S.  E.  142.  Co.  77.     A  curative  act  may  validate 


§  465 


HUSBAND    AND    WIFE. 


4Y0 


Transfers  of  a  married  woman's  stock  in  a  corporation  require, 
under  some  statutes,  the  husband's  written  assent  or  joinder; 
under  others,  again,  she  may  convey  as  if  sole.  After  her  transfer 
"without  observance  of  such  requirements,  she  may,  upon  informa- 
tion of  her  legal  rights,  obtain  a  retransfer  in  equity,  notwith- 
standing subsequent  purchasers  have  intervened.^^ 

§  464.  EfTect  of  Abandonment,  Separation,  Divorce,  or  Insanity 
of  Husband. 

In  West  Virginia  the  deed  of  a  wife  separated  from  her  husband 
must  recite  that  fact,  as  wdl  as  the  fact  that  the  land  conveyed  is 
her  sole  and  separate  estate.^^  A  divorced  wife  may  convey  a  good 
title  to  her  separate  land  before  a  proceeding  to  review  the  decree 
of  divorce,  if  the  grantee  has  no  notice  of  fraud  or  error  in  the 
decree.^*  In  Alabama  and  Texas  a  husband's  joinder  is  not  re- 
quired where  he  has  abandoned  her.^®  Under  the  Alabama  Mar- 
ried Women's  Act  the  wife  of  an  insane  person  may  convey  her 
land  as  though  sole.*^ 

§  465.  When  Husband's  Joinder  Not  Required. 

Some  States  permit  a  wife  to  convey  her  separate  estate  without 
her  husband's  joinder,^^  unless  the  estate  is  a  homestead.*^  Though 
the  Tennessee  statute  requires  the  joinder  of  the  husband  to  vali- 


a  conveyance  of  a  wife's  land  im- 
properly by  power  of  attorney.  Ean- 
dall  V.  Kreiger,  23  Wall.  (U.  S.)  137. 

36.  Merriam  v.  Boston  K,  117  Mass. 
241. 

37.  Bennett  v.  Pierce,  45  W.  Va. 
654,  31  S.  E.  972. 

38.  Campbell  v,  Switzer,  74  W.  Va. 
509,  82  S.  E.  319. 

39.  Knight  v.  Colman,  117  Ala.  266, 
22  So.  974 ;  Ballard  v.  Bank  of  Roan- 
oke (Ala.),  65  So.  356;  Williams  v. 
Farmers'  Nat.  Bank  (Tex.),  201  S. 
W.  1083. 

40.  Royal  v.  Goss,  154  Ala.  117,  45 
So.  231. 

41.  Hope  V.  Seaman,  119  N.  Y.  S. 
713  (mod.,  137  App.  Div.  86,  122  N. 
T.  S.  127)  ;  Wallace  v.  St.  John,  119 
Wis.  585,  97  N.  W.  197;  Bank  of 
Commerce  v.  Baldwin,  12  Ida.  202, 
85  P.  497 ;  Jordan  v.  Jackson,  76  Neb. 
15,  106  N.  W.  999  (reh.  den.,  107  N. 


W.  1047) ;  De  Eoux  v.  Girard,  105  F. 
798  (affd.,  112  F.  89,  50  C.  C.  A. 
136) ;  Comings  v.  Leedy,  114  Mo.  454, 
21  S.  W.  804;  Morton  v.  Stow,  91 
Mo.  App.  554;  Morris  v.  Linton,  61 
Neb.  537,  85  N.  W.  565;  Farmers' 
State  Bank  v.  Keen  (Okla.),  167  P. 
207 ;  Buckingham  v.  Buckingham,  81 
Mich,  89,  45  N.  W.  504;  Fairchild  v. 
Creswell,  109  Mo.  29,  18  S.  W.  1073; 
Riggs  V.  Price  (Mo.),  210  S.  W.  420; 
Evans  v.  Morris,  234  Mo.  177,  136 
S,  W.  408;  Rutledge  v.  Rutledge 
(Mo.),  119  S.  W.  489;  Lawler  v. 
Byrne,  252  111.  194,  96  N.  E.  892; 
Dooley  v.  Greening,  201  Mo.  343,  100 
S.  W.  43;  Clay  v.  Mayer,  144  Mo. 
376,  46  S.  W.  157. 

42.  Jordan  v.  Jackson,  76  Neb.  15, 
106  N.  W.  999  (reh.  den.,  107  N.  W. 
1047)  ;  Nakdimen  v.  Brazil  (Ark.), 
208  S.  W.  431. 


471 


STATUTORY  SEPARATE  ESTATE. 


§  467 


date  his  wife's  deed,  yet  it  was  teld  that  her  deed  to  him  without 
his  joinder  conveying  lands  held  in  trust  for  him  was  not  void.*' 
A  similar  Kentucky  statute  was  held  not  to  apply  to  a  conveyance 
by  a  wife  as  trustee  under  a  deed  which  did  not  require  such 
joinder 


44 


§  466.  Presumption  as  to  Husband's  Assent 

AMiere  an  award  disposes  of  property  of  a  wife,  the  submission 
will  be  presumed  to  have  been  made  with  the  husband's  assent,  if 
the  contrary  does  not  appear,*^  and  after  a  long  lapse  of  time  her 
conveyance  will  be  presumed  to  have  been  made  with  his  consent.*® 

§  467.  Evidence  of  Assent. 

In  several  States  the  husband's  consent  must  be  evidenced  by 
his  joinder  in  the  conveyance  as  grantor,*^  even  where  the  land 
came  to  her  from  a  former  husband.**  In  Vermont  he  must  not 
only  join  as  grantor,  but  also  sign  and  acknowledge.*®  Where  the 
statute  requires  a  joint  deed,  it  is  not  complied  with  by  a  deed  in 
which  his  name  does  not  appear  as  grantor,  but  which  he  merely 
signs,^°  nor  where  the  spouses  execute  separate  deeds  and  the 
husband  gives  an  oral  consent,^^  nor  where  he  executes  and 
acknowledges  it  after  delivery.^"  In  Kentucky  it  has  been  held 
that  a  deed  which  does  not  join  the  husband  in  the  granting  clause, 
but  merely  to  release  curtesy  and  homestead,  is  sufficient  if  both 


43.  Insurance  Co.  of  Tennessee  v. 
"Waller,  116  Tenn.  1,  95  S.  W.  811, 
115  Am.  St.  E.  763. 

44.  Antonini  v.  Straubs,  130  Ky.  10, 
112  S.  W,  1092, 

45.  Brown  v.  Mize,  119  Ala.  10,  24 
So.  453. 

46.  Wm.  Cameron  &  Co.  v.  Cuffie 
(Tex.),  144  S.  W.  1024. 

47.  Blakely  v.  Kanaman  (Tex.), 
175  S.  W.  674;  Johnson  v.  Eockwell, 
12  Ind.  76;  Starkey  v.  Starkey,  166 
Ind.  140,  76  N.  E.  8T6;  Daggett  V. 
Barre  (Tex.),  135  S.  W,  1099;  Schick- 
haus  V.  Sanford,  83  N,  J.  Eq.  454, 
91  A.  878;  Bate3  v.  Capital  State 
Bank,  21  Ida.  141,  121  P.  561;  Simp- 
son V.  Smith,  142  Ky.  608,  134  S.  W. 
1166;  Buchanan  v.  Henry  143  Ky. 
628,  137  S.  W.  222;  Wicker  v.  Durr, 
225  Pa.  305,  74  A.  64;  Merriman  v. 
Blalack,  56  Tex.  Civ.  594,  121  S.  W. 


552;  Sencerbox  v.  First  Nat.  Bank, 
14  Ida.  95,  93  P,  360;  Moore  v.  John- 
son, 162  N.  C.  266,  78  S.  E.  158; 
Zimpleman  v.  Portwood,  48  Tex.  Civ. 
438,  107  S.  W.  584;  ElUs  v.  Pearson, 
104  Tenn.  591,  58  S.  W.  318;  Dinkins 
V.  Latham,  154  Ala.  90,  45  So.  60; 
Johnson  v.  Goff,  116  Ala,  648,  22  So. 
995;  Gato  v.  Christian,  112  Me.  427, 
92  A,  489. 

48.  Mattox  V,  Hightshue,  39  Ind. 
95. 

49.  Dietrich  v.  Deavitt,  81  Vt.  160, 
69  A.  661. 

50.  Adams  v.  Teague,  123  Ala,  591, 
26  So.  221,  82  Am.  St,  E,  144;  Weber 
V,  Tanner,  23  Ky.  Law,  1107  (mod., 
23  Ky.  Law,  1694,  65  S,  W.  848). 

51.  Baxter  v.  Bodkin,  25  Ind.  172. 

52.  Hensley  v.  Blankinship  (N.  C), 
94  S.  E.  519. 


§    468  HUSBAND    AND    WIFE.  472 

sign  and  acknowledge.^^  In  that  State  the  husband's  interest  may 
be  conveyed  by  a  separate  deed  if  he  first  conveys/*  and  if  he  is  a 
minor  when  the  wife  conveys,  he  may  disaffirm  after  majority,  in 
which  case  neither  are  bound  by  the  deed.^^  Since  the  Florida 
statute  requiring  the  joinder  of  the  husband  in  the  wife's  transfers 
of  her  property  does  not  prescribe  the  manner  of  joinder,  it  may 
be  effected  in  any  legal  way.^^  Under  the  Missouri  statute  requir- 
ing the  joinder  of  the  husband  to  validate  the  wife's  deed,  it  was 
held  that  the  statute  was  complied  with  where  it  appeared  that 
both  signed  and  acknowledged  and  were  referred  to  throughout  the 
deed  as  "  parties  "  of  the  first  part  and  in  the  plural  number,  and 
where  he  never  made  claim  to  the  land  during  his  life,  even  though 
the  introductory  clause  of  the  deed  did  not  refer  to  him.^^  Under 
the  West  Virginia  statute  requiring  the  joinder  of  the  husband  to 
validate  his  wife's  deed  of  her  separate  estate,  a  deed  wherein  he 
does  not  appear  as  grantor  but  merely  signs  is  good  if  he  acknowl- 
edges it  as  required  by  the  statute.^*  In  the  same  State  he  must 
join  to  validate  a  deed  by  her  to  him.^*  A  wife's  mortgage  is 
sufficiently  acknowledged  where  she  joins  in  the  granting  clause 
and  acknowledges  the  instrument  separately  in  the  absence  of  the 
husband  and  before  the  proper  officer.®" 

§  468.  Acknowledgment. 

In  some  States  a  wife's  deed  or  mortgage  is  not  valid  unless 
acknowledged  as  required  by  law,®^  even  though  the  husband 
joins,®^  and,  in  some  States,  the  acknowledgment  must  be  apart 

53.  Hopper's  Adm'r  v.  Hopper,  172  60.  Cazort  &  McGehee  Co.  v.  Dun- 
Ky.  72,  188  S.  W.  1069.  bar,  91  Ark.  400,  121  S.  W.  270. 

54.  Mays  v.  Pelly  (Ky.),  125  S.  W.  61.  Evans  v.  Dickenson,  114  F.  284, 
713;  Furnish '3  Adm'r  v.  LiUy,  27  52  C.  C.  A.  174;  Lanzer  v.  Butt,  84 
Ky.  Law,  226;  Syck  v.  Hellier,  140  Ark.  335,  105  S.  W.  595;  Belloc  v. 
Ky.  388,  131  S.  W.  30.  Davis,  38  Cal.  242;   Service  v.  West, 

55.  Mueller  v.  Eagsdale,  158  Ky.  60  Colo.  366,  153  P.  446;  Chaasman 
412,  165  S.  W.  404;  Loekart  v.  Kent-  v.  Wiese  (N.  J.),  106  A.  19;  King 
land  Coal  &  Coke  Co.  (Ky.),  207  S.  v.  Driver  (Tex.),  160  S.  W.  415;  Kim- 
W.  18;  Phillips  v.  Hoskins,  128  Ky.  mey  v.  Abney  (Tex.),  107  S.  W.  885; 
371,  108  S.  W.  283,  33  Ky.  Law,  378.  Bott    v.    Wright    (Tex.),    132    S.    W. 

56.  McNeil  v.  Williams,  64  Fla.  97,  960;  Shumate  v.  Shumate,  78  W.  Va. 
59  So.  562.  576,  90  S.  E.  824 ;  Simpson  v.  Belcher, 

57.  Peter  v.  Byrne,  175  Mo.  233,  61  W.  Va.  157,  56  S.  E.  211;  Titch- 
75  S.  W.  433,  97  Am.  St.  R.  576.  enell  v.  Tichenell,  74  W.  Va.  237,  81 

58.  Morgan  v.  Snodgrass,  49  W.  Va.  S.  E.  978. 

387,   38   S.   E,   695;    Linn   v.   Collins  62.  Francis  v.  Rose,  141  Ky.  645, 

(W.  Va.),  87  S.  E.  934.  133  S.  W.  550. 

59.  Mullins  v.   Shrewsbury,   60   W. 
Va.  694,  55  S.  E.  736. 


473 


STATUTORY  SEPARATE  ESTATE. 


§  470 


from  her  husband,  and  after  private  examination.*'  In  Massa- 
chusetts, where  spouses  join  in  a  deed  only  one  need  acknowledge.** 
In  Missouri  a  wife  need  not  acknowledge  to  validate  a  joint  mort- 
gage of  an  estate  by  the  entirety.*^  In  Nebraska  a  wife's  instru- 
ment affecting  her  separate  estate  is  valid  without  acknowledgment 
except  where  a  release  of  dower  or  homestead  is  concerned.**  In 
New  Jersey  the  wife  need  not  acknowledge  to  validate  the  wife's 
release  of  dower,*^  In  North  Carolina  both  spouses  must  acknowl- 
edge.*^ In  Oklahoma  a  deed  by  a  wife  joining  the  husband  in 
the  operative  words,  but  acknowledging  relinquishment  of  dower 
only,  has  been  held  operative  to  convey  the  fee  between  the  parties, 
but  is  not  entitled  to  record.*^  In  Texas  a  lease  of  the  wife's  land 
for  more  than  one  year  must  be  joined  in  and  acknowledged  by 
the  wife.''"  In  the  same  State  a  wife's  unacknowledged  deed  is 
valid  to  effect  a  partition.''^  In  West  Virginia,  where  one  grants 
land  to  a  wife  and  takes  a  deed  of  trust  to  secure  the  purchase 
money,  no  title  passes  to  the  trustee  where  the  deed  is  not  acknowl- 
edged as  required  by  the  statute,  but  an  equitable  lien  is  created 
in  favor  of  such  third  person."  Where  a  deed  of  spouses  of  the 
wife's  land  is  void  because  not  acknowledged  as  required  by  the 
statute,  the  grantee  takes  only  the  husband's  life  estate. 


73 


§  469,  Delivery  in  Escrow. 

A  wife  is  bound  by  the  delivery  of  a  deed  in  escrow.^* 

§  470.  Record. 

In  Kentucky  a  wife's  conveyance  is  good  against  even  creditors 
from  its  date  if  duly  recorded  within  sixty  days,  and  if  recorded 


63.  Bates  v.  Capital  State  Bank, 
21  Ida.  141,  121  P.  561;  Campbell  v. 
Virginia  Iron,  Coal  &  Coke  Co.,  31 
Kj.  Law,  1110,  104  S.  W.  770;  Sipe 
V.  Herman,  161  N.  C.  107,  76  S.  E. 
556;  Tillery  v.  Land,  136  N.  C.  537, 
48  S.  E.  824;  Whalen  v.  Manchester 
Land  Co.,  65  N.  J.  Law,  206,  47  A. 
443;  Wilkins  v.  Lewis  (Fla.),  82  So. 
762. 

64.  Perkins  v.  Richardson,  11  Allen 
(Mass.),  538. 

65.  First  Nat.  Bank  v.  Kirby  (Mo.), 
175  S.  "W.  926. 

66.  Linton  v.  National  Life  Ins.  Co., 
104  F.  584,  44  C.  C.  A.  54. 

67.  Fee  v.   Sharkey,   59   N.   J.   Eq. 


284,  44  A.  673  (aff.,  60  N.  J.  Eq.  446, 
45  A.  1091). 

68.  Moore  v.  Johnson,  162  N.  C. 
266,  78  S.  E.   158. 

69.  Adkins  v.  Arnold,  32  Okla.  167, 
121  P.   186. 

70.  Dority  v.  Dority,  30  Tex.  Civ. 
216,  70  S.  W.  338  (affd.,  96  Tex.  215, 
71  S.  W.  9'50,  60  L.  R.  A.  941). 

71.  Cowan  v.  Brett,  43  Tex.  Civ. 
569,  97  S.  W.  330. 

72.  Schmertz  v.  Hammond,  47  W. 
Va.  527,  35  S.  E.  945. 

73.  Arnold  v.  Bunnell,  42  W.  Va. 
473,  26  S.  E.  359. 

74.  Bott  V.  Wright,  (Tex.),  132 
S.  W.  960. 


472 


HUSBAjSTD    A^■D    WIFE. 


474 


after  tkat  time  will  be  good  against  them  from  the  date  of  such 
record/^     Even  if  not  recorded  it  is  valid  between  the  parties."® 

§471.  Conveyance. 

In  some  States  the  wife's  sole  deed  of  her  separate  real  estate 
is  sufficient  to  pass  her  entire  interest/^  though,  so  antagonistic  is 
this  to  the  old  common  law,  that  a  clearly  enabling  statute  should 
be  required.  But  it  has  been  held  that  the  wife's  execution  of  a 
conveyance  in  blank  is  void,  though  the  deed  be  afterwards  filled 
up  according  to  her  directions."*  In  Missouri  and  Xorth  Carolina 
a  wife  cannot  convey  or  mortgage  her  property  in  any  manner 
other  than  that  pointed  out  by  the  statute.'®  Under  the  Kentucky 
Married  Women's  Act  a  wife  may  convey  her  separate  property 
by  any  statutory  method  of  conveyance.*"  The  designation  in  a 
joint  deed  by  spouses  of  the  wife's  interest  in  the  land  does  not 
affect  its  validity.*^ 

§  472.  Mortgage  or  Deed  of  Trust. 

Mortgages  with  power  of  sale  are  among  those  which  a  wife  may 
now  execute;  a  sale  under  such  power  effectually  barring  her 
equity  of  redemption.®^     The  mortgage,  to  be  good,  should  identify 


75.  Finley  v.  Spratt  &  Co.,  14  Bush 
(Ky.),  225;  Crawford  v.  Tate,  105 
Ky.  502,  20  Ky.  Law,  1314,  49  S.  "W. 
307. 

76.  Mounts  v.  Mounts,  155  Ky.  363, 
159  S.  W.  818;  Finley  v,  Spratt  & 
Co.,  14  Bush  (Ky.),  225;  Woods  v. 
Davis,  153  Ky.  99,  154  S.  W.  905. 

77.  Springer  v.  Berry,  47  Me.  330; 
Farr  v.  Sherman,  11  Mich.  33 ;  Hale  v. 
Christy,  8  Neb,  264;  Libby  v.  Chase, 
117  Mass.  105;  Beal  v.  Warren,  2 
Gray  (Mass.),  447.  But  a  contempo- 
raneous written  assent  of  the  husband 
is  required  by  some  statutes.  Melley 
V.  Casey,  99  Mass.  241;  Weed  Sewing- 
Machine  Co.  v.  Emerson,  115  Mass. 
554. 

78.  Bums  V.  Lynde,  6  Allen  (Mass.), 
305.  The  husband's  oral  consent  will 
not  suffice,  where  the  statute  requires 
his  written  consent  to  her  conveyance. 
Townsley  v.  Chapin,  12  Allen  (Mass.), 
476.  But  as  to  sale  of  certain  per- 
sonal chattels,  see  Holman  v.  Gillette, 


apply  to  a  power  of  attorney  to  sell 
the  wife's  separate  land;  and  here 
the  husband  must  join.  Dow  v.  Gould, 
etc.,  Co.,  31  Cal.  629.  As  to  conveying 
by  power  of  attorney,  see  also  Weis- 
brod  V.  Chicago  E.,  18  Wis.  35 ;  Peck 
v.  Hendershott,  14  Iowa,  40;  Eandall 
V.  Kreiger,  23  Wall.  (IT.  S.)  137. 
Power  in  the  wife  to  convey  implies 
power  to  rescind  the  contract  of  sale 
under  proper  circumstances.  Scott  v. 
Griggs,  49  Ala.  185.  As  to  the  proper 
form  of  the  husband's  joinder  in  the 
deed  States  differ.  See  Warner  v. 
Peck,  11  E.  I.  431;  Friedenwald  v. 
Mullan,  10  Heisk.   (Tenn.)   226. 

79.  Comings  v.  Leedy,  114  Mo.  454, 
21  S.  W.  804;  Smith  v.  Bruton,  137 
N.  C.  79,  49  S.  E.  64. 

80.  Cropper  v.  Bowles,  150  Ky.  393, 
150  S.  W.  380;  Kearns'  Guardian  v. 
Anderson  (Ky.),  124  S.  W.  271. 

81.  Heinmiller  v.  Hatheway,  60 
Mich,  391,  27  N.  W.  558. 

82.  Barnes  v.  Ehrman,  74  111.  402. 


24  Mich.  414.     The  rules  of  the  text      As  to  looking  up  a  title  for  a  mortgage, 


475  STATUTORY  SEPARATE  ESTATE.  §  472 

the  property  as  general  rules  require.*^  The  creditor's  agreement 
of  defeasance  accompanying  the  transaction,  or  covenants  on  his 
part,  must  be  faithfully  observed,"  and  as  to  other  security  her 
rights  are  the  usual  ones.*^ 

It  must  be  remembered  that  in  certain  States  a  conservative 
policy  is  still  pursued,  so  as  to  prohibit  the  wife's  mortgage  to  a 
greater  or  less  extent,  and  vt^ith  reference,  perhaps,  to  the  beneficial 
nature  of  the  consideration.^^  The  effect  of  a  joint  mortgage  by 
spouses  will  not  be  changed  by  the  addition  of  words  indicative  of 
a  release  of  dower  by  the  wife,  further  than  to  indicate  that  in 
addition  to  the  joinder  in  the  conveyance  the  wife  also  releases 
dower.®^  Mortgages  by  spouses  of  land  held  jointly  raises  a  pre- 
sumption that  they  are  joint  principals.*®  Where  a  wife  gave  a 
mortgage  to  her  husband's  surety  reciting  that  it  was  to  secure 
the  debt,  but  not  that  she  intended  to  indemnify  the  surety,  it  was 
held  that  the  creditor  might  be  substituted  to  the  surety's  rights, 
when  the  latter  became  bankrupt.®^  The  Alabama  statute  empow- 
ering a  wife  to  "  alienate  "  her  lands  if  her  husband  concurs  by 
joinder  therein,  empowers  her  to  bind  herself  by  a  deed  of  trust 
to  secure  her  debts.®"  The  Illinois  statute  requiring  the  joinder 
of  both  spouses  in  a  chattel  mortgage  of  the  household  goods  of 
either  does  not  prevent  a  wife  from  binding  herself  by  a  purchase 
of  such  goods  and  giving  a  mortgage  in  her  own  name  on  such 
goods  to  secure  the  purchase  price.®^  In  Louisiana  a  husband 
cannot  authorize  his  wife  to  mortgage  her  separate  property  for 
his    debts.®^      The    provision    of    the    South    Carolina    Harried 

where  a  single  woman  has  afterwards  87.  Bumside  v.  Mealer,  26  Ky.  Law, 

married,    see    Cleaveland    v.    Savings  79,  80  S.  W.  785. 

Bank,  129  Mass.  27.  88.  Magel  v.  Milligan,  150  Ind.  582, 

83.  Brick  v.  Scott,  47  Ind.  299.  50   N.   E.    564,   65   Am.   St.   R.    382; 
Concerning  the  wife 's  sole  mortgage  Foster  v.  Honan,  22  Ind.  App.  252, 

of  her  personal  property  under  local  53  S.  E.  667;  Vansell  v.  Carithers,  33 

statutes,    see    Eoot   v.    Schaffner,    39  Ind.  App.  294,  71  N.  E.  158;  Appleby 

Iowa,  375.  V.  Sewards,  168  N.  Y.  664,  61  N.  E. 

For    the    application    of   payments  1127;   Algeo  v.  Fries,  24  Pa.  Super, 

where  husband  and  wife  mortgage  her  427. 

estate  to  secure  her  own  debt  and  also  89.  Magoffin  v.  Boyle  Nat.  Bank,  24 

a  debt  of  the  husband's,  see  Williams  Ky.  Law,  585,  69  S.  W.  702. 

-V.  Schwab,  56  Miss.  338.  90.  Collier  v.  Doe  ex  dcm.  Alexan- 

84.  Lomax  v.  Smyth,  50  Iowa,  223.  der,  142  Ala.  422,  38  So.  244. 

85.  Wilcox  V.  Todd,  64  Mo.  388.  91.    Mantonya    v.    Martin    Emerich 

86.  Bowers  v.  Van  Winkle,  41  Ind.       Outfitting  Co.,  172   111.  92,  49  N.  E. 
432;  Thames  V.  Rcmbert,  63  Ala.  561;       721. 

Lippincott  v.  Mitchell,  91  U.  S.  767;  92.  Cuny  v.  Brown,  12  Rob.    (La.) 

Coleman  v.  Smith,  55  Ala.  368.  86. 


§  475 


HUSBAND    AND    WIFE. 


476 


Women's  Act  that  a  wife's  conveyance  shall  convey  her  separate 
estate  when  the  intent  is  expressed  in  writing,  applies  to  mort- 
gages and  similar  conveyances  but  not  to  absolute  deeds.®^ 

§  473.  Declaration  of  Trust. 

Where  a  wife  assigned  a  mortgage  in  trust  for  herself,  it  was 
held  to  be  presumed,  prima  facie,  that  she  intended  the  trust  to 
continue  only  during  coverture.®*  In  North  Carolina  she  cannot 
create  a  trust  except  by  an  instrument  executed  as  required  by 
law  and  to  which  her  husband  consents.®^  In  Pennsylvania  a  wife 
may  create  a  valid  trust  of  personalty  by  trust  deed  vdthout  the 
assent  of  her  husband.^®  In  Massachusetts  a  wife  may  convey 
her  personal  propetry  to  a  trustee  presently,  reserving  a  life  estate 
and  giving  a  remainder  over,  even  where  she  intends  thereby  to- 
prevent  her  husband  from  sharing  in  the  property  at  her  death.^ 


97 


§  474.  Gift. 

In  North  Carolina  a  wife  may  validly  give  property  without 
her  husband's  assent  where  a  written  instrument  is  not  required 
to  pass  title.®*  Under  the  Pennsylvania  Married  Women's  Act  a 
wife's  gift  of  personal  property,  if  possession  is  transferred,  is 
valid,  even  though  made  with  intention  to  defeat  the  husband's 
succession  at  her  death,  and  without  his  knowledge  till  that  time.** 
In  Texas  the  statute  permitting  a  wife  to  dispose  of  her  separate 
property  by  will,  without  the  consent  of  her  husband,  does  not 
apply  to  her  gifts  causa  mortis.^ 

§  475.  Lease. 

A  wife's  lease  of  her  own  separate  premises  is,  on  strong  grounds 
of  benefit,  upheld  against  her  ^  in  several  States,  and  even  to  the 


93.  Carroll  v.  Thomas,  54  S.  C.  520, 
32  S.  E.  497. 

94.  Bradford  v.  Burgess,   20  E.  I. 
290,  38  A.  975. 

95.  Eieks  v.  Wilson,  154  N.  C.  282, 
70  S.  E.  476. 

96.  Windolph  v.   Girard   Trust  Co., 
245  Pa.  349,  91  A.  634. 

97.  Kelley  v.  Snow,  185  Mass.  288, 
70  N.  E.  89. 

98.  Vann    v.    Edwards,    1?5    N.    C. 
661,  47  S.  E.  784,  67  L.  R.  A.  461. 

99.  Windolph  v.  Girard  Trnst  Co., 
245  Pa.  349,  91   A.  634. 


1.  Bledsoe  v.  Fitts,  47  Tex.  Civ. 
1907,  105  S.  W.  1142. 

2.  In  Mississippi  a  parol  lease  for 
one  year,  made  by  a  wife  to  her  hus- 
band, is  not  invalid.  America  Bank 
V.  Banks,  101  U.  S.  240.  And  see 
Welsh  V.  Gates,  9  Phila.  (Pa.)  154. 
But  as  to  her  lease,  oral  or  written, 
where  the  husband  assumed  to  make 
it  on  her  behalf,  see  Muir  v.  Bissett, 
52  Vt.  287.  Wife's  verbal  lease  void 
in  some  States.  Keller  v.  Klopfer,  3 
Col.  132. 


477  STATUTOKY  SEPARATE  ESTATE.  §  476 

extent  of  her  executing  (where  statutes  so  permit)  without  her 
husband's  consent,  and  for  a  term  of  years.^  The  Indiana  Mar- 
ried Women's  Act,  providing  that  a  wife  cannot  "  convey "  or 
"  incumber  "  her  separate  estate  without  her  husband's  joinder  in 
the  deed  or  mortgage,  does  not  include  a  lease.*  She  may,  there- 
fore, lease  her  lands  for  not  more  than  three  years  without  his 
assent,  such  a  lease  being  not  an  incumbrance  within  the  statute.'^ 
Under  the  Missouri  Married  Women's  Act  a  wife  may  not  bind 
herself  by  a  lease  of  land  without  the  husband's  joinder  even 
though  she  is  so  old  that  there  is  no  possibility  of  issue.^  In 
Tennessee  she  cannot  bind  herself  by  a  lease  except  of  land  secured 
to  her  separate  use  or  in  the  execution  of  a  power/  The  Penn- 
sylvania statute  gives  her  power  to  bind  herself  by  a  lease  of  land 
and  to  collect  rent  therefor  as  though  sole,  without  proof  of  her 
capacity  to  contract.® 

§  476.  By  Equitable  Assignment. 

An  equitable  assignment  of  note  and  mortgage  on  the  wife's 
part  is  recognized  in  some  other  States.^  Other  States,  once  more, 
insist  strictly  upon  the  pursuance  of  statute  formalities,  whether 
the  issue  be  raised  in  law  or  equity.^"  If  equity  establish  a  lien, 
the  lien  will  have  no  retroactive  operation,  so  as  to  affect  bona  fide 
rights  previously  acquired.^^ 

3.  Parent  v.   Callerand,  64  HI.  97 ;  Ind.  483,  50  N.  E.  482 ;  Spiro  v.  Bob- 
Douglass  V.  Fulda,  50  Cal.  77;  Wood-  ertson  (Ind.),  106  N.  E.  726. 
ward  V.  Lindley,  43  Ind.  333;    Child  5.  Shipley  v.  Smith,  162  Ind.   526, 
V.  Sampson,  117  Mass.  62.    Void  with-  70  N.  E.  803. 

out  her  husband's   joinder   in   execu-  6.   Ennis   v.   Eager,   152   Mo.   App. 

tion.    De  Wolf  v.  Martin,  12  E.  I.  533.  493,  133  S.  W.  850. 

But  the  usual  local  rule  as  to  convey-  7.  Johnson     v.      Sharp,     4      Cold, 

ances     generally     applies.     Child     v.  (Tenn.)  45. 

Sampson,  117  Mass.  62.    Whether  hus-  8.  Ewing  v.  Cottman,  9  Pa.  Super, 

band  can  make  it  as  wife's  agent,  see  444,  43  W.  N.  C.  525. 

Sanford    v.    Johnson,    24    Minn.    172.  9.  Baker  v.  Armstrong,  57  Ind.  189. 

Whether,  where  lease  was  executed  by  In   equity,   even  though   the  trust  be 

both    spouses,    the    husband   has    any  created  by  parol,  it   binds  the  wife; 

concern  except  as  agent  for  receiving  for  the  note  a  chattel  is  the  principal 

rents,    accepting    surrender,    etc.,    see  and     the     mortgage     but     accessory. 

Woodward  v.  Lindley,  43  Ind.  333.    In  Thacher  v.  Churchill,   118   Mass.   108. 

Illinois  the  wife  must  sue  in  her  own  10.   Herdman  v.  Pace,  85   111.   345. 

name    to    recover    rent.      Hayner    v.  11.  Lewis  v.  Graves,  84  HI.  205.    An 

Smith    63  111.  430.  unrestricted  power  to  sell   includes  a 

4.    Heal    v.    Niagara   Oil    Co.,    150  power  to  mortgage.    See  Zane  v.  Ken- 
nedy, 73  Pa.  182. 


§  480  HUSBAND  AXD  WIFE.  478 

§  477.  Dedication  to  Public  Use. 

Prior  to  the  Ohio  Married  Women's  Act  a  wife  could  not  dedi- 
cate her  separate  estate  to  public  use  except  in  the  manner  pre- 
scribed bj  the  statute. ^^ 

§  478.  Parol  Transfers. 

A  wife  cannot  bind  herself  by  a  parol  sale  of  land/^  or  by  a 
parol  assent  to  an  encroachment  on  her  land/*  or  by  a  parol  gift 
of  her  separate  estate.^^ 

§  479.  By  Power  of  Attorney. 

A  wife's  power  of  attorney  to  convey  land  does  not  enable  the 
attorney  to  convey  to  himself/®  nor  to  convey  contrary  to  her  in- 
struction, if  the  grantee  has  notice.^^  Attorneys  in  fact  of  a  wife 
cannot  bind  her  by  stipulations  where  she  cannot  bind  herself,  nor 
can  they  bind  her  to  a  contract  which  she  never  authorized.^* 
Fraudulent  representations  by  a  husband,  made  to  induce  a  sale 
of  the  wife's  land,  are  ground  for  cancellation  of  the  sale,  where 
the  wife  permits  the  husband  to  conduct  the  negotiations,  executes 
the  contract  and  accepts  its  fruits,  though  she  does  not  actively 
participate  in  the  negotiations.^^  Under  the  Nebraska  Married 
Women's  Act  a  wife  may  charge  her  separate  estate  with  a  mort- 
gage executed  by  her  attorney  in  f  act.^° 
§  480.  Construction  and  Operation. 

Even  where  statutes  make  special  requirements  as  to  a  wife's 
deed,  the  established  principles  of  construction  of  such  instruments 
apply  and  control."^  Where  spouses  are  joint  tenants,  the  wife 
does  not  convey  her  moiety  by  joining  in  her  husband's  deed  of 
his  moiety.^"  Where  spouses  were  tenants  in  common  of  land 
and  gave  a  mortgage  wherein  the  wife  was  mentioned  only  in  a 
release  of  dower  and  homestead,  but  both  signed,  it  was  held  that 
the  wife's  act  operated  only  to  release  dower  and  homestead  in 
her  husband's  moiety.^^     Xo  intention  to  affect   a  wife's  inde- 

12.  Westlalie  v.  City  of  Toungstown,  18,  Strode  v.  Miller,  7  Ida.  16,  59 
62  Ohio  St.  249,  56  X.  E.  873.  P.  893. 

13.  Jackson  v.  Knox,  119  Ala.  320,  19.  Chisholm  v.  Eisenhuth,  69  App. 
24   So.   724.  Div.  134,  74  N.  Y.  S.  496. 

14.  Gilbert  v.  White,  23  Pa.  Super.  20.  Linton  v.  National  Life  Ins.  Co., 
187.                                                                          104  F.  534,  44  C.  C.  A.  54. 

.  15.  Tannery  v.  Mcilinn   (Tex.),  86  21.  Dinkins  v.  Latham,  154  Ala.  90, 

16.  English  v.  English,   229  Mass.       45  So.  60. 

11,  118  X.  E.  178.  22.  Pierce  v.  Chace,  103  Mass.  254. 

17.  Butte  Inv.  Co.  V.Bell  (Mo.),  201  23.  Penny  v.  British  &  American 
S.  W.  880,                                                       Mortg.  Co.,  132  Ala.  357,  31  So.  96. 


'479  STATUTORY  SEPARATE  ESTATE.  §  480 

pendent  interests  can  be  inferred  from,  the  fact  that  she  joins  with 
her  husband  in  his  deed  to  release  dower  and  homestead.^*  Where 
a  wife  conveys  her  separate  estate  by  deed  with  warranties  of  title, 
her  further  recital  of  a  release  of  dower  will  be  regarded  as  srr- 
plusage,  not  affecting  the  title  granted.^^  Where  a  wife  was  the 
owner  of  land  and  joined  with  her  husband  in  a  mortgage  of  it, 
being  mentioned  for  the  first  time  in  a  clause  releasing  dower  and 
homestead,  she  conveys  only  a  life  estate  to  the  grantee.^* 

Where  spouses  joined  in  a  deed  of  the  husband's  land  with  war- 
ranties conveying  the  land  in  trust  to  secure  his  indebtedness  to 
her,  her  rights  under  the  first  deed  were  held  not  affected  by  the 
fact  that  she  joined  with  him  in  a  later  deed  of  the  same  land  to 
a  third  person  to  secure  such  person's  claim,  there  being  no  intima- 
tion of  such  an  intention  in  the  second  deed.^^ 

A  provision  in  a  joint  mortgage  by  spouses  of  a  wife's  land  that 
surplus  on  foreclosure  should  be  paid  to  "  husband  and  wife  "  has 
been  held  to  be  construed  as  requiring  payment  as  their  interests 
may  appear,  and  not  as  a  gift  by  the  wife  to  the  husband  of  the 
surplus.^* 

In  Georgia  a  wife  is  bound  by  a  deed  of  her  land  though  the 
purchase  price  was  used  to  pay  her  husband's  debts,  where  the 
vendee  was  not  one  of  the  creditors  paid,  and  was  not  party  to  the 
manner  on  which  the  money  was  used,  and  had  no  reason  to 
apprehend  that  the  wife  was  coerced.^®  Such  a  deed  of  a  wife's 
expectant  interest  in  her  living  mother's  community  estate  has 
been  held  valid  in  Texas.^°  In  Vermont,  where  a  husband  re- 
nounces his  marital  rights,  the  wife's  sole  deed  of  her  land  conveys 
an  equitable  interest.^^  A  wife's  deed  of  her  expectant  interest 
in  land  of  which  her  father  might  die  possessed  is  a  nullity  in 
Virginia.^^ 

In  West  Virginia  a  wife's  deed  of  her  separate  property,  if 
executed,  acknowledged  and  recorded  as  required  by  law,  operates 
to  convey  the  property  described  in  the  deed  as  though  she  were 

24.  Agar  v.  Streeter  (Mich.),  150  28.  Harrington  v.  Eawls,  136  N".  C. 
N.  W.  160.  65,  48  S.  E.  571. 

25.  Eachman  v.  H.  R.  Ennis  Real  29.  Skinner  v.  Braswell,  126  Ga. 
Estate  &  Investment  Co.    (Mo.),  204  761,  55  S.  E.  914. 

S.  W.  1115.  30.   Barre   v.   Daggett    (Tex.),   153 

26.  Allendorff   v.    Gaugengigl,    146       S.  W,  120. 

Mass.  542,  16  N.  E.  283.  31.  Blondin  v.  Brooks,  83  Vt.  472, 

27.  Augusta  Nat.  Bank  v.  Beard's       76  A.  184. 

Ex'r,  100  Va.  687,  42  S.  E.  694.  32.  Garber's  Adm'r  v.  Armentrout, 

32  Grat.   (Va.)   235. 


§  482  HUSBAND  AND  WIFE.  480 

sole,  even  though  it  be  for  the  purpose  of  securing  a  past-due  debt 
of  her  husband  or  some  third  person,  and  without  new  consider- 
ation moving  to  her.^^ 

§  481.  Liability  on  Covenants  in  Conveyance. 

Following  the  spirit  of  married  women's  legislation,  some 
American  courts  now  held  the  wife  liable  on  her  covenants  con- 
tained in  a  conveyance  of  her  separate  lands.^*  Even  upon  her 
covenants  the  wife  niav,  in  some  States,  be  sued  like  a  single 
woman.^"  Where  a  wife  is  liable  on  her  covenants  of  warranty 
the  covenantee  need  not  plead  the  statute  making  her  liable.^® 

§  482.  Extent  of  Lien  or  Liability. 

Where  property  of  each  spouse  is  included  in  a  mortgage  given 
to  secure  his  debt,  his  property  should  be  first  resorted  to  to  pay 
it.^^  The  whole  of  his  estate  must  be  first  exhausted  before  re- 
sorting to  hers.^*  Thus,  where  the  whole  of  the  property  mort- 
gaged was  that  of  the  wife,  and  was  sold  on  foreclosure  after  her 
death,  his  curtesy  rights  should  be  first  sold,  to  exonerate  her 
estate  pro  tanto.^^  Likewise  where  the  mortgage  covers  both  com- 
munity property  and  the  wife's  separate  estate,  the  community 
property  must  be  first  resorted  to.*°  The  fact  that  a  wife's  mort- 
gage to  secure  her  husband's  debt  includes  both  her  property  and 
his  does  not  make  her  property  a  primary  fund  out  of  which  the 
debt  is  to  be  satisfied,  though  part  of  the  property  was  the  home- 
stead.*^ Where  spouses  mortgage  land  which  they  own  by  moieties 
to  secure  his  debt,  and  the  mortgagee  redeems  the  husband's  moiety 
from  an  execution  against  it,  he  cannot  enforce  his  claim  therefor 
against  the  wife's  moiety.*"     Where  a  wife  joins  in  a  mortgage  of 

33.  Eollins  v.  Menager,  22  W.  Va.  38.  Stoehr  v.  Moerlein  Brewing  Co., 
461.  27  Ohio  Cir.  Ct.  330. 

34.  Basford  v.  Peirson,  7  Allen  39.  Kinney  v.  Heuring  (Ind)-,  87 
(Mass.),  524;  Gunter  v.  "Williams,  40  N.  E.  1053  (reh.  den.,  44  Ind.  App. 
Ala.  561;  Eichmond  v.  Tibbies,  26  590,  88  N.  E.  865);  Harrington  v. 
Iowa,  474.  Eawls,   136   N.   C.   65,  48   S.   E.    571; 

35.  Worthington  v.  Cooke,  52  Mo.  Alderson's  Adm'r  v.  Alderson,  53  W. 
297.  Va.  388,  44  S.  E.  313. 

36.  Dickey  v.  Kalfsbeck,  20  Ind.  40.  Schneider  v.  Sellers,  25  Tex.  Civ. 
App.  290,  50  N.  E.  590.                                   226,  61  S.  W.  541. 

37.  Shew  V.  Call,  119  N.  C.  450,  26  41.  Graham  v.  Lamb,  120  Mich.  577, 
S.  E.  33,  56  Am.  St.  K.  678 ;  Hall  v.  79  N.  W.  804,  6  Det.  Leg.  N.  276. 
Hyer,  48  W.  Va.  353,  37  S.  E.   594;  42.   Freud  v.  Euhl,   126  Mich.  129, 
Sherrod   v.   Dixon,   120   N.   C.   60,   26  85  N.  W.  463,  7  Det.  Leg.  N.  745. 
S.  E.  770;  Bowen  v.  Day,  71  S.  C.  492, 

51  S.  E.  274. 


481  STATUTORY  SEPARATE  ESTATE.  §  483 

her  estate  to  secure  iier  husband's  debt,  the  surplus  on  foreclosure 
belongs  to  her,  though  the  mortgage  provides  that  it  be  paid  to  the 
spouses  jointly.*^  A  wife's  liability  on  her  mortgage  cannot  be 
affected  by  a  subsequent  agreement  between  her  husband  and  the 
mortgagee.** 

§  483.  Effect  of  Extension  of  Time  on  Novation. 

Where  a  wife  gives  a  mortgage  as  surety  for  her  husband  she 
is  released  where  he  and  the  mortgagee  make  a  material  alteration, 
in  the  contract  without  her  consent.*^  Mere  indulgences  as  to  time 
given  by  the  mortgagee  to  the  husband  will  not  release  the  wife, 
if  the  mortgagee  does  not  bind  himself  to  give  further  time.*® 
Where  the  record  title  to  the  property  mortgaged  is  in  the  husband 
the  wife's  liability  will  not  be  released  by  alterations  in  the  con- 
tract unless  she  shows  that  the  mortgagee  knew  of  her  claim  when 
the  alterations  were  made.*'  It  has  been  held  otherwise  in  Kansas 
and  Pennsylvania.** 

Where  the  proceeds  of  a  wife's  mortgage  to  pay  her  husband's 
debt  were  to  be  paid  by  the  mortgagee  to  the  creditor,  it  was  held 
not  a  diversion  of  funds  where  the  creditor  took  the  note  by 
indorsement  instead  of  the  funds." 

Where  a  mortgage  was  given  to  secure  a  husband's  debt,  and 
there  is  no  evidence  that  the  creditor  intended  to  take  it  as  satis- 
faction of  the  debt,  the  subsequent  cancellation  of  the  mortgage 
by  the  creditor  in  his  will  operates  to  discharge  the  mortgage  and 
to  release  the  surety,  except  so  far  as  necessary  to  meet  deficiency 
in  the  assets  of  the  testator  to  pay  his  debts.^" 

In  Kentuckr  a  wife  who  ffives  a  mortsrage  to  secure  her  husband's 

43.  Kinner  v.  Walsh,  44  Mo.  65.  E.     917;     Vanderwolk     v.     Matthaei 

44.  Christensen   v.   Wells,   52   S.  C.  (Tex.),    167    S.    W.    304;    Red    River 
497,  30  S.  E.  611.  Nat.  Bank  v.  Bray  (Tex.),  132  S.  W. 

45.  Westbrook  v.  Belton  Nat.  Bank  968. 

(Tex.),  75  S.  W.  842;  Angel  v.  Miller  46.  Frickee  v.  Donner,  35  Mich.  151 

(Tex.),  39  S.  W.   1092;   Schneider  v.  47.  Creighton  v.  Crane,  73  Neb.  650, 

SeUers,  98   Tex.   380,   84   S.  W.   417 ;  103  N.  W.  284. 

Higgins  V.  Deering  Harvester  Co.,  181  48.    Kauflfman    v.    Rowan,    189    Pa. 

Mo.   300,   79   S.  W.   959;    Bruegge  v.  121,  42  A.  25,  29  Pittsb.  Leg.  J.  (N. 

Bedard,   89    Mo.   App.   543;    Johnson  S.)    325;   Jenness  v.   Cutler,   12   Kan. 

V.    Franklin   Bank,    173   Mo.    171,   73  500. 

S.  W.   191;   Post  V.  Losey,   111   Ind.  49.  Sigel  Campion  Live  Stock  Com- 

4,  12  N.  E.  121,  60  Am.  R.  677;  Flem-  mission  Co.  v.  Haston,  68   Kan.   74?, 

ing  V.  Borden,  127  N.  C.  214,  37  S.  E.  75  P.  1028. 

219,  53  L.  R.  A.  316;   De  Barrera  v.  50.  Dibble  v.  Richardson,  171  N.  Y. 

Frost,  Z9  Tex.  Civ.  544,  88  S.  W.  476;  131,  63  N.  E.  829. 

Foster  v.  Davis,  175  N.  C.  541,  95  S. 

31 


§    485  HUSBAND    AND    WIFE.  482 

debt  is  not  a  surety,  so  that  her  liability  is  not  released  by  a 
novation,^^  nor  by  renewals  of  the  note  without  her  consent.''* 
In  Oklahoma  a  wife  who  joins  her  husband  in  mortgaging  their 
homestead  does  noi  become  a  surety  so  as  to  be  released  by  an 
extension  of  time  without  her  consent.^' 

§  484.  Conveyances  in  Fraud  of  Creditors. 

In  Maryland  a  conveyance  of  a  wife's  property  to  a  trustee,  with 
a  provision  that  the  income  shall  be  paid  to  her  but  that  the  corpus 
shall  be  out  of  the  reach  of  creditors,  has  been  held  invalid." 
A  deed  in  fraud  of  creditors  which  is  invalid  for  failure  to  comply 
with  the  statute  is  not  confirmed  so  as  to  shut  out  creditors  de- 
frauded thereby  where  a  later  deed  which  complies  with  the  statute 
is  executed  and  delivered  with  the  intention  of  confirming  the  first  ■ 
deed.== 

§  485.  Rights  and  Liabilities  of  Purchasers. 

In  Kentucky,  where  a  wife's  deed  is  void  for  want  of  due 
acknowledgment,  she  may  recover  the  land  from  a  purchaser  of 
the  grantee.^*'  It  was  held  otherwise  in  that  State  where  the 
spouses  conveyed  the  wife's  separate  estate  to  a  third  person,  who 
at  once  reconveyed  to  the  husband,  each  deed  reciting  a  cash  con- 
sideration, and  where  the  husband  conveyed  to  one  who  had  no 
knowledge  that  the  transactions  were  intended  to  evade  a  provision 
in  the  instrument  creating  the  estate,  prohibiting  her  from  selling 
or  incumbering  the  estate  for  the  husband's  debts.^^ 

Where  a  wife's  deed  is  void  for  failure  of  her  husband  to  join, 
the  land  is  chargeable  with  the  amount  paid  as  consideration  for 
the  conveyance,^*  as  well  as  for  the  amount  of  increase  in  the  value 
of  the  land  by  improvements  made  by  the  vendee  in  good  faith 
where  the  deed  is  void  because  of  failure  of  the  grantor  to  comply 
"with  conditions  of  her  right  to  convey.^®     But  where  a  wife  sold 

51.  Magoffin  v.  Boyle  Nat.  Bank,  24  55.  Murphy  v.  Green,  128  Ala.  486, 
Ky.   Law,   585,   69   S.   W.   702.  30  So.  643. 

52.  New  Farmer's  Bank's  Trustee  56.  Pribble  &  Hall,  13  Bush  (Ky.), 
V.   Blythe,   21   Ky.   Law,   1033,   53   S.  61. 

W.  409,  54  S.  W.  208 ;   Staib  v.  Ger-  57.  Johnson  v.  Mutual  Life  Ins.  Co., 

man  Ins.  Bank,  179  Ky.  118,  200  S.  113  Ky.  871,  24  Ky.  Law,  668,  69  S. 

W.  322.  W.  751. 

53.  Bennett  V.  Odneal,  44  Okla.  354,  58.  Furnish 's  Adm'r  v.  Lilly,  27 
147  P.  1013.  Ky.  Law,  226,  84  S.  W.  734. 

54.  Brown  v.  McGill,  87  Md.  161,  59.  Bell  v.  Blair,  28  Ky.  Law,  614, 
39    A.    613,    67    Am.    St.   E.    334,    39       89  S.  W.  732. 

L.  R.  A.  806. 


483 


STATUTORY  SEPARATE  ESTATE. 


§  487 


her  standing  timber  by  a  deed  which  was  void  because  of  the  non- 
joinder of  her  husband,  she  was  held  entitled  to  recover  the  value 
of  the  timber  after  the  grantee  had  cut  it.*° 

Where  a  husband  takes  title  in  his  own  name  to  land  paid  for 
with  his  wife's  money  and  conveys  it  to  a  third  person  who  con- 
veys it  to  others,  the  wife,  in  order  to  recover  the  land,  must  slow 
that  those  holding  under  her  husband  were  not  bona  fia-  :ur- 
chasers.^^  Where  spouses  convey  land  of  which  the  legal  title  is 
in  the  husband  and  the  equitable  title  in  the  wife  by  a  deed  of 
trust  void  because  given  to  secure  the  husband's  debts,  the  bene- 
ficiary in  the  deed  is  not  a  hona  fide  purchaser  for  value.®^ 

In  Louisiana  a  transaction  whereby  a  wife  sells  her  separate 
property  vests  a  good  title  in  the  vendee,  though  with  the  proceeds 
she  pays  her  husband's  debts.®^  In  North  Carolina,  where  a  wife 
avoids  her  deed  the  purchase  price  will  be  declared  to  be  an  equi- 
table lien  on  the  land.®* 

§  486.  Laches. 

The  wife's  right  to  recover  her  separate  estate  conveyed  under 
an  invalid  deed  may  be  barred  by  laches,®^  but  in  Georgia  laches 
will  not  be  imputed  to  her  for  a  ten  years'  delay  in  suing  to  cancel 
a  deed  made  to  her  husband  without  the  authority  of  the  superior 
court,  as  required  by  the  statute,  where  during  that  time  she  con- 
tinues in  possession  with  him. 


66 


§  487.  Estoppel  to  Deny  Validity. 

Where  a  deed  is  void  for  non-compliance  with  a  statute  as  to  the 
husband's  joinder,  no  estoppel  usually  arises  against  the  wife  to 
assert   her  title,®^   even  though   she  received   the   full   considera- 

388,  131  S.  W.  30;  Smith  v.  Ingram, 
130  X.  C.  100,  40  S.  E.  984,  61  L.  K. 
A.  878;  Wilkins  v.  Lewis  (Fla.),  82 
So.  762;  Weber  v.  Lightfoot,  152  Ky. 
83,  153  S.  W.  24;  Daniels  v.  Mason, 
90  Tex.  240,  38  S.  W.  161,  59  Am.  St. 
R,  815;  Merriman  v.  Blalaek,  56  Tex_ 
Civ.  594,  121  S.  W.  552;  First  State 
Bank  of  Tomball  v.  Tinkham  (Tex.), 
195  S.  W.  880;  Johnson  v.  Elliott,  64 
Fla.   31S,   59  So.   944. 

In  Tennessee  it  has  been  held  tliat 
where  a  husband  is  in  the  penitentiary 
and  the  wife  represents  that  she  is  a 
widow,  she  is  estopped  to  deny  the 
validity  of  her  deed  because  of  his  non- 


60.  Farmers'   Bank  v.   Richardson, 
171  Ky.  340,  188  S.  W.  406. 

61.  Sparks  v.  Taylor,  99  Tex.  411, 
90,  S.  W.  485,  6  L.  R.  A.  (N.  S.)  381. 

62.  Shook  V.   Southern   Building   & 
Loan  Assn.,  140  Ala.  575,  37  So.  409. 

63.  Hamilton  v.  Moore,  136  La.  631, 
67  So.  523. 

64.  North  v.  Bunn,  122  N.  C.  766, 
29  S.  E.  776. 

65.  McPeck's    Heirs   v.    Graham's 
Heirs,  56  W.  Va.  200,  49   S.   E.   125. 

66.  Echols  V.  Green,  140  Ga.  678,  79 
S.  E.  557. 

67.  Venters   v.    Fotter    (Ky.),    212 
S.  W.   117;   Syck  v.  Hellier,  140  Ky. 


§  487  HUSBAND  AND  WIFE.  484 

tion,®*  or  indirectly  received  its  benefits,^®  or  makes  verbal  or  written 
statements  that  she  will  not  deny  the  validity  of  her  deed/"  nor 
will  those  claiming  under  her  after  her  death  be  so  estopped.'^  It 
has  been  held  otherwise  where  the  contract  of  sale  was  made  prior 
to  coverture/"  In  Indiana  it  is  held  that  an  express  recital  in  a 
wife's  mortgage  that  it  was  for  her  sole  benefit,  and  that  the 
husband  derived  no  advantage  from  it,  did  not  estop  her  from 
showing  its  invalidity  because  she  was  a  surety/^  nor  is  she  pre- 
cluded from  that  defence  by  such  a  recital  where  the  mortgagee 
knew  she  was  acting  as  a  surety,^*  nor  where  she  represents  to  a 
mortgagee  that  the  transaction  is  solely  for  her  benefit,  and  where 
after  due  investigation  he  in  good  faith  relies  on  such  representa- 
tion,'^^ but  where,  after  giving  the  first  mortgage  as  surety,  she 
secures  another  loan  and  gives  a  mortgage  on  the  same  and  other 
separate  property  and  pays  off  the  first  mortgage,  she  cannot 
defend  against  the  second  mortgage  on  the  ground  that  the  first 
was  given  as  a  surety.'^ 

Where  a  wife  stands  by  and  permits  her  husband  to  transfer  her 
property  as  his  own,  and  permits  the  vendee  to  believe  that  it  is 
his,  she  is  estopped  from  questioning  the  vendee's  title,''  and  the 
same  may  be  true  where  she  permfts  her  husband  to  convey  her 
land  as  his,  she  assenting  to  the  sale,'^  especially  where  the  spouses 
later  claimed  and  received  payment  of  a  note  given  for  the  pur- 
chase price.'^     A  wife  is  not  estopped  from  asserting  her  interest 

joinder  as  required  by  statute.    Bryant  Coke  Co.  (Ky.),  207  S.  W.  18;  Sloss- 

V.  Freeman,  134  Tenn.  169,  183  S.  W.  Sheffield   Steel  &  Iron   Co.   v.   LoUar, 

731.  170  Ala.  239,  54  So.  272. 

68.  Brown  v.  Pechman,  53  S.  C.  1,  73.  Biedenkoff  v.  Brazee,  28  Ind. 
30  S.  E.  586.  App.  646,  61  N.  E.  9'54. 

69.  Bank  of  Mobile  v.  Smitti  (Ala.),  74.  Ft.  Wayne  Trust  Co,  v.  Sihler, 
81    So.    193;    Corinth    Bank    &    Trilst  34  Ind.  App.  140,  72  N.  E.  494. 

Co.  V,  Pride  (Ala.),  79  So.  255;  Rich-  75.   Trinkle  v.   Ladoga  Bldg.   Loan 

ardson  v.  Stephens,  122  Ala.  301,  25  Fund    &    Savings    Assn.    (Ind.),    117 

So.  39;  Marbury  Lumber  Co.  v.  Wool-  N.  E.  542. 

folk   (Ala.),  65  So.  43;  Bank  of  Mo-  76.    Field   v.    Campbell    (Ind.),    68 

bile    V.    Smith    (Ala.),    81    So.    193;  N.  E.  911. 

Hanchey  v.  Powell,  171  Ala.   597,  55  77.  Grant  v.   Bicker,  56  S.  C.   476, 

So.  97;   Hamil  v.  American  Freehold  35  S.  E.  132. 

Land  Mortg.  Co.,  127  Ala.  90,  28  So.  78.  Marchant  v.  Youn;^,  147  Ga.  37, 

558  92  S.  E.  863. 

70.  Mays  v.  Pelly  (Ky.),  125  S.  W.  79,  Scales  v.  Johnson  (Tex.),  41 
713,  S.  W.  828;   Harle  v.  Texas  Southern 

71.  Hellard  v.  Rockcastle  Mining,  Ry.  Co.,  39  Tex.  Civ.  43,  86  S.  W. 
Lumber  &  Oil  Co.,  153  Ky,  259,  154  1048;  Morrison  v.  Balzer,  35  Tex. 
S.  W.  401.  Civ.  247,  SO  S.  W.  248. 

72.  Lockart    v.    Kentland    Coal    & 


485 


STATUTORY  SEPAKATE  ESTATE. 


§  437 


in  land  owned  by  the  spouses  jointly  by  knowledge  that  her  hus- 
band is  negotiating  for  its  sale  as  his,  and  by  casual  expressions  of 
satisfaction  with  the  transaction  after  it  is  made.*° 

Where  a  wife  permitted  her  husband  to  lease  her  property  in  his 
own  name  and  collect  the  rents,  it  was  held  that  she  was  estopped 
to  deny  his  authority,*^  especially  where  it  appeared  that  she  per- 
sonally received  rents  under  such  lease,  and  gave  receipts  in  his 
name.^^  Where  a  husband  conveyed  to  his  wife  his  interest  in 
their  estate  by  the  entirety,  and  she  conveyed  the  whole  estate  to 
a  third  person  by  a  warranty  deed,  both  were  held  estopped  to 
question  the  title  of  her  grantee.®^  As  against  an  innocent  pur- 
chaser a  wife  is  estopped  to  deny  that  the  consideration  of  a  deed 
passed  to  her  where  her  deed  contains  a  recital  that  such  was  the 
fact.®*  A  wife  is  not  estopped  to  assert  her  right  to  land  incum- 
bered by  an  invalid  mortgage  by  fraudulent  representations  as  to 
her  capacity  to  bind  herself  where  the  mortgagee  knew  the  real 
facts.®^  Where  a  contingent  right  not  capable  of  assignment  was 
sought  to  be  assigned,  that  fact,  coupled  with  subsequent  conduct, 
continued  till  the  title  of  the  assignor  had  become  perfect,  was 
held  to  raise  an  estoppel  to  deny  the  validity  of  the  assignment.^* 

Where  a  wife  conveyed  land  to  her  husband  by  a  deed  express- 
ing a  full  consideration,  and  not  reciting  the  relationship  of  the 
parties,  she  was  held  estopped,  under  the  Alabama  statute,  to 
assert,  as  against  her  husband's  mortgagee,  that  there  was  no  con- 
sideration, where  she  joined  in  such  mortgage  and  where  the  mort- 
gagee had  no  notice  of  the  facts  relating  to  the  conveyance  to  the 
husband,  there  being  no  evidence  of  an  abuse  of  the  confidential 
relationship  of  the  spouses.*^ 

Where  spouses  as  tenants  by  the  entirety  platted  the  land  so 
held,  and  on  the  plat  imposed  certain  restrictions,  it  was  held  that 
the  surviving  wife  was  bound  to  perform  the  restrictions  specified 

113    Ky.    871,   24   Ky.   Law.    668,   69 
S,  W.  751. 

85.  Indianapolis  Brewing  Co.  v. 
Behnke,  41  Ind.  App.  288,  81  N.  E. 
119. 

86.  Marsh  v.  Marsh,  92  Neb.  189, 
137  N.  W.  1122. 

87.  Osborne  v.  Cooper,  113  Ala.  405, 
21  So.  320,  .59  Am.  St.  R.  117. 
To  the  same  effect  see  Stacey  v. 
Walter.  125  Ala.  291,  28  So.  89,  82 
Am  St.  R.  235. 


80.  McNeeley  v.  South  Penn  Oil  Co., 
52  W.  Va.  616,  44  S.  E.  508,  62  L. 
R.  A.  562. 

81.  Johnson  v.  Ehrman  Brewing 
Co.,  66  App.  Div.  103,  72  N.  Y.  S. 
639. 

82.  Western  New  York  &  P.  Ry.  Co. 
V.  Riecke,  83  App.  Div.  576,  81  N.  Y. 
S.  1093. 

83.  Hardwick  v.  Salzi,  46  Misc. 
Rep.  1,  93  N.  Y.  S.  265. 

84.  Johnson  v.  Mutual  Life  Ins.  Co., 


§    488  HUSBAND    AND    WIFE.  4:86 

in  the  plat  in  favor  of  a  grantee  whose  deed  did  not  specify  all  of 
them,  but  who  had  relied  on  the  plat.®^ 

Where  a  wife  in  a  deed  of  trust  authorizes  the  grantee  to  pay  off 
incumbrances  on  her  land,  which  is  done,  she  is  thereafter  estopped 
to  claim  that  she  did  not  authorize  such  payment  in  writing,  within 
the  meaning  of  the  California  statute  requiring  such  authoriza- 
tion.^^ In  Texas  it  is  held  that  a  wife  is  not  estopped  to  assert 
her  equitable  title  to  land  under  a  parol  gift  from  her  father,  and 
possession  thereunder,  by  agreeing  that  a  purchaser  of  the  land 
from  her  shall  take  title  directly  irom  the  father,  and  surrendering 
possession  to  such  purchaser.'"'  in  Louisiana  a  wife  who  has 
obtained  from  a  court  a  certificate  authorizin.j  her  to  mortgage  her 
land  cannot  afterwards  attack  the  validity  of  the  certificate  or 
contradict  the  statements  made  to  obtain  it.^^ 

§  488.  Ratification. 

Where  a  statute  forbids  a  wife  to  pay  her  husband's  debts,  her 
ratification  will  not  validate  a  sale  of  her  separate  estate  for  such 
purpose.®^  Where  a  wife  joined  with  her  husband  in  an  action 
to  cancel  a  contract  of  sale  made  by  the  husban  t  alone  affecting 
land  which  they  owned  in  common,  and  to  forfeit  payments  made 
by  the  vendee,  it  was  held  that  she  was  hour  /  her  ratification,"* 
Where  a  husband  joined  in  a  conveyance  r  ihe  reversion  of  a 
wife's  land  after  a  lease  in  which  he  did  not  JC'U,  it  was  held  that 
he  ratified  the  lease,  making  it  effectual  to  pa.v  the  wife's  interest 
during  the  term.®*  In  Connecticut  a  wife  :  :y,  after  her  hus- 
band's death,  effectively  ratify  her  act  during  coverture  which  was 
not  binding  for  want  of  the  husband's  joinder.®^  Sirce  under  the 
North  Carolina  statute  a  husband'd  execution  of  2  lien  on  thf 
wife's  crops  without  her  joinder  is  void,  her  ratification  of  his  act 
will  not  validate  it,  even  after  his  death.®® 

Where  a  wife  granted  land  in  Pennsylvania  without  her  hus- 
band's joinder,  as  required  by  the  statute,  her  failure  to  repudiate 

88.  Schickhaus  v.  Sanford,  83  N.  J.  92.  Grant  v.  Miller,  107  Ga.  804,  33 
Eq.  454,  91  A.  878.  S.  E.  671. 

89.  Continental  Bldg.  &  Loan  Ass'n  93.  Whiting  v.  Doughton,  31  Wash. 
V.  Wilson,  144  Cal.  776,  78  P.  254.  327,  71  P.  1026. 

90.  Cauble  v.  Worsham,  96  Tex.  86,  94.  Winestine  v.  Liglatzki-Marks 
70  S.  W.  737,  97  Am.  St.  E.  871.  '  o.    77  Conn.  404,  59  A.  496. 

91.  Kohlman  v.  Cochrane,  132  La.  95.  Pettus  v.  Gault,  81  Conn.  415,  71 
303,   61    So.   382;    Clark  v.   Whitaker,  ^.  509. 

117  La.  298,  41  So.  580.  96-  Rawlings  v.  Neal,  126  N.  C.  271, 

35  S.  E.  SQ'T. 


487  STATUTOEY  SEPARATE  ESTATE.  §  489 

the  deed  in  a  partitian  proceeding  to  wliich  she  was  a  party  and 
which  involved  the  land  granted  was  held  a  ratification  of  the 
deed.®^  In  Texas  a  conveyance  of  a  wife's  land  'by  the  husband 
under  power  of  attorney  may  be  effectively  ratified  so  as  to  vest 
title  in  the  grantee  by  a  deed  given  by  the  spouses  jointly  for  that 
purpose,  if  the  rights  of  third  persons  have  not  intervened.®*  In 
the  same  State  a  lease  of  the  wife's  land,  void  because  of  her  failure 
to  join,  was  held  ratified  where  she  later  signed  a  properly  exe- 
cuted and  acknowledged  assignment  of  the  lease,  annexing  it  to 
the  assignment. 


99 


§  489.  Avoidance. 

A  wife  may  have  cancellation  of  a  deed  of  land  of  which  her 
husband  had  the  legal  and  she  the  equitable  title  where  the  deed 
was  not  acknowledged  by  her  as  required  by  the  Alabama  statute.' 
Where  a  wife's  conveyance  is  void  because  made  in  payment  of 
the  husband's  debts,  in  violation  of  the  Greorgia  statute,  she  may 
maintain  ejectment  against  the  grantee  or  any  grantee  of  his  with 
notice  of  the  consideration,  without  bringing  a  bill  to  cancel  the 
deed,^  or  she  may  maintain  a  bill  for  cancellation.^ 

In  Missouri,  where  a  wife  conveyed  her  property  to  pay  her 
husband's  debt  and  received  a  balance  over  and  above  the  amount 
of  the  debt,  she  was  held  entitled  to  a  reconveyance  only  on  pay- 
ment of  the  amount  so  received.*  In  Pennsylvania,  in  such  case, 
she  must  return  the  consideration  and  reimburse  the  grantee  for 
expenses  incurred.^  In  Texas  she  is  not  required  to  refund  the 
consideration  of  a  deed  which  is  void  because  not  duly  acknowl- 
edged as  a  prerequisite  to  recovery  of  the  land  conveyed,*  nor  in 
Tennessee,  where  the  deed  is  void  because  in  violation  of  a  re- 
straint of  alienation.'^  To  set  aside  a  deed  of  spouses  for 
fraud,  it  must  appear  that  the  grantees  had  knowledge  or  notice 

97.  In  re  Simons'  Estate,  20  Pa.  S.  E.  364;  Hamilton  v.  Duvall,  142 
Super.  450.  Ga.  432,  83  S.  E.  103. 

98.  Scales  v.  Johnson  (Tex.),  41  S.  4.  Newman  v.  Newman,  152  Mo. 
W.   828.  338,  54  S.  W.  19. 

99.  Ascarete  v.  Pfaff,  34  Tex.  Civ,  5.  McCoy  v.  Niblick,  221  Pa.  123, 
375,  78  S.  W.  974.  70  A.  577. 

1.  Shook  V.  Southern  Bldg.  &  Loan  6.  Silcock  v.  Baker,  25  Tex.  Civ. 
Ass'n,  140  Ala.  575,  37  So.  409.  508,  61  S.  W.  939. 

2.  Taylor  v.  Allen,  112  Ga.  330,  37  7.  Travis  v.  Sitz  (Tenn.),  185  S.  W. 
8.  E.  408;  Bond  v.  Sullivan,  133  Ga.  1075;  Webber  v.  Lightfoot,  152  Ky. 
160,  65  S.  E.  376.  83,  153  S.  W.  24, 

3.  Gilmore  v.  Hunt,  137  Ga.  272,  73 


§  489  HUSBAND  AND  WIFE.  488 


of  the  fraud  before  giving  the  consideration.*  A  wife  cannot 
avoid  her  deed  where  such  avoidance  would  operate  as  a  fraud,* 
nor  can  she  have  cancellation  of  a  deed  merely  because  she  did 
not  understand  it  when  it  was  executed/"  unless  there  is  evidence 
that  she  intended  to  obtain  money  to  pay  her  husband's  debts.^^ 
A  wife's  deed  may  be  avoided  for  duress/^  but  not  where  the 
grantee  did  not  know  of  the  duress.^^  The  mere  fact  that  a 
grantee  knew  that  a  husband  was  intemperate  and  tyrannical  is 
not  enough  to  charge  him  with  notice  that  a  wife's  deed  to  him 
was  obtained  by  the  husband's  coercion.^* 

The  invalidity  of  a  wife's  conveyance  because  given  to  pay  her 
husband's  debts  cannot  be  taken  advantage  of  by  a  third  person  in 
litigation  to  which  she  is  not  a  party  and  in  which  she  has  no 
interest,^^  or,  in  Connecticut,  even  where  she  is  a  nominal  party," 
or  even  though  the  plaintiff  in  such  action  is  the  husband  and 
though  he  sues  as  an  incompetent  by  his  wife  as  guardian  ad 
litem.^''  Where  the  statute  forbids  a  wife  from  being  a  surety,  a 
complaint  to  set  aside  such  a  transaction  which  merely  alleges  that 
tho  mortgage  was  given  to  secure  her  husband's  debt  states  a  cause 
of  action.^*  In  a  suit  to  set  aside  a  wife's  mortgage  as  being  void 
because  she  was  a  surety,  she  has  the  burden  of  proof. ^*  A  con- 
tract whereby  a  wife  transfers  property  in  satisfaction  of  her 
husband's  debts  is  not  voidable  where  she  receives  a  valuable 
consideration  for  so  doing.""     Where  a  wife  mortgages  her  prop- 

8.  Pratt  Land  &  Improvement  Co,  v.  14.  Pratt  Land  &  Improvement  Co. 
McClain,  135  Ala.  452,  33  So.  185,  93  v.  McClain,  135  Ala.  452,  33  So.  185, 
Am  St.  R.  879.                                              93  Am.  St.  R.  35. 

9.  Harris  v.  Smith,  98  Tenn.  286,  15.  Henry  v.  Ayer,  102  Ga.  140,  29 
39  S.  W.  343.                                                    S.  E.  144. 

10.  MeDaniels  v.  Sammons,  75  Ark.  16.  Pettus  v.  Gault,  81  Conn.  415, 
139,  86  S.  W.  997.  71  A.  509. 

11.  Caldwell  v.  Trezevant,  111  La.  17.  Thompson  v.  Davis,  172  Cal.  491, 
410,  30  So.  619.  157  P.  595. 

12.  Rostad  v.  Thorsen  (Ore.),  163  18.  Warner  v.  Jennings,  37  Ind. 
Pac.  423,  L.  R.  A.  1917D  1176.  App.  394,  76  N.  E.  1013. 

13.  Erasure  v.  McGuire,  23  Ky.  Law,  19.  Bushard  v.  McCay  (Ala.),  77 
1990,  66  S.  W.  1015;  Johnson  v.  A.  So.  699;  Interstate  Bank  v.  Wesley, 
Leffler  Co.,  122  Ga.  670,  50  S.  E.  488;  178  Ala,  186,  59  So.  621;  Lamkin  v. 
Brady  v.  Equitable  Trust  Co.,  178  Lovell,  176  Ala.  334,  58  So.  258;  Hall 
Ky,  693,  199  S.  W.  1082;  Colonial  v.  Gordon  (Ala.),  66  So.  493;  Sample 
Bldg.  &  Loan  Assn.  v.  Griffin,  85  N.  v.  Guyer,  143  Ala.  613,  42  So.  106; 
J.  Eq.  455,  96  A.  901;  Ryan  v.  Strop,  Gibson  v.  Wallace,  147  Ala.  322,  41 
253  Mo.  1,  161  S.  W.  700;  Kauffman  So,  960. 

V.  Rowan,  189  Pa.  121,  42  A.  25,  29  20.  Hamilton  v.  Hamilton,  162  Ind. 

Pittsb.  Leg.  J.  (N.  S.)  325.  430,  70  N.  E.  535;  Brady  v.  Equitable 


489  STATUTORY  SEPARATE  ESTATE.  §  489 

ertj  and  tlie  money  is  paid  to  her  agent,  she  cannot  avoid  it  on  the 
ground  that  she  was  a  surety  where  her  husband  obtains  the 
money  from  the  agent  and  uses  it.^^  Under  the  Louisiana  statute 
a  wife  must,  within  five  years  from  the  time  of  the  dissolution  of 
the  marriage  or  the  majority  of  the  wife's  heir,  assert  her  title  to 
property  conveyed  by  a  deed  which  is  void  because  given  to  pay 
her  husband's  debts."^  In  the  same  State  she  will  be  bound  by 
her  disposal  of  her  property  in  the  interest  of  her  husband  as 
against  those  who  have  dealt  with  him  on  the  faith  of  his  apparent 
title,  though  she  is  not  generally  liable  as  surety  for  him,^^  and 
cannot  attack  a  mortgage  given  by  a  corporation  for  marital  coer- 
cion, fraud  or  error  in  her  sale  of  the  mortgaged  property  to  one 
who  conveyed  it  to  the  corporation. 


24 


Trust  Co.,   178    Ky.   693,   IffQ   S.  W.  22.  MunhoUand  v.  Fakes,   111  La. 

1082;  Lewis  v.  Ferris  (N.  J.),  50  A.  931,  35  So.  983. 

630.  23.  Clark  v.  Whitaker,  117  La.  298, 

21.    Hamil    v.    American    Freehold  41  So.  580. 

Land  Mort.  Co.,  127  Ala.  90,  28  So.  24.  Parent  v.  First  Nat.  Bank,  13» 

558.  La.  254,  65  So.  233. 


§  490  HUSBAND  AND  WIFE.  490 


CHAPTER  XXIII. 

ANTENUPTIAL  SETTLEMENTS. 

Section  490,  What  Law  Governs. 

49'1.  Marriage  Settlements  Favored  by  Public  Policy. 

492.  General  Considerations. 

493.  Promises  to  Marry,  and  Promises  in  Consideration  of  Marriage.. 

494.  Form  and  Eequisites. 

495.  Necessity  of  Trustee. 

496.  Eeformation. 

497.  Consideration. 

49'8.  Validity  in  General. 

499.  Oral  Promise  to  Make  Settlement. 

500.  Postnuptial  Settlements  in  Execution  of  Antenuptial  Agreements 

501.  Contracts  Keleasing  Eights  in  Estate  of  Other  Spouse. 

502.  Marriage  Articles. 

503.  Settlement  by  Third  Person, 

504.  Covenant  to  Settle  After-acquired  Property. 

505.  Provisions  for  Children  or  Heirs, 

506.  Secret  Settlement  on  Third  Person  in  Fraud  of  Husband. 

507.  Construction. 

508.  Power  of  Disposition  of  Property  Settled, 

509.  Operation  and  Effect, 

510.  Enforcement. 

511.  EescissioTt  or  Avoidance;  In  General. 

512.  By  Agreement. 

513.  Fraud. 

514.  Failure  to  Perform  Conditiona. 

515.  Infancy  or  Laches. 

516.  Misconduct  of  Spouse. 

517.  Acts  in  Pais. 

518.  Inadequacy  of  Provision  for  Wife. 

519.  Eights  of  Creditors, 

§  490.  What  Law  Governs. 

Generally  the  construction  of  a  marriage  settlement  is  governed 
by  the  law  of  the  intended  matrimonial  domicile,^^  but  in  New 
Jersey  it  is  held  that  the  law  of  the  State  where  the  settlement  is 
made  and  the  marriage  celebrated  will  govern.^*  Where  a  valid 
settlement  reserves  to  the  wife  her  separate  property  as  though 
sole,  the  common  law  as  to  the  rights  of  parties  is  inapplicable. 


27 


25.  Mueller  v.  Mueller,  127  Ala.  356,  foreign  to  the  place  of  contract,  an 
28  So.  465.  antenuptial  contract  must  specifically 

26.  New  Jersey  Title  Guaranty   &  include    such    a    property.      Clark    ▼► 
Trust  Co.   V.   Parker    (N.   J.),   96   A.  Baker,  76  Wash.  110,  135  P.  1025. 
574,    To  affect  property,  subsequently  27,  Overall  v,  Ellis,  38  Mo.  209. 
aeqmred  by  either  spouse  in  a  State 


491  ANTENUPTIAL.    SETTLEMENTS.  §    492 

§  491.  Marriage  Settlements  Favored  by  Public  Policy. 

Pviblic  policy  does  not  inhibit  settlements  between  persons  con- 
templating marriage.^*  Such  agreements  are  ordinarily  regarded 
with  favor/®  as  tending  to  adjust  family  disputes,^"  and  as  making 
for  the  welfare  of  the  parties.^^  Therefore  the  courts  will  seek  to 
uphold  them,  and,  in  order  to  do  so,  will,  if  necessary,  strain  to 
the  uttermost  the  interpretation  of  equivocal  words  and  conduct.'^ 
It  has  been  held,  however,  that  a  provision  making  a  certain  dis- 
position of  property  in  case  of  a  separation  is  void,^^  as  well  as 
antenuptial  contracts  limiting  the  amount  to  be  paid  to  the  wife 
for  wardrobe  and  personal  expenses,  since  these  are  necessaries, 
which  the  policy  of  the  law  requires  the  husband  to  furnish.^*  In 
^orth  Dakota  it  is  held  that  an  antenuptial  agreement  relating  to 
homestead  exemptions  is  void.^^ 

§  492.  General  Considerations. 

Settlements  are  a  useful  contrivance  for  preserving  estates 
intact  in  a  family.  As  between  husband  and  wife  the  word 
"  settlement "  is  applied  to  their  mutual  contracts  in  reference  to 
the  property  of  one  another,  by  means  of  which,  under  the  pro- 
tection of  courts  of  equity  (which  favor,  as  did  also  the  civil  law, 
arrangements  in  recognition  of  property  in  the  wife  as  well  as  the 
husband),  they  change  and  control  the  general  rules  of  the  mar- 
riage state.  They  cannot  vary  the  terms  of  the  conjugal  relation, 
itself;  they  cannot  add  to  or  take  from  the  personal  rights  and 
duties  of  husband  and  wife;  but  they  may  essentially  alter  the 
interest  which  each  takes  in  the  property  of  the  other,  if  they 
choose  to  enter  into  special  stipulations  for  that  purpose.  These 
special  stipulations  may  be  either  antenuptial  or  postnuptial; 
while,  as  we  shall  soon  perceive,  the  two  classes  are  more  alike  in 

28.  Kroell  v.  Kroell,  219  ni.  105,  76  30.  Fishblate  v.  Fishblate,  238  Pa. 
N.  E.  63;  Stephens  v.  Stephens  (Ky.),       450,  86  A.  469. 

205  S.  W.  573;  Peckham  v.  Loch,  14  31.  7/1  re  Malchow's  Estate  (Minn.), 

Ky.  Law,  763;  President,  &c.,  of  New-  172  N.  W.  915. 

buryport    Bank    v.    Stone,    13    Pick.  32.  De  Cicco  v.  Schweitzer,  221  N. 

(Mass.),  420;  Eieger  v.  Schaible,  81  Y.  431,  117  N.  E.  807. 

Xeb.  33,  115  N.  W.  560  (reh.  den.,  81  33.  Neado  v.  Nerao,   56  Kan.   507, 

Neb.   58,  116  N.  W.   953).  44  Pac.  1. 

29.  Oesau  v.    Oesau's  Estate,    157  34.  Warner  v.  T.  .u-ner,  235  111.  448, 
"Wis.  255,  147  N.  W.  62;  De  Cicco  v.  85  S.  E.  630. 

Schweitzer,  221  N.  Y.  431,  117  N.  E.  35.   Swin-le   \.   Swingle,   36   N.   D. 

€17,  L.  R.  A.  1918E  1004.  611,  162  N    W.  912. 


§    493  HUSBAND    AND    WIFE.  492 

name  than  substance,   and  the  term  "  marriage  settlements "   is 
frequently  applied  to  antenuptial  settlements  only. 

Marriage  settlements  are  very  common  in  England,  among  par- 
ties possessed  of  large  means;  not  generally  so  in  this  country, 
although  many  are  made  in  the  Southern  States  and  elsewhere. 
The  American  policy  is  to  dispense  with  trusts,  and  place  a  married 
woman's  separate  property  in  her  own  absolute  keeping.  Yet 
marriage  settlements  might  often  be  well  resorted  to  in  order  to 
equalize  the  burdens  and  privileges  of  matrimony,  while  our  local 
legislation  remains  in  its  present  crude  condition.  If  settlements 
of  property  are  made  to  the  wife's  separate  use,  the  usual  equitable 
rules  apply,  as  to  making  the  property  liable  for  her  debts  and 
engagements.^^ 

§  493.  Promises  to  Marry,  and  Promises  in  Consideration  of 
Marriage. 
A  distinction  meets  us  at  the  outset  between  promises  to  marry 
and  promises  in  consideration  of  marriage.  The  Statute  of 
Frauds,  §  4,  requires  that  promises  and  agreements  in  consideration 
of  marriage  shall  be  "  in  writing,  and  signed  by  the  party  to  be 
charged  therewith,  or  some  other  person  thereunto  by  him  lawfully 
authorized."  Yet  a  promise  to  marry  is  binding  although  verbal." 
It  would  strike  anyone  (except  perhaps  a  lawyer)  that  a  promise 
by  a  woman  to  marry  a  man  in  consideration  of  his  promising  to 
marry  her  was  an  agreement  made  in  consideration  of  marriage, 
but  it  is  not.^®  Perhaps  it  is  public  policy  which  sustains  the 
latter  rather  than  the  former  contract  without  requiring  a  writing. 
Perhaps,  too,  this  carries  weight:  that  a  promise  to  marry  is 
merely  a  promise  to  enter  into  a  certain  relation ;  and,  therefore, 
clearly  interpreted  by  any  court  without  the  aid  of  written  evi- 
dence, provided  the  promise  be  once  proved ;  while  the  Statute  of 
Frauds  is  found  most  convenient  for  clearly  fixing  mutual  stipu- 
lations which  might  be  varied  in  a  thousand  ways,  and  affect  the 
property  rights  of  the  contracting  parties  accordingly.  At  all 
events,  a  promise  to  marry,  whether  verbal  or  written,  affords  a 
singular  remedy,  one  quite  different  from  the  remedies'  attending 
marriage  settlements;  namely,  no  right  of  specific  performance, 
but  always  damages  to  the  injured  party. 

36.  Sprague  v.  Shields,  61  Ala.  428.      v.  Baker,  1  Stra.  34 ;  Harrison  v.  Cage, 

37.  Maeq.  Hus  &  Wife,  220 ;   Cook       1  Ld.  Raym.  386. 

38.  See  Smith  on  Contracts,  57. 


493 


AXTENUPTIAL  SETTLEME>"TS. 


494 


§  494.  Form  and  Requisites. 

No  particular  formality  is  required  in  antenuptial  agreements, 
if  the  intention  is  plain/^  hence  the  signature  of  the  wife  to  an 
instrument,  or  an  indenture  deed,  is  by  no  means  indispensable  in 
order  that  her  rights  upon  marriage  consideration  be  sustained.*" 

Courts  of  equity  have  frequently  refused,  however,  to  enforce 
marriage  agreements  on  the  ground  of  their  being  inconsistent, 
uncertain,  or  unintelligible ;  *^'*'  and  particularly  is  this  found 
true  of  loose  expressions  contained  in  letters  written  by  relatives 
of  the  married  parties,  upon  which  the  attempt  is  made  to  render 
them  chargeable  when  the  marriage  was  not  thereby  induced.*^ 

Tinder  the  Maine  statute  an  antenuptial  agreement  not  executed 
as  required  by  the  statute  has  been  held  good  as  between  the  par- 
ties.** If  the  contract  is  in  the  form  of  a  writing,  due  delivery 
should  appear;  though  if  the  written  contract  be  produced  from 
the  proper  custody,  and  its  execution  proved,  proper  delivery  is 
readily  presumed.*^  The  acknowledgment  of  such  contracts,  too, 
is  in  some  States  a  prerequisite  to  their  validity 


46 


39.  Buffington  v.  Buffington,  151 
Ind.  200,  51  N.  E.  328. 

40.  Cochran  v.  MacBeath,  1  Del. 
Ch.  187. 

41-42.  Franks  v,  Martin,  1  Eden, 
309;  Kay  v.  Crook,  3  Jur.  (N.  S.) 
107;  Peachej,  Mar  Settl.  68;  Quin- 
lan,  Hayes  &  Jones,  Ir.  Eep.  785; 
Maunsell  v.  White,  1  Jo.  &  Lat.  53?. 

48.  Hincks  v.  Allen,  28  W.  E.  533. 
As  to  carrying  out  the  wishes  of  a 
third  party  respecting  property  de- 
vised so  as  to  settle  it  upon  marrying, 
see  Teasdale  v.  Braithwaite,  5  Ch.  D. 
630. 

44.  Mc Alpine  v.  McAlpine,  116  Me. 
321,  101  A.  1021. 

45.  In  Smith  v.  Moore,  3  Green  Ch. 
(N.  J.)  485,  the  document  being  found 
in  the  husband's  possession  after  his 
death,  execution  proved,  and  also  his 
recognition  during  his  lifetime,  due 
delivery  was  presumed. 

Possession  by  the  wife  at  her  death 
of  an  antenuptial  agreement  whereby 
the  husband  waived  his  rights  in  her 
property  has  been  held  to  raise  a  pre- 
sumption of  delivery.  Dunlop  v. 
Lamb,   182   HI.    319,   55   N.   E.    354; 


Kennedy  v.  Kennedy,  150  Ind.  636, 
150  Ind.  636,  50  N.  E.  756. 

A  delivery  of  an  antenuptial  agree- 
ment has  been  held  sufficient  when  de- 
livered 171  escrow  before  marriage  and 
delivered  to  the  parties  after  mar- 
riage, the  second  delivery  relating 
back  to  the  date  of  the  delivery  in 
escrow.  Koch  v.  Koch,  126  Mich.  187, 
85  N.  W.  455,  7  Det.  Leg.  N.  758. 

46.  A  marriage  contract  executed 
before  marriage,  but  not  acklowledged 
until  after  marriage,  is  a  nullity.  Pat- 
ton 's  Estate,  Myrick's  Prob.  (Cal.) 
241.  As  to  New  York  statutes  on  the 
subject,  see  Douglas  v.  Cruger,  80  N. 
Y.  15. 

In  Louisana  an  antenuptial  con- 
tract may  provide  that  certain  sepa- 
rate property  of  each  party  shall  form 
part  of  the  community.  Hanley  v. 
Drumm,  31  La.  Ann.  106. 

Under  the  Kansas  statute  an  ac- 
knowledgment of  an  antenuptial  agree- 
ment before  a  notary  is  sufficient. 
Brown  v.  Weld,  5  Kan.  App.  341,  48 
P.  456. 

Under  the  Texas  statute  such  an. 
aerreement  must  be  authenticated  be- 


§  494 


HUSBAND    AJS'D    WIFE. 


494 


Our  local  registry  system  raises  questions  of  constructive  notice, 
as  to  marriage  settlements  and  the  property  embraced  under  them, 
often  of  great  local  importance,  which  do  not  appear  to  prevail  in 
England,  where  the  recording  of  deeds,  though  long  ago  com- 
mended by  Blackstone,*^  is  still  strangely  neglected  by  legislators/' 

A  marriage  contract  made  by  a  husband  without  fraud,  and 
duly  recorded,  is  a  good  settlement  against  him,  and  for  valuable 
consideration,  and  the  lien  thus  created  on  property  therewith 
transferred  and  duly  recorded  is  constructive  notice  to  all  subse- 
quent creditors  as  to  such  property.*^  But  as  to  property  to  be 
subsequently  acquired,  even  though  the  contract  provides  in  terms 
for  embracing  such  property  under  the  trust,  the  record  operates 
no  such  positive  notice  against  the  public/"  And  in  general,  how- 
ever good  the  settlement  may  be  against  the  settlor  and  creditors, 
or  even  subsequent  purchasers,  legal  liens  actually  acquired  already 


fore  a  notary  and  two  witnesses.    El- 
lington V.  Ellington,  29   Tex.  2. 

In  Louisana  an  authentication  be- 
fore a  justice  of  the  peace  is  void, 
riores  V.  Lemee,  16  La.  271. 

47.  2  Bl.  Com.  342,  343. 

48.  Compare  Ingham  v.  "White,  4 
Allen  (Mass.),  412,  with  Teasdale  v. 
Braithwaite,  5  Ch.  D.  630,  in  which 
James,  L.  J.,  declares  it  a  hardship 
that  in  England  there  is  no  general 
registry  of  deeds,  and  that  one  who 
has  conveyed  to  one  owner  may  repre- 
sent himself  as  owner  and  induce 
another  the  next  day  to  accept  a  con- 
veyance of  the  same  property.  And 
Bee  Gibbes  v.  Cobb,  7  Rich.  Eq. 
(Mass.)  54;  Logan  v.  Phillips,  18 
Mo.  22;  Levinz  v.  Will,  1  Dall.  (Pa.) 
430;  O'Neill  v.  Cole,  4  Md.  107;  1 
Story,  Eq.  Juris.,  §  403 ;  2  Kent  Com. 
173,  71.;  Eeinhnrt  v.  Miller,  22  Ga. 
402;  Clark  v.  Way,  33  Ga.  149;  Hill 
V.  Garman,  2  Del.  Ch.  273.  In  Massa- 
chusetts an  antenuptial  contract  is 
absolutely  void  under  the  statute,  if 
not  recorded  as  therein  required,  in 
the  county  in  which  the  husband,  if  a 
resident,  resides.  Ingham  v.  White,  4 
Allen  (Mass.),  412.  Otherwise  as  to 
a  mere  arrangement  as  to  reciprocal 
rights  after  death  and  dissolution  of 


the   marriage.     Jenkins  v.   Holt,    109 
Mass.  261. 

49.  Vason  v.  Bell,  53  Ga.  416.  An 
unrecorded  antenuptial  agreement  is 
valid  between  the  parties  in  Cali- 
fornia.. In  re  Cutting  (Cal.),  161  P. 
1137. 

The  Georgia  statute  requiring  set- 
tlements made  by  the  husband  on  the 
wife  to  be  recorded  in  the  county  of 
his  residence  within  three  months 
after  execution  has  been  held  com- 
plied with  where  a  contract  reciting 
that  the  husband  was  a  resident  of  a 
particular  county  is  recorded  in  ano- 
ther county  within  the  statutory  per- 
iod, where  the  marriage  was  not  con- 
3umamted  till  a  month  after  the  exe- 
cution of  the  agreement  and  where 
from  the  date  of  the  marriage  he  re- 
sided continuously  in  such  other 
county.  Lampkin  v.  Hayden,  103  Ga. 
575,  30  S.  E.  294. 

In  that  State  a  marriage  contract 
between  a  resident  woman  and  a  non- 
resident man  whereby  the  latter  at- 
tempts to  release  supposed  rights  in 
her  real  estate  within  the  State  need 
not  be  recorded.  Bearden  v.  Benner, 
136  F.  258. 

50.  Vason  v.  Bell,  53  Ga.  416. 


495  ANTENUPTIAL    SETTLEMENTS.  §    495 

in  rem,  as  that  of  a  judgment  or  mortgage  prior  to  due  record, 
camiot  be  divested.'^^ 

Under  the  Massachusetts  statute  a  schedule  of  the  property 
affected  by  a  marriage  settlement  sufficient  to  identify  such  prop- 
erty must  be  annexed  and  recorded,  but  it  is  valid  between  the 
parties  without  such  annexation  or  record."  An  assignment  made 
in  consideration  of  marriage  is  not  a  marriage  settlement  within 
this  statute." 

§  495.  Necessity  of  Trustee. 

Under  modem  rules  of  separate  use,"  a  valid  marriage  settle- 
ment may  be  made  without  the  designation  of  a  trustee,  though  in 
such  contracts,  when  drawn  up  with  due  formality,  trustees  are 
commonly  interposed  outside  the  marriage  relation,  however,  who 
hold  the  legal  title;  and  such  is  unquestionably  the  more  prudent 
arrangement."  The  probate  courts  in  this  country  frequently 
have  jurisdiction  in  the  appointment  of  such  trustees  to  fill  vacan- 
cies, as  in  cases  of  any  testamentary  trust,^®  though  the  general 
supervision  remains  with  chancery.  When  trustees  are  interposed, 
their  concurrence  in  the  disposition,  by  either  or  both  spouses,  is 
not  essential,  unless  as  such  instruments  usually  provide,  their 
assent  is  made  requisite."  With  respect  to  the  form  of  marriage 
settlements  it  may  be  generally  observed  that  equity  pays  no 
regard  to  the  externals,  but  considers  only  the  substantial  intention 
of  the  parties ;  and  hence  articles  or  an  agreement  will  be  binding 
between  husband  and  wife  without  the  intervention  of  trustees; 
for  here  the  husband  himself  may  be  bound  to  act  as  trustee.^* 
A  strong  instance  of  the  liberality  of  the  equity  courts  in  this 
respect  was  afforded  in  an  early  decision  by  Lord  Keeper  Wright. 
The  intended  husband  gave  the  intended  wife  a  bond  conditioned 
to  leave  her  £1,000  if  she  should  sun'ive  him.     They  married, 

51.  lb.  See,  further,  Justis  v.  Eng-  56.  Bassett  v.  Crafts,  129  Mass. 
lish,  30  Gratt.  (Va.),  565.  513. 

52.  Cook  V.  Adams,  163  Mass.  186,  57.  See  Essex  v.  Atkins,  14  Vea. 
47  N.  E.  605;  Walker  v.  Walker,  175  547;  Justis  v.  English,  30  Gratt.  (Va.) 
Mass.  349.  565;  Braune  v.  McGee,  50  Ala.  359; 

53.  Huntress  v.  Hanley,  195  Mass.  Peachey,  Mar.  Settl.  261;  Haymond  v. 
236,  80  N.  E.  946.  Lee,  33  Gratt.   (Va.)   317;  Wallace  v. 

54.  Cochran  v.  McBeath,  1  Del.  Ch.  Wallace,  82  111.  530;  Coatney  v.  Hop- 
187;  Peachey,  Mar.  Settl.  260.  kins,  14  W.  Va.  338. 

55.  Richardson  v.  De  Giverville,  107  58.  Peachey,  Mar.  Settl.  65;  Macq. 
Mo.  422,  17  S.  W.  974,  28  Am.  St.  R.  Hus.  &  Wife,  242;  Lojran  v.  Goodall, 
426;  Haymond  v.  Lee,  33  Gratt  (Va.)  42  Ga.  95.  But  see  Dillaye  v.  Green- 
317.  ough,  45  N.  Y.  438. 


§  496 


HUSBAND    AND    WIFE. 


496 


and  of  course  the  bond  became  void  at  law.  But  it  was  held  that 
in  equity  this  should  subsist  as  an  antenuptial  agreement.^^  Even 
in  law  a  bond,  with  conditions  properly  expressed,  may  be  en- 
forced against  the  husband  to  the  extent  of  the  penalty  therein 
named;  yet  equity,  regarding  the  contract  as  one  for  specific  per- 
formance, will  not  confine  the  remedy  of  the  injured  party  to  the 
penal  sum  named  in  the  bond ;  but,  enforcing  the  real  obligations 
of  the  bond,  will  give,  if  need  be,  thirty  times  that  sum  to  her  who 
married  on  the  strength  of  it.  Such  is  the  advantage  of  equity 
over  th€  law.*" 

§  496.  Reformation. 

Mistakes  in  marriage  settlements,  either  through  error  or  fraud, 
will  in  general  be  corrected  in  equity ;  the  principle  being  that  the 
parties  are  to  be  placed  in  the  same  situation  in  which  they  would 
have  stood,  if  the  error  to  be  corrected,  or  the  fraud,  had  not  been 
committed.*^  Rectification  may  be  made  in  a  proper  case,  though 
one  of  the  spouses  has  already  died.®^  Marriage  articles,  to  make 
a  settlement  of  real  property,  should  be  drawn  up  only  in  extreme 
cases;  though  in  the  case  of  personalty,  more  latitude  may  be  al- 
lowed ;  and  when  drawn  up  they  should  leave  as  little  to  construc- 
tion as  possible.  Yet  marriage  articles  are  frequently  prepared  in 
great  haste,  and  many  questions  must  necessarily  arise  as  to  the 
intention  of  the  parties;  these  the  courts  of  equity  endeavor  to 
meet  by  adopting  the  intention  of  the  parties  as  their  true  guide, 
and  taking  it  for  granted  that  the  articles  are  merely  minutes 
which  the  settlement  may  explain  more  at  large,  but  which  are 


59.  Acton  V.  Pierce,  2  Vern.  480; 
Crostwaight  v.  Hutchinson,  2  Bibb 
(Ky.)>  407;  Liles  v.  Fleming,  1  Dev. 
Eq.  (N.  C.)  185;  Kenly  v.  Kenly,  2 
How.  (Miss.)  751. 

60.  See  Prebble  v.  Boghurst,  1 
Swan.  309,  before  Lord  Eldon,  cited  in 
Macq.  Hus.  &  Wife,  243  et  seq.;  Cam- 
nel  V.  Buckle,  2  P.  Wms.  242 ;  Eippon 
V.  Dawding,  Ambl.  565 ;  Peachey,  Mar. 
Settl.  65.  Bonds  have  been  frequent- 
ly enforced  in  this  country  as  consti- 
tuting a  marriage  settlement.  Aucker 
V.  Levy,  3  Strobh.  Eq.  (S.  C.)  197; 
Hunter  v.  Bryant,  2  Wheat.  (U.  S.) 
32;   Freeman  v.  Hill,  1  Dev.  &  Bat. 


Eq.   (N.  C.)   389;  Baldwin  v.  Carter, 
17  Conn.  201. 

61.  Rooke  V.  Lord  Kensington,  2 
Kay  &  Johns.  770;  Peachey,  Mar. 
Settl.  565,  576;  Alexander  v.  Crosbie, 
Lloyd  &  Goold,  temp.  Sudg.  149; 
Sanderson  v.  Robinson,  6  Jones  Eq. 
(N.  C.)  155;  Love  v.  Graham,  25  Ala. 
187;  Reade  v.  Armstrong,  7  Irish  Eq. 
(N.  S.)  381;  Walker  v.  Armstrong,  2 
Jur.  (N.  S.)  962;  Brown  v.  Bonner, 
8  Leigh  (Va.)  1;  Ball  v.  Storie,  1 
Sim.  &  Stu.  210,  219;  Cook  v.  Fearn, 
27  W.  R.  212;  Brown  v.  Brown,  31 
Gratt.  (Va.)  502;  Russell's  Appeal, 
75  Pa.  269. 

62.  Burge  v.  Burge,  45  Ga.  301. 


497  ANTENUPTIAL  SETTLEMENTS.  §    496 

not  to  be  literally  followed.®^  The  general  rule  as  to  reforming 
settlements  framed  upon  antenuptial  articles  is  thus  laid  down  by 
Lord  Chancellor  Talbot  :^*  "  Where  articles  are  entered  into  be- 
fore marriage,  and  settlement  made  after  marriage,  differing  from 
the  articles,  this  court  will  set  up  the  articles  against  the  settle- 
ment." That  is  to  sav,  the  court  will  order  the  settlement  to  be 
reformed.  Where  both  the  articles  and  the  settlement  are  prior 
to  the  marriage,  at  a  time  when  all  the  parties  are  at  liberty,  the 
settlement  differing  from  the  articles  will  be  taken  as  a  new  agree- 
ment between  them,  and  the  articles  will  be  controlled  accord- 
ingly.®^ For  the  discrepancy  will  be  presumed  to  have  arisen 
from  some  change  of  mutual  intention,  while  matters  remained 
open.  But  this  rule  is  not  invariable,  according  to  the  later  au- 
thorities ;  for  any  clear  and  satisfactory  evidence  may  be  intro- 
duced to  show  that  the  discrepancy  had  arisen  from  a  mistake.®' 
Where  the  settlement  expressly  declares  that  it  is  made  in  terms  of 
the  articles,  and  yet  differs  from  them,  the  settlement  will  be  re- 
formed, so  as  to  correspond  with  the  articles.  This  is  no  contra- 
diction of  the  general  rule;  for  where  the  settlement  is  expressly 
mentioned  to  be  made  in  pursuance  of  the  marriage  articles,  the 
intention  of  the  parties  is  by  writing  shown  to  be  the  same  as 
when  the  articles  were  drawn,  and  must  be  construed  accordingly. 
And  curiously  enough  in  an  English  case  under  this  head,  though 
the  settlement  followed  the  precise  words  of  the  marriage  articles, 
the  court  reformed  it,  in  order  to  carry  out  the  actual  intention  of 
the  parties.®^ 

Marriage  articles  under  which  parties  agree  to  make  a  settle- 
ment and  yet  fail  to  do  so,  may,  apart  from  the  partial  performance 
which  marriage  might  be  said  to  establish,  afford  one  the  right  to 
damages  as  against  the  other.®*  The  rule  that  mistakes  apparent 
on  the  face  of  the  deed  may  be  corrected  without  extrinsic  evi- 
dence applies  to  a  marriage  settlement.®** 

63.  Peachey,  Mar.  Settl.  89-97;  66.  See  Peachey,  Mar  Settl.  135; 
Macq.  Hus  &  Wife,  257;  Trevor  v.  Bold  v.  Hutchinson,  2  Jur.  (N.  S.) 
Trevor,  1  P.  Wms.  631;  Blandford  v.  97;  5  De  G.  M.  &  G.  567. 
Marlborough,  2  Atk.  545;  Rochfort  v.  67.  West  v.  Errissey,  2  P.  Wms.  350. 
Fitzmaurice,  Dru.  &  War.  18.  But  68.  Jeston  v.  Key,  L.  E.  6  Ch.  610. 
see  Breadalbane  v.  Chandos,  2  Myl.  &  68a.  Cook  v.  Adams,  169  Mass.  186, 
Cr.  711.  47  N.  E.  605  (construing  "desire"  as 

64.  Legg  V.  Goldwire,  Forrester,  20 ;  "devise");  Creighton  v.  Pringle,  4 
Macq.  Hus.  &  Wife,  259.  Bich.  (S.  C.)  77  (construing  "herein- 

65.  Legg  v.  Goldwire,  Forrester,  20 ;  after"  to  mean  "hereinbefore"). 
Peachey,  Mar.  Settl.  134. 

32 


497 


HUSBAND    AND    WIFE. 


498 


§  497.  Consideration. 

Marriage  is  a  sufficient  consideration  for  an  antenuptial  con- 
tract.''® Marriage  is  of  itself  pronounced  in  the  Supreme  Court 
of  this  land  to  be  not  only  a  valuable  consideration  to  support  a 
marriage  settlement,  "  but  a  consideration  of  the  highest  value.'"** 
It  is  the  consideration  of  marriage,  not  the  consideration  of  a  cor- 
responding fortune,  which  runs  through  the  whole  settlement  or 
agreement,  and  supports  every  part  of  it,  thus  making  marriage 
not  only  a  high,  but  the  highest  consideration  in  fact  known  to 
the  law.'^^  The  rule  is  the  same  where  the  settlement  is  antedated 
by  some  months  by  an  absolute  agreement  to  marry.^^  The  mar- 
riage consideration  supports  every  provision  with  regard  to  the 
husband,  the  wife,  and  the  issue.  As  for  marriage  itself,  the 
marriage  of  persons  formerly  in  loose  cohabitation  furnishes  good 
consideration  ;"^  and  even  perhaps  a  void  or  illegal  marriage,  pro- 
vided that  marriage  was  contracted  with  honest  conjugal  intent, 
and  particularly  where  the  question  affects  only  their  respective 
interests.'^*  The  consideration  is  held,  also,  to  extend  to  step- 
children by  a  former  marriage.''^     It  does  not,  however,  always 

though  Sir  Matthew  Hale  and  others  held 


extend  to  collaterals,'^ 


69.  Mallow  V.  Eastes,  179  Ind.  267, 
100  N.  E.  836;  Jn  re  Adams  (la.), 
140  N.  W.  872;  In  re  Thorman's  Es- 
tate, 162  la.  316,  144  N.  W.  5;  Ne- 
smith  V.  Piatt,  137  la.  292,  114  N. 
W.  1053;  Henry  v.  Butler,  87  Kan. 
122,  123  P.  742;  Settles  v.  Settles,  130 
Ky.  797, 114  S.  W.  303  ;  Graves  v.  Von 
Below,  160  Mich.  408,  Det.  Leg.  N. 
96,  125  N.  W.  379;  In  re  Appleby's 
Estate,  100  Minn.  408,  10  L.  E.  A.  (N. 
S.)  590,  111  N.  W.  305;  Hosmer  v. 
Tiffany,  115  App.  Div.  303,  100  N.  Y. 
S.  797;  Pence  v.  Vanfell,  35  Ind.  App. 
525,  74  N.  E.  554;  Fisher  v.  Koontz, 
110  la.  498,  80  N.  W.  551;  Hofer  v. 
Hofer,  33  Kan.  449,  6  P.  537;  Broad- 
rick  V.  Broadrick,  25  Pa.  Super.  225. 

70.  Per  Story,  J.,  Magniae  v. 
Thompson,  7  Pet.  (U.  S.)  348.  And 
sec  Armfield  v.  Armfield,  1  Freem.  Ch. 
311;  Foley  v.  Ronalds,  177  N.  Y.  S. 
55. 

71.  Ford  V.  Stuart,  15  Beav.  499; 
Nairn  v.  Prouse,  6  Ves.  752;  Pcachey, 
Mar.  Settl.  56.     As  to  power  of  ap- 


pointment   under    a    settlement,    see 
Webb  V.  Saddler,  L.  R.  8  Ch.  419. 

72.  771  re  Appleby's  Estate,  100 
Minn.  408,  111  N.  W.  305,  10  L.  R. 
A.  (N.  S.)  590. 

73.  Herring  v.  Wickham,  29  Gratt. 
(Va.)  628. 

74.  Even  in  England,  upon  lapse  of 
time,  a  settlement  deed  was  allowed  to 
tand  where  a  widower  had  married  his 
deceased  wife's  sister.  Ayers  v.  Jen- 
kins, L.  R.  16  Eq.  275;  Ogden  v.  Mc- 
Hugh,  167  Mass.  276,  45  N.  E.  731, 
57  Am.  St.  R.  456. 

75.  Michael  v.  Morey,  26  Md.  23?; 
Gale  V.  Gale,  6  Ch.  D.  144;  Vason  v. 
Bell,  53  Ga.  516.  But  see  Price  v. 
Jenkins,  4  Ch.  D.  483.  Cf.  Ardis  v. 
Printup,  39  Ga.  648,  with  Wollaston  v. 
Tribe,  L.  R.  9  Eq.  44,  as  to  children 
of  a  future  marriage. 

76.  Peachey,  Mar.  Settl.  58,  60,  and 
cases  cited;  Davenport  v.  Bishop,  1 
Phil.  701 ;  Barham  v.  Earl  of  Claren- 
don, 10  Hare,  133;  Ford  v.  Stuart,  15 
Beav.  505 ;  Cotterell  v.  Homer,  13  Sim. 


499  ANTENUPTIAL    SETTLEMENTS.  §    497 

formerly  that  it  would,  maintaining  that  the  influence  of  the  mar- 
riage consideration  extended  to  purchasers  generally/^  Collaterals 
are  never  included,  by  marriage  settlements,  executed,  or  executory, 
except  where  the  language  used  compels  that  construction  and 
negatives  the  conclusion  that  parties  hoped  for  issue.''*  Thus, 
in  Neves  v.  Scott,  which  came  up  on  appeal  before  the  Supreme 
Court  of  the  United  States,  it  is  declared  as  the  result  of  the 
authorities,  English  and  American,  that  if,  from  the  circumstances 
under  which  the  marriage  articles  were  entered  into  by  the  parties, 
or  as  collected  from  the  face  of  the  instrument  itself,  it  appears  to 
have  been  intended  that  the  collateral  relatives,  in  a  given  event, 
should  take  the  estate,  and  a  proper  limitation  to  that  effect  is 
contained  in  them,  a  court  of  equity  will  enforce  the  trust  for 
their  benefit.  They  will  not  be  regarded,  as  volunteers  outside 
of  the  deed,  but  as  coming  fairly  within  the  influence  of  the  con- 
eideration  on  which  it  is  founded ;  the  consideration  extending,  in 
fact,  through  all  the  limitations  for  the  benefit  of  the  remotest  per- 
sons provided  for  consistent  with  law.^^  Nor  are  covenants  in 
favor  of  strangers  supported  by  the  marriage  consideration  unless 
specially  provided  for.®°  Attempted  agreements  is  also  supported 
by  mutual  covenants  releasing  the  rights  of  each  in  the  property 
of  the  other,*^  or  covenants  that  a  surviving  spouse  shall  take  no 
share  in  the  estate  of  the  deceased.^^  A  mutual  release  of  rights 
under  an  executory  parol  settlement  will  support  a  written  agree- 
ment superseding  the  oral  settlement.*^  Equity  wdll  enforce  a 
settlement,  if  in  good  faith  and  free  from  imposition,  however 
inadequate  the  pecuniary  consideration.** 

506 ;  WoUaston  v.  Tribe,  L.  R,  9  Eq.  111.  232 ;  Mitchell  v.  Moore,  16  Gratt. 

44.  (Va.)   275. 

77.  Jenkins  v.  Kemis,  1  Ch.  Cas.  103,  80.  Sutton  v.  Chetwynd,  3  Mer.  249, 
1  Lev.  152.  per    Sir    Wm.    Grant;    Sugden    Law 

78.  Markwell   v.   Markwell,   4    Ky.  Prop.  153 ;  Peachey,  Mar.  Settl.  61. 
908 ;    Isaacs   v.   Isaacs,   71   Neb.   537,  81.  KroeU  v.  Kroell,  219  111.  105. 
99  N.  W.  268  (covenant  to  reside  in  a  82.   Moore   v.   Harrington,   26    Ind. 
particular  State  after  marriage);   In  App.    408,    59   N.   E.    1077;    Hocken- 
re  Krug's  Estate,  196  Pa.  484,  46  A.  berry  v.  Donovan,  170  Mich.  370,  136 
484.  N.  W.  389. 

79.  Neves  v.  Scott,  9  How.  (U.  S.)  83.  Cannon  v.  Birmingham  Trust  & 
196;  ib.  13  How.  268.    And  see  Eaton  Sav.  Co.  (Ala.),  69  So.  934. 

V.  Tillinghast,  4  R.  I.  276;  Buchanan  84.  Simpson  v.  Simpson's  Ex'rs,  23 

V.   Deshon,  1   Har.  &  G.    (Md.)    280;  S.  W.  361,  15  Ky.  Law,  353,  94  Ky. 

De  Barranti  v.  Gott,  6  Barb.  (N.  Y.)  586;  Moran  v.  Stewart,  173  Mo.  207, 

492;   Wallace  v.  McCullough,  1  Rich.  73  S.  W.  177. 
Eq.   (S.  C.)    426;   Parsons  v.  Ely,  45 


§  498 


HUSBAND    AND    WIFE. 


500 


§  498.  Validity  in  General. 

In  ttis  country  the  validity  of  marriage  settlements  is  generally 
recognized ;  and  it  is  well  understood  that  almost  any  bona  fide  and 
reasonable  agreement,  made  before  marriage,  to  secure  the  wife 
either  in  the  enjt)yment  of  her  own  property  or  a  portion  of  that 
of  her  husband,  whether  during  coverture  or  after  his  death,  will 
he  carried  into  execution  in  chancery.®^ 

"  These  marriage  settlements,"  observes  Chancellor  Kent,  "  are 
benignly  intended  to  secure  to  the  wife  a  certain  support  in  every 
event,  and  to  guard  her  against  being  overwhelmed  by  the  mis- 
fortunes or  unkindness  or  vices  of  her  husband.  They  usually 
proceed  from  the  prudence  and  foresight  of  friends,  or  the  warm 
and  anxious  affection  of  parents;  and  if  fairly  made,  they  ought 
to  be  supported  according  to  the  true  intent  and  meaning  of  the 
instrument  by  which  they  are  created."^^  Antenuptial  agreements 
are  so  liable  to  misapprehension  and  fraud,  that  they  will  not  be 
enforced  in  equity  unless  the  court  is  satisfied  that  they  were  made, 
and  that  the  marriage  consideration  really  entered  into  the  con- 
tract.®^ The  same  facts  which  would  enable  a  court  to  compel  a 
settlement  for  a  wife  will  uphold  one  already  made.®^  A  settle- 
ment is  not  invalid  because  one  party  is  already  married,  if  the 
other  was  not  aware  of  the  fact,®^  nor  because  it  cuts  off  home- 
stead rights  which  the  husband  would  have  otherwise  had  in  the 
wife's  property,®"  nor  because  of  the  concealment  by  the  husband 
of  his  fatal  malady.®^  It  has  been  held  that  the  limitation  of  a 
provision  for  a  wife's  support  to  widowhood  merely  is  not  a  con- 
dition subsequent  which  will   render  the  settlement  valid   as   a 


85.  Stilley  v.  Folger,  14  Ohio,  610; 
2  Kent  Com.  163;  2  U.  S.  Eq.  Dig, 
Hus.  &  Wife,  22-30;  English  v.  Foxall, 
2  Pet.  (U.  S.)  595 ;  Hunter  v.  Bryant, 
2  Wheat.  32;  Tarbell  v.  Tarbell,  10 
Allen  (Mass.),  278;  Skillman  v.  Skill- 
man,  2  Bcasl.  403;  Cartledge  v.  Cut- 
liff,  29  Ga.  758;  Albert  v.  Winn,  5 
Md.  66;  Snyder  v.  Webb,  3  Cal.  83; 
Smith  V.  Chappell,  31  Conn,  589. 

An  estate  may  be  limited  to  an  un- 
married woman's  separate  use,  even 
•where  no  particular  marriage  is  con- 
templated. Haymond  v.  Jones,  33 
Gratt.  317, 

86.  2  Kent  Com.  165. 


87.  Coles  V.  Trecothick,  9  Ves.  250; 
Franks  v.  Martin,  1  Eden,  309;  Kay 
V,  Crook,  3  Jur,  (N.  S,)  107;  Mont- 
gomery V,  Henderson,  3  Jones  Eq.  (N. 
C.)  113;  Peachey,  Mar,  Settl,  68; 
Kinnard  v.  Daniel,  13  B.  Mon.  (Ky.) 
496. 

88.  Smith  v,  Bradford,  76  Va,  758, 

89.  Broadrick  v.  Broadrick,  23  Pa. 
Super.  225. 

90.  Weis  V,  Bach,  146  la,  320,  125 
N,  W.  211;  In  re  Appleby's  Estate, 
100  Minn.  408,  111  N,  W,  305,  10  L. 
K,  A,   (N.  S.)   590. 

91.  In  re  Uker's  Estate,  154  la. 
428,  134  N.  W.  1061, 


501  ANTENUPTIAL    SETTLEMENTS.  §    499 

jointure.^^  A  marriage  settlement  is  void  in  so  far  as  it  attempts 
to  convey  a  naked  possibility  without  a  present  interest.*^  An 
agreement  that  the  wife  shall  live  with  her  husband  at  his  par- 
ent's home  has  been  held  invalid,  being  merged  in  the  marriage  con- 
tract/* A  Hebrew  betrothal,  where'by  the  husband  was  to  contrib- 
ute to  the  dower  an  amount  equal  to  that  brought  in  by  the  wife, 
has  been  held  unenforceable,  as  between  the  spouses,  where  it  did 
not  appear  to  whom  or  when  it  was  to  be  paid.^^  Property  cannot 
be  settled  by  the  intended  husband,  so  that,  in  event  of  his  future 
bankruptcy  or  insolvency,  the  wife  will  be  entitled  to  a  provision.®* 
But  the  wife's  fortune  may  be  settled  on  her  husband  till  he  fail, 
and  then  to  her  separate  use.®^  In  Massachusetts  it  is  held  that 
the  validity  of  antenuptial  agreements  depends  on  the  common 
law  and  not  on  statute.®*  In  Virginia  an  antenuptial  deed  exe- 
cuted before  the  code  of  1887  took  effect  is  valid,  unless  there 
as  fraud  by  the  wife.®' 

§  499.  Oral  Promise  to  Make  Settlement. 

Under  the  English  Statute  of  Frauds,  and  similar  enactments 
in  various  American  States,  promises  "  in  consideration  of  mar- 
riage "  are  required  to  be  in  writing ;  and  hence  an  oral  promise 
to  settle  property  upon  an  intended  spouse  is  void,^  but  it  may  be 
made  binding  if  confirmed  in  writing  after  marriage,^  especially 
where  it  has  been  reduced  to  writing  before  marriage,  and  signed 

92.  Moran  v.  Stewart,  173  Mo.  207,  S.  E.  850;  Metz  v.  Blackburn,  9  Wyo. 
73  S.  W.  177.  481,  65  P.  857. 

93.  Trammell  v.  Inman,  115  Ga.  1.  Fischer  v.  Dolwig  (N.  D.),  166 
874,  42  S.  E.  246.                                             N.  W.  793;   Eck  v.  Hatcher,  58  Mo. 

94.  Marshak  v.  Marshak  (Ark.),  170  235;  Claypool  v.  Jaqua,  135  Ind.  499, 
S.  W.  567;  Stansberry  v.  Stansberry  35  N.  E.  285;  Tawney  v,  Crowther,  3 
(Neb.),  167  N.  W.  563;  EUis  v.  Ellis,  Bro.  C.  C.  263;  Coles  v.  Trecothick,  9 
1  Tenn.  Ch.  App.  198.  Ves.  250;  supra,  §  350;  Lloyd  v.  Ful- 

95.  Goldstein  v.  Goldstein,  86  N.  J.  ton,  91  U.  S.  479;  Flenner  v,  Flenner, 
Ch.  351,  98  A.  835.  29  Ind.  569;  Henry  v.  Henry,  27  Ohio 

96.  Higginson  v.  Kelly,  1  Ball  &  B.  St.  121. 

255;  Peachey,  Mar.  Settl.  219;  In  re  2.    Buffington    v.    Buffington,    151 

Casey's  Trusts,  4  Ir.  Ch.  (N.  S.)  247.  Ind.  200,  51  N.  E.  328. 

97.  Lester  v.  Garland,  5  Sim.  222 ;  Where  an  antenuptial  agreement  is 
Sharp  V.  Cosserat,  20  Beav.  470 ;  Lock-  required  by  the  Statute  of  Frauds  to  be 
yer  v.  Savage,  2  Stra.  9^47 ;  Ex  parte  in  writing  it  cannot  be  made  valid  by 
Verner,  1  Ball  &  B.  260.  And  see  reducing  it  to  writing  after  the  mar- 
Higginson  v.  Kelly,  1  Ball  &  B.  252.  riage.     Such  a  doctrine  would  in  ef- 

98.  Hill  V.  Treasurer  and  Receiver  feet  work  a  judicial  repeal  of  the 
General,  227  Mass.  331,  116  N.  E.  statute.  Fischer  v.  Dolwig  (N.  D.), 
509.  166  N.  W.  793. 

99.  Moore  v.  Butler,  90  Va.  683,  19 


§  500  HUSBAND  AND  WIFE.  502 

after  marriage.^  A  mere  oral  agreement  between  the  intended 
husband  and  wife,  followed  by  marriage  and  a  continued  recogni- 
tion by  acts,  especially  in  connection  with  such  other  consideration, 
is  held  suiBcient  for  the  wife's  favor  in  some  American  cases,  as 
between  the  parties  and  those  claiming  under  them.*  It  has 
been  suggested  that  even  though  the  parol  antenuptial  agreement 
might  be  inoperative  under  the  Statute  of  Frauds,  it  might 
tend  to  prove  that  one  spouse,  by  consistent  subsequent  conduct, 
intended  to  relinquish  all  claim  upon  the  specific  property  to  which 
that  agreement  referred.^  After  an  oral  agreement  has  been 
fully  executed  after  marriage  equity  will  not  relieve  the  husband 
against  it.® 

§  500.  Postnuptial    Settlements    in    Execution    of    Antenuptial 
Agreement. 

Marriage  does  not  destroy  antenuptial  agreements  intended  to 
be  executed  after  marriage.'  The  reason  of  the  rule  is  that  to 
permit  marriage  to  destroy  contracts  which  can  only  take  effect 
on  marriage  would  be  inequitable.*  Therefore,  if  an  agreement 
be  made  in  writing  before  marriage,  for  the  settlement  of  an 
estate,  the  settlement,  although  made  after  marriage,  will  be 
deemed  valuable.^  This  is  a  well-settled  rule,  and  should  be  con- 
stantly borne  in  mind. 


3.  Lamb  v.  Lamb,  18  App.  Div.  250, 
46  N.  Y.  S.  219;  Haraldson  v.  Knut- 
son  (Minn.),  171  N.  W.  201. 

4.  Southerland  v.  Southerland,  5 
Bush  (Ky.),  591;  Child  v.  Pearl,  43 
Vt.  224;  Bradley  v.  Saddler,  54  Ga. 
681.  But  see  Davenport  v.  Karnes, 
70  111.  465. 

5.  So  ruled  in  the  wife's  favor  in 
Sanford  v.  Atwood,  44  Conn.  141.  But 
a  woman 's  promise  to  a  man,  that  if 
he  will  marry  her  and  will  make  cer- 
tain improvements  on  her  land,  she 
will  convey  the  land  to  him,  is  "an 
agreement  in  consideration  of  mar- 
riage," which  by  the  Ohio  Statute  of 
Frauds,  must  be  in  writing.  Neither 
marriage,  nor  making  the  improve- 
ments, 13  a  part-performance  such  as 
takes  the  case  out  of  the  statute. 
Henry  v.  Henry,  27  Ohio  St.  121.  In 
Georgia  an  oral  promise  to  settle  prop- 
erty upon  an  intended  wife  is  void. 


Lloyd  V.  Fulton,  91  U.  S.  479.  Of. 
Bradley  v.  Saddler,  54  Ga.  681.  The 
woman's  promise  before  marriage  to 
release  a  judgment  recovered  against 
the  man  is  required  to  be  in  writing 
under  the  Indiana  Statute  of  Frauds, 
as  an  agreement  * '  in  consideration  of 
marriage."  Flenner  v.  Flenner,  29 
Ind.  564.  And  the  marriage  celebra- 
tion is  not  part-performan.ce  in  the 
husband's  favor.    lb. 

An  erpectaney  as  devisee  of  one  yet 
living  may  be  settled  on  marriage. 
Estate  of  Wilson,  2  Pa.  325. 

6.  Powell's  Adm'r  v.  Meyers,  23 
Ky.  Law,  7?5,  64  S.  W.  428. 

7.  Houghton  v.  Houghton,  14  Ind. 
505,  77  Am.  D.  69. 

8.  Broadrick  v.  Broadrick,  25  Pa. 
Super.  225. 

9.  Reade  v.  Livingston,  3  Johns.  Ch. 
(N.  Y.)  481 ;  Finch  v.  Finch,  10  Ohio 
St.  501;  Izard  v.  Izard.  1  Bailey  Ch. 


503  AXTEKUPTIAL    SETTLEMENTS.  §    500 

There  are  dicta  to  the  effect  that  a  settlement  after  marriage, 
reciting  a  parol  agreement  before  marriage,  is  not  fraudulent 
against  creditors,  provided  the  agreement  had  actual  existence; 
but  this  point  has  never  been  distinctly  decided  in  England ;  and 
some  late  authorities  appear  to  doubt  its  correctness/"  The  pay- 
ment of  money  would,  however,  make  a  good  consideration  for  such 
a  settlement  as  against  subsequent  creditors/^  The  language  of  the 
Statute  of  Frauds  has  a  material  bearing  upon  all  such  cases. 
Yet  very  informal  agreements  are  often  sustained,  rather  on  lib- 
eral than  technical  construction,  the  court  taking  into  consideration 
the  fact  that  marriage  had  taken  place,  or  other  acts  been  per- 
formed, on  the  strength  of  the  promise.^^ 

The  dispositoin  of  equity  courts  in  the  United  States  is  favor- 
able to  settlements  after  marriage  in  pursuance  of  some  informal 
prior  agreement,  particularly  as  relates  to  personal  property  and 
as  between  the  spouses  themselves.  Other  considerations,  such  as 
forbearance  to  sue  or  the  fulfilment  in  return  of  terms  prejudicial, 
might  intervene/'  It  has  also  been  held  that  a  settlement  recit- 
ing that  the  husband  had  agreed  to  and  did  thereby  convey  certain 
lands  to  be  held  by  the  wife  absolutely  operated  as  a  present  con- 
veyance, without  a  formal  conveyance/*  A  provision  in  an  ante- 
nuptial agreement  that  the  husband  "  will  release "  his  interest 
in  his  wife's  property  has  been  held  not  executory  in  the  sense 
that  it  leaves  something  to  be  done,  where  the  purpose  was  to  ad- 

228;    Davidson   v.    Graves,   Rilev   Ch.  11.  Stillman  v.  Ashdown  2  Atk.  478; 

219;   Satterthwaite  v.  Emly,  3  Green  Brown  v.  Jones,  1  Atk.  189.    And  see 

Ch.  (N.J.)  489;  Rogers  v.  Brightman,  Butterfield  v.  Heath,  15  Beav.  414. 

10  Wis.  55;  Peachey,  Mar.  Settl.  63;  12.  See  Livingston  v.  Livingston,  2 

Sudg.   Vend.   &   Purch.,   13   ed.,   590;  Johns.  Ch.   (X.  Y.)  481;  Resor  v.  Re- 

Macq.  Hu3.  &  Wife,  257.  sor,  9  Ind.  347;  Brooks  v.  Dent,  1  Md. 

(Or.)  Under  L.  O.  L.,  §  808,  subd.  Ch.   523;   West  v.  Howard,  20  Conn. 

4,  a  promise  by  a  man  to  transfer  581. 

property  to  a  woman  after  their  mar-  13.   Riley  v.  Riley,   25  Conn.   154; 

riage,   and   the   execution    of   a   deed  Bradley  v.  Sadler,  54  Ga,  681.    See,  as 

•which  is  not  delivered  till  six  months  to  the  like  English  practice,  Peachey, 

after   marriage,  is  not   a  prenuptial  Mar.    Settl.    74,    87 ;    Macq.    Hus.    & 

settlement,    but    a    postnuptial    gift.  Wife,   234;    Hammersley   v.   De   Biel, 

Matlock  V.  Matlock,  72  Ore.  330,  143  12  CI.  &  Fin.  45;  Lassence  v.  Tierney, 

P.  1010.  1  Mac.  &  Gor.  571. 

10.   See   Peachey,   Mar.    Settl.    63 ;  The  numerous  dicta  in  all  such  cases 

Lassence  v.   Tierney,   1   Mac.   &  Gor.  serve  rather  to  obscure  than  illustrate 

571 ;   Warden  v.  Jones,  5  W.  R.  447.  the   principle. 

And  see  Babcock  v.   Smith,   22   Pick.  14.  Smith's  Ex'r  v.  Johns,  154  Ky. 

(Mass.)  61;  Simpson  v.  Graves,  Riley  274,  157  S.  W.  21. 
Ch.  232. 


§  501 


HUSBAND    AND    WIFE. 


504 


just  all  property  rights/^  An  agreement  on  behalf  of  an  infant 
intended  wife  that  her  hushand,  on  her  attainment  of  full  age, 
would  join  in  a  deed  conveying  all  her  property  to  her  mother, 
in  trust  for  her  separate  use,  and  followed  by  a  deed  in  execution 
of  the  agreement,  has  been  held  to  create  a  separate  estate  for  her 
in  such  property,  free  of  all  marital  claims  of  the  husband/* 


§  501.  Contracts  Releasing  Rights  in  Estate  of  Other  Spouse. 

As  to  the  rights  of  surviving  husband  or  wife,  too,  in  the  de- 
ceased spouse's  property,  the  obvious  inclination  must  be  not  to 
disturb  the  usual  laws  of  inheritance  and  distribution,  but  rather 
to  presume  that  the  marriage  settlement  contemplates  rights  of 
property  as  limited  to  the  duration  of  the  marriage  relation.^^  But 
settlements  controlling  the  division  and  descent  of  property  are 
valid  if  freely  and  intelligently  made,  and  if  just  and  equitable  in 
their  provisions.^*  To  be  valid  such  a  contract  must  be  free  in 
good  faith  and  from  fraud  and  be  reasonable  in  all  its  provisions.** 
Clauses  providing  for  the  contingency  of  death  and  survivorship 
receive  in  these  times  not  unfrequent  consideration  from  Ameri- 
can courts  of  equity ;  and  it  is  properly  held  that  clauses  debarring 
or  restraining  the  wife,^°  or  the  husband,^^  or  both,^^  as  to  the  usual 
rights  of  inheritance,  such  as  dower,  curtesy,  and  the  distributive 
share,  ought  to  be  clearly  expressed  and  carefully  established  in 
proof  in  order  to  prevail ;  notwithstanding  which,  it  is  clear  that 
deliberate  concurrent  intention  settles  such  issues,  and  that  in 
general,  husband  and  wife  may  thus  mutually  agree  that  the  one, 
the  other,  or  the  two  reciprocally,  shall  claim  no  interest  in  the 


15.  Buffington  v.  Buffington,  151 
Ind.  200,  51  N.  E.  328. 

16.  Wood  V.  Eeamer,  118  Ky,  841, 
26  Ky.  Law,  819,  82  S.  W.  572.  To 
the  same  effect  see  Pratt  v.  Wright, 
5  Mo.  192  (shares).  See  also  Ander- 
son V.  Burney,  147  Ga.  138,  93  S.  E. 
93. 

17.  Pierce  v.  Pierce,  71  N,  Y.  154; 
Hays  V.  Bright,  11  Heisk.  (Tenn.) 
325. 

18.  Baughman  v.  Baughman,  283 
111.  55,  119  N.  E.  49;  Becker  v. 
Becker,  241  111.  423,  89  N.  E.  737; 
Matney  v.  Linn,  59  Kan.  613,  54  P. 
668;  King  v.  Mollohan,  61  Kan.  683, 


60  P.  731  (affd.,  61  Kan.  692,  61  P. 
685).  Bramer  v.  Bramer  (W.  Va.),  99 
S.  E.  329;  Bright  v.  Chapman,  105 
Me.  62,  72  A.  750.  For  the  purposes 
of  inheritance  tax  statutes  antenuptial 
provisions  in  lieu  of  dower  are  treated 
as  dower,  and  are  subjected  to  the  tax. 
People  V.  Field,  248  lU.  147,  93  N.  E. 
721,  33  L.  E.  A.  (N.  S.)  230. 

19.  In  re  Mansfield's  Estate  (la.), 
170  N.  W.  415;  Tilton  v.  Tilton,  130 
Ky.  281,  113  S.  W.  134. 

20.  Pierce  v.  Pierce,  71  N.  Y.  154. 

21.  Daubenspeck  v.  Biggs,  71  Ind. 
255. 

22  Peck  V.  Peck,  12  R.  I.  485. 


505 


ANTENUPTIAL    SETTLEMENTS. 


§    502 


property  of  the  one  who  shall  die  first  f^  and  may  even  exclude  all 
right  to  administer.^* 

Antenuptial  provisions  in  lieu  of  the  usual  rights  by  survivor- 
ship deserve  more  favor,  such  as  an  equitable  jointure  in  bar  of 
dower  ;"^  or  where  otherwise  rights  of  property  are  conferred 
equivalent  to  the  rights  which  were  taken  away.^®  In  general,  to 
preclude  the  usual  marital  rights  of  a  spouse  without  some  equiva- 
lent, plain  intention  should  appear.^^  Generally  the  husband  has 
the  burden  of  showing  that  no  unfair  advantage  was  taken  of 
the  wife  to  secure  such  a  contract,'^  as  well  as  the  fact  of  the 
contract."®  Such  a  settlement  will  not  usually  deprive  the  wife  of 
a  rigbt  to  her  husband's  homestead.^ 


30 


§  502.  Marriage  Articles. 

In  this  connection  the  use  of  the  term  "  marriage  articles  "  is 
properly  to  be  noticed.  "  When  promises  and  agreements  in 
consideration  of  marriage,"  says  Mr.  Macqueen,  "  are  meant  to 
become  the  groundwork  of  settlements,  they  are  called  marriage 
articles.  They  are  often  drawn  up  hastily,  and  signed  on  the 
eve  of  the  nuptial  ceremony  from  want  of  time  to  prepare  a  final 


23.  Tarbell  v.  Tarbell,  10  Allen 
(Mas3.),  278;  Falk  v.  Turner,  101 
Mass.  494 ;  Culberson  v.  Culberson,  37 
Ga.  296;  Naill  v.  Maurer,  25  Md.  532; 
Garrard  v.  Garrard,  7  Bush  (Ky.), 
436;  Pierce  v.  Pierce,  71  N.  Y.  154; 
Daubenspeck  t.  Biggs,  71  Ind.  255; 
Jacobs  V.  Jacobs,  42  la.  160.  The 
amount  of  property  brought  by  the 
respective  parties  into  the  marriage 
may  have  a  bearing  on  the  issue  whe- 
ther the  arrangement  is  grossly  in- 
equitable. Peck  V.  Peck,  12  R.  I.  485; 
Pierce  v.  Pierce,  supra.  Such  a  provi- 
sion usually  contemplates  passing  over 
the  surviving  spouse  in  favor  of  sur- 
viving offspring;  and  this  may  some- 
times suggest  a  restraint  against  con- 
struing  such  clauses  in  favor  of  surviv- 
ing parents  or  collateral  relatives  of 
the  deceased  spouse. 

24.  Charles  v.  Charles,  8  Gratt. 
(Va.)  486;  Hamrico  v.  Laird,  10 
Yerg.   (Tenn.)   222. 

25.  Mintier  v.  Mintier,  28  Ohio  St. 
307;   Hathaway  v.  Hathaway,  46   Vt. 


234;  Freeland  v.  Freeland,  128  Mass. 
509;  Boardman's  Appeal,  40  Conn. 
169. 

26.  Pond  V.  Skeen,  2  Lea  (Tenn.), 
126.  See  also  Camp  v.  Smith,  61  Ga. 
449.  A  statutory  specific  allowance  in 
case  of  a  husband's  decease,  for  the 
benefit  of  young  children  in  a  house- 
hold as  much  as  the  widow,  cannot  on 
their  part  at  all  events,  be  affected 
by  an  antenuptial  contract.  Phelps 
v.  Phelps,  72  111.  545.  Cf.  Tierman  v. 
Binns,  92  Pa.  248. 

27.  Dunlap  v.  Hill,  145  N.  C.  312, 
59  S.  E.  112;  Pond  v.  Skeen,  2  Lea 
(Tenn.),  126;  Mitchell  v.  Gates,  23 
Ala.  438. 

28.  Tilton  v.  Tilton,  130  Ky.  281, 
113  S.  W.  134;  Stephens  v.  Stephens 
(Ky.),  205  S.  W.  573;  Egger  v.  Eg- 
ger,  225  Mo.  116,  123  S.  W.  928. 

29.  Dean  v.  Dean  (HI.),  121  N.  E. 
234. 

30.  Plistil  V.  Kaspar  (la.),  150  N. 
W.  584. 


§  502  HUSBAND  AND  WIFE.  506 

deed;  which,  however,  when  ultimately  executed,  if  it  be  in  strict 
conformity  with  the  articles,  will  supersede  them."^^  The  Ameri- 
can rule  is  favorable  to  marriage  articles,  although  unskilfully 
drawn,  so  long  as  they  are  bona  fide  articles,  and  the  party  marry- 
ing upon  their  faith  had  good  reason  to  rely  upon  them  as  such.^^ 
Any  settlement  made  after  marriage,  in  pursuance  of  marriage 
articles,  or  what  may  be  construed  as  such,  receives  the  full  sup- 
port of  the  marriage  consideration,  and  must  prevail  accordingly 
against  creditors,  purchasers  and  each  of  the  married  parties. 
Letters  or  a  correspondence  before  marriage  may  establish  an  ante- 
nuptial settlement  where  they  sufficiently  furnish  the  terms  of  the 
agreement.  And  so,  too,  may  they  constitute  marriage  articles 
and  support  a  settlement  made  in  pursuance  of  their  terms."  But 
the  authenticity  of  such  correspondence  should  be  well  established, 
so  easy  is  such  proof  manufactured  to  suit  emergencies ;  and  cer- 
tainly where  the  contest  is  between  the  married  pair  and  a  hus- 
band's creditors,  the  true  date  of  the  letters  should  be  proved,  or 
else  that  they  were  duly  received  before  the  marriage.'*  Nor  will 
performance  be  decreed,  unless  it  can  be  gathered  from  a  fair 
interpretation  of  the  letters  that  they  imported  a  concluded  agree- 
ment, and  induced  the  marriage;  nor  if  it  be  doubtful  whether 
what  passed  was  not  mere  negotiation,  or  a  gratuitous  offer  by 
the  one,  which  the  other  never  accepted  nor  meant  to  rely  upon.'* 
Cases  have  arisen,  however,  under  the  Statute  of  Frauds,  where 
the  marriage  agreement  had  been  reduced  to  writing,  but  not 
signed,  and  yet  letters  passed  afterwards  between  the  parties,  re- 
ferring to  the  agreement,  which  sufficed  to  establish  it.  In  a  case 
of  this  character,  decided  in  1791,  Lord  Thurlow  expressed  the 
opinion  that  if  a  letter  refers  so  clearly  to  an  agreement  as  to 

31.  Macq.  Hus.  &  "Wife,  246.  Letters  from  an   intended  wife  to 

32.  Neves  v.  Scott,  9  How.  (U.  S.)  her  intended  husband  stating  that  she 
196;  Hooks  v.  Lee,  8  Ired.  Eq.  (N.  intended  to  make  use  of  a  certain  part 
C.)  157;  Eivers  v.  Thayer,  7  Kich.  of  her  property  for  their  joint  use  has 
Eq.  (S.  C.)  136;  Kninard  v.  Daniel,  been  held  not  a  settlement  giving  the 
13  B.  Mon.  (Ky.)  496;  Montgomery  husband  rights  in  her  property  when 
V.  Henderson,  3  Jones  Eq.  (N.  C.)  they  separated  after  marriage.  Walker 
113;  Smith  v.  Moore,  3  Green  Ch.  (N.  v.  Walker,  175  Mass.  349,  56  N.  E. 
J.)   485;  Potts  v.  Gogdell,  1  Desaus.  601. 

(S.  C.)   456.  34.  Kinnard  v.  Daniel,  13  B.  Mon. 

33.  Logan  v.  Wienholt,  1  CI.  &  Fin.  (Ky.)  496;  Montgomery  v.  Hender- 
611;  Hammersley  v.  De  Biel,  12  CI.  &       son,  3  Jones  Eq.  (N.  C.)  113. 

Fin.    45;    Moorehouse    v.    Colvin,    15  35.  Fowle  v.  Freeman,  9  Ves.  315; 

Beav.  349;  Kinnard  v.  Daniel,  13  B.       Card  v.  Jaffray,  2  Sch.  &  Lef.  384; 
Mon.  (Ky.)  496.  Chambers  v.  Sallie,  29  Ark.  407. 


507  ANTENUPTIAL    SETTLEMENTS.  §    503 

show  what  was  meant  by  the  parties,  that  may  take  the  case  out 
of  the  statute.^*'  Lord  Eldon  states  that  though  the  agreement  be 
not  signed,  yet  if  the  letter  contain  all  the  terms  and  describes  the 
consideration,  and  all  the  circumstances,  so  that  by  the  contents  of 
the  letter  it  can  be  connected  and  identified  with  the  agreement, 
there  is  a  writing  which  amounts  to  a  note  or  memorandum,  and 
30  satisfies  the  statue.^^  In  general,  a  letter  which  contains  the 
terms  of  an  agreement,  or  refers  to  another  paper  which  specifies 
the  terms,  is  sufficient  to  take  the  contract  out  of  the  Statute  of 
Frauds.'* 

§  503.  Settlement  by  Third  Person. 

Promises  made  in  consideraion  of  the  marriage  by  a  third 
party,  such  as  the  wife's  father,  may  afterwards  be  enforced 
against  him,  as  (in  such  an  instance)  by  the  husband.  But  it 
must  appear  that  the  latter  knew  of  the  promise,  and  that  it 
entered  as  an  ingredient  into  the  marriage;  and  the  husband 
cannot,  upon  finding,  after  marriage,  that  his  wife,  while  single, 
had  received  a  letter  from  her  father  promising  a  certain  allow- 
ance, hold  the  latter  to  specific  performance.^^  The  promise  of  a 
third  party  may  be  for  the  wife's  benefit ;  or  it  may  be  for  the 
mutual  benefit  of  the  married  parties,  and  enforceable  accordingly. 
Thus,  in  a  recent  English  case  the  estate  of  a  father  was  held 
bound  by  his  written  statements  of  intention  to  settle  the  whole  of 
his  property  upon  his  daughter,  on  the  strength  of  which  she 
married ;  and  this,  notwithstanding  the  father,  being  at  the  time 
a  widower,  remarried  afterwards  and  left  a  widow.*" 

It  is  held  that  a  marriage  settlement  may  bind  a  wife  on  the 
ground  that  she  has  assented  to  the  father's  arrangement,  even 
though  the  husband's  engagement  was  to  settle  what  was  not  his, 
but  hers,  and  hence  was  not  beneficial  to  her.*^  A  contract  by  the 
mother  of  an  intended  wife  to  convey  land  to  her  husband  as  soon 
as  the  intended  husband  erects  a  house  on  it  has  been  held  valid.** 
A  settlement  made  by  a  wife's  father  covenanting  to  pay  a  sum  of 
money  in  case  she  survived  her  coverture  is  binding  even  though 

36.  Tawney  v.  Crowther,  3  Bro.  C.  39.  Ayliffe  v.  Tracy,  2  P.  Wms.  66 ; 
C.  263.     See  citation  of  this  opinion       Madox  v.  Nowlan,  Beatty,  632. 

in  Jorden  v.  Money,  5  H.  L.  253.  40.  Coverdale  v.  Eastwood,  L.  E.  15 

37.  Coles  V.  Trecothick,  9  Ves.  250.       Eq.  121  (a  harsh  case,  truly). 

38.  Hammersley  v.  De  Biel,  12  Ch.  41.  See  Lee  v.  Lee,  4  Ch.  D.  175. 

&   Pin.   45;   Moorhouse  v.   Colvin,   15  42.  Bell  v.  Sappington,  111  Ga.  391, 

Beav.  349 ;  Peachey,  Mar.  Settl.  67.  36  S.  E.  780. 


§    504  HUSBAND    AND    WIFE.  508 

the  marriage  was  dissolved  during  the  lifetime  of  the  settlor.*' 
The  same  rule  did  not  apply  where  the  covenant  was  to  pay  if  the 
marriage  was  "  solemnized,"  and  where  it  was  afterwards  de- 
clared null  on  the  ground  of  the  impotence  of  the  husband,  that 
rendering  the  marriage  void  ah  initio.** 

§  504.  Covenant  to  Settle  After-acquired  Property. 

Marriage  settlements  frequently  contain  a  covenant  on  the 
husband's  part  to  settle  all  the  after-acquired  property  of  the  wife. 
Settlements  of  after-acquired  or  future  property  of  either  or  both 
spouses  are  valid;  and  in  most  of  the  cases  decided  under  this 
head,  the  courts  have  evidently  sought  to  adapt  the  covenant  to 
the  presumed  intention  of  the  parties ;  the  question  still  being  one 
of  intention  to  be  gathered  from  the  contents  of  the  instrument 
by  which  the  parties  have  bound  themselves.*^  And  the  rule  of 
construction  is  the  same,  whether  damages  for  breach  of  covenant 
be  sought  at  law,  or  specific  performance  in  equity.**  Such  cove- 
nants may  be  on  the  wife's  part;  or  they  may  be  conditional.*'^ 

The  presumption  is,  however,  that  only  property  acquired  dur- 
ing the  marriage  state  is  to  be  thus  embraced  under  the  terms  of 
the  settlement;  and  hence  property  acquired  by  the  survivor  of 
the  marriage,  after  its  dissolution,  is  not  subjected  to  the  trust  in 
absence  of  explicit  proof.*^  Settlement  of  property  to  which  the 
wife  shall  become  entitled  includes  reversionary  interests  when 

43.  In  re  Crawford,  (1905)  1  Ch.  394 ;  Blythe  v.  Granville,  13  Sim.  190 ; 
11,  91  Law  T.  683,  53  Wkly.  Kep.  107,  Tawney  v.  Ward,  1  Beav.  563;  Young 
74  Law  J.  Ch.  22;  De  Cicco  v.  Sch-  v.  Smith,  L.  E.  1  Eq.  180;  Peachey, 
weizer,  221  N.  Y.  431,  117  N.  E.  807,  Mar.  Settl.  523;  Macq.  Hus.  &  Wife, 
L.  E.  A.  1918E  1004.  268.    As  to  the  application  of  this  cove- 

44.  In  re  Garnett,  74  Law  J.  Ch.  nant  to  separate  property,  see  Main- 
570,  93  Law  T.  117.  waring 's  Settlements,  L.  E.  1  Eq.  180; 

45.  Eamsden  v.  Smith,  2  Drew.  302 ;  Milford  v.  Peile,  17  Beav.  602 ;  Bering 
Steinberger  v.  Potter,  3  C.  E.  Green  v.  Kynaston,  L.  E.  6  Eq.  212;  Camp- 
(N.  J.),  452;  Withers  v.  Weaver,  10  bell  v.  Bainbridge,  L.  E.  6  Eq.  269; 
Barr  (Pa.),  391;  Vaaon  v.  Bell,  53  Ga.  Be  Viant's  Trusts,  L.  E.  18  Eq.  436; 
416.  Dawes    v.    Tredwell,    44    L.    T.    740. 

A  covenant  by  a  husband  in  a  set-  That  a  contingent  remainder  becom- 

tlement  made  in  consideration  of  mar-  ing   vested   during   the    coverture,    or 

riage  to  settle  all  his  after-acquired  reversionary  interest,  may  be  included, 

property  except  business  assets  is  not  see  Agar  v.   George,  2   Ch.   D.   706; 

too    vague    and   uncertain    to   be   en-  He  Mitchell's  Trusts,  L.  E.  9  Ch.  D. 

forced.    In  re  Eeis,  73  Law  J.  K.  B.  767;  Be  Jones's  Will,  2  Ch.  D.  362. 

929   (1904),  2  K.  B.  769,  91  Law  T.  47.  Peachey,  Mar.  Settl.  548. 

592,  53  Wtly.  Rep.  122,  11  Mansion,  48.  Be  Campbell's  Policies,  6  Ch.  D. 

229,  20  Times  Law  E.  547.  686;  Be  Edwards,  L.  R.  9  Ch.  97. 

46.  Smith  v.  Osborne,  6  Ho.  Lords, 


509 


ANTENUPTIAL    SETTLEMENTS. 


§    505 


they  fall  in,  the  provision  intending  entitlements  in  interest  and 
not  in  possession.*^  An  agreement  to  settle  the  wife's  after- 
acquired  property  does  not  bind  property  in  which  the  savings  of 
her  separate  income  are  invested.^"  Where  a  settlement  provided 
that  all  after-acquired  property  of  the  wife  should  be  subject  to  a 
trust  therein  created  for  her  separate  use,  it  was  held  that  the 
settlement  did  not  include  a  legacy  received  by  her  after  her  hus- 
band's death. ^^  An  agreement  as  to  the  division  of  a  certain  farm 
and  Its  "  accumulations  "  had  been  held  to  include  only  improve- 
ments on  the  land  itself,  and  not  lands  subsequently  conveyed  to 
a  spouse,  whether  or  not  it  was  paid  for  by  the  products  of  the 
land  settled.^^ 


§  505.  Provisions  for  Children  or  Heirs. 

Many  deeds  of  settlement  provide  what  are  called  "  portions." 
The  word  "•  portion  "  may  be  used  to  denote  what  the  wife  brings 
her  husband  in  marriage,  and  in  this  sense  it  corresponds  with  the 
word  dos  at  the  civil  law,  or  what  we  sometimes  call  her  dowry. 
But  in  its  more  special  acceptation,  the  word  "  portion  "  signifies 
that  part  of  a  person's  estate  which  is  given  or  left  to  a  child. 
Marriage  settlements  usually  contain  some  provision  to  secure 
portions  for  the  children  of  the  marriage.^^  Double  portions  may 
sometimes  be  created  for  children;  as  if  a  father  should  make  a 
provision  for  a  child  by  marriage  settlement,  and  afterwards  pro- 
vide for  the  same  child  by  will ;  but  the  presumption  is  always 
against  such  an  intent,  and  in  favor  of  regarding  the  latter  as  a 
substitute  for  the  former."  So  favorably  are  issue  regarded  in 
such  instruments,  that,  it  is  held,  an  intention  to  provide  for  the 
offspring  of  the  marriage  should  be  presumed,  unless  the  language 


49.  In  re  Bland's  Settlement,  1  Ch. 
4,  91  Law  T.  6S1,  74  Law  J.  Ch.  28. 

50.  In  re  Clutterbuck's  Settlement 
(1905),  1  Ch.  200,  53  Wkly.  Kep.  10, 
73  Law  J.  Ch.  69«. 

51.  Borland  v.  Welch,  162  N.  Y. 
104,  56  N.  E.  556. 

52.  Haenky  v.  "Weishaar,  59  Kan. 
206,  52  P.  437. 

53.  Wood  V.  Briant,  1  Atk.  522.  For 
a  full  discussion  of  this  topic,  see 
Peachey,  Mar.  Settl.  409  et  seq.,  and 
cases  cited. 

54.  Ex    parte    Pye,    18    Ves.    147; 


Peachey,  Mar.  Settl.  492  et  seq., 
and  cases  cited;  Earl  of  Durham  v. 
Wharton,  3  CI.  &  Fin.  155;  Eussell  v. 
St.  Aubyn,  L.  R.  2  Ch.  D.  398.  But 
the  Scotch  rule  of  construction  is 
otherwise.  Kippen  v.  Darley,  3  Macq. 
203.  Provision  for  the  son  of  a  former 
marriage  held  purely  voluntary  as 
against  a  purchaser  for  valuable  con- 
sideration. Price  V.  Jenkins,  4  Ch.  D. 
4S3,  and  cases  cited.  But  children  of 
a  former  marriage  are  favored  in 
Gale  V.  Gale,  6  Ch.  D.  144.  And  see 
Va.^on  V.  Bell,  53  Ga.  416. 


§  506 


HUSBAND    AND    WIFE. 


510 


of  tlie  settlement  plaintj  indicates  otherwise/'^  Clear  evidence  is 
necessary  to  overcome  the  presumption.^"  "Where  a  settlement  re- 
quired the  husband  to  support  and  educate  the  children  of  the 
wife  by  a  former  marriage,  and  to  treat  them  as  his  own,  it  was 
held  that  the  obligation  ceased  at  his  death  and  could  not  be  en- 
forced against  the  estate.^^ 

§  506.  Secret  Settlement  on  Third  Person  in  Fraud  of  Husband. 

A  secret  settlement  made  by  a  woman  upon  third  persons,  while 
engaged,  and  contemplating  marriage,  is  liable  to  be  set  aside  in 
equity  as  a  fraud  upon  the  marital  rights  of  her  intended  husband, 
at  the  husband's  instance,  when  he  learns  of  it.  Prima  facie,  her 
tiansactions  as  a  feme  sole  with  reference  to  her  own  property  are 
valid  both  at  law  and  in  equity;  it  is  only  because  of  the  fraud  that 
her  husband  can  afterwards  obtain  relief  against  them ;  yet  the 
English  courts  have  gone  far  in  discountenancing  all  conveyances 
made  by  the  intended  wife  in  derogation  of  the  property  rights 
of  her  intended  husband,  where  made  without  notice  to  him." 
The  secrecy  of  the  proceeding  is  a  material  element,  from  which 
fraud  will  be  inferred.^®  The  husband  must  have  been  kept  in 
ignorance  of  the  transaction  up  to  the  moment  of  marriage.  For, 
as  Lord  Chancellor  Brougham  once  observed,  if  a  man,  knowing 
what  has  been  done,  still  thinks  fit  to  marry  the  lady,  he  cannot 
be  permitted  to  allege  afterwards  that  he  has  been  deceived.®" 
Actual  concurrence  on  the  part  of  the  intended  husband  in  his 
wife's  settlement  will  be  even  more  conclusive  against  him;  and, 
even  though  he  were  a  minor,  will  preclude  all  subsequent  alle- 
gations of  fraud  on  the  marital  right."^  It  is  the  usual  practice 
with  English  conveyancers  to  make  the  intended  husband  a  party 


55.  Wallace  v.  Wallace,  82  111.  430. 

56.  McCoy  v.  Fahrney,  182  111.  60, 
55  N.  E.  61;  Goldstein  v.  Goldstein, 
87  N.  J.  Eq.  601,  101  A.  249  (Jewish 
betrothal  agreement). 

57.  Hinklebein  v.  Totten's  Adm'r, 
22  Ky.  Law,  1357,  60  S.  W.  641; 
Dickinson  v.  Lane,  193  N.  Y.  18,  85 
N.  E.  818. 

58.  Peachey,  Mar.  Settl.  142,  and 
cases  cited;  Doe  d.  Richard  v.  Lewis, 
11  C.  B.  1035;  St.  George  v.  Wake, 
1  Myl.  &  K.  610;  Countess  of  Strath- 
more  V.  Bowes,  1  Ves.  Jr.  28;  Macq. 


TIus.  &  Wife,  36;  England  v.  Downes, 
2  Beav.  522;  Howard  v.  Hooker,  2 
Ch.  Eep.  81;  1  Eq.  Ca3.  Ab.  59,  pi. 
1 ;  Lance  v.  Norman,  2  Cas.  in  Ch. 
Eep.  79;  1  Eq.  Cas.  Ab.  59,  pi.  2; 
Carleton  v.  Earl  of  Dorset,  2  Vern. 
17;    Goddard   v.    Snow,   1    Russ.   485. 

59.  England  v.  Downes,  2  Beav.  522  : 
Macq.  Hus.  &  Wife,  36. 

60.  St.  George  v.  Wake,  1  Myl.  &  K. 
610;  Peachey,  Mar.  Settl.  145,  and 
cases  cited. 

61.  Slowcombe  v.  Glubb,  2  Bro.  C. 
C.  545. 


511 


ANTENUPTIAL    SETTLEMENTS. 


§    506 


to  all  instruments  executed  by  the  intended  wife  in  contemplation 
of  or  during  a  treaty  of  marriage."^ 

The  same  general  doctrine  has  been  repeatedly  declared  in  the 
courts  of  this  country;  and  secret  and  voluntary  conveyances, 
made  by  a  woman  contemplating  marriage,  may  be  set  aside  on 
the  husband's  subsequent  application  as  a  fraud  upon  his  marital 
rights,'*  under  the  same  qualification  that  the  intended  spouse  was 
thereby  defrauded.®*  Nor  need  she  have  formally  settled  her 
whole  property  in  order  to  come  within  the  prohibition;  any 
voluntary  transfer,  under  fraudulent  circumstances,  is  void,  so  far 
as  that  particular  property  is  concerned.'^  But  if  the  husband  re- 
ceived notice  of  the  transfer  before  marriage,  and  chose  to  marry 
her  notwithstanding,  he  is  without  a  remedy.®'  Though  not  where 
he  merely  heard  a  vague  rumor  after  he  had  married.'^  On  this 
principle  the  wife's  antenuptial  deed,  purporting  to  convey  her 
property  in  trust  for  her  separate  use,  has  been  treated  as  fraudu- 
lent.«« 

Lord  Thurlow  says  the  question  in  all  such  cases  is  whether 
the  evidence  is  sufficient  to  raise  fraud.'®  And  from  the  decisions 
it  would  appear  that  some  alienations  of  the  wife's  property,  with- 
out her  intended  husband's  knowledge,  will  be  allowed  to  stand.''*' 
The  facts  are  always  open  to  inquiry;  and  it  seems  settled  that 
the  court  is  warranted  in  considering  such  circumstances  as  the 
meritorious  object  of  the  conveyance  and  the  situation  of  the  hus- 
band in  point  of  pecuniary  means.'^ 


62.  Peachey,  Mar.  Settl.  155. 

63.  2  Kent  Com.  174,  175,  and  notes, 
12th  ed. ;  Spencer  v.  Spencer,  3  Jones 
Eq.  (N.  C.)  404;  Tucker  v.  Andrews, 
13  Me.  124,  128;  "Williams  v.  Carle, 
2  Stockt.  (N.  J.)  543;  Freeman  v. 
Hartman,  45  111.  57;  Baker  v.  Jordan, 
73  N.  C.  145;  Hall  v.  Carmichael,  8 
Baxt.  (Tenn.)   211. 

64.  Gregory  v.  Winston,  23  Gratt. 
(Va.)   102. 

65.  Fletcher  v.  Ashley,  6  Gratt. 
(Va.)  332. 

66.  Cheshire  v.  Payne,  16  B.  Mon, 
(Ky.),  618;  Terry  v.  Hopkins,  1  Hill 
Ch.  (N.  Y.)  1.  See  1  Story  Eq.  Juris., 
§  403.  And  see  Cole  v.  O'Neill,  3 
Md.  Ch.  174;  O'Neill  v.  Cole,  4  Md. 
107. 


67.  Spencer  v.  Spencer,  3  Jones 
Eq.  (N,  C.)  404.  But  see,  as  to  regis- 
tration; Peachey,  Mar.  Settl.  155. 

68.  Belt  V.  Ferguson,  3  Grant,  289. 
And  see  Duncan's  Appeal,  43  Pa.  67. 

69.  Strathmore  v.  Bowes,  1  Yea.  Jr. 
28. 

70.  Taylor  v.  Pugh,  1  Hare,  613 ;  2 
Roper,  Hus.  and  Wife,  162 ;  Peachey, 
Mar.  Settl.  147. 

71.  St.  George  v.  Wake,  1  Myl.  &  K. 
610;  King  v.  Cotton,  2  P.  Wms.  674. 
And  see  Thomas  v.  Williams,  Mosely, 
177;  Blanchet  v.  Foster,  2  Ves.  Sen. 
264;  Anonymous,  34  Ala.  430;  Taylor 
V.  Pugh,  1  Hare,  614 ;  Lewcllin  v. 
Cobbold,  1  Sm.  &  Gif.  376;  Peachey, 
Mar.  Settl.  151. 


506 


HUSBAND    AND    WIFE. 


512 


If  the  wife's  transfer  or  convejance  to  another,  under  such  cir- 
cumstances, be  without  valuable  consideration  to  herself,  there  is 
the  less  reason  why  equity  should  uphold  it  ;^^  and  if  it  be  in  plain 
derogation  of  her  own  interests,  as,  for  instance,  to  some  insolvent 
relative  to  hold  in  trust  for  her,  or  so  as  to  suggest  that  fraud  or 
coercion  was  practised  upon  her,  it  is  for  the  common  nuptial  in- 
terests that  courts  of  chancery  repudiate  the  arrangement  alto- 
gether/^ By  virtue  of  late  statutory  changes,  tending  to  relieve  a 
husband  of  his  wife's  antenuptial  debts,  or  of  other  common-law 
burdens,  on  her  account,  the  husband  may  sometimes  stand  in 
equity  on  the  stronger  footing  of  a  defrauded  creditor,  where  he 
seeks  to  have  the  secret  conveyance  of  his  affianced  set  aside  in  his 
favor.''* 

From  what  has  been  said  it  may  readily  be  gathered  that  a 
secret  settlement  by  the  intended  wife,  made  before  she  was 
courted,  is  not  likely  to  be  set  aside,  on  proof  that  the  complainant 
commenced  courting  her  afterwards.'^'  And  the  husband  must 
show,  not  only  that  the  wife  contemplated  marriage  with  some 
person  at  the  time  of  the  settlement,  but  that  he  was  the  person 
intended.^^ 

A  corresponding  rule  as  to  fraud  would  doubtless  apply  to  a 
husband,  who,  before  marriage,  had  made  a  secret  transfer  or 
conveyance  of  his  own  property  to  his  wife's  injury;  not,  how- 
ever, without  regard  to  the  difference  which  subsists  at  law  be- 
tween their  marital  rights  in  each  other's  property. ^^  Indeed, 
it  is  sometimes  said  that  any  designed  and  material  concealment 
ought  to  avoid  an  antenuptial  contract  at  the  will  of  the  party 
who  has  been  thereby  injured. 


78 


72.  Baker  v.  Jordan,  73  N.  C.  145 ; 
Fletcher  v.  Ashley,  6  Gratt  (Va.) 
332. 

73.  Hall  V.  Carmichael,  8  Baxt. 
(Tenn.)  211. 

74.  Westerman  v.  Westerman,  25 
Ohio  St.  500.  But  the  fact  of  an 
antenuptial  settlement  does  not  re- 
lieve the  husband  from  his  common- 
law  liability  for  antenuptial  debts, 
apart  from  statute.  Powell  v.  Man- 
son,  22  Gratt.    (Va.)    177. 

75.  King  V.  Cotton,  2  P.  Wms,  674. 


76.  England  v.  Downes,  2  Beav. 
522;  Peachey,  Mar.  Settl.  15;  Macq. 
Hus.  &  Wife,  37;  Strathmore  v. 
Bowes,  1  Ves.  Jr.  22.  And  see  Waters 
V.  Tazewell,  9  Md.  291. 

77.  See  Leach  v.  Duvall,  8  Bush 
(Ky.)  201;  Gainor  v.  Gainor,  26  la. 
337.  Lapse  of  time  and  other  circum- 
stances may  remove  any  presumption 
of  fraud  or  unfairness  on  his  part. 
Butler  V.  Butler,  21  Kan.  521. 

78.  Kline  v.  Kline,  57  (Pa.)  120; 
Kline's  Estate,  64  (Pa.)  122. 


513 


ANTENUPTIAL    SETTLEMENTS. 


§  507 


§  507.  Construction. 

In  tile  coustructian  of  these  marriage  settlements,  the  courts 
exhibit  a  propensity  to  change,  as  property  doctrines  change  in 
this  connection;  but  on  the  whole  to  incline  to  that  construction, 
in  case  of  doubt,  which  renders  the  arrangement  mutually  bene- 
ficial and  as  far  as  possible,  upholds  marital  rights  of  property  as 
adjusted  by  public  policy.  A  reserved  power  in  the  one  to  alter 
or  revoke,  or  to  dispose  differently  from  the  original  settlement  to 
the  detriment  of  the  other,  will  not  be  readily  inferred  from  the 
terms  of  the  contract.'®  As  to  children  embraced  under  such  ar- 
rangements, an  equal  distribution  among  them  and  equality  of 
benefits,  as  American  policy  favors,  should  be  preferred  in  courts 
of  this  country,  as  well  as  the  preservation  of  their  legal  rights 
whatever  the  compact  of  parents  with  one  another.*"  The  true  in- 
tention of  the  parties,  as  in  wills  and  trusts  generally,  is  the 
primary  rule  in  the  construction  of  all  marriage  settlements ;  sub- 
ject to  which  rule  the  ordinary  meaning  should  be  given  to  written 
words,  unless  manifest  absurdity  or  inconvenience  will  follow;  no 
power  resting  in  the  court  to  strain  language  beyond  its  fair  sig- 
nificance.*^ In  order  to  carry  out  the  intention  of  the  parties, 
courts  will  liberally  construe  such  instruments.*^  If  the  instru- 
ment will  admit  of  more  than  one  construction,  that  most  favor- 
able to  the  wife  should  be  adopted,  if  reasonable  and  not  violative 
of  the  language,*^  especially  where  the  language  is  doubtful  or 
ambiguous.**  Single  words  and  phrases  cannot  alone  be  regarded, 
and  the  intention  must  be  collected  from  the  whole  instrument  in 


79.  Teaton  v.  Yeaton,  4  III.  App. 
579f,  Such  reservations,  however,  as 
e.  g.,  to  dispose  by  will,  if  made  must 
be  respected.  Bishop  v.  Wall,  3  Ch. 
D.  194;  Rogers  v.  Cunningham,  51 
Ga.  40;  Russell's  Appeal,  75  Pa.  269; 
Reynolds  v.  Brandon,  3  Heisk.  (Tenn.) 
593. 

80.  In  re  Hubinger's  Estate,  150 
la.  307,  130  N.  W.  155;  Brown  v. 
Brown,  31  Gratt.  (Va.)  502;  Phelps 
V.  Phelps,  72  111.  545. 

81.  Landcs  v.  Landes,  268  111.  11, 
108  N.  E.  691;  Kennedy  v.  Kennedy, 
150  Ind.  636,  50  N.  E.  756;  Peachey, 
Mar.  Settl.  457,  523,  532;  Hoare  v. 
Hornby,  2  Yo.  &  CoU.  C.  C.  129 ;  Reid 

33 


V.  Kendrick,  1  Jur.  (N.  S.)  898;  Cars- 
well  v.  Schley,  56  Ga.  101;  flintier 
V.  Mintier,  28  Ohio  St.  307.  And  see 
Creighton  v,  Clifford,  6  Rich.  (S.  C.) 
188;  Burging  v.  McDowell,  30  Gratt. 
(Va.)  236. 

82.  Matney  v.  Linn,  53  Kan.  613, 
54  P.  668;  Collins  v.  Bauman,  i2,'> 
Ky.  846,  102  S.  W.  815,  31  Ky.  Law, 
455. 

83.  Mallow  V.  Eastes  (Ind.),  lOO 
N.  E.  836;  Oesau  v.  Oesau's  Estate, 
157  Wis.  25,  147  N.  W.  62;  In  re 
Deller's  Estate,  141  Wis.  255,  124  N. 
W.  278. 

84.  Wetsel  v.  Firebaugh,  258  II!. 
404,  101  N.  E.  602. 


§  507  HUSBAND  AND  WIFE.  514 

its  general  scope  and  design.^^  Where  several  articles  are  to  be 
considered  in  such  an  instrument,  the  usual  rules  of  interpretation 
are  applied/®  Xot  only  the  language  of  the  parties,  but  also  what 
the  law  implies  therefrom,  in  view  of  the  promise  to  marry,  is  to 
be  considered.®^  In  seeking  such  intention,  the  court  will  con- 
sider its  scope  and  purpose,  and  the  circumstances  under  which  it 
was  entered  into,®*  the  situation  of  the  parties,®^  as  well  as  the 
usage  in  similar  cases,  the  rights  of  parties  as  they  existed  before 
the  marriage,  and  as  they  would  have  existed  if  no  such  settlement 
were  made.®"  It  is  also  proper  to  consider  the  nature  of  the  prop- 
erty affected,  and  the  effect  of  the  instrument  as  vesting  an  equit- 
able title  in  the  wife.®^  The  meaning  of  the  word  "  heirs,"  in  mar- 
riage settlements,  is  one  of  intention,  to  be  gathered  from  the  facts 
and  the  relation  of  the  parties.^^  A  settlement  vesting  a  life 
estate  in  the  husband's  land  in  the  wife  if  she  survived,  with  re- 
mainder "  at  her  death  "  to  his  heirs  has  been  held  to  create  a 
vested  remainder  in  the  heirs.®^  A  marriage  settlement  creating  a 
reaiainder  to  the  heirs  and  distributees  of  the  wife  after  the  death 
of  both  spouses  has  been  held  to  intend  those  persons  who  were 
heirs  and  distributees  at  the  time  of  the  wife's  death.^*  The  doc- 
trine that  marriage  settlements  are  excepted  from  the  rule  in 
Shelh/s  Case  does  not  apply  to  a  settlement  actually  completed  by 
formal  deed.®^  A  settlement  conveying  to  a  trustee  all  the  estate, 
real  and  personal,  which  she  may  "  receive,"  or  to  which  she  might 
be  entitled  by  right,  devise  or  bequest,  has  been  held  to  intend 

85.  Carr  v.  Lackland,  112  Mo.  442,  91.  Gordon  v.  Munn,  88  Kan.  72, 
20  S.  W.  624.  127  P.  764,  87  Kan.  624,  125  P.  1. 

86.  Estate  of  Baubichon,  49  Cal.  18.  92.  Markwell's  Adm'r  v.  Markwell's 

87.  Where  the  methods  of  devolution  Ex'r,  4  Ky.  Law.  Rep.  908  (holding 
by  which  realty  must  be  acquired  in  that  in  the  particular  case  it  meant 
order  to  come  within  the  terms  of  a  "children");  Appeal  of  Philadelphia 
marriage  settlement  are  expressed  in  Trust,  Safe  Deposit  &  Ins.  Co.,  108 
the  deed,  the  maxim  of  the  law,  Pa.  311;  Eutledge  v.  Rutledge,  Dud. 
"Expressio    nnius    est    exclusio    alte-  Eq.  (S.  C.)  201. 

rius,"  will  exclude  from  its  operation  93.  Harris  v.  Eussell,  124  N.  C.  547, 

land   acquired   in    other   ways.      Dun-  32   S.  E.   958;    Freeman  v.   Freeman, 

lap  V.   Hill,  145  N.  C.   312,  59   S.  E.  274  HI.  228,  113  N.  E.  602. 

112;  Dickinson  v.  Lane,  193  N,  Y.  18,  94.  Glover  v.  Adams,  11   Rich.  Eq. 

85  N.  E.  818.  (S.   C.)    264;    Ex  parte   Roberts,    19 

88.  Ragsdale    v.    Barnett,    10    Ind.  S.  C.  150, 

App.  478,  37  N.  E.  1109.  95.  Brown  v.   Wadsworth,   32   App. 

89.  Tn  re  Hubinger's  Estate,  150  Div.  423,  53  N.  Y.  S.  215;  Kirby  v. 
Iowa,  307,  130  N.  W.  155.  Brownlee,   13   Ohio  Cir.   Ct.   86,   7   O. 

90.  Coatney  v.  Hopkins,  14  W.  Va.  C.  D  460. 
338, 


515  ANTENUPTIAL    SETTLEMENTS.  §    509 


i) 


only  personal  property  by  the  word  "  receive,"  and  real  estate  by 
the  remainder  of  the  language,  so  that  land  conveyed  to  her  by 
deed  during;  coverture  was  not  within  the  settlement.®' 


^& 


§  508.  Power  of  Disposition  of  Property  Settled. 

Where  a  settlement  reserves  to  each  spouse  all  their  property  as 
though  there  was  no  marriage,  either  may  dispose  of  their  sole 
property  both  real  and  personal  by  deed  or  will.®^  Where  an  ante- 
nuptial settlement  created  a  life  estate  in  certain  property  for  the 
wife,  her  will  after  coverture  cannot  affect  the  rights  of  the  re- 
mainderman.®* Where  a  settlement  provided  that  a  wife  might 
convey  her  property  by  deed  in  which  he  joined,  and  where  he  in- 
duced her  to  convey  it  separately,  and  where  he  was  present  when 
she  so  conveyed  it  to  a  hoTia  fide  purchaser  for  full  value,  it  was 
held  that  he  might  be  compelled  to  join  in  order  to  complete  the 
vendee's  title.®®  Where  a  settlement  provided  that  the  wife  should 
have,  at  her  death  and  that  of  her  husband,  a  certain  power  of  dis- 
position of  her  personal  property  to  her  son,  her  husband  taking 
possession  of  the  property  for  his  life,  it  was  held  that  she  had  a 
naked  power  of  appointment,  and  that  she  had  no  claim  against 
the  estate  of  her  husband  where  she  made  no  appointment  during 
his  lifetime.^  A  settlement  giving  the  wife  an  estate  in  the 
husband's  property  for  life  after  his  death,  with  a  right  to  sell, 
if  necessary  for  her  support,  does  not  give  her  arbitrary  power  to 
sell  to  the  disadvantage  of  the  remaindermen,  but  only  to  sell  on 
an  adjudication  by  the  court  that  the  necessity  exists.^ 

§  509.  Operation  and  Effect. 

An  instrument  in  the  form  of  a  marriage  settlement  or  similar 
writing,  by  which  a  husband  renounces  certain  marital  rights  in 
favor  of  his  intended  wife,  or  of  her  and  her  children,  cannot 
operate  by  itself  as  restraining  her  own  equitable  rights  in  her 
property.^  So  strongly  is  the  trust  created  upon  the  marriage  con- 
sideration upheld  against  either  spouse,  that  the  husband's  conver- 
se Dunlap  V.  Hill,  145  N.  C.  312,  99.  Bearden  v.  Benner,  136  F.  258. 
59  S.  E.  112.  1.  Agee  v.  Agee's  Adm'r,  22   Mo. 

97.  Brown   v.   Weld,    5    Kan.   App.       366. 

341,  48  P.  456;  Kennedy  v.  Koopman,  2.  Bobbins  v.  Thornton  (Iowa),  145 

166  Mo.  87,  65  S.  W.  1020;    Wright  N.  W.  891. 

V.  Westbrook,  121  N.  C.  155,  28  S.  E.  3.  Bass  v.  Wheless,  2  Tenn.  Ch.  App. 

298.  531. 

98.  Lampkin  v.  Hayden,  99  6a.  363, 
27  S.  E.  764. 


§    509  HUSBA^'D    AND    WIFE.  516 

sion  of  his  wife's  income  thus  settled  to  her  separate  use  gives  the 
wife  a  claim  which  she  can  enforce  against  his  estate  upon  surviv- 
ing him,  notwithstanding  the  settlement  upon  her  was  stated  to 
be  in  lieu  of  all  dower  and  distributive  share,  and  her  husband's 
will  made  ample  provision  for  her  notwithstanding.*  And  on  the 
other  hand,  under  a  marriage  settlement,  though  it  be  of  all  the 
woman's  property,  which  confines  the  income  to  herself  during  life, 
the  trust  must  continue  even  upon  her  widowhood ;  for,  as  it  is 
observed,  a  spendthrift  trust  may  be  created  as  well  for  a  woman 
as  a  man.^  But  settlements,  as  properly  construed,  provide  more 
frequently  that  upon  the  dissolution  of  marriage  the  survivor 
shall  have  the  same  rights  as  though  the  instrument  had  not  been 
made.^  It  is  usually  held  that  antenuptial  agreements  cannot  take 
away  the  personal  rights  or  duties  of  either  spouse,'  but  where 
this  is  permitted  the  agreement  should  not  be  extended  beyond  the 
plain  words  or  necessary  implication  of  the  instrument.®  Thus, 
under  a  marriage  settlement  providing  that  both  shall  contribute 
to  the  expenses  of  the  "  family,"  the  death  of  one  spouse  ends  the 
obligation,  as  the  family  consists  of  both  spouses.^  An  ante- 
nuptial settlement  in  terms  limited  to  the  estate  possessed  by  the 
wife  at  marriage  may  cover  property  which  she  had  previously 
conveyed  to  her  brother  in  fraud  of  creditors,  and  which  he  con- 
veyed to  her  after  marriage.^"  An  antenuptial  agreement  made  in 
Hesse  Cassel  making  the  spouses  heirs  of  each  other  to  the  ex- 
clusion of  the  heirs  of  the  deceased  has  been  held  to  apply  to 
land  acquired  after  their  emigration  to  Xew  Jersey.^^  Where 
land  owned  by  a  husband  and  wife  has  been  acquired  by  the  wife 

4.  In   such   case,   semble,   the   pro-       And  see  Greensboro'  Bank  v.  Cham- 
vision  under  the  husband's  will  is  to       bars,  30  Gratt.  (Va.)  202. 

be   construed   as   in    lieu   of   all   such  6.    See    Woods   v.    Richardson,    117 

claim   on   the   -widow's   part,   so    that  Mass.  276. 

she  may  accept  it  or  pursue  the  claim  7.  Clopton  v.  Clopton,  162   Cal.  27, 

instead.    Boardman '3  Apepal,  40  Conn.  121  P.  720;  Isaacs  v.  Isaacs,  71  Neb. 

169.  537,  99  N.  W.  268.     But  see  Baugh- 

TTnder  the  trusts  of  a  marriage  con-  man  v.  Baughman,  283  111.  55,  119  N. 

tract  profits  and  income  belong  usu-  E.  4?. 

ally  to  the  wife,  under  the  equitable  8.  Bramer  v.  Bramer   (W.  Va.),  99 

rules  of  separate  property,  and  do  not  S.  E.  329. 

become  part  of  the  corpus  of  the  trust  9.  In  re  Mansfield's  Estate  (Iowa), 

fund,  with   its  reversion   or  survivor-  170  X.  W.  415. 

ship  of  rights,  unless  so  provided.    See  10.  Weis  v.  Bach,   146  Iowa,   320, 

Artrope  v.  Goodall,  53  Ga.  318.  125  N.  W.  211. 

5.  Ashhurst's  Appeal,  77  Pa.  464.  11  Kleb  v.  Kleb,  70  N.  J.  Eq.  305, 

62  A.  396. 


517  ANTENUPTIAL    SETTLEMENTS.  §    510 

by  a  postnuptial  settlement  reserving  to  the  husband  only  a  sur- 
vivorship, and  was  sold  by  a  transaction  wherein  a  trust  deed  was 
taken  to  secure  payment  of  part  of  the  price,  it  was  held  that  on 
re-acquirement  of  the  property  by  the  wife  by  foreclosure  the 
estate  again  became  incumbered  by  the  right  of  survivorship  as 
provided  by  the  settlement/"  An  antenuptial  settlement  provid- 
ing, iiiter  alia,  that  the  wife  should  retain  control  of  her  separate 
property,  and  that  both  might  dispose  of  their  sole  property  by 
will,  was  held  to  contemplate  a  permanent  adjustment  of  their 
property,  and  not  during  coverture  only." 

A  contract  providing  that  the  wife  shall  be  "  endowed  "  with 
one-third  of  real  estate  of  the  husband  has  been  held  to  grant  a 
life  estate  only,  the  quoted  term  being  used  in  its  technical  sense." 
A  settlement  wherebv  the  wife  took  for  life  a  third  of  her  hus- 
band's  estate  on  his  death,  and  as  much  more  as  in  her  judgment 
she  needed  for  her  comfortable  support,  has  been  held  not  affected 
by  his  will  reducing  her  estate  to  widowhood  only,  even  though 
she  took  out  letters  under  the  will."  A  decree  in  a  suit  for  spe- 
cific performance  of  a  settlement  awarding  a  wife  money  "  ovmed 
or  left "  by  the  husband  at  his  death  has  been  held  not  to  include 
the  proceeds  of  an  insurance  policy  which  he  had  assigned.^" 

In  Louisiana  donations  by  one  spouse  to  the  other  before  mar- 
riage are  subject  to  Civ.  Code,  art.  1753,  providing  that  on  re- 
marriage such  spouse  forfeits  all  rights  in  such  donations  to  the 
children  of  the  first  marriage." 

§  510.  Enforcement. 

There  is  this  difference  pointed  out  between  promises  and 
agreements  in  consideration  of  marriage,  and  all  other  agreements ; 
namely,  that  the  contract,  though  broken  by  one  of  the  parties, 
remains  binding  upon  the  other.  The  reason  for  this  is,  that  such 
promises  and  agreements  affect  not  only  the  rights  of  the  married 
pair,  but  those  of  their  offspring;  the  children  being,  in  fact, 
regarded  as  purchasers."     But  where  the  performance  is  sought 

12.  "Walt  V.  Walt,  113  Tenn.  189,  16.  Dickinson  v.  Lane,  193  N.  Y. 
81  S.  W,  228.  18,  85  N.  E.  818. 

13.  Buffington  v.  BufiSngton,  151  17.  Didlake  v.  Cappel,  116  La.  844, 
Tnd.  200,  51  N.  E,  328.  41  So.  112. 

14.  Fish  V.  Fish  (Ky.),  212  S.  W.  18.  Bale  v.  Coleman,  1  P.  Wms. 
586.  145;    Harvey   v.    Ashley,    3    Atk.    (310. 

15.  Bowman  v.  Knorr,  206  Pa.  272,  Even  children  of  a  former  marriage 
55  A.  976;  Foehner  v.  Huber,  166  may  enforce.  Gale  v.  Gale,  6  Ch.  D. 
N.  Y.  619,  59  N.  E.  1122.  144. 


§510  HUSBAND    AND    WIFE.  518 

by  the  defaulting  party,  the  contract  cannot  be  enforced  against 
the  person  injured  through  such  default;^®  though  performance 
by  one  party  is  not  necessarily  a  condition  precedent  to  a  right  to 
sue  the  other.^°  The  difference  thus  mentioned  is,  therefore,  a 
difference  which  grows  out  of  the  peculiar  nature  of  the  contract, 
and  the  existence  of  parties,  other  than  those  contracting,  who  may 
be  brought  within  the  pur\-iew  of  the  consideration.  As  Lord 
Eldon  observes,  the  issue  have  a  right  to  say  to  the  parents,  "  You 
shall,  each  of  you,  do  what  you  can  do,  and  we  must  not  be  disap- 
pointed." "^  Unquestionably,  however,  even  in  the  case  of  a  mar- 
riage settlement,  the  covenants  may  be  so  framed  as  to  be  mutually 
dependent;  and  if  it  be  clear  on  the  face  of  the  settlement  that 
such  was  the  intention,  that  intention  must  prevail,  even  against 
the  offspring  of  the  marriage.^^ 

Though  contracts  between  the  spouses  before  marriage  be  re- 
leased in  law,  modem  equity  which  enforces  marriage  settlements 
and  preserves  the  wife's  separate  estate,  relying  upon  the  marriage 
consideration,  will  still  hold  the  indebted  or  obliged  party  bound 
to  performance  in  numerous  instances ;  its  policy  being  to  give  a 
more  flexible  scope  to  the  presumed  intention  of  the  married 
parties.^^ 

Where  a  wife  is  too  old  to  have  children,  an  antenuptial  settle- 
ment contemplates  that  its  provisions  as  to  release  of  her  husband'* 
rights  in  her  estate  shall  be  enforced  by  her  collateral  relatives.** 
An  antenuptial  contract  whereby  the  husband  receives  the  wife's 
property  and  agrees  to  secure  it  to  her  may  be  enforced  against 
his  estate  where  his  executor  fails  to  restore  such  property."''  A 
provision  of  a  marriage  settlement  for  the  wife  out  of  the  estate 
•of  the  husband   is  not  wholly  executory,   and  may  be   enforced 

19.  Crofton  v.  Ormsby,  2  Sch.  &  Fitzgerald  v.  Fitzgerald,  L.  R.  2  P.  C. 
Lcf.  583.  S3.     This  rule  was  enforced  in  Miller 

20.  See  Jeston  v.  Key,  L.  R.  6  Ch.  v.  Goodwin,  8  Gray  (Mass.),  542,  so 
610,  as  to  covenant  between  husband  as  to  require  specific  performance  of 
and  wife's  father,  under  marriage  a  man's  written  contract  to  convey 
articles  agreeing  to  make  a  settlement  land  to  the  woman,  marriage  entering 
which  neither  party  performed.  into  the  consideration.    And  as  to  ob- 

21.  Eancliffe  v.  Parkyns,  6  Dow,  taining  goods  under  a  promise  to 
209.  marry  not  fulfilled,  see  Frazer  v.  Boss, 

22.  Per  Lord  Cottenham,  Lloyd  v.       66  Ind.  1. 

Lloyd,    2    Myl.    &   Cr.    192;    Pyke    v.  24.  Dunlop  v.  Lamb,  182  HI.  319,  55 

Pyke,  12  Ves.  67.     See  further.  Bliss  N.  E.  354. 

V.    Sheldon,    7    Barb.    (N.    Y.)     152;  25.    Hoffman    v.    Hoffman's    Ex'r, 

Shoch  V.  Shoch,  19  Pa.  252.  126  Mo.  486,  29  S.  W.  603. 

23.  Power  v.  Lester,  23  N.  Y.  527; 


519  ANTENUPTIAL    SETTLEMENTS.  §    511 

against  his  estate  though  he  killed  her.*"  In  the  absence  of  stat- 
ute, a  court  of  equity  is  the  proper  forum  in  which  to  enforce  a 
marriage  settlement.^^  The  settlement  authorized  under  the  Maine 
statute  may  be  enforced  at  law  after  the  death  of  a  party  thereto.^* 
Where  a  wife  claims  property  as  given  to  her  by  her  husband 
before  and  in  consideration  of  marriage,  she  must  show  clearly 
and  unequiv^ocally  that  he  intended  to  part  absolutely  with  the 
title  and  possession  of  the  property."^ 

In  an  action  to  enforce  a  settlement  against  her  husband's 
estate,  and  for  an  accounting  of  property  received  by  him  there- 
under, a  judgment  for  the  wife  is  supported  by  evidence  of  admis- 
sions of  the  husband  in  his  lifetime  where  he  kept  no  proper 
accounts.^"  Where  a  trust  created  by  a  postnuptial  settlement 
was  intended  for  the  protection  of  the  wife's  estate  in  the  land 
during  the  life  of  her  husband,  she  may  after  his  death  enforce 
her  rights  in  the  land  vnthout  making  heirs  of  the  deceased  trustee 
parties,  since  the  trust  became  inoperative  at  the  husband's  death.'^ 
The  fact  that  the  wife  expended  money  for  her  own  and  her 
husbands's  support  is  no  defence  to  an  action  by  his  executor  to 
enforce  a  settlement  wherein  he  promised  to  support  her,  nor  basis 
for  a  cross-complaint,  though  such  expenditures  were  an  enforce- 
able claim  against  his  estate. 


32 


§  511.  Rescission  or  Avoidance;   In  General. 

A  spouse  may,  by  conduct,  ratify  a  contract  wherein  the  confi- 
dential relation  has  been  violated  so  as  to  preclude  an  attack  on 
it  on  that  ground,^^  and  has  no  relief  where  she  signs  an  agree- 
ment under  the  mistaken  supposition  that  marriage  would  revoke 
her  husband's  will,  in  the  absence  of  fraud.^*  Where  a  wife  repu- 
diated her  antenuptial  agreement,  it  was  held  that  her  receipt  of 
certain  rents  from  the  homestead  in  the  belief  that  she  was  entitled 
to  them  till  her  dower  and  homestead  were  assigned  was  not  a 

26.  Logan  v.  Whitley,  129  App.  Div.  30.    Hoffman    v.    Hoffman  's    Ex  'r, 
666,  114  N.  Y.  S.  255.  126  Mo.  486,  29  S.  W.  603. 

27.  Schnepfe  v.  Schnepfe,  124  Md.  31.   Walt   v.   Walt,   113   Tenn.    189, 
330,  92   A.   891;   Bright  v.  Chapman,  81  S.  W.  228. 

105  Me.  62,  72  A.  750.  32.    Buffington    v.    Buffington,    151 

28.  Bright  v.  Chapman,  105  Me.  62,       Ind.  200,  51  N.  E.  328. 

72  A.  750.  33.  Landes  v.  Landes,   268   111.   11, 

29.  Martin  v.  Smith,  25  W.  Va.  579       108  N.  E.  691. 

(bonds).  34.    Bobbins    v.    Eobbins,    225    HI. 

333,  80  N.  E.  326. 


§  512 


HUSBAND    AND    WIFE. 


520 


ratification.^^  If  a  spouse  rescinds,  the  consideration  must  be 
restored.^®  Tlie  question  whether  there  has  been  a  rescission  is 
one  of  intention.^^  A  complaint  alleging  that  the  wife  was  ill  at 
the  time  of  the  agreement  and  signed  it  without  reading  at  the  ^ 
request  of  the  husband  has  been  held  to  state  a  cause  of  action  for 
its  cancellation.^^ 

A  man  cannot  set  aside  an  agreement  in  contemplation  of  mar- 
riage, on  the  plea  that  his  wife's  fortune  fell  short  of  his  expec- 
tations; for,  as  Lord  Hardwicke  observed,  it  would  be  extremely 
mischievous  to  set  aside  marriage  settlements  upon  such  grounds.^^ 
Where  the  wife  by  an  antenuptial  agreement  released  her  dower 
for  $500,  her  death  before  his  does  not  release  him  from  paying 
the  money,  since  the  contract  was  in  part  in  consideration  of  the 
marriage.*''  A  settlement  releasing  the  wife's  dower  "  should 
there  be  no  heirs  bom  "  of  the  marriage  is  on  condition  subse- 
quent, and  the  birth  of  a  posthumous  child  will  defeat  the  con- 
tract." 


§512.  By  Agreement. 

An  antenuptial  agreement  as  to  the  wife's  property  is  rescind- 
able  at  the  joint  pleasure  of  the  parties,  and  a  joint  conveyance 
of  a  part  or  all  of  such  property  operates  pro  tanto  as  a  rescis- 
sion.*^ The  sole  act  of  one  spouse  is  not  enough.*^  A  settlement 
may  be  altered  before  marriage  by  another  instrument,  in  which 
case  the  two  should  be  construed  together.**  Provisions  of  a  settle- 
ment may  be  waived  by  parol,*^  as  where  the  husband,  with  the 
wife's  assent,  conveyed  property  on  trusts  which  were  incon- 
sistent with  the  settlement.*^     Likewise,  where  a  settlement  pro- 


85.  Lachman  v.  Laehman,  201  111. 
380,  66  N.  E.  256,  94  Am.  St.  R.  180. 

36.  Erb  V.  McMaster,  88  Neb.  817, 
130  N.  W.  576. 

37.  Gordon  v.  Munn,  87  Kan.  624, 
125  P.  1  (reh.  den.,  88  Kan.  72,  127 
P.  764) ;  Barclay  v.  Waring,  58  Ga. 
86. 

38.  Slingerland  v.  Slingerland,  109 
Minn.  407,   124  N.  W.   19. 

39.  Ex  parte  Marsh,  1  Atk.  159. 

40.  Barlow's  Adm'r  v.  Comstock's 
Adm'r,  117  Ky.  573,  25  Ky.  Law, 
1680,  78  S.  W.  475. 

41.  Ellis  V.  Ellis,  1  Tenn.  Ch.  App. 
198. 


42.  Martin  v.  ColUson,  266  111.  172, 
107  N.  E.  257;  Stevenson  v.  Renardet, 
83  Miss.  392,  35  So.  576  Mallow  v. 
Easter,  Ind.  App.  1911,  96  N.  E. 
174. 

43.  Yockey  v.  Marion,  269  111.  342, 
110  N.  E.  34, 

44.  South  Carolina  Loan  &  Trust 
Co.  V.  Lawton,  69  S.  C.  345,  48  S.  E. 
282,  104  Am.  St.  R.  802. 

45.  Becker  v.  Becker,  250  111.  117, 
95  N.  E.  70. 

46.  Goodloe  v.  Woods,  115  Va,  540, 
80  S.  E.  108. 


521 


ANTENUPTIAL    SETTLEMENTS. 


§  514 

vided  that  if  the  property  was  sold  the  wife  should  have  the  pro- 
ceeds, it  was  held  that  she  could  not  enforce  the  agreement  where 
such  proceeds  were  invested  in  land  and  the  title  taken  jointly.*^ 

§  513.  Fraud. 

Antenuptial  settlements  are  not  inherently  fraudulent,*^  and 
in  the  absence  of  fraud  or  unfairness  the  courts  will  leave  the 
parties  where  they  place  themselves."  But  they  will  rigidly 
scrutinize  such  agreements  and  will  set  them  aside  if  the  wife  has 
been  overreached  or  deceived,  or  has  been  induced  thereto  by 
fraud.^°  The  reason  for  the  rule  is  that  while  parties  are  engaged 
to  be  married  the  relation  is  confidential,  and  the  intended  wife  is 
supposed  to  place  confidence  in  her  intended  husband. ^^ 

It  has  been  held  that  where  an  antenuptial  agreement  was  made 
whereby  the  wife  should  take  a  certain  proportion  of  his  estate  by 
his  will,  it  was  fraud  for  him  to  diminish  her  interest  by  making 
large  gifts  to  his  sons  in  his  lifetima' 


52 


§  514.  Failure  to  Perform  Conditions. 

The  failure  of  the  husband  to  observe  the  conditions  on  which 
the  wife  releases  her  rights  in  his  estate  may  entitle  her  to  claim 
her  dower  at  his  death,^^  and  conversely  may  disentitle  the  hus- 
band to  rights  in  her  estate  granted  on  the  faith  of  the  conditions.^* 
A  deed  executed  in  consideration  of  a  promise  to  marry  cannot  be 
set  aside  because  the  wife  failed  to  comply  with  certain  conditions, 
in  the  absence  of  evidence  that  she  was  ever  asked  to  comply  with 

47.    Cantrell   v.   Cantrell,    178    Ala.      take   out   a   death    benefit   certificate, 


273,  59  So.  652. 

48.  In  re  Robinson 's  Estate,  222  Pa. 
113,  70  A.  966;  In  re  Whitmer's  Es- 
tate, 224  Pa.  413,  73  A.  551. 

49.  In  re  Devoe's  Estate,  113  Iowa, 
4,  84  N.  W.  923. 

50.  In  re  Deller's  Estate,  141  Wis. 
255,  124  N.  W.  278, 

51.  Martin  v.  Collison,  266  IE.  172, 
107  N.  E.  257;  Xesmith  v.  Piatt,  137 
Iowa,  292,  114  N.  W.  1053. 

52.  Eaton  v.  Eaton,  233  Mass.  351, 
124  N.  E.  37. 

53.  In  re  Warner's  Estate,  6  Cal. 
App.  361,  92  P.  191;  In  re  Warner's 
Estate,    158    Cal.    441,    111    P.    352. 

Where    a    husband    made    an    ante- 


naming  her  as  beneficiary,  the  mere 
taking  out  of  such  certificate,  fol- 
lowed by  a  change  of  beneficiary,  was 
not  a  performance.  Eyan  v.  Boston 
Letter  Carriers'  Mut.  Ben.  Ass'n,  222 
Mass.  237,  110  N.  E.  281. 

An  antenuptial  contract  by  the 
husband  to  take  out  a  fraternal  ben- 
eficiary certificate  in  the  name  of  the 
wife  is  broken  where  the  husband 
changes  the  beneficiary,  and,  in  place 
of  the  wife,  without  her  knowledge, 
makes  another  the  beneficiary.  Ryan 
V.  Boston  Ltter  Carriers',  etc.,  Ass'n, 
222  Mass.  237,  110  N.  E.  281,  L.  R.  A. 
1916C,  1130. 

54.  Becker  v.  Becker,  241  111.  423, 


nuptial   agreement   with    his   wife    to       89  N.  E.  737. 


§516  HUSBAND    AND    WIFE.  522 

tliem.^^  Where  a  settlement  provided  for  certain  testamentary 
dispositions  to  be  made  by  the  husband  for  the  wife,  it  was  held 
to  be  an  implied  condition  that  the  wife  should  not  contest  a  will 
made  in  accordance  with  the  agreement.^^ 

An  antenuptial  agreement  that  an  intended  wife  should  receive 
certain  securities  on  marriage  has  been  held  to  contemplate  her 
remaining  the  wife  of  the  intended  husband,  hence  where  she 
divorced  him  for  causes  not  recognized  in  New  York,  where  she 
was  married,  she  was  not  entitled  to  the  securities/ 


57 


§  515.  Infancy  or  Laches. 

An  antenuptial  settlement  is  voidable  by  the  wife  on  account  of 
infancy,  but  the  court  will  restore  what  has  been  settled  on  her,  if 
she  still  has  it.^^  The  right  of  action  under  a  marriage  settlement 
may  be  lost  by  1  aches.  °^ 

The  wife  may,  like  all  others,  forfeit  her  rights  to  a  trust  for 
her  benefit,  by  long  acquiescence  as  well  as  active  participation  in 
the  unlawful  acts  of  the  trustees  under  the  marriage  settlement."" 
Thus,  where  a  wife  does  not  in  her  husband's  lifetime  avoid  a 
settlement  for  his  failure  to  perform  it,  she  may  be  precluded 
from  doing  so  after  his  death.^^  Where  a  wife  knows  enough  of 
her  husband's  estate  to  enable  her  to  act  advisedly  she  cannot  after 
his  death  set  a  settlement  aside  because  its  provision  for  her  i& 
inadequate. 


62 


§  516.  Misconduct  of  Spouse. 

In  an  early  case.  Lord  Talbot  is  reported  to  have  said  that 
where  marriage  articles  were  pretty  much  in  the  nature  of  a 
jointure,  they  were  not  forfeitable  by  adultery  or  an  elopement.®* 
And  upon  the  strength  of  this  it  has  been  held  that  marriage  arti- 
cles will  be  enforced  on  behalf  of  the  wife,  although  she  be  living- 
in  a  state  of  adultery.®*     We  find  no  late  authority  to  support  thih 

55.  Metz  V.  Blackburn,  9  Wyo.  481,  60.  Jones  v.  Higgins,  L.   R.  2   Eq. 
65  P.  857.                                                          538;   Stone  v.  Stone,  L.  E.  5  Ch.  74. 

56.  Eaton  v.  Eaton  (Mass.),  124  61.  Hammond  v.  Hammond,  135  Ga. 
N.  E.  37.  768,   70   S.   E.   588;    In  re  Warner's 

57.  New  Jersey   Title   Guaranty  &  Estate  168  Cal.  771,  145  P.  504. 
Trust  Co.   V.  Parker    (N.   J.),  96   A.  62. /n  re  Whitmer 's  Estate,  224  Pa. 
574.  413,  73  A.  551. 

58.  Shirey  v.  Shirey,  87  Ark.  175,  63.  Sidney  v.  Sidney,  3  P.  Wms. 
112  S.  W.  369.  275;    Seagrave  v.   Seagrave,   13   Ves. 

59.  Dallas  Compress  Co.   v.   Smith  443. 

(Ala.),  67  So.  289.  64.  Macq.  Hns.  &  Wife,  263;   Bu- 

chanan V.  Buchanan,  1  Ball  &  B.  206. 


523>  ANTENUPTIAL    SETTLEMENTS.  §    5lT 

doctrine,  and  it  is  doubtful  whether  such  a  rule  would  be  enforced 
at  this  daj.*^'  The  mere  fact  that  a  divorce  sought  by  the  wife 
is  refused  is  not  conclusive  of  her  fault  so  as  to  prevent  her  from, 
enforcing  a  marriage  settlement.*® 

Missouri  E.  S.  1899,  §§  2950-2952,  authorize  jointure  and  re- 
quire election  in  certain  cases,  and  that  if  jointure  fail  the  wife 
shall  have  proportionate  dower,  and  if  she  demands  dower  jointure 
shall  determine.  Section  2953  provides  that  her  voluntary  deser- 
tion and  subsequent  adultery  shall  bar  her  "  jointure  or  dower." 
Section  2929  provides  that  in  case  of  divorce  the  guilty  party 
shall  forfeit  all  marital  rights;  and  §  2947,  that  if  divorced  for 
her  fault  she  shall  not  be  endowed.  An  antenuptial  agreement 
provided  that  the  wife  should  receive  in  lieu  of  dower  a  child's 
part,  "  that  is,  *  *  *  shall  in  any  distribution  of  the  prop- 
erty "  share  with  the  children  of  a  former  wife.  To  the  wife's 
action  the  husband's  heirs  pleaded  desertion  and  adultery  followed 
by  divorce.  It  was  held  that  the  agreement  conferred  an  equitable 
jointure,  which,  under  §  2953,  was  forfeited,  or  if  that  section 
did  not  apply,  then  on  general  equitable  principles  the  termination 
of  dower  under  ^^  2929,  2947,  by  divorce  carried  the  jointure 
with  it." 

Cruel  and  inhuman  conduct  by  the  husband,  if  condoned,  does 
not  work  a  forfeiture  of  an  antenuptial  contract.* 


68 


§517.  Acts  in  Pais. 

The  result  of  a  long  array  of  diffuse,  but  exceedingly  interesting, 
English  equity  decisions  under  this  head,  appears  to  have  been  to 
establish  the  following  propositions :  First,  that  if  anyone  make  a 
representation  to  another  on  which  he  would  reasonably  act,  the 
party  making  the  representation  is  bound  thereby,  and  cannot 
recede  from  it;  in  other  words,  that  a  man  who,  by  his  deliberate 
assertion,  induces  another  to  enter  into  obligations,  cannot  after- 
wards, by  his  acts,  negative  the  truth  of  that  assertion.*®  Second, 
that  moral  obligations  in  matters  of  this  description  are  treated 
in  courts  of  equity  as  coextensive  with  legal  obligations ;    and  that 

65.  See  Peachey,  Mar.  Settl.  3S4;  67.  Leavy  v.  Cook,  171  Mo.  292,  71 
Legard  v.  Hodges,  4  Bro.  C.  C.  421,       S.  W.  182. 

cited  by  Lord  Manners  in  Buchanan  68.  Fisher  v.  Koontz,  110  Iowa,  498, 

V.  Buchanan,  1  Ball  &  B.  206.  80  N.  W.  551;  Johnston  v.  Johnston 

66.  Schnepfe  v.  Schnepfe,  124  Md.       (Iowa),  166  N.  W.  65. 

330,  92  A.  891.  69.  Money  v.  Jorden,  15  Beav.  377; 

Pulsford  V.  Richards,  17  Beav.  94. 


§518  HUSBAXD    AND    WIFE.  524 

while  vague  and  ambiguous  representations  may  be  made  to  per- 
sons on  marriage,  which  are  only  morally  binding  upon  the  person 
making  them,  though  creating  reasonable  expectation  and  belief 
of  advantage  in  the  minds  of  the  marrying  parties;  yet,  where 
the  matter  is  clearly  and  distinctly  expressed  and,  presumably, 
relied  upon,  then  the  legal  obligation  follows  the  moral  obligation, 
and  the  contract  will  be  enforced  by  the  courts.^*' 

A  settlement  may  be  abandoned  where  a  wife  accepts  provisions 
made  in  lieu  of  dower  in  a  decree  of  divorce."^ 

§  518.  Inadequacy  of  Provision  for  Wife. 

Owing,  moreover,  to  the  confidential  relation  which  subsists 
between  the  parties,  an  antenuptial  contract  which  appears  to  have 
been  unfairly  procured  will  be  set  aside;  and  one  whose  terms 
are  grossly  inequitable,  especially  if  involving  unreasonable  sacri- 
fice of  the  wife's  rights,  can  only  be  sustained  upon  very  clear 
proof  of  concurrent  intent.''^ 

Equity,  moreover,  sometimes  refuses  to  enforce  an  antenuptial 
settlement,  as  between  husband  and  wife,  not  onlv  because  of  its 
fraudulent  character  as  regards  the  one  or  the  other  party,  but  on 
the  ground  that  it  is  improvident.  Yet  relief  of  this  sort  is  rarely 
aiforded,  and  especially  so  where  a  third  party,  or  the  husband, 
not  the  wife,  seeks  it."^  And  while  the  intended  wife  may,  per- 
haps, in  an  extreme  case,  be  relieved  from  an  antenptial  contract 
which  bears  very  harshly  upon  her  property  rights,  as  though 
defrauded  and  deceived  in  the  arrangement,  there  is  no  doubt  that 
where  she  is  of  competent  age  she  may  bargain  away  her  rights 
quite  extensively  under  a  marriage  contract,  as  her  husband  like- 
wise could  have  done ;  provided,  of  course,  that  her  deliberate 
intention  to  do  so  be  made  manifest ;  and  in  this  state  of  the  law 
it  certainly  becomes  a  matter  of  serious  question  what  these  funda- 
mental property  rights  may  be  which  spouses  ought  not  recipro- 
cally to  relinquish. 

Therefore,  courts  will  rigidly  scrutinize  an  apparently  unjust 
antenuptial  contract,  especially  where  the  wife  is  deprived  thereby 
of  her  interest  in  her  husband's  estate  without  provision  for  her 

70.  Bold  V.  Hutchinson,  20  Beav.  Daubenspeck  v.  Biggs,  71  Ind.  255; 
259;  Peachey,  Mar.  Settl.  87.  Pond  v.  Skeen,  2  Lea   (Tenn.),  126; 

71.  Long  V.  Barton,  236  HI.  551,  86       Russell's  Appeal,  75  Pa.  269. 

N.  E.   127;   O'Day  v.  Meadows,  194  73.    Everitt    v.    Everitt.    L.    E.    10 

Mo.  588.  92  S.  W.  637.  Eq.    405;    Dillaye    v.    Greenough,    45 

72    Pierce  v.  Pierce,  71  N.  Y.  154;       N.  Y.  438. 


525 


ANTENUPTIAL,    SETTLEMENTS. 


§  518 


if  she  survives,'*  and  if  there  is  gross  disproportion  between  the 
provision  made  for  the  wife  and  the  rights  in  her  husband's  estate 
which  she  surrenders  the  law  will  raise  a  presumption  that  there 
was  fraudulent  concealment,  which  will  avoid  the  settlement  unless 
those  profiting  by  the  settlement  rebut  the  presumption."^' 

It  has  been  held  otherwise  where  no  marriage  engagement  rais- 
ing a  fiduciary  relation  existed  at  the  time  the  contract  was  made/' 
In  such  case  the  wife  has  the  burden  of  showing  a  marriage 
engagement  sufficient  to  raise  the  duty  to  disclose. '^^  To  do  so  it 
must  appear  that  at  the  time  of  executing  the  agreement  the  wife 


74.  Fisher  v.  Koontz,  110  Iowa,  498, 
80  N.  W.  551;  In  re  Enyart's  Estate 
(Neb.),  160  N.  W.  120;  Scott  v. 
Watson,  75  Wash.  610,  135  P.  643; 
Bibelhausen  v.  Bibelhausen,  159  Wis. 
365,  150  N.  W,  516. 

75.  Barker  v.  Barker,  126  Ala.  503, 
28  So.  587;  Shirey  v.  Shirey,  87  Ark. 
175,  112  S.  W.  369;  In  re  Warner's 
Estate,  6  Cal.  App.  361,  92  P.  191; 
Mines  v.  Phee,  254  111.  60,  98  N.  E. 
260;  Warner  v.  Warner,  235  111,  448, 
85  N  E.  630;  Landes  v.  Landes,  268 
111.  11,  108  N.  E.  691;  Hessick  v. 
Hessick,  169  111.  486,  48  N.  E.  712; 
Wetsel  V.  Firebaugh,  258  111.  404,  101 
N  E.  602;  Friebe  v.  Elder  (Ind.), 
103  N.  E.  429  (affd.,  181  Ind.  597, 
IOd  N.  E.  151);  Kankin  v.  Shiereck 
(Iowa),  147  N.  W.  180;  Nesmith  v. 
Piatt,  137  Iowa,  292,  114  N.  W.  1053; 
Fisher  v.  Koontz,  110  lawo,  498,  80 
N.  W.  551;  Tilton  v.  Tilton,  130  Ky. 
281,  113  S.  W.  134;  Daniels  v.  Ban- 
ister, 146  Ky.  48,  141  S.  W.  393;  Fish 
V.  Fish  (Ky.),  212  S.  W.  586;  Stephens 
V.  Stephens  (Ky.),  205  S.  W.  573; 
Gaines  v.  Gaines'  Adm'r,  163  Ky.  260, 
173  S.  W.  774;  Maze's  Ex'rs  v.  Maze, 
30  Ky.  Law,  679,  99  S.  W.  335;  Wat- 
son V.  Watson  (Kan.),  180  P.  242; 
Casey  v.  Casey,  84  Kan.  380,  113  P. 
1047;  Collins  v.  Collins,  212  Mass. 
131,  98  N.  E.  588;  Slingerland  v. 
Slingerland,  115  Minn.  270,  132  N. 
W.  326;  In  re  Appleby's  Estate,  100 
Minn.  408,  111  N.  W.  305,  10  L.  R.  A. 
(N.  S.)  590;  Donaldson  v.  Donaldson, 
249   Mo.   228,   155  S.  W.  791;    In  re 


Enyart's  Estate  (Neb.),  160  N.  W. 
12C;  Curtis  v.  Crossley,  59  N.  J.  Eq. 
358,  45  A.  905;  Green  v.  Crane,  57 
App.  Div.  9,  68  N.  Y.  S.  248;  In  re 
Warner's  Estate,  210  Pa.  431,  59  A. 
1113;  In  re  Warner's  Estate,  207  Pa. 
580,  57  A.  35,  99  Am.  St.  R.  804; 
In  re  Haberman's  Estate,  239  Pa. 
10,  86  A.  641;  In  re  Mauk's  Estate, 
19  Pa.  Super.  338;  In  re  Yost's  Es- 
tate, 23  Pa.  Super.  183;  Bramer  v. 
Bramer  (W.  Va.),  99  S.  E.  329;  Ellis 
V.  Ellis,  1  Tenn.  Ch.  App.  198;  Bibel- 
hausen V.  Bibelhausen,  159  Wis.  365, 
150  N.  W.  516;  In  re  Malehow's  Es- 
tate (Minn.),  172  N.  W.  9^15;  Way  v. 
Union  Cent.  Life  Ins.  Co.,  61  S.  C. 
501,  39  S.  E.  742, 

In  New  Jersey,  where  the  wife  takes 
no  interest  in  the  husband's  person- 
alty at  his  death,  the  question  of  pro- 
portion must  be  determined  by  a  com- 
parison between  the  provision  made 
for  the  wife  by  the  contract  and  her 
statutory  dower  in  the  husband 's  real 
estate.  Russell  v,  Russell,  60  N.  J. 
Eq.  282,  47  A.  37  (affd.,  63  N.  J.  Eq. 
282,  49  A.  1081). 

An  honest  underestimate  by  the 
husband  of  the  size  of  his  estate  will 
not  amount  to  a  fraud.  In  re  Birk- 
beck's  Estate,  215  Pa.  323,  64  A.  536. 

76.  Martin  v.  Collison,  266  111.  172, 
107  N.  E.  257. 

77.  Yockey  v.  Marion,  269  111.  342, 
110  N.  E.  34;  Mann  v.  Mann,  270  111. 
83,  110  N.  E.  345.  A  recital  in  a 
settlement  that  it  is  made  in  con- 
templation of  marriage  has  been  held 


§  519  HUSBAND  AND  WIFE.  526 

fullj  knew  of  the  nature  and  value  of  the  husband's  estate,  or  that 
she  ought  reasonably  to  have  known  them.'*  The  evidence  in 
rebuttal  must  be  strong.'^ 

In  passing  on  the  adequacy  of  the  provi^jion  for  the  wife  in 
view  of  the  size  of  the  husband's  estate,  the  court  will  consider  the 
relationship  of  the  parties,  the  known  estate  of  each  and  the  con- 
ditions under  which  the  contract  was  executed.*"  The  rule  is  not 
affected  by  the  fact  that  the  wife  was  born  and  reared  in  a  log 
house,  with  the  usual  accessories  of  such  a  home,  or  that  the  wife 
has  negro  blood.*^  As  a  general  rule  knowledge  of  the  husband's 
circumstances  will  be  inferred  where  the  facts  warrant  it,*^  but 
the  fact  that  the  wife  knows  in  a  general  way  that  the  husband  is 
reputed  wealthy  is  not  sufficient.*^ 

Where  the  wife  was  expressly  informed  that  she  would  take 
less  imder  the  contract  than  under  the  statute,  it  was  held  that 
the  presumption  was  rebutted.**  If  a  settlement  is  avoided  for 
inadequacy  of  provision  the  court  will  restore  what  has  been 
settled  on  the  wife,  if  she  still  has  it.*^ 

§  519.  Rights  of  Creditors. 

The  consideration  of  marriage  will  support  a  settlement  against 

creditors,  even  prior  ones;    this,  too,  it  would  appear,  though  the 

not  equivalent  to  an  assertion  of  an  Ky.  586,  15  Ky.  Law,  353,  23  S.  W. 

engagement    to    marry.       Yockey    v.  361. 

Marion,  269   111.  342,  110  N.  E.  34.  80,  In   re   Mauk's  Estate,    19    Pa. 

78.  Warner  v.  Warner,  235  111.  448,  Super.  338.  In  determining  the  rea- 
85  N.  E.  630;  Yockey  v.  Marion,  269  sonableness  of  an  antenuptial  con- 
Ill.  342,  110  N.  E.  34;  Murdock  v.  tract  by  -which  the  wife  released  her 
Murdock,  219  111.  123,  76  N.  E.  57;  rights  in  her  husband's  property,  the 
Cox  V.  Cox  (Iowa),  163  N.  W.  388;  court  may  consider  the  adequacy  of 
Gordon  v.  Munn,  87  Kan.  624,  125  P.  provision  for  the  wife,  the  means  and 
1  (reh.  den.,  88  Kan.  72,  127  P.  764)  ;  ages  of  the  parties,  and  the  wife's 
Simpson's  Ex'rs,  94  Ky.  586,  15  Ky.  understanding  of  the  meaning  of  the 
Law,  353,  23  S.  W.  361;  Stratton  v.  contract.  Tilton  v.  Tilton,  130  Ky. 
Wilson,  170  Ky.   61,  185  S.  W.   522;  281,  113  S.  W.  134. 

Brown    v.    Brown's    Adm'r,    25    Ky.  81.  Warner  v.  Warner,  235  111.  448, 

Law,  2264,  80  S.  W.  470.  85  N.  E.  630. 

Where  the  property  was  a  farm,  the  82.  Warner  v.  Warner,  235  111.  448, 

fact  that  the  wife  had  had  an  inter-  85  N.  E.  630. 

est    in    farm    property    in    the    same  83.  Hessick  v.  Hessick,  169  111.  486, 

vicinity  has  been  held  to  tend  to  show  48  N.  E,  712;  In  re  Enyart's  Estate 

that  she  had  some  knowledge  of  the  (Neb.),  160  N.  W.  120. 

value  of  the  farm  in  question.     Col-  84.   Tarde   v.   Yardc,   187    111.    636, 

bert  V.  Rings,  231  111.  404,  83  N.  E.  58    N.    E.    600;    Koch    v.    Koch,    126 

274.  Mich.  187,  7  Det.  Leg.  N.  758. 

79.  Simpson  v.  Simpson's  Ex'rs,  94  85.   Shirey  v.  Shirey,  87   Ark.  175, 

112  S.  W.  36fT. 


52T 


ANTENUPTIAX,    SETTLEMENTS. 


§  519 


parties  both  knew  of  the  husband's  indebtedness,  so  long  as  the 
provisions  of  the  settlement  are  not  grossly  out  of  proportion  to  his 
station  and  circumstances ;  ®®  and  so,  too,  where  the  party  to  be 
benefited  thereby  was  implicated  in  no  fraud  upon  the  other's 
creditors,  even  though  that  provision  be  unreasonably  large." 
But  if  it  appear  that  the  celebration  of  marriage  is  part  of  a 
scheme  between  the  marrying  parties  to  defraud  and  delay  cred- 
itors, such  settlement  will  not  be  allowed  to  protect  the  property 
against  just  claims  of  the  latter.**     Where  fraud  has  been  com- 


86.  Sallaske  v.  Fletcher,  73  "Wash. 
593,  132  Pac.  648,  47  L.  R.  A.  (N.  S.) 
320 ;  Campion  v.  Cotton,  17  Ves.  272 ; 
Ex  parte  McBurnie,  1  De  G.  M.  &  G. 
446;  Ramsay  v.  Richardson,  Riley  Ch. 
271;  Armfield  v.  Armfield,  1  Freem. 
Ch.  311;  Jones's  Appeal,  62  Pa. 
324;  Bnmnel  v.  Witherow,  29  Ind. 
123;  Barrow  v.  Barrow,  2  Dick.  (N. 
J.)  504;  Cochran  v.  McBeath,  1  Del. 
Ch,  187;  Credle  v.  Carrawan,  44  N. 
C.  422. 

87.  Where  no  fraud  upon  the  hus- 
band 's  creditors  can  be  charged  on  the 
woman,  she  may  hold  as  a  purchaser 
for  value  against  the  husband's  prior 
creditors,  even  though  the  sttlement 
upon  her  embraced  the  husband's 
whole  estate,  and  the  marrying  parties 
had  been  cohabiting  while  single,  and 
had  illegitimate  children.  Herring  v. 
Wickham,  29  Gratt.  (Va.)  628.  This 
is  an  extreme  case,  and  perhaps  some 
other  States  would  not  extend  the  rule 
60  far.  But  it  finds  strong  support 
from  the  Supreme  Court  of  the 
United  State  in  a  case  decided  in  1881, 
which  upheld  the  settlement  of  a  large 
amount  of  real  estate,  in  considera- 
tion of  marriage,  by  an  insolvent 
debtor  upon  the  woman  who  accepted 
him,  notwithstanding  the  latter  knew 
he  was  financially  embarrassed. 
Prewit  V.  "Wilson,  103  U.  S.  22.  The 
court,  relying  upon  its  belief  that  the 
woman,  nevertheless,  did  not  know  of 
the  man's  insolvency,  and  did  not 
participate  in  his  fraudulent  intent 
upon  his  creditors,  asserted  very 
strenuously,  by  Mr.  Justice  Field,  the 


high  value  of  marriage  as  a  consider- 
ation for  such  a  conveyance.  But,  it 
might  be  asked,  is  it  not  straining  a 
point,  as  to  the  sanctity  and  immuta- 
bility of  the  marriage  union,  to  im- 
agine woman  as  bargaining  her  per- 
son literally  for  the  sake  of  a  certain 
piece  of  property?  Admitting  mar- 
riage to  be  a  consideration  of  the 
highest  value,  and  one  which  cannot 
be  recalled  on  failure  of  such  a  bar- 
gain, ought  mere  mercenary  considera- 
tions to  control  when  such  contracts 
ought  to  be  for  better  or  for  worse, 
for  love  and  personal  esteem,  and  not 
money  alone?  It  may  be  allowed  that 
prior  creditors  cannot  attack  a  deed 
executed  for  valuable  consideration 
without  knowledge  by  the  grantee  of 
the  grantor's  fraudulent  intent;  and 
yet  why  fraudulent  knowledge  should 
not  be  inferred  from  facts  tending  to 
establish  it  in  all  cases,  or  why  "the 
clearest  proof  of  the  wife's  partici- 
pation ' '  should  be  required,  seems, 
apart  from  positive  and  final  decision, 
a  fair  subject  for  legal  disputation. 
"Where  the  intended  wife  was  a  for- 
eigner, who  understood  the  English 
language  imperfectly,  the  settlement 
was  held  good  upon  her  and  her  chil- 
dren, notwithstanding  the  husband's 
insolvency  and  false  recitals  in  the 
deed,  her  own  ignorance  of  the  fraud 
being  shown.  Kevan  v.  Crawford,  6 
Ch.  D.  29. 

88.  Columbine  v.  Penhall,  1  Sm.  & 
Gif.  228;  Goldsmith  v.  Russell,  5  De 
G.  M.  &  G.  555;  Peaehey.  Mar.  Settl. 
63 ;  Simpson  v.  Graves,  Riley  Ch.  232. 


§  519  HUSBAND  AND  WIFE.  528 

mitted  by  husband  and  wife  in  reference  to  property  embraced  in 
the  terms  of  a  settlement,  the  rights  of  a  creditor  with  insufficient 
notice  are  sometimes  upheld  as  against  themselves;  and  a  wife's 
settlement  of  her  own  property  has  been  so  far  set  aside  as  to 
secure  pa^-ment  of  her  antenuptial  debt  to  the  creditor.®®  Under 
a  settlement  reserving  the  right  of  the  wife  to  her  separate  prop- 
erty for  life,  with  power  to  dispose  of  it  as  though  sole,  it  was 
held  that  the  portion  remaining  at  her  death  was  subject  to  her 
debts.®'' 

89.  Sharpe  v.  Foy,  L.  E.  4  Ch.  35;  90.  Stevenson  v.  Renardet,  83  Miss. 


Smith  V.  Chirrell,  L.  E.  4  Eq.  390 
Chubb  V.  Stretch,  L.  E.  9  Eq.  555 
Obermayer  v.  Greenleaf,  42  Miss.  304 
Brame  v.  McGee,  46  Ala.  170. 


392,  35  So.  576;  South  Carolina  Loan 
&  Trust  Co.  T.  Lawton,  69  S.  C.  345, 
48  S.  E.  282,  104  Am.  St.  E.  802. 


)29  POSTNUPTIAL    SETTLEMETfTS.  §    521 


CHAPTER  XXIV. 

POSTNUPTIAL    SETTLEMENTS. 

Section  520.  General  Considerations. 

521.  Antenuptial  Settlements  Distinguished. 

522.  Necessity  of  Trustee. 

523.  Validity  and  Kequisites  in  General. 

524.  Consideration. 

525.  Property  Subject  to  Claims  of  Creditors. 

526.  Construction. 

527.  Settlements  in  Fraud  of  Creditors;  Statutes  of  Elizabeth. 

528.  Effect  of  Bankruptcy  Acts. 

529.  As  Against  Subsequent  Creditors. 

530.  Effect  of  Payment  of  Valuable  Consideration  by  Spouse. 

531.  Effect  of  Intent  of  Settler. 

532.  Eights  of  Bona  Fide  Purchasers;  English  Doctrine. 

533.  American  Doctrine. 

534.  Bescission  and  Avoidance. 

§  520.  General  Considerations. 

But  though,  for  want  of  consideration,  postnuptial  settlements 
are  deemed  voluntary,  yet,  like  other  volimtarj  transactions,  they 
will  be  valid  and  binding,  so  far  as  the  parties  are  concerned,  and 
can  only  be  impeached  as  fraudulent  upon  others.  Postnuptial 
settlements,  therefore,  must  be  viewed  in  two  different  aspects: 
( 1 )  as  between  the  married  parties  and  the  creditor  or  purchasers 
of  either;    (2)  as  between  husband  and  wife  themselves. 

§  521.  Antenuptial  Settlements  Distinguished. 

The  important  distinction  between  settlements  before  and  settle- 
ments after  marriage  is  that,  while  the  former  have  the  marriage 
consideration  to  support  them,  the  latter  are  without  it.^^  The 
term  "  postnuptial  settlements,"  then,  must  not  confuse  thereader's 
mind.  We  use  the  language  of  the  text-writers  without  meaning 
to  imply  that  it  is  appropriate,  or  that  antenuptial  and  postnuptial 
settlements  constitute  two  branches  of  one  general  subject.  On 
the  contrary,  postnuptial  settlements  are  usually  nothing  more  nor 
less  than  gifts  of  real  or  personal  property,  or  of  both,  between 
husband  and  wife,  which  equity  places,  notwithstanding  the  dis- 
abilities of  coverture,  upon  the  footing  of  other  gifts.^^ 

Furthermore,  it  should  be  remembered  that  formal  settlements 


91.  Lannoy  v.  Duke  of  Athol,  2  Atk.  sense  concerns  personal  property,  but 
448.  we   use   the   word   here   in   its  wider 

92.  "Gift"  in  the  more  technical  sense.     2  Schoul.  Pers.  Prop.  55. 

34 


§    523  HUSBAND    AND    WIFE.  530 

made  between  parties  in  the  marriage  state,  in  pursuance  of  arti- 
cles or  memoranda  signed  before  marriage,  are  not  technically 
postnuptial  settlements  (as  the  name  itself  would  seem  to  indi- 
cate) ;  for  the  settlement  relates  back  to  the  antenuptial  stipula- 
tions, however  loosely  these  may  have  been  drawn  up,  and  it  is 
protected  by  the  marriage  consideration  like  all  other  antenuptial 
contracts. 

§  522.  Necessity  of  Trustee. 

The  common-law  requirement  that  trustees  shall  intervene  in 
conveyances  or  transfers  between  husband  and  wife  no  longer 
prevails  to  any  great  extent,  in  England  or  the  United  States,  aa 
a  doctrine  of  equity.®^  But  trustees  are  always  desirable ;  and  in 
some  States  it  is  a  rule  that  the  husband  and  wife  can  only  con- 
tract with  one  another  through  the  intervention  of  third  persons.** 
This  passes  a  legal  estate  in  any  event,  and  permits  of  suits  rela- 
tive to  the  property  with  more  freedom;  for  it  should  still  be 
remembered  that  suits  at  law  between  husband  and  wife  are  dis- 
countenanced at  the  common  law;  and  their  gifts  and  contracts 
generally.  The  insolvency  of  a  trustee  does  not  impair  the  valid- 
ity of  such  a  transfer  to  him  on  a  wife's  behalf.®^ 

§  523.  Validity  and  Requisites  in  General. 

Postnuptial  contracts  will  be  scrutinized  by  courts  to  prevent 
unjust  advantages,  and  slight  misrepresentation  will  avoid  them.^*^ 
Such  contracts  are  not  against  public  policy,  unless  made  in  con- 
templation of  living  apart.^^  Such  a  settlement  providing  that 
a  wife  should  take  no  part  of  her  husband's  estate  at  his  death  has 
been  held  not  binding.^*  Voluntary  settlements  mav  become  valid 
by  matter  ex  post  fado.^^ 

93.  Jones  v.  Clifton,  101  IT.  S.  225;  contrac  on  a  valuable  consideration 
Baddeley  v.  Baddeley,  26  "W.  E.  850;  will  effectively  release  to  a  husband 
Thomas  v.  Harkness,  13  Bush  (Ky.)  his  wife's  rights  in  his  estate,  and 
23.  extinguish  her   rights   as  his   widow, 

94.  McMulen  v.  McMulen,  10  Iowa,  even  if  they  are  livng  apart.  Stokes 
412;  Johnston  v.  Johnston,  1  Grant,  v.  Stokes,  240  111.  330,  88  N.  E.  829. 
468;  Pike  v.  Baker,  53  111.  163.  98.   Dudley  v.  Pigg,   14?  Ind.   363, 

95.  Eowland  v.  Plummer,  50  Ala.  48  N.  E.  642;  Engleman  v.  Deal,  14 
182.  Tex.   Civ.    1,   37   S.  W.   652.     To  the 

96.  Keith  v.  Keith,  37  S.  D.  132,  same  effect  see  Scott  v.  Watson,  75 
156  N.  W.  910.  Wash.  610,  135  P.  643. 

97.  Newberry  v.  Newberry,  114  99.  Peachey,  Mar.  Settl.  236 ;  Prod- 
Iowa,  704,  87  N.  W.  658;  Boyd  v.  gers  v.  Langham,  1  Sid.  133;  Brown 
Boyd,  188  111.  App.  136.     In  Illinois      v.  Carter,  5  Ves.  877. 

it  is  held  that  a  written  postnuptial 


531 


POSTNUPTIAL    SETTLEMENTS. 


§  523 


In  this,  country,  as  also  in  England,  a  voluntary  settlement  by 
husband  upon  the  wife  may  become  valid  by  matter  subsequently 
arising.^  Statutory  requirements,  such  as  registry  or  acknowledg- 
m.ent,  are  found  to  aifect  postnuptial  transactions  in  local  prac- 
tice.^ To  avoid  a  postnuptial  settlement  for  duress  practiced  on 
the  wife  the  acts  relied  on  as  duress  must  so  operate  on  her  mind 
as  to  render  her  acts  not  voluntary.^  Improper  conduct  by  the 
wife  after  the  execution  of  a  postnuptial  agreement  does  not  affect 
its  validity  except  to  explain  her  previous  act^.*  A  postnuptial 
settlement  made  with  full  knowledge  of  the  facts  will  not  be  set 
aside  for  her  mistake  of  law  in  thinking  she  could  break  it.*^ 

The  Iowa  statute  providing  that  neither  spouse  shall  take  any 
interest  in  the  property  of  the  other  which  may  be  the  subject  of 
contract  between  them  does  not  prevent  a  postnuptial  settlement 
cancelling  one  made  before  marriage  and  which  restores  her 
marital  property  rights.^  T\1iere  a  wife  dismisses  a  divorce  pro- 
ceeding in  view  of  a  postnuptial  settlement  which  conveys  certain 
property  to  her,  but  does  not  provide  that  she  shall  not  seek  divorce 
again,  the  husband  cannot  avoid  the  agreement  for  breach  of 
condition  subsequent  where  he  did  not  defend  such  second  divorce 
proceeding."  A  contract  whereby  a  wife  who  was  separated  from 
her  husband  released  her  dower,  which  did  not  mention  the  fact  of 
separation,  has  been  held  not  affected  by  a  resumption  of  marital 
relations.*  A  postnuptial  judicial  settlement  of  property  of  a 
wife  in  the  custody  of  the  court  may  be  amended  in  equity  at  the 
suit  of  a  married  woman  notwithstanding  her  infancy  or  coverture.* 


1.  4  Kent,  Com.  463;  Sterry  v.  Ar- 
den,  1  Johns.  Ch.  (X.  Y.)  261;  Hus- 
ton V.  Cantrill,  11  Leigh    (Va.)    136. 

2.  As  where  a  pecuniary  provision 
is  made  the  wife  in  lieu  of  dower. 
Eandles  v.  Randies,  63  Ind.  93.  And 
see  Brookbank  v.  Kennard,  41  Ind. 
339. 

A  man's  transaction  with  a  woman 
may  be  so  carried  out  that,  as  against 
creditors,  part  may  be  sustained  as 
antenuptial,  and  part  fail  as  postnup- 
tial and  voluntary.  Zimmerman  v. 
Heinrichs,  43  Iowa,  260. 

3.  Mitchell  v.  Mitchell,  267  111.  244, 
108  N.  E.  298. 

4.  Krug  V.  Krug,  81  Wish.  461, 
162  P.  1136. 


5.  Crumlish  v.  Security  Trust  &  Safe 
Deposit  Co.,  8  Del.  Ch.  375,  68  A.  388. 

The  absence  of  a  power  of  revoca- 
tion in  a  settlement  made  by  a  mar- 
ried woman  is  not  evidence  in  itself 
of  mistake  authorizing  the  setting 
aside  of  the  settlement.  Crumlish  v. 
Security  Trust  &  Safe  Deposit  Co., 
8  Del.  Ch.  375,  68  A,  388. 

6.  Fisher  v.  Koontz,  110  Iowa,  498, 
SO  X.  W.  551;  In  re  Devoe's  Estate, 
113  la.  4,  84  N.  "W.  923. 

7.  Moore  v.  Martin,  233  111.  512,  84 
X.  E.  630. 

8.  Stokes  V.  Stokes,  240  111.  330,  88 
X.  E.  829. 

9.  Brown  v.  Wadsworth,  168  N.  Y. 
225,  61  X.  E.  250. 


§  526 


HUSBAND    AND    WIFE. 


532 


§  524.  Consideration. 

A  parol  promise  or  agreement  in  consideration  of  marriage 
being  void,  being  within  the  Statute  of  Frauds,  such  promise  will 
not  support  a  postnuptial  settlement,^"  but  an  existing  marriage 
relation  is  a  sufficient  consideration  to  support  a  postnuptial  settle- 
ment,^^ even  without  a  separation.^^ 

A  wife's  relinquishment  of  either  certain  or  contingent  interests 
in  her  husband's  estate  will  support  a  postnuptial  settlement  where 
there  is  no  badge  of  fraud.^^  In  Indiana  it  is  held  that  marriage 
is  not  a  consideration  for  a  postnuptial  settlement/*  In  Missouri 
it  is  held  that  such  contracts  must  be  supported  by  a  valuable 
consideration.^' 

§  525.  Property  Subject  to  Claims  of  Creditors. 

The  property  which  may  be  recovered  by  creditors  does  not 
embrace  property  which  is  exempt  from  execution;  for  the  cred- 
itors have  no  concern  with  anything  except  assets,  actual  or  pos- 
sible, for  the  payment  of  their  debts.^®  This  was  formerly  a 
matter  of  dispute;   but  it  is  now  apparently  set  at  re&t. 

§  526.  Construction. 

In  the  construction  of  a  postnuptial  settlement,  made  in  due 
form,  questions  of  interpretation  may  of  course  arise,  such  as  are 
common  to  all  marriage  settlements,^^  and  the  rectification  of  mis- 
takes may  likewise  be  invoked  in  a  court  of  chancery.^* 

The  usual  presumption  of  chancery  is  that  the  postnuptial  con- 
veyance of  land,  or  transfer  of  money  to  the  wife  by  way  of  gift, 
is  intended  as  an  advancement  for  her  benefit ;  and  where  the 
name  of  a  third  person  is  also  used,  that  person  becomes  presum- 


10.  London  v.  G.  L.  Anderson  Brass 
Works,  197  Ala.  16,  72  So.  359. 

11.  Indiana  Match  Co.  v.  Kirk,  118 
111.  App.  102;  Eberhart  v.  Eath,  89 
Kan.  329r,  131  P.  604;  Harrison  v. 
Harrison,  146  Ky.  631,  143  S.  W.  40; 
Banner  v.  Banner,  184  Mo.  App.  396, 
171  S.  W.  2 ;  Walt  v.  Walt,  113  Tenn. 
189,  81  S.  W.  228;  Sawyer  v. 
Churchill,  77  Vt.  273,  5?  A.  1014,  107 
Am.  St.  Rep.  762 ;  In  re  Irwin,  73  Law 
J.  Ch.  832  (1904),  2  Ch.  752,  53  Wkly. 
Eep.  200;  Irwin  v.  Parka,  Id. 

12.  Harrison  v.  Harrison  (Mo.),  211 
S.  W.  708. 

13.  De   Parges  v.  Ryland,   87   Va. 


404,  12  S.  E.  805,  24  Am.  St.  R.  659; 
Beverlin  v.  Casto,  62  W.  Va.  158,  57 
S.  E.  411. 

14.  Clow  V.  Brown,  37  Ind.  App. 
172,  72  N.  E.  534;  linger  v.  Mellin- 
ger,  37  Ind.  App.  639,  77  N.  E.  814, 
117  Am,  St,  R.  348. 

15.  Egger  v.  Egger,  225  Mo.  116, 
123  S.  W.  ff28, 

16.  Peachey,  Mar,  Settl.  199  et  seq.; 
1  Story  Eq,  Juris.,  §  410,  See  2  Kent, 
Com.  443,  n.,  12th  ed. 

17.  Fe  Mackenzie,  L.  R.  6  Eq.  210. 

18.  Hanley  v.  Pearson,  L.  R.  13 
Ch.  D.  545. 


533  POSTNUPTIAL    SETTLEMENTS.  §    528 

ably  her  trustee."     But  such  presumptions  may  be  repelled  upon 
due  proof.'" 

§  527.  Settlements  in  Fraud  of  Creditors ;  Statutes  of  Elizabeth. 

There  are  two  English  statutes  which  control  this  subject,  as 
concerns  creditors  and  purchasers,  to  a  great  extent,  wherever  the 
husband  makes  a  postnuptial  settlement  upon  his  wife  and  off- 
spring. The  first  is  that  of  13  Eliz.,  c.  5,  in  favor  of  creditors; 
the  second  that  of  27  Eliz.,  c.  4,  in  favor  of  purchasers;  the  one 
being  directed  against  fraudulent  conveyances  of  all  property  with 
intent  to  defeat  or  delay  creditors ;  the  other  against  fraudulent 
or  voluntary  conveyances  of  lands  designed  to  defeat  subsequent 
purchasers.  These  statutes,  Lord  Mansfield  said,  cannot  receive 
too  liberal  a  construction  or  be  too  much  extended  in  suppression 
of  fraud. ^^ 

Settlements  as  concerns  the  right  of  creditors  and  purchasers 
are  affected  by  the  statute  of  27  Eliz.,  c.  4.  This  statute,  too,  is 
to  be  considered  as  part  of  the  common  law  brought  to  this  country 
by  our  ancestors ;  though  not  generally  adopted  here  to  the  full 
extent  of  the  English  equity  decisions.^^  It  provides  that  all  con- 
veyances of  lands,  made  with  the  intent  to  defraud  and  receive 
purchasers,  shall,  as  against  them,  be  utterly  void.  The  statute 
has  no  application  whatever  to  personal  estate.^* 

The  language  of  the  statutes  in  some  States  contributes  to  the 
confusion  which  prevails  as  to  the  correct  legal  doctrine  on  this 
whole  subject.  Furthermore,  our  registry  system  places  the  law 
on  a  somewhat  different  footing  from  that  prevalent  in  England, 
in  all  settlements,  as  we  noticed  elsewhere.^* 

§  528.  Effect  of  Bankruptcy  Acts. 

Voluntary  settlements,  in  England,  are  likewise  affected  by  the 
bankrupt  acts,  which  are  intimately  connected  with  the  statute  of 
Elizabeth."^  Here  questions  arise  as  to  what  acts  amount  to  a 
contemplation  of  bankruptcy;  and  what  constitutes  a  fraudulent 
preference ;  and  these  we  need  not  here  discuss.  But  it  should  be 
observed  that  the  husband  cannot  bestow  his  property  upon  his 

19.  Re  Eykyn's  Trusts,  L.  R.  6  Ch,  23.  Sugden  Vend.  &  Purch.  587, 
D.  115.  13th   ed.;    Peachey,   Mar.   Settl.   226; 

20.  Carrier  v.  Carrier,  58  Mo,  222.  4  Kent  Com.  463. 

21.  Cadogan  v.  Kennett,  Cowp.  434 ;  24.  Supra  (N.  Y.,  §  5,  antenptial 
Peachey,  Mar.  Settl.   189.  settlements). 

22.  4  Kent  Com.  463.  25.  Peachey,  Mar.  Settl.  210  et  seq. 


§  529 


HUSBAIJD   AND    WIFE. 


534 


wife,  conditional  upon  his  future  bankruptcy  or  insolvency;  yet, 
that  third  persons  may,  by  voluntary  conveyance,  settle  property 
to  the  wife's  separate  use,  free  from  all  control  of  her  husband; 
or  in  trust  to  pay  the  income  to  the  husband  for  life,  "  or  until  he 
should  become  a  bankrupt,"  and  after  that,  to  the  wife's  separate 
use.^^  In  the  former  case  the  transaction  would  be  simply  an. 
artifice  of  the  husband  to  evade  the  bankrupt  laws ;  in  the  latter, 
a  third  person  parts  with  his  own  property,  and  makes  his  own 
terms  as  to  its  final  disposition,  as  he  has  a  right  to  do.^^ 

The  Bankruptcy  Act  of  1867  also  affected  the  doctrine  of  fraud- 
ulent conveyances  in  the  United  States.  And  under  that  act,  the 
gift  of  all  a  debtor's  property  to  his  wife,  if  not  more  subtle  con- 
trivances for  evading  creditors  as  well,  has  been  treated  as  consti- 
tuting an  act  of  bankruptcy.'*  With  the  repeal  of  the  act,  thia 
whole  subject  became  regulated  by  State  insolvent  laws,  which  are 
far  from  uniform  in  their  scope  and  purpose.  As  to  artifices  by 
a  husband  for  keeping  his  own  property  under  his  own  control, 
subject  to  its  divestment  in  his  wife's  favor  upon  his  bankruptcy, 
the  American  rule,  like  the  English,  discountenances  them.^* 

§  529.  As  Against  Subsequent  Creditors. 

But  a  voluntary  deed  is  good  as  against  subsequent  creditors; 
and  there  can  be  nothing  inequitable  in  a  man's  making  a  voluntary 
conveyance  to  a  wife,  child,  or  even  a  stranger,  if  it  be  not  at  the 
time  prejudicial  to  the  rights  of  third  persons,  or  in  furtherance 
of  some  design  of  future  fraud  or  injury  to  them.'" 

The  question  of  the  husband's  indebtedness,  as  affecting  his 
postnuptial  settlement,  is  not,  however,  as  free  from  difficulty  as  it 
might  appear  at  first  sight.  Oonceming  creditors  existing  at  the 
time  of  the  settlement,  the  settlement  may  be  void  under  the 
statute ;  but  not  because  the  husband  has  creditors ;  for  who  goes 
through  life  without  being  indebted  at  all  ?     It  will  be  void,  how- 


26.  Manning  v.  Chambers,  1  De  G. 
&  Sm.  282;  Sharp  v.  Cosserat,  20 
Beav.  473. 

27.  The  setlement  by  a  trader  of  all 
his  property,  both  present  and  future, 
in  trust  for  his  wife 's  separate  use, 
with  remainder  for  himself  for  life, 
and  rpmainder  for  his  children,  re- 
servinfr  the  control  of  the  stock  in 
trade  to  himself,  is  likewise  void  as 
to  creditors  in  bankruptcy.     Ware  v. 


Gardner,  L.  E.  7  Eq.  317.     See  also 
Ee  Pearson,  3  Ch.  D.  807. 

28.  Re  Alexander,  1  Lowell  (U.  S.) 
470.  And  see  Ee  Jones,  6  Biss.  (U. 
S.)  68. 

29.  Levering  v.  Heighe,  2  Md.  Ch, 
81;  Head  v.  Halford,  5  Eich.  Eq.  (8. 
C.)  128;  Peigne  v.  Snowden,  1  Desaus. 
(S.  C),  591. 

30.  Holloway  v.  Millard,  1  Madd. 
414;  Peachey,  Mar.  Settl.  192. 


535 


POSTNUPTIAL    SETTLEMENTS. 


530 


ever,  when  he  is  so  far  indebted,  and  his  debts  are  so  considerable 
in  amount,  as  to  render  him  likelj  to  be  insolvent.  Probabilities 
are  sufficient  to  meet  this  case ;  and  if  existing  creditors  wish  to 
set  the  conveyance  aside,  they  need  only  show  that  at  the  date  of 
the  instrument  he  was  indebted  to  such  an  extent  that  having  regard 
to  his  property,  the  effect  might  be  to  delay,  hinder,  and  defraud 
them/^ 

§  530.  Effect  of  Payment  of  Valuable  Consideration  by  Spouse. 

If  husband  and  wife  may  transfer  property  to  one  another  with- 
out consideration,  still  more  mav  thev  do  so  where  the  consideration 
is  valuable.  All  such  provisions,  even  if  made  without  the  inter- 
vention of  a  trustee,  though  void  in  law  (independently  of  suitable 
Married  Women's  Acts),  may  be  enforced  in  equity  if  fairly  made 
between  the  parties,  and  with  no  fraudulent  intent  upon  others 
concerned,^^  a  rule  which,  with  particular  force,  sustains  an  in- 
debted husband's  provision  in  his  wife's  favor,  wholly  or  partially 
executed.  The  mutual  contracts  of  the  spouses  for  a  transfer, 
where  there  is  a  hotia  fide  and  valuable  consideration,  may  be  spe- 
cifically enforced  in  equity  upon  proof  that  the  agreement  has  been 
executed  by  one  party,  and  not  by  the  other.  Thus  a  husband  and 
wife  agreed,  by  parol,  that  he  should  purchase  a  lot  of  land  in  her 
name,  and  build  a  house  thereon,  and  be  reimbursed  from  the  pro- 
ceeds of  the  sale  of  another  house  belonging  to  her.  The  husband 
having  executed  the  agreement  on  his  part,  the  wife  died  suddenly, 
before  the  sale  of  her  former  house  could  be  effected.      She  left 


31.  Jenkyn  v.  Vaughan,  3  Drew. 
424;  Turnley  v.  Hooper,  2  Jur.  (N. 
S.)    1081. 

32.  See  Grouse  v.  Morse,  49  Iowa, 
382. 

The  husband's  note  or  bond  to  pay 
money  in  consideration  that  his  wife 
would  live  with  him  is  not  on  good 
consideration.  Roberts  v.  Frisby,  38 
Tex.  219;  Ximines  v.  Smith,  39  Tex. 
49.  Cf.  Kehr  v.  Smith,  20  Wall.  (U. 
S.)  31.  Nor  prior  advances  to  the 
wife  disconnected  with  the  settlement, 
and  made  without  expectation  of  re- 
payment. Perkins  v.  Perkins,  1  Tenn. 
Ch.  537.  But  where  the  wife  advances 
money  to  her  husband  as  his  creditor, 
or  the  latter  is  indebted  to  her  upon 
any   valid   consideration,   a   fair   con- 


veyance or  transfer  may  be  made  to 
adjust  or  secure  such  liability.  Kesner 
V.  Trigg,  98  U.  S.  50;  Clough  v.  Rus- 
sell, 55  N.  H.  279;  Sims  v.  Rickets, 
35  Ind.  181;  Booker  v.  Worrill,  55  Ga. 
332;  Kaufman  v.  Whitney,  50  Miss. 
103;  Greer  v.  Greer,  24  Kan.  101; 
Rowland  v.  Plummer,  50  Ala.  1S2; 
Barclay  v.  Plant,  50  Ala.  509';  Jordan 
V.  White,  38  Mich.  253;  Lehman  v. 
Levy,  30  La.  Ann.  745.  Releases  of 
dower  in  husband 's  lands  may  furnish 
consideration;  Sykes  v.  Chadwick,  18 
Wall.  (U.  S.)  141  (a  statute  case). 

As  to  transfers  out  of  all  proportion 
to  the  consideration,  and  apparently 
fraudulent,  see  Kelley  v.  Case,  18  Hun 
(N.  Y.),  472;  Warren  v.  Ranney,  50 
Vt.  653. 


§  530 


HUSBAND    AND    WIFE. 


536 


infant  children.  It  was  decreed  in  equity  that  the  agreement 
should  be  carried  into  effect,  the  former  house  sold,  a  conveyance 
thereof  executed  by  the  infants,  by  their  guardian  ad  litem,  and 
the  husband  be  reimbursed  out  of  the  proceeds  of  the  sale.^^ 

But  the  mere  fact  that  the  husband  has  received  property  in 
right  of  the  wife  cannot  constitute  a  valuable  consideration  by 
relation,  to  support  a  settlement  upon  her  some  years  afterwards ; 
and  this,  on  the  general  principle  applicable  to  contracts.^*  Nor 
can  an  antenuptial  settlement,  once  extinguished  by  the  agreement 
of  all  parties  concerned,  be  revived  for  such  purpose.^^ 

In  no  case  should  contracts  in  derogation  of  the  husband's  prop- 
erty rights  rest  on  slight  proof ;  the  relation  of  debtor  and  creditor 
should  be  distinctly  shown.^* 

There  are  instances  in  which  a  postnuptial  settlement  has  been 
sustained  against  creditors  and  purchasers  on  the  ground  that  a 
valuable  consideration  is  interposed.  Thus,  Lord  Hardwicke  has 
said,  "  If,  after  marriage,  the  father  of  the  wife,  or  other  person, 
in  consideration  of  the  husband  making  a  settlement,  advance  a 
sum  of  money,  such  a  settlement  will  be  good  and  for  a  valuable 
consideration.  And  though  the  money  be  not  paid  at  the  time, 
yet  if  it  be  sufficiently  secured,  the  settlement  will  stand.'^  The 
rule  is  general  that  where  any  marriage  settlement  is  for  a  valu- 
able consideration,  it  cannot  be  avoided  as  fraudulent  upon  the 
creditors,  unless  both  husband  and  wife  were  cognizant  of  the 
fraud ;  her  position  here  being  the  usual  one  of  hona  fide  purchaser 
for  value.^^  And  in  numerous  instances,  the  equity  courts  of 
various  States  have  sustained  a  postnuptial  gift  or  transaction  in 
the  wife's  favor  and  against  the  husband's  creditors,  on  the  ground 
that   a    valuable    consideration    was    interposed.^'     The   primary 


33.  Livingston  v.  Livingston,  2 
Johns.  Ch.  (N.  Y.)  537.  And  see 
Bowie  V.  Stonestreet,  6  Ind.  418  ;  Jones 
V.  Jones,  18  Md.  464 ;  Steadman  v. 
Wilbur,  7  E.  I.  481;  Peiffer  v.  Lytle, 
58  (Pa.)  386.  Cf.  O'Hara  v.  Dil- 
worth,  72  (Pa.)  397. 

34.  Lyne  v.  Bank  of  Kentucky,  5 
J.  J.  Marsh.   (Ky.)    545. 

35.  Harper  v.  Scott,  12  Ga.  125. 

36.  See  Steadman  v.  Wilber,  7  E.  T. 
481;  Tripner  v.  Abrahams,  47  (Pa.) 
220;  Wales  v.  Newbould,  9  Mich.  45. 

37.  Wheeler   v.    Caryl,   Ambl.    121. 


See  further,  Macq.  Hus.  &  Wife,  277 ; 
Cottle  V.  Tripp,  2  Vern,  220;  Ward  v. 
Shallet,  2  Ves.  Sen.  17;  Lavender  v. 
Blackstone,  2  Lev.  147;  Arundell  v. 
Phipps,  10  Ves.  140, 

38.  Magniac  v.  Thompson,  7  Pet. 
(IT.  S.)  348;  4  Kent.  Com.  463.  The 
connection  between  prior  and  subse- 
quent, so  as  to  sustain  the  considera- 
tion, should  be  shown.  Cheatham  v. 
Hess,  2   Tenn.   Ch.   763. 

39.  As  where  the  husband  has  trans- 
ferred property  to  his  wife  in  consid- 
eration of  payment  from  her  separate 


537 


POSTI^UPTIAI.    SETTLEMENTS. 


§  530 


issues,  in  short,  in  all  such  cases,  are  whether  the  indebtedness  of 
husband  to  wife,  or  the  consideration  passing  from  the  latter,  was 


eetate.  Simmons  v.  McElwain,  26 
Barb.  (N.  Y.)  420;  Bullard  v.  Briggs, 
7  Pick.  (Mass.)  533;  Ready  v.  Bragg, 
1  Head  (Tenn.),  511.  And  see  Teller 
V.  Bishop,  8  Minn.  226;  Butterfield 
V.  Stanton,  44  Miss.  15;  Randall  v. 
Lunt,  51  Me.  246;  Reich  v.  Reich,  26 
Minn.  97 ;  Mix  v.  Andes  Ins.  Co.,  16 
N.  T.  397.  And  where  he  conveys 
what  her  equity  entitles  her  to  claim. 
Poindexter  v.  Jeffries,  15  Gratt.  (Va.) 
363,  And  where  he  has  appropriated 
a  like  amount  of  his  wife's  property 
without  her  consent.  Wiley  v.  Grey, 
36  Miss.  510.  So  where  the  wife  pays 
her  husband 's  debts  from  her  separate 
earnings.  Dygert  v.  Remerschneider, 
39  Barb.  (N.  Y.)  417.  Or  releases  her 
dower  or  homestead.  linger  v.  Price, 
9  Md.  552;  Randall  v.  Randall,  37 
Mich.  563;  Randies  v.  Randies,  63 
Ind.  93;  Nalle  v.  Liveily,  15  Fla.  130; 
Payne  v.  Hutcheson,  32  Gratt.  (Va.) 
812;  Garlick  v.  Strong,  3  Paige  (N. 
T.)  440;  Hale  v.  Plummer,  6  Ind. 
121;  Andrews  v.  Andrews,  28  Ala. 
432.  Or,  in  general,  releases  her  in- 
terest in  his  property.  Davis  v.  Davis, 
25  Gratt.  (Va.)  587,  Or  advances 
money  to  the  husband  to  buy  land, 
even  though  it  be  conditioned  upon 
paying  and  securing  the  money  to  her 
children.  Goff  v.  Rogers,  71  Ind.  459. 
Or  where  the  husband  is  indebted  to 
her  for  rents  collected  from  her  sep- 
arate real  estate.  Barker  v.  Morrill, 
55  Ga.  332;  Kaufman  v.  Whitney,  50 
Miss.  103.  Or  upon  any  debt  due  her. 
French  v.  Motley,  63  ISI-e.  326;  Brig- 
ham  V,  Fawcett,  42  Mich.  542  ;  Lahr's 
Apepal,  90  Pa.  507.  Or  a  claim,  gen- 
erally, which  grows  out  of  the  hus- 
band's appropriation  of  his  wife's 
separate  estate,  if  founded  on  an 
agreement  to  refund.  Odend'hal  v. 
Devlin,  48  Md.  439.  See  also  Johnston 
V.  Gill,  27  Gratt.  (Va.)  587;  Thomp- 
son V.  Feagin,  60  Ga.  82  ;  Bedell 's  Ap- 
peal, 87  (Pa.)  510.  But  not  a  claim 
for  the  husband 's  mere  appropriation, 


without  any  such  agreement  to  refund. 
Clark  V,  Rosenkrans,  31  N.  J.  Eq.  665. 
See  also  Rose  v.  Brown,  11  W.  Va. 
122. 

Priority  considered  of  a  mortgage 
given  by  husband  and  wife  in  trust 
for  the  wife,  to  secure  to  her  money 
loaned  by  her  from  her  separate  es- 
tate. McFarland  v.  Gilchrist,  25  N.  J. 
Eq.  487.  In  States  which  permit  a 
preference  of  creditors  the  husband  is 
permitted  to  prefer  his  wife,  if  she  be 
his  creditor.  Jordan  v.  White,  38 
Mich.  253.  And  see  Wood  v.  Warden, 
20  Ohio,  518.  Some  of  the  later  de- 
cisions speak  of  a  "reasonable  pro- 
vision" made  for  the  wife  by  the 
husband  while  in  prosperous  circum- 
stances. Babcoek  v.  Eckler,  24  N.  Y. 
628;  Townsend  v.  Maynard,  45  Pa. 
198.  And  the  wife's  relinquish- 
ment of  her  equity  to  a  chose  in  ac- 
tion constitutes  a  valuable  considera- 
tion, even  perhaps  for  his  settlement 
of  the  whole  chose  upon  her.  Brad- 
ford V.  Goldsborough,  15  Ala.  311; 
Barron  v.  Barron,  24  Vt.  375. 

But  where  the  consideration  ad- 
vanced by  the  wife  is  inadequate, 
equity  will  never  sustain  the  settle- 
ment further  than  to  secure  the  re- 
payment thereof,  and  not  always  even 
to  this  extent ;  especially  if  she  be 
privy,  with  her  husband,  to  a  fraud 
upon  others.  Herchfeldt  v.  George,  6 
Mich.  456;  Skillman  v.  Skillman,  2 
Beasl.  403;  Farmers'  Bank  v.  Long,  7 
Bush,  337;  Den  v.  York,  13  Ired.  (N. 
C.)  206;  Pusey  v.  Harper,  27  Pa.  4C9; 
2  Kent  Com.  174;  William  &  Mary 
College  V.  Powell,  12  Gratt.  (Va.), 
372.  And  a  settlement  of  all  or  the 
greater  part  of  the  husband's  prop- 
erty upon  the  wife,  on  the  plea  of  a 
reasonable  provision  for  her  support, 
is  not  sustainable  in  equity.  Coates 
V.  Gerlach,  44  Pa.  43.  A  settlement 
by  a  husband  on  his  wife,  in  consider- 
ation of  her  services,  is  voluntary 
merely,    apart    from    statutes    which 


§  531 


HUSBAND    AND    WIFE. 


538 


bona  fide,  and  wkether  there  was  fraud  or  no  fraud  intended  in  the 
transaction;    and  these  issues  are  usually  for  a  jury  to  determine. 

Mere  suspicions  arising  from  the  relation  of  husband  and  wife 
will  not  disturb  a  settlement  upon  her  as  for  value  received.*" 
But,  of  course,  where  there  is  consideration  for  the  settlement 
claimed  on  her  part,  so  that  her  position  is  that  of  bona  fide  pur- 
chaser, so  to  speak,  her  innocence  or  complicity  in  the  fraud 
becomes  a  material  issue. 

The  wife's  complicity  in  a  fraud  upon  antecedent  creditors  may 
impair  her  own  claims.*^  But  even  though  the  transaction  were 
not  fully  sustained  as  to  pre-existing  creditors,  the  inclination  is 
to  protect  her  to  the  extent  of  her  own  consideration,  and  place 
her  in  statu  quo  as  far  as  posible.*^ 

§  531.  Effect  of  Intent  of  Settler. 

The  question  of  fraudulent  intent  is  the  real  point  at  iseue. 
And  as  to  fraud  upon  future  creditors,  it  has  been  said  that 
while  an  instrument  might  be  executed  with  the  purpose  of  de- 
frauding them,  it  is  not  a  thing  very  likely  to  happen.**  But 
cases  of  this  sort  are  not  impossible.  Thus  a  person  might  make 
a  voluntary  settlement  upon  his  wife  and  children,  raising  enough 


change  the  common  law.  Belford  v. 
Crane,  1  C.  E.  Green  (N.  J.),  265. 
And  see  Keith  v.  Woombell,  8  Pick. 
(Mass.)  211. 

40.  French  v.  Motley,  63  Me.  326. 
The  fact  that  the  debt  from  husband 
to  wife  which  formed  the  consideration 
was  barred  by  limitations,  is  not  con- 
clusive against  the  wife's  rights.    Tb. 

41.  Annin  v.  Annin,  24  N.  J.  Eq. 
184;  Phelps  v.  Morrison,  ib.  195. 

42.  Hinkle  v.  Wilson,  53  Md.  287; 
Daris  v.  Davis,  25  Gratt.   (Va.)    587. 

43.  Jenkyn  v.  Vaughan,  25  L.  J. 
Eq.  339. 

"Fraud,"  observes  Mr.  Justice 
Swayne  in  a  recent  case,  ' '  is  always  a 
question  of  fact  with  reference  to  the 
intention  of  the  grantor.  Where  there 
is  no  fraud,  there  is  no  infirmity  in 
the  deed.  Every  case  depends  upon 
its  circumstances  and  is  to  be  care- 
fully scrutinized.  But  the  vital  ques- 
tion is  always  the  good  faith  of  the 
transaction.  There  is  no  other  test." 
Lloyd  V.  Fulton,  91  U.  S.  479.    In  this 


case  it  was  held  that  the  husband's 
prior  indebtedness,  apart  from  insol- 
vency, &c.,  was  only  presumptive  and 
not  conclusive  proof  of  fraud,  and 
that  the  presumption  was  open  to  ex- 
planation. And  see  Patrick  t.  Pat- 
rick, 77  m.  555;  Booker  v.  WorriU, 
55  Ga.  332;  Kaufman  v.  Whitney,  50 
Miss.  103.  Yet  transfers  to  the 
wife  of  an  insolvent  debtor,  and  even 
purchases  by  her,  are  justly  regarded 
with  suspicion;  and  consideration 
from  her  separate  estate  must  be 
established  by  afl&rmative  proof.  Seitz 
V.  Mitchell,  94  U.  S.  580;  Kehr  v. 
Smith,  20  Wall.  (IT.  S.)   31. 

The  husband's  possession  of  his 
wife's  property  is  not  a  badge  of 
fraud.  Earncord  v.  Kuhn,  36  Pa.  383. 
Nor  are  his  representations  of  owner- 
ship, as  it  would  appear,  sufficient  to 
charge  such  property  for  his  debts,  un- 
less deceitful  and  calculated  to  mislead 
th3  public.  Lyman  v.  Cessford,  15  la. 
229. 


539 


rOSTNUPTIAL    SETTLEMENTS. 


§  532 


cash  to  pay  off  existing  creditors,  and  leaving  those  who  advanced 
the  cash  without  the  means  of  securing  their  reimbursement.** 
Doubtless  such  a  transaction  is  to  be  set  aside  as  fraudulent.*' 
The  question  is  not  that  of  actual  insolvency,  but  the  intention 
to  defraud.*®  Appropriation  of  the  wife's  property,  as  though 
in  assertion  of  a  husband's  marital  rights,  is,  however,  a  sus- 
picious circumstance,  no  agreement  to  refund  having  passed,*^ 
and  so  is  a  sale  by  husband  to  wife  without  delivery,*^  or  a  pro- 
vision out  of  all  reasonable  proportion  to  the  alleged  considera- 


tion 


49 


§  532,  Rights  of  Bona  Fide  Purchasers;  English  Doctrine. 

As  to  the  statute  of  13  Eliz.,  c.  5,  it  is  held  that,  if  a  man  who 
is  indebted  conveys  property  for  the  use  of  his  wife  and  children, 
or  in  trust  for  their  benefit,  such  a  conveyance  is  subject  to  the 
statute  prohibition,  inasmuch  as  the  consideration,  although  good 
between  the  parties  themselves,  is  not  bona  fide  as  regards 
creditors.'^" 

The  English  doctrine  is  that  a  voluntary  conveyance,  though 
for  a  meritorious  purpose,  shall  be  deemed  to  have  been  made  with 
fraudulent  views,  and  must  be  set  aside  in  favor  of  a  subsequent 
purchaser  for  a  valuable  consideration,  even  though  he  had  notice 
of  the  prior  deed.^^  In  other  words,  while  the  statute  of  13  Eliz. 
permits  a  voluntary  conveyance  to  stand  as  against  subsequent 
creditors,  that  of  27  Eliz.  makes  a  voluntary  conveyance  of  land 
void  as  against  a  subsequent  purchaser  for  value.  The  principle 
on  which  the  English  cases  rest  appears  to  be  that,  by  selling  the 
property  over  again  for  a  valuable  consideration,  the  vendor  so 


44.  Richardson  v.  Smallwood,  Jac. 
552 ;  Holmes  v.  Penney,  3  Kay  & 
Johns.  102. 

45.  lb.;  Macq.  Hu3.  &  Wife,  275; 
Peachey,  Mar.  Settl.  193. 

46.  Peachey,  Mar  Settl.  135,  and 
eases  cited;  Skarf  v.  Soulby,  1  M.  & 
Gord.  375 ;  French  v.  French,  6  De  G. 
M.  &  G.  95;  Wawefield  v.  Gibbon,  26 
L.  J.  Eq.  508.  As  to  the  right  of 
Bubsequent  creditors  to  impeach  volun- 
tary settlement,  see  Walker  v.  Bur- 
Towcs,  1  Atk.  93 ;  Richardson  v. 
Smallwood,  Jac  552;  Maeq.  Hus.  & 
Wife,  275;  Peachey,  Mar.  Settl.  197. 
When  the  deed  is  once  set  aside,  the 


property  is  thrown  open  to  all  credi- 
tors. Ede  V.  Knowles,  2  T.  &  Col.  C. 
C.  178 ;  Kidney  v.  Coussmaker,  12 
Ves.  136;  Jenkyn  v.  Vaughan,  3  Drew. 
419. 

47.  Clark  v.  Rosenkrans,  31  N.  J. 
Eq.  665. 

48.  Lewis  v.  Caperton,  8  Gratt.  (Va.) 
148;  Geisendorff  v.  Eagles,  70  Ind. 
418;  Woodruff  v.  Apgar,  42  N.  J.  L. 
198. 

49.  Coates  v.  Gerlach,  44  Pa.  43. 
Cf.  Thompson  v.  Feagin,  60  Ga.  82. 

50.  Goldsmith  v.  Russell,  5  De  G. 
^r.  &  G.  547 ;  Peachey.  Mar.  Settl.  1^1. 

51.  Doe  V.  Manning,  9  East,  59. 


§  533  HUSBAND  AND  WIFE.  540 

entirely  repudiates  the  former  transaction  and  shows  his  intention 
to  sell,  that  the  presumption  against  the  prior  gift  becomes  con- 
clusive.^^ And  while  the  correctness  of  this  principle  might  well 
be  doubted  in  its  application  to  subsequent  purchasers  with  notice, 
yet,  as  Lord  Thurlow  said,  so  many  estates  stand  upon  the  rule 
that  it  cannot  be  now  shaken. ^^  This  doctrine  applies  to  post- 
nuptial settlements  in  England.^* 

§  533.  American  Doctrine. 

Under  the  statute  of  13  Eliz.  it  is  generally  held  in  this  country 
that  voluntary  postnuptial  settlements  made  with  intent  to  hinder, 
delay,  or  defeat  creditors  are  void.  But  it  must  be  admitted  the 
principle  is  not  stated  with  equal  precision  in  all  the  States,  and 
while  some  cases  doubtless  proceed  upon  the  doctrine  that  the 
voluntary  gift  fails  because  there  is  an  intent  to  hinder  and  de- 
fraud, others  again  seem  to  rest  upon  the  mere  existence  of  actual 
creditors  whose  rights  are  thereby  impaired  or  prejudiced.  It  is 
not  within  our  province  to  treat  of  this  subject  in  its  general 
bearings,  as  in  gifts  between  man  and  man;  but  so  far  as  the 
American  decisions  concern  gifts  between  husband  and  wife,  we 
shall  presently  give  the  results  somewhat  at  length.^^  The  point 
of  the  distinction,  however,  is  readily  perceived  to  be  this:  that, 
whereas  one  class  of  cases  tends  to  establish  that  the  husband  may 
never  settle  property  upon  his  wife  during  coverture,  if  he  owes 
debts  at  the  time  so  as  to  be  insolvent,  but  may  otherwise  do  so 
absolutely  without  the  fear  of  future  creditors  before  his  eyes; 
the  other  class  of  cases  is  to  the  purport  that,  no  matter  whether 
they  be  existing  or  subsequent  creditors,  his  voluntary  settlement 
upon  his  wife  will  be  voidable  if  with  intent  to  prejudice  their 
rights,  and  not  otherwise.  The  latter  we  conceive  to  be  the  true 
rule,  subject  to  the  qualification  that  fraud  as  to  existing  creditors 
may  be  presumed  from  the  fact  of  insolvency  or  even  embarrass- 
ment.^' 

Fortunately  in   this  country  we  have  not  been  hampered  by 

52.  Doe  V.  Rusham,  17  Q.  B.  724;  siderations  in  such  deeds,  in  order  to 
16  Jur.  359.  deter  purchasers. 

53.  Evelyn  v.  Templar,  2  Bro.  C.  C.  55.  See  2  Kent  Com.  440  et  seq.;  4 
148;  Peachey,  Mar.  Settl.  228,  and  ft.  463  e«  seg.,  where  the  subject  is  dis- 
eases cited.  cussed  at  length,  with  citations  from 

54.  See  Bill  v.  Cureton,  2  Myl.  &  K.  American  cases. 

510;    Peachey,   Mar.    Settl.   232,   240.  56.  Patrick  v.  Patrick,  77  111.  555; 

And     English      conveyancers     insert       Lloyd  v.  Fulton,  91  TJ.  S.  479. 
■words  importing  certain  valuable  con- 


541 


POSTNUPTIAL    SETTLEMENTS. 


§  533 


the  English,  construction  of  the  statute  of  27  Eliz.  And 
in  a  case  before  the  Supreme  Court  of  the  United 
States  it  was  held  that  the  principle  of  construction  which  pre- 
vailed in  England,  at  the  commencement  of  the  American  Revolu- 
tion, went  no  further  than  to  hold  the  subsequent  sale  to  be  pre- 
sumptive and  not  conclusive  evidence  of  a  fraudulent  intent  in 
making  the  prior  voluntary  conveyance ;  and  the  court  declined  to 
follow  the  subsequently  established  construction  of  Westminster 
Hall.'^^  And  the  better  American  doctrine  seems  to  be  that  volun- 
tary conveyances  of  land,  bona  fide  made,  and  not  originally  fraud- 
ulent, are  valid  as  against  subsequent  purchasers  having  record  or 
other  notice.^* 

In  some  States  the  English  statute  is  re-enacted  with  the  lan- 
guage essentially  changed;  as  in  Connecticut  and  New  York. 
And  it  is  the  settled  American  doctrine  that  a  bona  fide  purchaser 
for  value  is  protected,  whether  he  purchases  from  a  fraudulent 
grantor  or  a  fraudulent  grantee ;  and  that  there  is  no  difference  in 
this  respect  between  a  deed  to  defraud  subsequent  creditors,  and 
one  to  defraud  subsequent  purchasers;  both  being  voidable  only 
and  not  absolutely  void,^®  As  to  negotiable  instruments  not  over- 
due, too,  the  usual  equity  rule  may  apply,  which  protects  in  general 
the  rights  of  a  bona  fide  holder  for  consideration  and  without  notice 
of  adverse  claim  or  fraudulent  intent.®" 


57.  Cathcart  v.  Robinson,  5  Pet.  (U. 
8.)  280. 

58.  4  Kent  Com.  464,  n.,  and  cases 
cited ;  Jackson  v.  Town,  4  Cow.  603 ; 
Ricker  v.  Ham,  14  Mass.  IS^;  Atkin- 
son V.  Phillips,  1  Md.  Ch.  507 ;  Shep- 
ard  V.  Pratt,  32  la.  296;  Beal  v.  War- 
ren, 2  Gray  (Mass.),  447.  But  contra, 
see  Clanton  v.  Burges,  2  Dev.  Ch.  (N. 
C.)  13. 

59.  4  Kent  Com.  464,  and  cases  cited 
in  notes;  Anderson  v.  Roberts,  18 
Johns.  (N.  Y.)  515;  Bean  v.  Smith,  2 
Mason  (U.  S.),  252;  Eldred  v.  Drake, 
43  la.  569 ;  Oriental  Bank  v.  Has- 
kins,  3  Met.  332.  So  the  English  Stat., 
3  &  4  Wm.  IV.,  ch.  27,  §  26,  protects 
bona  fide  purchasers  for  value. 

60.  Farmers'  Bank  v  Brooke,  40 
Md.  249. 

The  following  American  cases  may 
be  cited  with  reference  to  the  effect  of 


a  husband's  postnuptial  settlement  as 
against  his  creditors,  &c.  See  supra, 
§  374.  In  several  States  it  is  express- 
ly held,  that  a  voluntary  transfer  or 
conveyance  from  husband  to  wife  is 
valid  against  all  subsequent  creditors 
and  purchasers.  United  States  Bank 
V.  Ennis,  Wright  (Ohio),  605;  Beach 
v.  White,  Walk.  Ch.  495;  Davis  v. 
Herrick,  37  Me.  39'7;  Story  v.  Mar- 
shall, 24  Tex.  305;  Phillips  v.  Meyers, 
82  111.  67.  A  postnuptial  settlement 
is  not  in  valid,  it  is  recently  declared 
by  the  Supreme  Court  of  the  United 
States,  if  rights  of  existing  creditors 
be  not  impaired.  Clark  v.  Killian,  103 
IT.  S.  766;  Jones  v.  Clifton,  101  U.  S. 
225.  In  New  Jersey,  however,  the 
rule,  as  concisely  stated,  is  that  the 
husband  's  settlement,  if  voluntary,  is 
fraudulent  as  to  existing  debts  by  an 
inference  of  law;    and,  as  to   subse- 


§  534 


HUSBAND    AND    WIPE. 


542 


§  534.  Rescission  and  Avoidance. 

Postnuptial  settlements  for  the  welfare  of  minor  cliildren,  to- 
gether with  the  wife,  are  favored  in  numerous  instances,  like 
antenuptial.^^  It  is  sometimes  held  that  a  postnuptial  settlement 
will  not  be  enforced  in  equity  to  the  prejudice  of  the  rights  of 


quent  debts,  fraud  in  fact  must  be 
proved.  Annin  v.  Annin,  24  N.  J. 
Eq.  184;  Belford  v.  Crane,  1  C.  E. 
Green  (N.  J.),  265.  This  is  the  doe- 
trine  in  New  York  and  many  other 
States,  and  indeed  a  preferable  one, 
though  the  tendency  is  to  regard  in- 
tent. Eeade  v.  Livingston,  3  Johns. 
Ch.  (N.  Y.)  481;  Lyman  v.  Cessford, 
15  la.  229.  And  Chancellor  Kent  has 
ruled,  in  the  leading  American  case 
on  this  subject,  that  if  a  settlement 
after  marriage  be  set  aside  by  the 
prior  creditors,  subsequent  creditors 
are  entitled  to  come  in  and  be  paid 
out  of  the  proceeds  of  the  settled 
estate. 

Reade  v.  Livingston,  3  Johns.  Ch. 
(N.  Y.)  481.  That  intended  fraud, 
and  this  alone,  should  be  considered, 
as  to  a  husband's  subsequent  credit- 
ors, in  case  of  his  voluntary  settle- 
ment for  his  wife  and  children,  see 
Mattingly  v.  Nye,  8  Wall.  (U.  S.) 
370;  Caswell  v.  Hill,  47  N.  H.  407; 
Phillips  V.  Wooster,  36  N.  Y.  412; 
Place  V.  Ehem,  7  Bush,  585,  Niller  v. 
Johnson,  27  Md.  6;  Teller  v.  Bishop, 
8  Minn.  226.  The  husband's  condi- 
tion as  to  his  creditors  is  to  be  re- 
garded with  reference  to  the  time  he 
made  the  settlement  upon  his  wife, 
not  with  reference  to  the  condition 
subsequently  of  his  estate  upon  his 
death.  Leavitt  v.  Leavitt,  47  N.  H. 
329.  Concerning  the  unfavorable  ef- 
fect of  a  secret  agreement  between 
husband  and  wife  upon  the  rights  of 
intervening  creditors,  ignorant  of 
such  agreement,  see  Hatch  v.  Gray,  21 
la.  29;  Annin  v.  Annin,  24  N.  J.  Eq. 
184;  Phelps  v.  Morrison,  rft.  195.  A 
husband's  voluntary  conveyance  may, 
from  its  very  substance,  be  void  as  to 
all  creditors,  being  an  artifice  to  t^ep 


his  property  out  of  his  creditors' 
hands  in  case  of  future  insolvency 
while  using  it  in  trade.  Case  v.. 
Phelps,  39  N.  Y.  164.  Equity  wUl 
regard,  in  cases  of  this  sort,  the  in- 
tent, notwithstanding  a  compliance 
with  certain  formalities  of  transfer  on 
the  husband's  part.  Metropolitan 
Bank  v.  Durant,  22  N.  J.  Eq.  35. 

That  as  to  existing  creditors,  the 
husband's  intent  to  defraud  should 
be  considered,  which  intent  may  be  in- 
ferred from  his  insolvency  or  embar- 
rassment, see  the  late  cases  of  Eed- 
field  V.  Buck,  35  Conn.  328;  Gardner 
V.  Baker,  25  la.  343;  Woolston 's  Ap- 
peal, 51  Pa.  452;  Bertrand  v.  Elder, 
23  Ark.  494;  Lloyd  v.  Fulton,  91  U. 
S.  479;   Myers  v.  King,  42  Md.  65. 

The  right  of  a  husband  to  settle  the- 
surplus  of  property,  over  and  above 
what  he  then  owes,  for  the  benefit  and 
future  comfort  of  wife  and  children, 
is  liberally  considered  in  Gridley  v, 
Watson,  53  HI.  186;  Vance  v.  Smith, 
2  Heisk.  (Tenn.)  343;  Brookbank  v. 
Kennard,  41  Ind.  339;  White  v.  Bettis, 
9  Heisk.  (Tenn.)  645.  But  even  here 
it  is  proper  that  abundant  means  for 
creditors  should  be  reserved,  nor 
should  such  a  settlement  be  with  a 
view  of  incurring  debts  in  the  future. 
Allen  V.  Walt,  9  Heisk.   (Tenn.)   242, 

For  instances  where  a  husband 's 
voluntary  conveyance  to  his  wife  has 
been  set  aside  as  in  fraud  of  creditors, 
see  Clarke  v.  McGeihan,  25  N.  J.  Eq. 
423;  Watson  v.  Riskamire,  45  la.  231; 
Annin  v.  Annin,  24  N.  J.  Eq.  184. 
See  further,  Davidson  v.  Lanier,  51 
Ala.  318;  Bowser  v.  Bowser,  82  Pa. 
57;  Nippes's  Appeal,  75  Pa.  472. 

61.  See  White  v.  Bettis,  9  Hei3k. 
(Tenn.)  645;  Goff  v.  Rogers,  71  Ind^ 
4  59. 


543 


POSTNUPTIAL    SETTLEMENTS. 


§    534: 


children  for  whom  no  provision  has  been  made,^^  though  in  such 
a  case  it  would  appear  that  the  complainant  must  show  that  he  is 
thus  prejudiced.* 


63 


62.  Crooks  v.   Crooks,   34   Ohio   St.       56.    A  gro^vn  child,  not  dependent  for 
tilO.  support,  is  not  greatly  favored.     Hor- 

63.  Jbid.;  Majors  v.  Everton,  89  111.       den  v.  Horden,  23  Kan.  391. 


§  535  HUSBAND  AND  WIFE.  544 


CHAPTEE  XXV. 

CONTRACTS    BETWEEN    SPOUSES. 

Section  535.  What  Law  Governs. 

536.  Contracts  and  Debts  Existing  at  the  Time  of  Marriage, 

537.  Under  Married  Women's  Acts. 

538.  Contracts  as  to  Wife's  Statutory  Separate  Estate. 

539.  Validity  in  General. 

540.  Consideration. 

541.  Bills  and  Notes. 

542.  Loans  and  Advances. 

543.  Contracts  for  Services. 

544.  Liability  to  Pay  Interest. 

545.  Spouses  as  Partners. 

546.  Keleases  Between  Spouses. 

§  535.  What  Law  Governs. 

It  is  generally  held  that  a  contraot  between  spouses  valid  where 
made  is  enforceable  ever^^where  else.®*  Where  a  contract  between 
spouses  is  void  where  made  because  of  common-law  disabilities,  it 
is  not  enforceable  there  though  intended  to  be  performed  where  a 
wife  had  the  right  to  contraot  as  though  sole.^^  Where  spouses 
domiciled  in  N^orth  Carolina  contract  to  release  the  wife's  dower 
in  lands  in  that  State  and  the  husband's  marital  rights  in  her  land 
in  Massachusetts,  it  was  held  that  the  wife's  capacity  to  contract 
was  governed  by  the  law  of  North  Carolina.^® 

Where  a  wife  in  iSTew  Jersey  made  and  delivered  to  her  husband 
a  written  promise  to  pay  money  to  his  order,  which  he  carried  to 
N^ew  York  with  her  consent  and  there  indorsed  and  delivered  it  to 
a  third  person,  it  was  held  that  the  contract  was  made  in  New 
York,  and  governed  by  the  law  of  that  State,  though  void  in  New 
Jersey.®^  In  Louisiana  the  validity  of  a  conveyance  of  immov- 
able property  and  the  capacity  of  spouses  to  deal  in  regard  thereto 
are  governed  by  the  law  of  that  State.®*  In  the  same  State,  except 
as  modified  by  Act  No.  94  of  1916,  contracts  between  spouses  are 

64.  Shane  v.  Dickson,  111  Ark.  353,  211,  45  N.  E.  737,  36  L.  B.  A.  771, 
163  S.  W.  1140.  57  Am.  St.  E.  452. 

65.  Broi\Ti  V.  Balton,  105  Ky.  669,  67.  Thompson  v.  Taylor,  66  N.  J. 
30  Ky.  Law,  1484,  49  S.  W.  443,  88  Law,  253,  49  A.  544,  88  Am.  St.  E. 
Am.  St.  E.  325.  485. 

66.  Poison   V.    Stewart,    167    Mass.  68.  Eush  v.  Landers,  107  La.  549, 

32  So.  95,  57  L.  E.  A.  353. 


545  CONTRACTS    BETWEEN    SPOUSES.  §    536 

prohibited,  including  those  made  while  residing  temporarily  in 

another  jurisdiction.**® 

§  536.  Contracts  and  Debts  Existing  at  the  Time  of  Marriage. 

A  debt  or  obligation  due  a  woman  is  extinguished,  not  sus- 
pended, at  common  law,  by  her  marriage  with  the  debtor  or 
obligor,  and  she  cannot  recover  the  same  against  him  or  his  estate 
after  the  relation  is  ended.'"  So,  too,  where  the  woman  is  debtor 
and  marries  the  creditor,  the  debt  against  her  is  discharged.^^ 
These  doctrines  are  subject  to  the  exception  that  this  must  not 
affect  the  rights  of  third  parties.''"  The  rule  applies  where  before 
marriage  the  wife  contracts  to  render  her  husband  personal  services 
for  a  compensation."  In  Massachusetts  it  is  held,  where  a  woman 
mortgages  her  land  to  secure  the  debt  of  a  third  person  and  after- 
wards marries  the  mortgagee,  his  representative  may  enforce  it.^* 
The  same  is  true  in  Arkansas  under  the  Married  Women's  Act.''* 
It  is  held  otherwise  in  Tennessee,  even  under  the  Married  Women's 
Act.''®  In  Massachusetts  it  has  also  been  held  that  a  note  given 
by  a  man  to  a  woman  before  marriage  for  money  loaned  was  not 
extinguished  by  the  marriage,''^  nor  is  a  debt  due  on  a  loan  made 
before  marriage  by  the  wife  to  the  husband.^*  Under  the  Vermont 
Married  Women's  Act  a  woman  payee  of  a  promissory  note  did 
not  lose  her  rights  by  marriage  with  the  maker,  and  might  validly 
indorse  it  for  collection,  though  she  could  not  sue  her  husband 
on  it." 

69.  Marks  v.  Loesenberg  (La.),  78  the  bond  would  take  place  by  her  mar- 
So.  444,  riage.    ^?iier,  however,  where,  as  here, 

70.  Smilej  v.  Smiley,  18  Ohio  St.  the  wife  was  residuary  legatee,  and  all 
543.  debts  and  legacies  were  shown  to  have 

71.  Gosnell  v.  Jones,  152  Ind.  638,  been  paid. 

53   N.   E.   381;    Dillon  v.   Dillon,  24  73.  In  re  Callister's  Estate,  153  N. 

Ky.  Law,  781,  69  S.  W.  1099.  Y.  294,  60  Am.  St.  R.  620. 

Indorsement  or  assignment  of  such  74.  Bemis  v.  Call,  10  Allen  (Mass.), 

a  debt,  or  its  evidence  before  marriage,  512;    McMahan   v.  Bowe,   114   Mass. 

may  nevertheless  give  a  third  person  140,  19  Am.  E.  321. 

rights  against  the  debtor.     Guptil  v.  75.  McKie  v.  McKie  (Ark.),  172  S. 

Home,    63    Me.    405.      Aliter,    where  W.  891. 

such  indersement  or  assignment  takes  76.  Schilling  v.  Darmody,  102  Tcnn. 

place   after   the   marriage.     Long   v.  439,  52  S.  W.  291,  73  Am.  St.  R.  892. 

Kinney,  49  Ind.  235.  77.  MacKeown  v.  Lacey,  200  Mass. 

72.  Price  v.  Price,  L.  R.  11  Ch.  D.  437,  86  N.  E.  799. 

163.    Here  it  was  said  that  where  the  78.    Delval   v.    Gagnon,    213    Mass. 

woman  was  entitled  to  a  bond  as  legal  203,  99  N.  E.  1095. 

personal  representative,  and  creditors  79.  Spencer  v.  Stockwell,  76  Vt.  176, 

or  legatees  of  the  estate  would  be  pre-  56  A.  661. 

judiced  thereby,  no  extinguishment  of 

35 


§  537 


HUSBAND    AND    WIFE. 


546 


§  537.  Under  Married  Women's  Acts. 

The  early  Married  Women's  Acts,  seldom  permitted  a  wife's 
executory  contracts  with  anyone  outside  her  separate  estate  or 
separate  trade,^°  but  they  now  frequently  permit  spouses  to  con- 
tract with  each  other  and  to  have  the  usual  remedies  on  such  con- 
tracts,®^ where  the  contract  is  not  against  public  policy.®"     There- 

80.  Bassett  v.  Bassett,   112  Mass.       384,  71  A.  595;  Dailey  v.  Dailey,  26 

Ind.  App.  14,  58  N.  E.  1065  (con- 
tract to  release  dower) ;  Mathewson 
V.  Mathewson,  79  Conn.  23,  63  A.  285, 
5  L.  E.  A.  (N.  S.)  611;  Hoeck  v. 
Grief,  142  Cal.  119,  75  P.  670;  Stoff 
V.  Erken,  25  Cal,  App.  528,  144  P. 
312;  Eoche  v.  Union  Trust  Co.  (Ind.), 
52  N.  E.  612 ;  Perkins  v.  Blethen,  107 
Me.  443,  78  A.  574;  Turner  v.  Daven- 
port, 63  N.  J.  Eq.  288,  49  A.  463; 
Maxwell  v.  Jurney,  238  F.  566,  151 
C.  C.  A.  502;  Bronson  v.  Brady,  28 
App.  D.  C.  250;  Bea  v.  People,  101 
ni.  App.  132;  Kamsey  v.  Yount 
(Ind.),  120  N.  E.  618;  Baker  v.  Sy- 
fritt,  147  la.  49,  125  N.  W.  998; 
Brecheisen  v.  Clark  (Kan.),  176  P. 
137;  Cole  v.  Cole,  231  Mo.  236,  132 
S.  W.  734;  Eegal  Eealty  &  Investment 
Co.  V.  Gallagher  (Mo.),  188  S.  W. 
151;  Crowley  v.  Crowley,  167  Mo. 
App.  414,  151  S.  W.  512;  Abbott  v. 
Fidelity  Trust  Co.,  149  Mo.  App.  511, 
130  S.  "W.  1120 ;  Montgomery  v.  Mont- 
gomery, 142  Mo.  App.  481,  127  S.  W. 
118;  Koopman  v.  Mansolf,  51  Mont. 
48,  149  P.  491;  Eodgers  v.  Rodgers, 
174  N.  T.  S.  24;  Werner  v.  Weriffer, 
163  App.  Div.  9,  154  N.  T.  S.  570; 
Howell  V.  Howell,  42  Okla.  286,  141  P. 
412;  Davison  v.  Davison,  62  Ore.  44^5, 
124  P.  1097;  Fidelity  Title  &  Trust 
Co.  V.  Graham  (Pa.),  105  A.  295;  Pot- 
ter V.  Mobley  (Tex.),  194  S.  W.  205; 
Masten  v.  Herring  (Del.),  66  A.  368; 
Stroud  V.  Eoss,  118  Ky.  630,  82  S.  W. 
254,  26  Ky.  Law,  521. 

82.  Eandall  v.  Eandall,  37  Mich. 
563. 

Under  the  Colorado  Married  Wo- 
men's Act  it  was  held  that  a  contract 
whereby  in  consideration  of  receiving 
a  stove  a  wife  agreed  to  cook  for  her 
husband's    threshing    gang    was    not 


99;  Hogan  v.  Hogan,  89  111.  427; 
Jenne  v.  Marble,  37  Mich.  319.  Some 
statutes  are  explicit  enough  for  such 
purposes.  Hamilton  v.  Hamilton,  89 
111.  349.  And  see  Hon  v.  Hon,  70 
Ind.  135;  Elfelt  v.  Hinch,  5  Ore.  255; 
Grove  v.  Jeager,  60  111.  249. 

Judgment  confessed  by  a  husband 
in  his  wife's  favor  is  now  held  good 
in  some  States.  Eose  v.  Latshaw,  90 
Pa.  238. 

As  to  transactions  where  a  member 
of  an  indebted  partnership  is  husband 
of  the  creditor,  see  Osbom  v.  Osborn, 
36  Mich.  48;  Moore  v.  Foote,  34  Mich. 
443. 

Oral  evidence  may  be  introduced  in 
equity  to  show  that  what  purported  to 
be  a  written  agreement  between  hus- 
band and  wife  was  intended  mutually 
to  have  no  binding  force.  Earle  v. 
Eice,  111  Mass.  17.  Wood  v.  Warden, 
20  Ohio,  518,  treats  a  paper  acknowl- 
edging the  receipt  of  money  paid  by 
the  wife,  and  making  collateral  stipu- 
lations, as  a  postnuptial  settlement  en- 
forceable against  his  estate,  after  his 
death,  to  the  exclusion  of  his  other 
creditors. 

81.  Spooner  v.  Spooner,  155  Mass. 
52,  28  N.  E.  1121;  Clark  v.  Clark,  49 
m.  App.  163;  McKie  v.  McKie 
(Ark.),  172  S.  W.  891,  L.  E.  A. 
1915D  1126;  Eice,  Stix  &  Co.  v. 
Sally,  176  Mo.  107,  75  S.  W.  398; 
Demarest  v.  Terhune,  62  N.  J.  Eq. 
663;  O'Day  v.  Meadows,  194  Mo.  588, 
92  S.  W.  637,  112  Am.  St.  E.  542; 
Bower  v.  Daniel,  198  Mo.  289,  95  S. 
W.  347;  Poison  v.  Stewart,  167  Mass. 
211,  45  N.  E.  737,  36  L.  E.  A.  771, 
57  Am.  St.  E.  452;  Walker's  Assignee 
V.  Walker,  21  Ky.  Law,  1521,  55  S. 
W.  726;   Darcey  v.  Darcey,  29  E.  I. 


647 


CONTRACTS    BETWEEN    SPOUSES. 


§  537 


fore,  spouses  cannot  by  contract  change  the  obligations  of  their 
marriage/^  or  contract  as  to  alimony,**  nor,  unless  empowered  by 
statute,  can  the  wife  agree  to  submit  the  respective  rights  of  both 
spouses  in  property  to  arbitrators.*^  Such  a  power  must  be  ex- 
press, and  will  not  be  inferred  from  a  statute  removing  the  wife's 
disability  to  contract.*®  Under  such  a  statute  equity  will  not 
relieve  against  a  wife's  valid  contract  whereby  she  applies  her 
separate  estate  to  the  family  support,*''  nor  is  there  any  implied 
contract  on  which  either  spouse  may  recover  from  the  other  money 
80  paid,**  unless  the  payments  were  made  with  the  expectation  of 
repayment.*^ 

Where  a  husband  sells  his  wife's  property  without  her  knowl- 
edge, there  is  an  implied  contract  to  pay  its  value.®"  Whatever 
the  law  will  compel  parties  to  do,  they  may  do  voluntarily;  and 
this  is  a  principle  applicable  to  transactions  as  between  husband 
and  wife,  so  far  as  equity  may  exercise  jurisdiction  in  the  case.*"^ 
The  rule  as  to  contracts  between  spouses  does  not  apply  to  a  man 
and  woman  living  together  bigamously.®^  Under  the  Oregon  statute 
providing  that  neither  spouse  shall  have  any  interest  in  the  prop- 
erty as  to  which  they  may  contract,  it  was  held  that  an  agreement 
that  spouses  should  execute  mutual  conveyances  so  that  the  prop- 
erty of  each  should  be  freed  from  the  dower  or  curtesy  of  the 
other  was  void.®^  A  similar  statute  in  Iowa  has  been  held  not  to 
include  interests  of  either  spouse  in  property  which  do  not  arise 
out  of  the  marital  relation.®*  Therefore,  it  was  held  under  that 
statute  that  a  contract  whereby  the  husband,  in  consideration  of 
his  disposition  of  certain  money  received  from  the  wife  at  mar- 


against     public     policy.       Tuttle     t. 
Shutts,  43  Colo.  534,  96  P.  260. 

83.  Patterson  v.  Patterson,  111  111. 
App.  342;  In  re  Simonson's  Estate, 
164  Wis.  r,90,  160  N.  W.  1040. 

84.  Thompson  v.  Thompson,  132 
Ind.  288,  31  N.  E.  529.  But  see 
O'Day  V.  Meadows,  194  Mo.  588,  92 
S.  W.  637. 

85.  Crouch  v.  Crouch,  30  Tex.  Civ. 
288,  70  S.  W.  595. 

86.  Bolyard  v.  Bolyard  (W.  Va.), 
91  S.  E.  529,  L.  R.  A.  1917D  440. 

87.  Young  V.  Valentine,  177  N.  Y. 
347,  69  N.  E.   643. 

88.  In  re  Skillman's  Estate,  146  la. 
601,  125  N.  W.  343. 


89.  In  re  Kosanke's  Estate  (Minn.), 
162  N.  W.  1060. 

90.  Miller  Watt  &  Co.  v.  Mercer 
(la.),  150  N.  W.  694  (bank  stock). 

91.  See  Campbell  v.  Galbreath,  12 
Bush  (Ky.),  459;  Randall  v.  Randall, 
37  Mich.   563. 

92.  Vaughn  v.  Vaughn,  100  Tenn. 
282,  45  S.  W.  677. 

93.  Potter  v.  Potter,  43  Ore.  149, 
72  P.  702 ;  Rich  v.  Rich,  147  Ga.  488, 
94  S.  E.  566. 

94.  Poole  V.  Burnham,  105  la.  620, 
75  N.  W.  474;  In  re  Piper's  Estate, 
145  la.  373,  124  N.  W,  181;  Frazer  v. 
Andrews,  134  la.  621,  112  N.  W.  92. 


§  638 


HUSBAND   AND   WIPE. 


548 


riage,  she  should  have  one-half  of  the  property,  real  and  personal, 
coming  into  their  possession  thereafter,  was  enforceable  against 
him.^''  Where  that  statute  applies,  it  includes  both  personal  and 
real  property,  so  that  a  contract  by  a  husband  relinquishing  his 
rights  in  the  separate  property  of  the  wife  is  invalid.®^ 

A  similar  statute  in  Minnesota  has  been  held  not  to  include  the 
assignment  by  a  husband  to  his  wife  of  a  mortgage  on  the  land  of 
a  third  person,  to  which  dower  does  not  attach.®^  Under  the 
Maine  statute  providing  that  a  wife  may  contract  as  though  sole, 
it  was  held  that  a  contract  made  between  spouses  that  a  building 
erected  upon  the  wife's  land  by  the  husband  remain  his  separate 
property  was  valid.*^ 

The  purpose  of  the  N^orth  Carolina  statute  providing  that  con- 
tracts between  spouses  charging  her  real  estate  for  more  than 
three  years  or  her  personal  estate  or  income  for  the  same  time 
shall  be  invalid  unless  executed  as  provided  by  the  statute,  was  to 
prevent  frauds  by  him  on  her,  and  to  validate  such  transactions 
when  properly  executed,  though  void  at  common  law.®^  In  that 
State  conveyances  by  the  wife  to  the  husband  are  void  if  not 
executed  as  required  by  the  statute/ 

§  538.  Contracts  as  to  Wife's  Statutory  Separate  Estate. 

Contracts  between  the  spouses  as  to  her  separate  estate  are  usu- 
ally valid  as  though  she  were  sole,'^  if  the  contract  is  just  and 
reasonable,  without  a  trustee,^  but  the  law  looks  with  some  jealousy 
on  such  contracts,  requiring  the  utmost  good  faith  on  the  part  of 
the  husband.*  In  ISTew  York  a  husband  may  be  tenant  of  his  wife." 
In  Michigan  spouses  can  make  with  each  other  only  contracts 
which  would  have  been  enforced  in  equity  before  the  Married 
Women's  Act.^ 


95.  McElhaney  v.  McElhaney,  125 
la.  279,  101  N.  W.  90. 

06.  Baird  v.  Connell,  121  la.  278,  96 
X.  W.  863. 

97.  Kersten  v.  Kersten,  114  Minn. 
24,  129  N.  W.  1051;  Erickson  v. 
Robertson,  116  Minn.  90,  133  N.  W. 
164,  37  L.  E.  A.   (N.  S.)   1133. 

98.  Peaks  v.  Hutchinson,  96  Me. 
530,  53  A.  38,  59  L.  E.  A.  279. 

99.  Stout  V.  Perry,  152  N.  C.  312, 
67  S.  E.  757. 

1.  Kilpatrick  v.  Kilpatrick  (N.  C), 


96  S.  E.  988;  Deese  v.  Deese  (N,  C), 

97  S.  E.  475;  Anderson  v.  Anderson 
(N.  C.),99  S.  E.  106. 

2.  Talcott  V.  Arnold,  55  N.  J.  Eq. 
519,  37  A.  891. 

3.  Eose  V.  Eose,  93  Ind.  179. 

4.  Hon  V.  Hon,  70  Ind.  135. 

5.  Baumann  v.  City  of  New  York, 
227  N.  Y.  25,  124  N.  E.  141. 

6.  Jenne  v.  Marble,  37  Mich.  319; 
Stockwell  V.  Reid's  Estate  (Mich.), 
136  N.  W,  476. 


549 


CONTRACTS    BETWEE2J    SPOUSES. 


§  539 


§  539.  Validity  in  General. 

In  general,  wherever  a  contract  is  just  and  reasonable  of  itself, 
and  would  be  good  at  law  when  made  with  trustees  for  the  wife, 
that  contract  will  be  sustained  in  equity,  when  made  between  hus- 
band and  wife  without  the  intervention  of  trustees,^  where  the 
wife  has  not  been  overreached,^  and  if  fair  and  based  on  a  good 
consideration,®  especially  where  the  purpose  of  the  contract  is  to 
provide  for  her,"  or  to  repay  money  advanced  by  her/^  A  court 
will  uphold  rather  than  defeat  a  transaction  between  spouses,  not- 
withstanding the  relation,  if  there  has  been  no  fraud  or  imposi- 
tion.^" Transactions  between  spouses  which  have  the  badges  of 
fraud  will  be  closely  scrutinized,^^  and  where  by  a  contract  with 
a  wife  the  husband  obtains  any  advantage  over  her,  he  or  his 
representatives  have  the  burden  of  showing  that  she  was  fully 
informed  as  to  the  effects  of  the  transaction,  and  that  the  utmost 
fairness  was  shown  her.^*  The  reason  of  the  rule  is  that  the  hus- 
band is  presumed  to  have  exerted  his  superior,  dominent  influ- 
ence. ^°  At  law  such  contracts  could  only  be  effectuated  through 
a  trustee.^*  A  mutual  agreement,  by  which  the  wife  renounces  all 
further  claim  upon  the  husband  for  his  services,  or  necessary  sup- 


7.  Spurlock  V.  Spurlock,  80  Ark.  37, 
96  S.  W.  753;  Wilson  v.  Mullins 
(K7.),  119  S,  W.  1180;  Jenne  v. 
Marble,  37  Mich.  319;  Wallingsford 
V.  Allen,  10  Pet.  (U.  S.)  583;  2  Story, 
Eq.  Juris.,  §  1204 ;  Slanning  v.  Style, 
3  P.  Wms.  334;  Barron  v,  Barron,  24 
Vt.  375;  Kesor  v.  Eesor,  9  Ind.  347; 
Coates  V.  Gerlach,  44  Pa.  43 ;  Wright 
V.  Wright,  16  la.  496;  Williams  v. 
MauU,  20  Ala.  721;  Schaffer  v.  Eeu- 
ter,  37  Barb.  (N.  Y.)  44;  Hutton  v. 
Duey,  3  Barr  (Pa.),  100;  Sims  v. 
Rickets,  35  Ind.  181;  McCampbell  v. 
McCampbell,  2  Lea  (Tenn.),  661; 
Myers  v.  King,  42  Md.  65;  Fritz  v. 
Fernandez,  45  Fla.  318,  34  So.  315; 
Moayon  v.  Moayon,  24  Ky.  Law,  1641, 
72  S.  W.  33,  60  L.  R.  A.  415,  102  Am. 
St.  R.  303;  Fitzgerald  v.  Fitzgerald, 
168  Mass.  488,  47  N.  E.  431. 

In  Massachusetts  a  contract  between 
husband  and  wife  is  invalid  and  can- 
not be  enforced  even  in  equity,  and 
the  fact  that  the  wife  survives  can- 
not make  a  good  contract  out  of  a 


nullity.  Clark  v.  Supreme  Council,  176 
Mass.  468,  57  N.  E.  787. 

8.  Washburn  v.  Gray,  49  Ind.  App. 
271,  97  N.  E.  190. 

9.  McDonald  v.  Smith,  95  Ark.  523, 
130  S.  W.  515;  Brown  v.  Clark,  80 
Conn.  419,  68  A.  1001;  Kimball  v. 
Kimball,  75  N.  H.  291,  73  A.  408; 
Lister  v.  Lister,  86  N.  J.  Eq.  30,  97 
A.  170. 

10.  Williams  v.  Betts  (Del.),  98  A. 
371;  Thomas  v.  Hornbrook,  259  HI. 
156,  102  N.  E.  ig'S. 

11.  English  V.  Brown,  219  F.  248. 

12.  Hannaford  v.  Dowdle,  75  Ark. 
127,  86   S.  W.  818. 

13.  Gibson  v.  Kimmit,  113  111.  App. 
611. 

14.  Way  v.  Union,  &c.,  Ins.  Co.,  61 
S.  C.  501,  39  S.  E.  741. 

15.  Leimgruber  v.  Leimgruber,  172 
Ind.  370,  86  N.  E.  73. 

16.  Winter  v.  Winter,  191  N.  Y. 
462,  84  N.  E.  382;  In  re  Hill,  190  F. 
390. 


§  540 


HUSBAND    AND    WIFE. 


550 


port  for  herself,  and  stipulates  that  she  will  contract  no  debts  on  his 
account,  while  the  husband  renounces  all  claim  for  her  services  or 
support,  affords  a  strong  illustration.  This  might  not  avail  against 
creditors,  but  so  far  as  the  husband  and  his  heirs,  and  in  fact  all 
who  claim  under  him,  are  concerned,  it  will  be  enforced.^^ 

§  540.  Consideration. 

A  contract  bj  a  wife  to  pay  her  money  to  her  husband  must  be 
based  on  a  good  and  valuable  and  not  merely  meritorious  consider- 
ation.^* A  deed  by  a  man  to  his  intended  wife,  followed  by  mar- 
riage, is  conclusively  presumed  to  be  based  on  marriage  as  a  con- 
sideration.^^ The  following  have  also  been  held  to  be  good  con- 
siderations for  a  deed  from  a  husband  to  a  wife:  love  and  affec- 
tion ;  ^°  marriage ;  ^^  a  wife's  release  of  dower ;  ^^  forbearance  of 
libel  for  divorce;  ^^  a  debt  originally  due  from  a  father  to  his  son, 
and  by  the  son  presented  to  his  mother  in  good  faith.^* 

A  deed  by  a  wife  to  her  husband  of  property  which  he  has  pre- 
viously conveyed  to  her  without  consideration  through  a  third 
person,  has  been  upheld  in  equity  in  New  York,  where  the  early 
Married  Women's  Acts  did  not  affect  the  common-law  rule  that 
conveyances  between  spouses  were  void,  the  deed  in  question  being 
held  to  be  based  on  an  equitable  consideration.'^  An  antenuptial 
promise  to  convey  is  not  a  good  consideration  for  a  postnuptial 
conveyance,  where  the  wife  did  not  rely  on  the  promise  in  con- 
tracting the  marriage.^*  It  is  held  in  Texas  that  the  resumption 
of  marital  relations  after  a  separation  is  not  a  good  consideration 
for  such  a  conveyance.^'' 

Where  a  husband  receives  his  wife's  money  at  a  time  when  such 


17.  Barron  v.  Barron,  24  Vt.  375. 

18.  Gouge  V.  Gouge,  26  App.  Div. 
154,  49  N.  Y.  S.  873. 

19.  Snyder  v.  Grandstaff,  96  Va. 
473,  31  S.  E.  647,  70  Am.  St.  E.  863. 

20.  Arbaugh  v.  Alexander,  164  la. 
635,  146  N.  W.  747. 

21.  Jackson  v.  Jackson,  222  111.  46, 
78  N.  E.  19,  6  L.  R.  A.  (N.  S.)  785; 
La  Fleure  v.  Seivert,  98  111.  App.  234 ; 
Welch  V.  Mann,  193  Mo.  304,  9^2  S.  W. 
98. 

22.  Merchants'  &  Laborers*  Bldg. 
Ass'n  V.  Scanlan,  144  Ind.  11,  42  N. 
E.  1008;  Baldwin  v.  Heil,  155  Ind. 
682,  58  N.  E.  200. 


23.  Poison  V.  Stewart,  167  Mass. 
211,  45  N.  E.  737,  57  Am.  St.  E.  452, 
36  L.  E.  A.  771;  Faulkner  v.  Faulk- 
ner,  162  App.  Div.  848,  147  N.  Y.  S. 
745. 

24.  Yates  v.  Bank  of  EInggold 
(Ga.),  96  S.  E.  427. 

25.  Hulse  V.  Bacon,  167  N.  Y.  599, 
60  N.  E.  1113. 

26.  Markillie  v.  Markillie,  115  Mich. 
658,  74  N.  W.  1117,  4  Det.  Leg.  N. 
1018,  But  see  contra,  Metz.  v.  Black- 
burn, 9  Wyo.  481,  65  P.  857. 

27.  Tanton  v.  Tanton  (Tex.),  209f 
8.  W.  429. 


551 


CONTRACTS    BETWEEN    SPOUSES. 


§   541 


money  would  have  been  his  solo  property,  and  at  other  times  when 
the  law  did  not  permit  spouses  to  contract  with  each  other,  such 
receipt  does  not  constitute  a  moral  obligation  to  repay  which  will 
be  a  sufficient  consideration  to  sustain  a  deed  to  the  wife.^*  In 
Louisiana  it  must  be  shown,  where  it  is  claimed  that  a  husband 
conveys  property  to  his  wife  to  pay  a  debt,  that  the  relation  of 
debtor  and  creditor  existed  at  the  time  of  the  conveyance,  and 
that  the  property  was  actually  conveyed  in  payment  of  the  debt, 


2» 


§  541.  Bills  and  Notes. 

A  wife  is  not  legally  liable,  in  the  absence  of  an  enabling 
statute,  upon  a  promissory  note  made  by  her,  payable  to  her  hus- 
band's own  order,  and  by  him  indorsed  over.^'^  The  husband's 
note,  given  to  his  wife  and  transferred  by  her,  is  equally  void.'^ 
In  the  absence  of  statute,  a  wife  cannot  enforce  a  note  against  her 
husband  either  at  law  or  in  equity,  whether  he  is  maker  or  prior 
indorsee,^^  nor  can  she  be  liable  to  him  on  a  note  either  as  maker 
or  indorsee.^^  He  cannot  pass  to  her  the  title  to  a  note.'*  In 
Vermont  it  has  been  held  otherwise  where  the  husband  merely 
transferred  the  note  to  his  wife  by  delivery,  without  becoming  a 
party  to  the  note.^^  She  may  be  liable  as  accommodation  indorser 
on  a  note  made  by  him.^^  Where  one  loaned  money  to  a  wife, 
taking  as  security  her  void  notes  to  her  husband,  it  was  held  that 
the  lender  might  elect  to  treat  the  notes  as  void  and  go  against  the 
maker  in  assumpsit  on  the  common  counts.'^  But  in  some  States, 
where  a  note  is  made  by  a  wife  payable  to  her  husband,  it  may  be 
enforced  by  a  third  party  who  holds  it,  on  the  usual  principles 
applicable  to  her  separate  property  and  separate  liabilities.'*     In 


28.  Strayer  v.  Dickerson,  205  111. 
257,  68  N.  E,  767. 

29.  Eush  V.  Landers,  107  La.  549, 
32  So.  95,  57  L.  R.  A.  353. 

30.  Roby  V.  Phelon,  118  Mass.  541, 

31.  Doll  V.  Teurer,  6  Rob.  (La.) 
276;  Roby  v.  Phelon,  118  Mass.  541; 
Nat.  Granite  Bank  v.  Whicher,  173 
Mass.  517,  53  N.  E,  1004,  73  Am.  St. 
R.  317)  Caldwell  v.  Nash,  190  Mass. 
507,  77  N.  E.  515;  Hoker  v.  Boggs, 
63  ni.  161;  Slawson  v.  Loring,  5 
Allen  (Mass.),  340,  81  Am.  D.  750. 

32.  Wilson  v.  Bryant,  134  Mass.  291. 

33.  Nat.  Bank  of  the  Republic  v. 
"Delano,  185  Mass.  424,  70  N.  E.  444; 


Harman  v.  Harman  (la.),  149  N.  W. 
72;  Demarest  v.  Terhune,  62  N.  J. 
Eq.  663. 

34.  Nelson  v.  Piper,  213  Mass.  531, 
100  N.  E.  74?;  Gay  v.  Kingsley,  11 
Allen   (Mass.),  345. 

35.  Buck  V.  Troy  Aqueduct  Co.,  76 
Vt.  75,  56  A.  285. 

36.  Middleborough  Nat.  Bank  v. 
Cole,  191  Mass.  168,  77  N.  E.  781. 

37.  Nat.  Granite  Bank  v.  Tyndale, 
176  Mass.  547,  57  N.  E.  1022,  51  L. 
R.  A.  447. 

38.  Morrison  v.  Thistle,  67  Mo.  596. 
Proof  that  the  wife  transferred  as  the 
husband's    agent    might    establish    a 


§  542 


HUSBAND    AND    WIFE. 


552 


Greorgia  it  is  held  that  a  wife's  note  to  her  husband  is  valid  in  the 
hands  of  a  holder  for  value  before  maturity,  though  given  as  surety 
or  in  payment  of  his  debt,  in  violation  of  statute.^^  In  Penn- 
sylvania a  note  given  by  a  husband  to  a  wife  as  a  consideration  for 
her  abandonment  of  a  proposed  proceeding  for  support,  and  for 
her  resumption  of  marital  relations,  has  been  held  valid.*''  Under 
some  statutes  a  note  from  husband  to  wife  or  from  wife  to  hus- 
band, if  for  sufficient  consideration,  has  been  held  enforceable.*^ 
And  equity  will  sometimes  enforce  such  an  instrument,  with  re- 
spect to  the  parties  themselves,  as  a  declaration  of  trust.*^ 

§  542.  Loans  and  Advances. 

Formerly  it  was  said  that  at  law,  and  upon  the  coverture  theory, 
the  husband's  promise  to  refund  money  to  the  wife  as  a  borrower 
had  neither  parties  nor  a  consideration.*^  Therefore,  at  common 
law  the  husband  was  under  no  legal  duty  to  repay  money  of  his 
wife  which  she  delivered  to  him  without  an  agreement  for  repay- 
ment.** The  same  is  true  where  he  receives  and  appropriates  her 
property  with  her  knowledge.*^  Where  a  husband,  instead  of 
asserting  his  marital  rights  to  his  wife's  personal  property  as  at 
common  law,  or  being  precluded  from  asserting  such  rights  under 
the  statute,  actually  borrows  money  or  property  from  her  with  the 
imderstanding  that  it  shall  be  repaid,  he  will  be  treated  in  equity 
as  her  debtor  accordingly.*®  The  parties  must  have  understood 
it  to  be  a  debt  in  order  to  raise  a  contract  to  repay.*^  In  such  case 
she  is  his  creditor,**  and  may  have  the  usual  legal  remedies  against 


right  of  action  upon  the  husband's 
note  to  her.  Hoker  v.  Boggs,  63  111. 
161. 

39.  Eood  V,  Wright,  124  Ga.  849, 
53  S.  E.  390;  Farmers'  &  Traders' 
Bank  v.  Eubanks,  2  Ga.  App.  839,  59 
S.  E.  193. 

40.  In  re  Christie's  Estate,  36  Pa. 
Super.  506. 

41.  Krouse  v.  Krouse,  48  Ind.  App. 
3,  95  N.  E.  262;  Coleman  v.  Coleman, 
142  Ky.  36,  133  S.  W.  1003;  Greer  v. 
Greer,  24  Kan.  101. 

42.  First  Nat.  Bank  v.  Albertson 
(N.  J.),  47  A.  818;  McCampbell  v. 
McCampbell,  2  Lea   (Tenn.),  661. 

43.  Johnston  v.  Johnston,  31  Pa. 
450;  Frierson  v.  Friereon,  21  Ala.  549. 


44.  Eggleston  v.  Slusher,  50  Neb. 
83,  69  N.  W.  310. 

45.  Stone  v.  Curtis,  115  Me.  63,  97 
A.  213. 

46.  Jayeox  v.  Caldwell,  51  N.  T. 
39^5. 

47.  Spruance  v.  Equitable  Trust  Co. 
(Del.),  103  A.  577;  Coburn  v.  Storer, 
67  N.  H.  86,  36  A.  607;  De  Baun's 
Ex'x  V.  De  Baun,  119  Va.  85,  89  S. 
E,  239. 

48.  Bates  v,  Papesh,  30  Ida.  529, 
166  P.  270;  Herbert  v.  Mueller,  83 
111.  App.  391;  Eiee  v.  Crozier,  139  la. 
629,  117  N.  W.  984;  Knickerbocker 
Trust  Co.  V.  Carhart,  71  N.  J.  Eq.  495, 
64  A.  756;  Gormly  v.  Smith,  118  N. 
Y.  S.  1069. 


553  CONTRACTS    BETWEEN    SPOUSES.  §    542 

him,*®  even  though  the  money  loaned  was  paid  to  her  by  him  for 
her  services.^"  She  may,  therefore,  prove  her  claim  against  his 
insolvent  estate/^  Likewise,  where  on  his  death  she  paid  the 
balance  due  on  his  contract  to  buy  land  and  took  a  retained  deed 
in  his  name,  she  had  a  lien  on  the  land  for  the  money  paid." 
Married  Women's  Acts  treat  such  a  loan  as  constituting  a  valid 
indebtedness  legally  enforceable  against  him  or  his  estate  on  her 
behalf  as  a  creditor/^  Where  the  statute  empowers  a  wife  to  con- 
tract with  her  husband,  she  may  receive  payment  of  a  debt  from 
him  as  though  sole.^*  The  fact  that  a  wife's  property  is  occupied 
as  a  homestead  will  not  invalidate  a  contract  for  the  repajTnent 
of  money  advanced  by  the  husband  to  build  a  house  on  the  prop- 
erty.^^  Where  the  wife's  parents  advanced  money  to  the  husband 
for  family  expenses  on  his  promise  to  reimburse  the  wife,  she  may 
recover  on  the  contract,  without  express  contract  between  the 
spouses,^®  and  the  same  has  been  held  of  an  advance  by  her  par- 
ents to  him  to  pay  his  debt."  Where  a  Married  Women's  Act  is  in 
force,  the  rules  as  to  loans  and  repayments  are  not  as  strictly 
applied  between  spouses  as  between  strangers.^®  In  Louisiana  a 
wife  does  not  stand  as  a  creditor  of  her  husband  where  she  lends 
her  paraphernal  estate  to  enable  him  to  make  a  crop  on  his  lands.^® 
Money  advanced  by  the  husband  to  pay  his  wife's  debts  is  pre- 
sumed to  be  so  advanced  by  virtue  of  her  marital  rights  and  not 
as  a  loan.®"     Therefore  he  cannot  counterclaim  for  such  expendi- 

49.  Wagner  v.  Mutual  Life  Ins.  Co.,      Monroe  v.  May,  9  Kan.  466;   Wood- 
88  Conn.  536,  91  A.  1012 ;  Proctor  v.       -worth  v.  Sweet,  51  N.  Y.  8. 

Cole,  104  Ind.  373,  N.  E.  303;  Fowle  54.    CartwTight    v.    Cartwright,    68 

V.    Torrey,    135    Mass.    87;    Lord    v.  111.  App.  74;  Kolbe  v.  Harrington,  15 

Cronin,  9   App   Div.   9,   40   N.   Y.   S.  S.    D.    263,    88    N.    W.    572;    hi    re 

lOfrr,  75  N,  Y.  St.  E.  415  (affd.,  154  Strock's  Estate,  56  Pa.  Super.  32. 

N.   Y.    172,   47   X.   E.    1088);    In   re  55.  North  v.  North,  166  111.  179,  46 

Dice's  Estate,  180  Pa.  St.  647,  37  A.  N.  E.  729. 

117.  56.  Clark  Bros.  v.  Ford,  126  la.  460, 

50.  Roche  v.  Union  Trust  Co.  (Ind.),  102  N.  W.  421. 

52  N.  E.  612.  57.    Walker   v.   Walker's   Assignee, 

51.  Weeks  &  Potter  Co.  v.  Elliott,       19  Ky.  Law,  626,  41  S.  W.  315. 

93  Me.  286,  45  A.  29,  74  Am.  St.  R.  58.  Bynum  v.  Johnston,  222  F.  659, 

348;   Woodward  v.   Spurr,   141   Mass.  138  C.  C.  A.  183. 

283,  6  N.  E.  521;  Bailey  v.  Herrick,  59.   Viguerie  v.   Viguerie,   133   La. 

141  Mass.  287,  note.  406,  63  So.  89. 

52.  Moore  v.  GuUey,  30  Ky.  Law,  63  So.  89. 

442    98  S.  W.  1011.  60.  Gosnell  v.  Jones,  152  Ind.  638, 

53.  Whitford  v.  Daggett,  84  111.  144.       53  N.  E.  381. 


§  543 


HUSBAND    AND    WIFE. 


554: 


tures  in  an  action  by  her  to  recover  his  debt  to  her,®^  nor  can  he 
recover  for  money  paid  for  the  support  of  the  wife's  children  by 
her  first  husband,  nor  for  the  maintenance  of  her  stock,  in  the 
absence  of  an  express  contract,®"  but  it  may  be  otherwise  where  the 
wife  expressly  promises  to  repay  the  loan.*^  Where  a  wife  was 
liable  to  discharge  a  mortgage  on  her  husband's  property  and  had 
given  him  more  than  enough  money  to  do  so,  it  was  held  that  he 
could  not  assert  her  liability  in  equity.®*  A  wife  has  been  held 
liable  to  her  husband  on  a  contract  whereby  she  secured  an  ad- 
vance of  money  from  him  to  be  used  in  her  business,  she  agree- 
ing from  the  proceeds  to  build  a  house  and  convey  it  to  him  as  his 
property,  though  there  was  no  agreement  for  the  repayment  of 
the  money  in  kind,  and  no  interest  oalculat-ed  or  paid,  the  trans- 
action creating  the  relation  of  debtor  and  creditor  between  them.®^ 
Under  the  Connecticut  statute  a  wife  leaving  her  husband  without 
justifiable  cause  cannot  sue  him  for  money  loaned,  the  right  to 
maintain  the  action  being  given  only  to  a  wife  who  is  abandoned. 


66 


§  543.  Contracts  for  Services. 

A  contract  by  a  husband  to  pay  his  wife  for  services  is  invalid 
even  though  rendered  outside  the  family.®^  Such  contracts  will 
not  be  enforced  even  in  equity.®*  Therefore,  a  contract  whereby 
spouses  each  agree  to  work  for  the  other  in  farming,  and  that  the 
joint  product  shall  be  her  property  was  held  against  public  policy, 
and  to  give  the  wife  no  title  to  the  crop  as  against  the  husband's 
creditors.®®  The  rule  has  not  been  changed  in  Kentucky  even  by 
the  Married  Women's  Act.''"  Such  contracts  are  now  valid  under 
the  Married  Women's  Act  in  Louisiana,''^  in  Nebraska''^  and 
Minnesota.''^     The  Illinois  statute  providing  that  neither  spouse 


61.  Harrington  v.  Stallo,  169  App. 
Div.  786,  155  N.  Y.  S.  688. 

62.  Allen  v.  Allen,  158  Ky.  759,  1C6 
S.  W.  211. 

63.  Skinner  v.  Harrington,  6  Kan. 
App.  176,  51  P.  310. 

64.  Nihiser  v.  Nihiser,  127  Md.  451, 
96  A.  611. 

65.  Clark  v.  Black,  78  Conn.  467, 
62  A.  757. 

66.  Muller  v.  Witte,  78  Conn.  495, 
62  A.  756. 

67.  In  re  Kaufmann,  104  F.  768; 
Overbeck  v.  Ahlmeier,  106  111.  App. 
606. 


68.  Turner  t.  Davenport,  61  N.  J. 
Eq.  18,  47  A.  766. 

69.  Dempster  Mill  Mfg.  Co.  v. 
Bundy,  64  Kan.  444,  67  P.  816,  56  L. 
E.  A.  739. 

70.  Foxworthy  v.  Adams,  136  Ky. 
403,  124  S.  W.  381. 

71.  Eoche  V.  Union  Trust  Co.  (Ind.), 
(1899),  52  N.  E.  612. 

72.  In  re  Cormick's  Estate  (Neb.), 
160  N.  W.  989. 

73.  Bodkin  v.  Kerr,  97  Minn.  301, 
107  N.  W.  137. 


555 


CONTEACTS    BETWEEN    SPOUSES. 


§  545 


shall  recover  for  services  rendered  to  the  other,  does  not  prevent 
the  wife  from  receiving  compensation  as  receiver  in  her  husband's 
action,  the  compensation  being  received  from  the  court  and  not 
the  hushandJ* 

§  544.  Liability  to  Pay  Interest, 

Generally  a  husband  is  not  liable  for  interest  on  a  loan  by  his 
wife  in  the  absence  of  a  special  contract,"^  which  may  be  by 
parol.'^®  A  husband  whose  wife  borrows  money  for  him  by  mort- 
gage of  her  separate  estate  is  liable  for  interest  without  express 
agreement" 

§  545.  Spouses  as  Partners. 

At  common  law  a  wife  could  not  be  a  partner  of  her  husband." 
By  statute  in  several  States  the  spouses  may  now  make  a  vaild 
contract  of  partnership.'^  The  contrary  is  held  under  the  Massa- 
chusetts and  Xew  Hampshire  Married  Women's  Acts.*"  By 
statute  in  the  District  of  Columbia,  a  wife  may  be  a  partner  of 
third  persons  but  not  with  her  husband. ^^  The  Illinois  statute 
provides  that  with  her  husband's  consent  the  wife  may  be  a  partner, 
and  hence,  it  is  held,  she  may  be  his  partner. 


82 


74.  Meissler  v.  Meissler,  101  111. 
App.  256. 

75.  Riker  v.  Kiker,  83  N.  J.  Eq. 
198,  693,  92  A.  5S6;  Keady  v.  White, 
168  111.  76,  48  N.  E.  314;  King  v. 
King,  24  Ind.  App.  598,  57  N.  E.  275; 
Collins  V.  Babbitt,  67  N.  J.  Eq.  165, 
58  A.  481;  Stuart  v.  Stuart,  182  Pa. 
543,  38  A.  409. 

76.  In  re  Cornman's  Estate,  197  Pa. 
125,  46  A.  940. 

77.  Griffith  v.  Griffith,  187  Pa.  306, 
41  A.  30,  42  W.  X.  C.  447. 

78.  Barlow  Bros.  Co.  v.  Parsons,  73 
Conn.  696,  49  A.  205. 

79.  Morrison  v.  Dickey,  122  Ga.  353, 
50  8.  E.  175,  69  L.  R.  A.  87;  Vizard 
V.  Moody,  119  Ga.  91S,  47  S.  E.  348; 
Burney  v.  Savannah  Grocery  Co.,  98 
Ga.  711,  25  S.  E.  915,  58  Am.  St.  R. 
342 ;  Ellis  v.  Mills,  99"  Ga.  490,  27  S. 
E.  740;  Butler  v.  Frank,  7  Ga.  App. 
655,  67  S.  E.  884;  Stewart  v.  Todd 
(la.),  173  N.  "W.  619;  Hackley  Nat. 
Bank  v.  Jeannot,  143  Mich.  454,  106 


N.  W.  1121,  3  Det.  Leg.  N.  7;  Con- 
servative Life  Ins.  Co.  v.  Boyce,  94 
Neb.  408,  143  N.  W.  468;  Jones  v. 
Jones,  99  Miss.  600,  55  So.  361;  An- 
derson V.  Citizens'  Nat.  Bank,  38  Ind. 
App.  190,  76  N.  E.  811;  Hoaglin  v. 
C.  M.  Henderson  &  Co.,  119  la.  720, 
94  N.  W.  247,  61  L.  R.  A.  756,  97 
Am.  St.  R.  335;  Graff  v.  Kinney,  15 
Abb.  N.  C.  (N.  y.)  397,  1  How.  Pr. 
(N.  S.)   59. 

80.  Vos3  V.  Sylvester,  203  Mass.  233, 
89  N.  E.  241;  Lord  v.  Parker,  3 
Allen  (Mass.),  127;  Lord  v.  Davison, 
3  Allen  (Mass.),  131;  Edwards  v. 
Stevens,  3  Allen  (Mass.),  315;  In- 
gram V.  "WTiite,  4  Allen  (Mass.),  412; 
Plumcr  V.  Lord,  5  Allen  (]\Liss.),  460, 
7  Allen  (Mass.),  481;  People's  Trust 
Co.  V.  Merrill,  78  N.  H.  329',  99  A. 
650. 

81.  Norwood  v.  Francis,  25  App.  D. 
C.  463. 

82.  Heyman  v.  Heyman,  210  111.  524, 
71  N.  E.  591. 


§  546  HUSBAND  AND  WIFE.  556 

§  546.  Releases  Between  Spouses. 

Spouses  may  validly  release  to  each  other  their  interests,  both 
present  and  in  expectancy,^^  if,  in  the  case  of  the  wife,  it  is  not 
done  unadvisedly  or  iniprovidently,^*  even  when  they  are  sepa- 
rated.*^ The  husband  has  the  burden  of  showing  that  adjustments 
made  during  coverture  of  a  claim  by  his  wife  against  him  was 
fair  and  honest  and  reasonably  advantageous  to  her.*®  A  release 
of  all  right  the  wife  might  have  in  property  which  the  husband 
then  had  or  might  acquire,  made  after  separation,  and  in  con- 
templation of  divorce,  does  not  release  him  from  a  note  previously 
given  for  a  loan.*^ 

83.  Perkins  v.  Sunset  Telephone  &  85.  Hinkle  v.  Hinkle,  148  Ga.  250, 
Telegraph  Co.,   155  Cal.  712,  103   P.       96  S.  E.  340. 

190.  86.  Hon  v.  Hon,  70  Ind.  135. 

84.  Levy  v.  Dockendorff,  177  App.  87.    Price    v.    Price,    25    Ky.   Law, 
Div.  249,  163  N.  Y.  S.  435.                            1803,  78  S.  W.  888. 


557  GIFTS    BETWEEN    SPOUSES.  §    547 


CHAPTER  XXVI. 

GIFTS  BETWEEN  SPOUSES. 

Section  547.  What  Constitutes  Gift. 

548.  Intervention  of  Trustee  or  Third  Person. 

54?.  Property  which  may  be  Subject  of  Gift;  Generally. 

550.  Bank  Deposits. 

551.  Necessity  of  Intention  to  Make  Gift. 

552.  Necessity  and  Nature  of  Delivery. 

553.  Gift  by  Wife  to  Husband. 

554.  Presumptions;  Husband's  Gift  to  Wife. 

555.  Wife's  Gift  to  Husband  in  General. 

556.  Validity  in  General. 

557.  Operation  and  Effect. 

558.  Eescission  or  Avoidance. 

559.  Gifts  in  Fraud  of  Creditors. 

§  547.  What   Constitutes  Gift. 

Although  a  direct  gift  of  property  by  the  husband  to  the  wife  is 
void  at  law,  it  will  be  sustained,  in  equity,  so  far  as  they  are 
concerned  and  their  heirs  and  personal  representatives  and  assigns. 
In  general,  to  constitute  a  voluntary  gift  between  parties,  it  must 
be  complete,  or  courts  of  equity  will  not  enforce  it.**  But  the 
rule  is  more  favorable  as  to  a  cestui  que  trust  claiming  against  his 
trustee.*^  There  should  be  a  clear  irrevocable  gift  to  a  trustee  for 
the  wife,  or  some  positive  act  by  the  husband,  by  which  be  divests 
himself  of  the  property,  and  engages  to  hold  it  for  the  wife's 
separate  use.^°    A  voluntary  promise  does  not  constitute  a  perfect 

88.  Thomas  v.  Thomas,  107  Mo.  459,  band  require  less  proof  than  the  gifts 
18  S.  W.  27;  Grimes  v.  Eeynolds,  184  of  third  persons.  Doming  v.  Williams, 
Mo.  679^,  83  S.  W.  1132;  Botts  v.  26  Conn.  226,  In  some  States,  how- 
Gooch,  97  Mo.  88,  11  S.  W.  42,  10  Am.  ever,  the  wife  is  put  upon  strict  proof 
St.  K.  286;  West  v.  Burke,  165  App.  as  to  all  implied  gifts.  Gannard  v. 
Div.  667,  151  N.  Y.  S.  329;  Cotteen  Eslava,  20  Ala.  733;  Paschall  v.  Hall, 
V.  Missing,  1  Madd.  176;  Kekewich  5  Jones  Eq.  (N.  C.)  108;  Hollifield  v. 
v.  Manning,  1  De  G.,  M.  &  G.  188.  Wilkinson,  54  Ala.  275.     The  precise 

89.  Ellison  v.  Ellison,  6  Ves.  662 ;  extent  to  which  the  rule  of  a  gift  with- 
Peachey,  Mar.  Settl.  245,  246;  Meek  out  a  trustee  will  be  enforced  depends 
V.  Kettlewell,  1  Hare,  470 ;  Kekewich  greatly  upon  the  liberality  of  the  mar- 
V.  Manning,  1  De  G.,  M.  &  G.  192;  ried  women's  legislation  in  any  par- 
Beech  V.  Keep,  18  Beav.  289.  ticular  State, —  a  subject  which  has  al- 

90.  But  see  Towle  v.  Towle,  114  ready  been  discussed.  See  Underhill 
Mass.  167.  V.   Morgan,  33   Conn.   105;   Brown  v. 

It  would  appear  to  be  the  rule  of  Brown,  23  Barb.  (N.  Y.)  565;  Jen- 
some  States,  that  the  gifts  of  a  hus-      nings  v.  Davis,  31  Conn.  134;  Wilder 


§    547  HUSBAND    AND    WIFE.  558 

gift.  Nor  is  a  voluntary  assignment,  unaccompanied  by  other  acts 
more  effectual  to  confer  a  title  on  the  donee  than  a  mere  agree- 
ment, as  it  has  been  repeatedly  held  in  equity.^^  But  there  is 
some  difficulty  in  reconciling  the  authorities  on  this  latter  sub- 
ject; for  it  has  been  fully  decided  that  the  voluntary  assignment 
without  reservation  of  a  chose  in  action  or  incorporeal  personalty 
is  good,  if  the  relation  of  cestui  que  trust  and  trustees  be  once  es- 
tablished ;  while,  on  the  other  hand,  if  one  assigns  to  trustees  cer- 
tain property  immediately  transferable,  the  gift  is  imperfect  with- 
out the  transfer.®^  The  point  of  distinction  seems  to  be,  that  in 
the  one  case  the  donor,  by  the  assignment,  not  only  indicates  the 
intention  of  making  a  gift,  but  executes  his  intention  so  far  as  it  is 
possible  for  him  to  do  so,  or  so  far,  at  least,  that  the  donee  might 
as  a  matter  of  justice,  come  into  equity  and  get  his  title  per- 
fected; while,  in  the  other,  by  his  failure  to  make  the  transfer, 
he  does  not  execute  his  intention  to  the  extent  of  his  power,  but 
leaves  it  incomplete.  Whatever  may  be  the  real  principle  in- 
volved, the  authorities  proceed  on  the  ground  that  a  trust  relation 
is  in  the  former  case  created  by  the  instrument.  Hence,  a  mere 
formal  assignment  to  a  wife  is  incomplete  as  such;  for  a  husband 
ought  to  do  all  he  can  to  make  the  settlement  or  gift  complete; 
as,  for  instance,  to  convey  the  land,  transfer  the  stock,  or  indorse 
over  the  negotiable  instruments  payable  to  his  order.  Words  im- 
porting a  husband's  present  intention  to  make  a  gift  cannot  oper^ 
ate  to  complete  it.^^    And  his  oral  promise  to  make  a  gift  is  void 

V.  Aldrich,  2  E.  I.  518,     A  gift  with  91.  Edwards  v.  Jones,  1  M.  &  Cr. 

power  to  the  wife  to  dispose  thereof  226;  Holloway  v.  Headington,  8  Sim. 

by  will  may  be  good  against  the  hus-  324. 

band's  representatives,     Churchill  v,  92  See  Bridge  v.  Bridge,  16  Beav. 

Corker,   25   Ga.   47?.     But   it  is   said  321;    Donaldson    v.    Donaldson,   Kay, 

that    a    man    cannot    denude    himself  717;   McFaddyn  v,   Jenkins,   1   Hare, 

of  his  marital  rights  in  property  which  462 ;    Peachey,   Mar   Settl.   247,   248 ; 

the  law  vests  in  him  by  simply  declar-  Scales  v.  Maude,  6  De  G.,  M.  &  G.  52; 

ing  that  it  belongs  to  his  wife.    Wade  Penfold  v.  Mould,  L,  E,   4  Eq,   562. 

V.  Cantrell,  1  Head   (Tenn.),  346.  As  to  the  assignment  of  leaseholds  to 

A  growTi  child  not  dependent  on  his  a  wife ;  the  deed  operating  sufficiently 

father  for  support,  though  he  be  heir,  as  a  declaration  of  trust,  see  Fox  v. 

cannot  impeach  the  husband's  volun-  Hawks,  L,  E.   13  Ch.  822.     And  see 

tary  conveyance  or  gift  to  the  wife.  Thomas  v.  Harkness,  13  Bush   (Ky.), 

Horder  v.   Horder,  23   Kan,   391.     It  23,     See  also  as  to  gifts  in  general,  3 

is  good  against  the  husband's  heirs-  Sch,,  Pers,  Prop.,  Part  V.,  ch.  2, 

at-law  in  general,  and  especially  if  a  93.  Breton  v.  Woollven,  L.  E.  17  Ch. 

reasonable    provision     for     the    wife.  T>.    416;    Campbell's   Appeal,    80   Pa. 

Majors  v.  Everton,  89  111.  56;  Crooks  298. 
V.  Crooks,  34  Ohio  St.  610. 


559  GIFTS    BETWEEN    SPOUSES.  §    547 

for  want  of  consideration.**  Nevertheless,  in  a  strong  emergency, 
the  deed  or  writing  of  assignment  may  operate  as  a  declaration  of 
trust,  rendering  the  husband  himself,  if  need  be,  a  trustee  to  carry 
it  into  full  execution.®^  A  gift  by  a  husband  to  his  wife  is  not 
invalid  merely  because  she  knows  nothing  of  it  at  the  time.''^  A 
gift  may  be  inferred  from  declarations  of  intention  to  make  it, 
coupled  with  long  asquiescence  by  the  donor  in  the  donee's  use 
of  the  property  as  his  own,^^  as  well  as  from  the  fact  that  a  wife 
uses  her  property  to  improve  her  husband's  land  with  the  excep- 
tion of  occupying  them  jointly  with  him.®*  Causing  a  note  and 
mortgage  for  a  loan  made  by  the  husband  to  be  drawn  in  the  name 
of  the  wife  is  a  good  gift,®*  as  well  as  causing  half  of  a  debt  due 
him  to  be  paid  by  a  check  payable  to  his  wife,^  and  causing  shares 
of  a  loan  association  to  be  cancelled  and  new  shares  issued  to  the 
spouses  jointly,  with  a  right  of  survivorship,"  and  giving  her 
several  sums  of  money  on  a  trip  abroad  without  evidence  of  any 
intention  that  she  should  account  for  it.^  Giving  a  wife  all  his 
wages,  with  part  of  which  she  paid  household  expenses  and  with 
the  balance  paid  off  incumbrances  against  her  home,  has  been 
held  a  good  gift  of  the  balance  as  against  the  donor's  creditors.* 
Where  a  wife  signed  her  husband's  deed  in  consideration  of  the 
delivery  of  a  horse  to  her,  it  was  held  that  there  was  a  good  gift 
of  the  horse,'^  and  where  she  assigned  her  stock  to  him,  and  he, 
with  her  knowledge,  treated  it  as  his  own,  there  was  a  valid  gift.® 

94.  Lloyd  v.  Fulton,  91  U.  S.  479;  98.  Knickerbocker  Trust  Co.  v. 
Bradley  v.  Saddler,  54  Ga.  681;  Hay-  Carhart,  71  N.  J.  Eq.  495,  64  A.  756. 
ford  V.  Wallace,  114  Cal.  16,  46  P.  99.  Dupont  v.  Jonet,  165  Wis.  554, 
301.  162   N,  W.   664, 

95.  Baddeley  v,  Baddeley,  26  W.  R.  1.  Brown  v.  Brown,  174  Mass.  197, 
850,  And  see  Thomas  v,  Harkness,  13  54  N.  E.  532,  75  Am.  St.  R.  2P2;  Wil- 
Bush  (Ky.),  23;  Hutchins  v.  Dixon,  eox  v.  Murtha,  41  App.  Div.  40S,  58 
11  Md.  29,     This  doctrine  of  equity  N,  T.  S,  783. 

eeems  a  dangerous  one  to  press  far,  2,   East   Rutherford   Sav.,   Loan  & 

since   it   tends    to    dispense   with   the  Bldg.   Ass'n   v,   McKenzie,   87   N.   J. 

fundamental  doctrine  that  a  gift,  to  Eq,  375,  100  A.  931, 

be  irrevocable,  ought  to  be  perfected  3.   Straton  v.  Wilson,  170  Ky.  61, 

by     delivery     and     acceptance.       See  185  S,  W.  522;  Grondenberg  v.  Groa 

Wade   V.   Cantrell,   1    Head    (Tenn,),  denberg,  112  111,  App.  615. 

349,  4.  Ford  Lumber  &  Mfg,  Co.  v,  Cnrd, 

96.  Sparks  v.  Hurley,  208  Pa.  166,  150  Ky,  738,  150  S.  W,  991,  43  L,  R, 
57  A,  364,  101  Am,  St.  R,  926  (trans-  A.  (N,  S.)  685, 

fer  of  bank  accounts  5.  Tillis  v.  Dean,  118  Ala,  645,  23 

97.  Miller  v.  McLean,  31  Ohio  Cir,       So.  804. 

Ct.  64.  6.  Morris  v,  Westerman,  79  W.  Va. 

502,  92  S.  E.  567. 


§  549 


HUSBAND    AJSTD    WIFE. 


560 


ar 
8 


But  it  has  been  held  that  no  gift  could  be  inferred  where  a  spouse 
placed  securities  in  a  safe  deposit  box  used  by  them  jointly, 
though  the  securities  were  placed,  in  an  envelope  marked  with  the 
name  of  the  other  spouse.'  The  abandonment  of  a  wife  by  her  hu 
band  does  not  operate  as  a  gift  of  money  left  in  her  possession. 
But  to  prove  the  executed  gift,  so  as  to  establish  a  bona  fide  trans- 
fer against  the  husband's  creditors,  involves,  of  course,  the  greater 
difficulty.^  The  question  whether  or  not  there  is  a  completed  gift 
is  for  the  jury.^°  In  determining  the  question  all  the  evidence 
must  be  considered." 

§  548.  Intervention  of  Trustee  or  Third  Person. 

Though  the  common  law  did  not  permit  a  vtdfe  to  take  a  gift 
directly  from  her  husband,  it  might  validly  be  made  through  a 
third  person  who  merely  acted  as  a  conduit  for  the  title."  Such 
a  mode  of  transfer  did  not  affect  its  character  as  a  gift.^'  It  has 
been  held  that  a  husband  buying  land  subject  to  a  mortgage  may 
pay  the  amount  of  such  mortgage  to  the  holder  and  by  causing 
him  to  assign  it  to  his  wife,  make  her  a  valid  gift  of  it.^* 

§  54^.  Property  which  may  be  subject  of  Gift;  Generally. 

The  wife  may  be  the  grantee,  under  due  statutory  formalities, 
of  real  estate  from  her  husband,^'  or  of  personal  property,"  or  of 


7.  In  re  Squibb 'a  Estate,  95  Misc. 
475,  160  N.  Y.  S.  826. 

8.  Dawson  v.  Lindsay,  111  Mich. 
200,  69  N.  W.  495,  3  Det.  Leg.  N. 
648, 

9.  Ee  Pierce,  7  Biss.  (U.  S.)  426. 

10.  Davis  V,  Seaboard  Air  Line  Co., 
134  N.  C.  300,  46  S.  E.  515;  Roberts 
V.  Griffith,  112  Ga.  146,  37  S.  E.  179; 
Martin  v,  Jennings,  52  S,  C.  371,  29 
S-  E.  807. 

11.  Clawson  v.  Clawson's  Adm'r, 
25  Ind.  229. 

12.  Tucker  v.  Curtin,  148  F.  929,  78 
C.  C.  A.  557;  Brown  v.  Brown,  174 
Mass.  197,  54  N.  E.  532,  75  Am.  St. 
E.  292 ;  Coulter  v.  Meining,  143  Minn. 
104,  172  N.  W.  910. 

18.  Hamilton  v.  Eathbone,  175  U.  S. 
414,  20  S.  Ct.  155,  44  L.  Ed.  219. 

14.  Betts  V.  Betts,  159  N.  Y.  547, 
54  N.  E.  189. 

15.  Corbett  v.  Sloan,  52  Wash.  1,  99 
P.   1025;    Nason  v.   Lingle,    143   Cal. 


363,  77  P.  71;  Thompson  v.  Commis- 
sioners, 79  N.  Y.  54;  McMillan  v. 
Peacock,  57  Ala.  127;  Sherman  v. 
Hogland,  54  Ind.  578.  A  false  recital 
in  the  deed  cannot  make  the  convey- 
ance antenuptial  or  "in  consideration 
of  marriage."  Phillips  v.  Phillips,  9 
Bush  (Ky.),  183;  Westmore  v.  Harz, 
111  La.  305,  35  So.  578. 

16.  V.  G.  Fischer  Art  Co,  v.  Hutch- 
ins,  41  App.  D,  C,  156;  Smith  v.  Shep- 
pard,  2  Ga.  App,  144,  58  S,  E.  303; 
Succession  of  Turgeau,  130  La.  650, 
58  So.  497;  Le  Blanc  v.  Sayers,  202 
Mich.  565,  168  N,  W.  445;  Aylor  v. 
Aylor,  184  Mo.  App.  607,  170  S.  W. 
704;  Light  v.  Graham  (Mo.),  199  S. 
W.  570;  Abbott  v.  Fidelity  Trust  Co., 
149  Mo.  App.  511,  130  S.  W.  1120; 
Strothers  v.  McFarland  (Mo.),  194  S. 
W.  881;  Finch  v.  Finch,  89  N.  J.  Eq, 
563,  105  A,  205;  Leitch  v.  Diamond 
Nat.  Bank,  234  Pa.  557,  83  A.  416; 
Besterman  v.  Besterman,  263  Pa.  555, 


561 


GIFTS    BETWEEN    SPOUSES. 


§    550 


real  and  personal  property  combined/^  or  of  community  prop- 
erty/® Rents  and  profits  may  be  secured  to  ber  exclusive  bene- 
ficial use.^'  Tbe  promissory  note  of  a  creditor  or  otber  tbird  party 
may  tbus  be  legally  transferred  by  the  busband  to  bis  wife  under 
some  of  tbe  Married  Women's  Acts  ;^°  and  independently  of  sucb 
statutes  on  equitable  grounds.^^  His  voluntary  settlement  of 
cboses  or  incorporeal  personalty  upon  ber  is  good,  prima  facie,'^ 
and  tbis  may  include  an  assignment  of  a  claim  due  bim.*'  Lease- 
hold property  may  be  assigned  to  tbe  wife  by  way  of  gift.^* 

§  550.  Bank  Deposits. 

Tbe  busband  may  make  a  gift  to  bis  wife  by  depositing  in  some 
savings  bank  on  bis  wife's  separate  account  and  by  bis  acts  bind- 
ing tbe  bank  to  account  to  ber.'^  To  constitute  a  valid  gift  by  a 
husband  to  his  wife  of  his  bank  deposit,  there  must  be  evidence  of 
his  intention  to  make  tbe  gift/'  which  is  not  effectively  made 
while  he  retains  control.*'  Therefore,  no  gift  is  shown  merely  by 
the  fact  that  tbe  wife  draws  interest  on  such  a  deposit,*®  nor  be- 
cause both  spouses  have  a  right  to  draw  upon  a  deposit  in  their 
joint  names,*'  even  where  they  have  joint  possession  of  tbe  pass 


107  A.  323 ;  Walston  v.  Allen,  82  Vt. 
549,  74  A.  225;  In  re  Bushnell's  Es- 
tate, 107  Wash.   331,   182   P.   89. 

17.  Wing  V.  Goodman,  75  111.  159; 
Indianapolis  K.  v.  McLaughlin,  77  111. 
275. 

18.  Sullivan  v.  Fant,  51  Tex,  Civ.  6, 
110  S.  W.  507. 

19.  Hutchinson  v.  Mitchell,  39  Tex. 
487. 

20.  Motley  v.  Sawyer,  38  Me.  68; 
Dillage  v.  Parks,  31  Barb.  (N.  Y.) 
132 ;  Slawson  v.  Loring,  5  Allen 
(Mass.),  340.  And  see  Clough  v.  Rus- 
sell, 55  N.  H.  279.  But  cf.  Hoker  v. 
Boggs,  63  111.  161. 

21.  Tullis  V.  Fridley,  9  Minn.  79. 

22.  Campbell  v.  Galbreath,  12  Bush 
(Ky.),  45?.  Such  transfer  is  fre- 
quently good  without  formal  assign- 
ment. Seymour  v.  Fellowes,  44  N.  Y. 
Bnper.  124. 

23.  Seymour  v.  Fellows,  77  N.  Y. 
178. 

24.  Fox  V.  Hawks,  L.  B.  13  Ch.  D. 
822. 

M.     Fisk     V.     Cushman,     6     Cush. 

36 


(Mass.)  20;  Howard  v.  Windham  Co. 
Sav.  Bank,  40  Vt.  597;  Sweeney  v. 
Five  Cents'  Sav.  Bank,  116  Mass. 
384;  Spelman  v.  Aldrich,  126  Mass. 
113.  Aliter,  where  the  deposit  is  not 
in  contravention  of  a  husband 's  mari- 
tal rights  and  control.  See  McCub- 
bin  V.  Patterson,  16  Md.  179;  Way 
V.  Peek,  47  Conn.  23. 

26.  Peninsular  Sav.  Bank  v.  Wine- 
man,  123  Mich.  257,  81  N.  W.  1091, 
6  Det.  Leg.  N.  1010;  Hairston  v. 
Glenn,  120  N.  C.  341,  27  S.  E.  32. 

27.  First  Nat.  Bank  v.  Taylor,  142 
Ala.  456,  37  So.  695;  In  re  Brown's 
Estate,  113  la.  351,  85  N,  W.  617; 
Monoghan  v.  Collins  (N.  J.),  71  A. 
617;  Martin  v.  Munroe,  121  Md.  679, 
89  A.  319'. 

28.  Dodge  v.  Lunt,  181  Mass.  320, 
63  N.  E.  891. 

29.  Gish  Baking  Co.  v.  Leachman, 
163  Ky.  720,  174  S.  W.  492  L.  R.  A. 
1915D  920;  Staples  v.  Berry,  110  Me. 
32,  85  A.  303;  Schneider  v.  Schneider, 
122  App.  Div.  774,  107  N.  Y.  S.  792. 

In  a  recent  case  where  the  husband 


§  550 


HUSBAND    AND    WIFE. 


562 


books,'"  nor  from  a  deposit  in  the  wife's  name,  while  withholding 
the  bank  book  and  making  no  express  declaration  of  trust,'^  even 
where  the  wife  without  authority  takes  from  her  husband's  papers 
a  bank  book  showing  a  deposit  in  her  name,'^  or  making  a  deposit 
in  her  name  to  enable  her  to  care  for  the  money  he  eams.^'  But 
where  after  making  such  a  deposit  he  delivers  the  book  to  her  and 
she  accepts  it  there  is  an  irrevocable  gift,^*  even  though  his  original 
intent  was  to  defraud  his  creditors,^'  as  well  as  where  after  mak- 
ing the  first  deposit  the  wife  makes-  others  and  he  never  claims  the 
money,^^  and  where  in  making  a  joint  deposit  he  created  a  right 
of  survivorship.^^  Where  a  savings  bank  deposit  was  in  the  joint 
names  of  spouses,  owned  equally  and  payable  on  either's  draft, 
it  was  held  that  neither  could  make  a  valid  gift  of  more  than  his 
interest.^*  In  I^ew  York  it  is  held  that  a  deposit  made  by  a  hus- 
band  in  the  joint  names  of  himself  and  his  wife  creates  a  right 
of  survivorship  in  the  fund,  in  the  absence  of  evidence  of  another 
intention.^''  She  has  no  legal  interest  in  it  till  his  death.*"  But 
where  the  account  was  made  '^  payable  to  either  or  the  survivor," 
it  was  held  that  she  had  an  equal  right  to  draw  on  the  account,  in 


deposited  his  money  in  a  joint  account 
ill  the  names  of  himself  and  wife  and 
told  her  she  could  draw  to  the  full 
amount  "but  if  you  do  I  will  give 
you  hell,"  the  court  found  it  was  his 
intention  to  allow  her  the  use  of  the 
account  to  reasonable  amounts  only, 
being  the  equivalent  of  a  power  of  at- 
torney and  not  an  immediate  gift,  and 
that  he  intended  to  give  her  what  re- 
mained at  his  death.  This  purpose 
being  testamenetary  in  character  and 
therefore  invalid  as  not  being  made  in 
the  form  required  in  case  of  wills,  the 
balance  of  the  account  at  his  death 
belonged  to  his  estate.  Morristown 
Trust  Co.  V.  Capstick  (N.  J.),  106 
Atl.  391. 

30.  Schwab  v,  Schwab,  177  App. 
Div.  246,  163  N.  Y.  S.  246, 

31.  Getchell  v.  Biddeford  Sav.  Bank, 
94  Me.  452,  47  A.  895,  80  Am.  St.  R. 
408. 

32.  Fairfield  Sav.  Bank  v.  Small,  90 
Me.  546,  38  A.  551;  Slee  v.  Kings 
County  Sav.  Inst.,  78  App.  Div.  534, 


79  N.  Y.  S.  630,  12  N.  Y.  Ann.  Cas. 
351. 

33.  Monohan  v.  Monohan,  77  Vt. 
133,  59  A.  169,  70  L.  R.  A.  935  j  Me- 
Cluskey  v.  Provident  Inst,  for  Sav- 
ings, 103  Mass.  300. 

34.  In  re  Holmes,  176  N.  Y.  603, 
68  N.  E.  1118  ;  In  re  Reichert,  85  App. 
Div.  619,  82  N.  Y.  S.  1113. 

35.  Wipfler  v.  Detroit  Pattern 
Works,  140  Mich.  677,  104  N.  W.  545, 
12  Det.  Leg.  N.  309. 

36.  In  re  Klenke  's  Estate,  210  Pa, 
572,  60  A.  166. 

37.  Blick  V.  Cockins,  252  Pa.  56, 
97  A.  125. 

38.  Wetherow  v.  Lord,  58  N,  Y.  8. 
778,  41   App.  Div.   413. 

39.  West  V.  McCullough,  194  N.  Y. 
518,  87  N.  E,  1130;  In  re  Thompson's 
Estate,  167  App.  Div.  356,  153  N,  Y. 
S.  164;  In  re  Mills'  Estate,  93  Misc. 
43,  157  N.  Y.  S.  133. 

40.  Wegmann  v,  Kress,  141  N.  Y.  8. 
525. 


563 


GIFTS    BETWEEN    SPOUSES. 


§  551 


addition  to  the  survivorship,  the  quoted  expression  importing  a 
gift." 

§  551.  Necessity  of  Intention  to  make  Gift. 

Whether  gift  or  loan  be  the  effect  of  a  transaction  is  a  question 
of  intention,  to  be  determined  by  the  proof  submitted,*^  especially 
where  the  evidence  is  oral.'*^  The  intelligent  intent  of  the  sup- 
posed donor,  if  it  can  be  ascertained,  will  govern.'**  It  has  been 
repeatedly  held,  in  chancery  courts  of  this  country,  that  gifts  of 
personal  property  or  voluntary  conveyances  of  real  estate  from 
husband  to  wife  are,  as  between  themselves,  valid,  and  such  is  now 
the  rule  in  most,  but  not  all,  of  the  States ;  the  Married  Women's 
Acts  in  some  jurisdictions  creating  a  legal  estate  in  the  wife  under 
auch  circumstances.  The  evidence  of  intention  should  be  clear 
and  distinct  in  all  such  cases.*^  The  evidence  must  show  the 
donor's  intention  to  part  with  both  title  and  possession.**  !N^o 
presumption  of  gift  arises  where  a  husband  retains  certificates  of 
stock  without  delivery  or  a  declaration  of  trust,  though  made  out 
in  the  wife's  name,*^  or  where  he  purchases  articles  of  personal 
adornment  for  her  use.*®  The  alleged  donee  has  the  burden  of 
showing  such  intention.*®  The  testimony  of  the  donee  is  compe- 
tent, and  if  uncontradicted,  will  sustain  a  judgment.^"     A  hus- 


41.  Moore  v.  Fingar,  131  App.  Div. 
399,  115  N.  Y.  S.  1035. 

42.  The  indorsement  of  a  draft 
given  in  settlement  of  the  wife's  leg- 
acy, and  its  deposit  to  the  husband's 
bank  account,  is  insufficient  proof  of 
a  gift  to  him,  for  this  might  be  for 
mere  convenience  of  collection.  Green 
V.  Carlill,  4  Ch.  D.  282. 

43.  Colvin  v.  Johnston,  104  La.  655, 
29  So.  274. 

44.  McGee  v.  McGee,  78  N.  J.  Eq. 
430,  79  A.  268;  McMahon  v.  Cronin, 
128  N.  y.  S.  423. 

45.  Borst  v.  Spelman,  4  Comst.  (U 
8.)    284;    Coates  v.   Gerlach,   44   Pa 
43;  Jennings  v.  Davis,  31  Conn.  134 
George   v,    Spencer,   2   Md.   Ch.   353 
Deming   v.   Williams,   26   Conn.    226 
Reynolds  v.   Lansford,   16   Tex.   286 
Pennsylvania,  etc.,  Co.  v.  Neel,  54  Pa 
9;    Hunt   v.   Johnson,   44   N.   Y.   27 
Sims  V.  Eickets,  35  Ind.  181;  Kitchen 
V.    Bedford,    13    Wall.    (U.    S.)    413; 


Campbell  v.  Galbreath,  12  Bush  (Ky.) 
459;  Hagin  v.  Shoaf,  9  Ala.  App.  300, 
63  So.  764  (cert,  den.,  64  So.  615)  ; 
Gray  v.  Gray,  111  Me.  21,  87  A.  661 ; 
Farrow  v.  Farrow,  72  N.  J.  Eq.  421, 
65  A.  1009;  Keniston  v.  Keniston,  56 
Vt.  630;  Beck  v.  Beck,  78  N.  J.  Eq. 
544,  80  A.   550. 

46.  Wheeler  v.  Armstrong,  164  Ala. 
442,  51  So.  268;  Foxworthy  v.  Adams, 
136  Ky.  403,  124  S.  W.  381;  Light  v. 
Graham  (Mo.),  199  S.  W.  570;  Beck 
v.  Beck,  77  N.  J.  Eq.  51,  75  A.  228. 

47.  Getchell  v.  Biddeford  Sav.  Bank, 
94  Me.  452,  47  A.  895,  80  Am.  St.  R. 
408. 

48.  Mains  v.  Webber's  Estate,  131 
Mich.  213,  91  N.  W.  172,  9  Det  Leg. 
N.  269. 

49.  LeBlane  v.  Sayers,  202  Mich. 
565.  168  N.  W.  445. 

50.  KeUy  v.  Kelly,  164  N.  Y.  S. 
172. 


§    552  HUSBAND    AND    WIFE.  564r 

band's  declarations  to  a  third  person  that  he  had  made  a  gift  are 
insufficient  of  themselves  to  establish  it,^^  but  it  is  otherwise  where 
accompanied  by  a  delivery  of  the  subject  of  the  alleged  gift,^^  or 
where  accompanied  by  evidence  that  both  parties  considered  the 
property  hers,^^  or  by  conduct  tending  to  corroborate  his  admis- 
sions." The  circumstances  under  which  the  husband's  transfer 
is  made  are  always  material.  Thus  a  husband  might  have  placed 
his  earnings  or  property  in  his  wife's  hands  for  safe-keeping,  and 
not  as  a  gift  to  her,  in  which  case  title  to  the  fund  should  be  re- 
spected accordingly  as  between  them ;  or  it  might  be  regarded,  per- 
haps, as  bestowed  for  their  joint  benefit  or  that  of  the  whole  family 
upon  due  proof. "^  Or  the  understanding  might  be  that  the  trans- 
action was  to  stand  upon  mutual  consideration  or  by  way  of  se^ 
curity.^'  Acts  of  the  wife  recognizing  the  husiband  as  owner  of 
the  subj  ect  of  the  gift  are  competent  on  the  question  of  her  accept- 
ance of  it.^^ 
§  552.  Necessity  and  Nature  of  Delivery. 

To  constitute  a  valid  gift  of  personalty  there  must  be  a  delivery 
of  the  thing  given  ;^^  delivery  directly  or  through  some  third 
party,  such  as  a  trustee;  delivery  by  acts  parol,  or  under  an  in- 
strument in  writing,  such  as  a  deed  of  gift.  Delivery  should  be 
according  to  the  subject-matter;  imperfect  delivery  being  per- 
mitted by  way  of  an  equitable  assignment  in  the  ease  of  incorporeal 
but  not  of  corporeal,  personalty.  The  donee  should  accept  cor- 
respondingly; though  acceptance  is  preferable;  and  the  mutual 
intention  may  be  gathered  from  words,  acts  and  mutual  conduct.'''* 
Where  the  husband  gives  corporeal  property  there  should  be  some 

51.  Chambers  v.  McCreery,  106  P.  175;  Seibold  v.  Christian,  7  Mo.  App. 
364,  45  C.  C.  A.  322;   Bauernschmidt       254. 

V.  Bauernschmidt,  97  Md.  35,  54  A.  56.  Grain  v.  Shipman,  45  Conn.  572. 
637 ;  Burns  v.  Burns,  132  Mich.  441,  Where  the  evidence  is  conflicting  as  to 
93  N.  W.  1077,  9  Det.  Leg.  N.  662;  a  husband's  object  in  making  convey- 
in  re  Meehan,  59  App.  Div.  156,  69  ance  to  his  wife,  the  ordinary  pre- 
N.  Y.  S.  9;  Pierce  v.  Giles,  93  111.  sumption  of  a  provision  for  her  bene- 
App.  524.  fit  is  not  rebutted.    Linker  v.  Linker, 

52.  In  re   Wise's  Estate,   182   Pa.  32  N.  J.  Eq.  174. 

168    37  A.  936.  57.  Gould  v.  Glass,  120  Ga.  50,  47 

53.  Williams  v.  Hoehle,  95  Wis.  510,       S.  E.  505. 

70  N.  W.  556   (piano).  58.  Fritz  v.  Fernandez,  45  Fla.  318, 

54.  Hale    v.    Kennedy    (Cal.),    183       34  So.  315. 

p    723  59.  For  the  principles  applicable  to 

55.  Marshall  v.  Crutwell,  L.  R.  20  such  gifts,  see  2  Sch.  Pers.  Prop., 
Eq.    328;    Adlard   v.    Adlard,   65    111.       Part  V.,  eh.  2. 

212;   Edgerly  v.  Edgerly,  112   Mass. 


565  GIFTS    BETWEEN    SPOUSES.  §    552 

visible  cliange  of  possession  manifested;  and  in  gifts,  as  of  furni- 
ture, of  that  which  remains  in  the  common  dwelling-house,  there 
may  be  difficulty  in  establishing  a  transfer.®"  Mere  expression  of 
a  wish  that  he  should  have  it  is  not  enough,®^  nor  is  a  mere  un- 
derstanding that  the  property  was  to  be  owned  in  common.®"  Such 
delivery  must  be  unconditional,®^  and  may  be  actual  or  construc- 
tive.®* But  a  constructive  delivery  will  not  avail  where  an  actual 
delivery  is  possible.  Thus  where  a  husband  delivers  to  his  wife 
the  key  of  a  box  containing  certificates  of  stock,  which  was  in 
another  room  in  the  house,  and  she  merely  took  the  key  and  kept  it 
on  her  key  ring  and  did  nothing  more,  it  was  held  that  there  was 
no  valid  gift.^^  Likewise,  a  gift  by  a  husband  t-o  his  wife  of  an 
automobile  is  not  shown  by  evidence  of  his  statements  that  he 
intended  it  as  a  birthday  present  for  her  and  that  he  gave  her  a 
duplicate  garage  key,  where  the  car  was  continuously  used  in  his 
business  and  his  wife  never  used  it  except  to  go  on  a  pleasure 
trip  with  him.®®  The  delivery  may  be  qualified  instead  of  abso- 
lute. But  his  reservation  of  a  power  to  revoke  or  appoint  to  other 
uses  does  not  impair  the  validity  or  efficiency  of  the  transfer  to 
his  wife  to  hold  until  this  power  shall  be  executed;  nor  does  it 
raise  any  imputation  of  bad  faith  in  the  transaction.®"  Delivery 
of  a  wife's  notes  to  her  husband  may  be  inferred  from  the  fact 
that  they  are  found  among  his  papers  at  his  death,  coupled  with 
other  evidence  of  her  intention  to  make  a  gift.^'  Xo  gift  can 
be  inferred  merely  from  the  fact  that  a  wife  delivers  her  money 
to  her  husband,®^  or  that  she  gives  him  authority  to  draw  on  her 
bank  account,'^"  Under  the  "West  Virginia  statute  a  wife  ac- 
quires no  title  by  gift  to  the  personal  property  of  her  husband 

60.  He  Pierce,  7  Biss.  (U.  S.)  426.       32  Okla.  121,  121  Pac.  237,  40  L.  E.  A. 

61.  Littlefield  v.  Perkins,  100  Me.       (N.  S.)  901. 

96,  60  A.  707.  66.    Eydzewski's   Estate,    67    Pitts- 

62.  Blick  V.  Cockins,  252  Pa.  56,  97       burg  L.  J.  270. 

A.  125.  67.  Jones  v.  CUfton,  101  U.  S.  225. 

63.  Hancock  v.  Hancock  (Ind.)  Ill       Such  a  power  does  not,  in  the  event 
N.  E.  336.  of  the  husband's  bankruptcy,  pass  to 

64.  Humphrey  v.   Ogden,   53   Colo.       his  assignee.     76. 

309,  125  P.  110;   Butler  v.  Farmers'  68.   Morey  v.  Wiley,   100  111.   App. 

Nat.  Bank,   173   la.   659,   155   N.   W.  75. 

999 ;    Abegg    v.    Hirst,    144    la.    196,  69.  Adoue  v.  Spencer,  62  X.  J.  Eq. 

122  N.  W.   838;    Coulter  v.  Meining,  782,  49   A.   10,   56  L.  K.  A.   817,   90 

143  Minn.  104,  172  X.  W.  910;  Jiles  Am.  St.  E.  484, 

V.  Jiles,  54  Pa.  Super.  565.  70.   Colmary   v.   Fanning,    124   Md. 

65.  Apache  State  Bank  v,  Daniels,  548,  92  A.  1045;   hi   re  Holmes,  176 

X.  Y.  603,  68  N.  E.  1118. 


§  554  HUSBAND  AND  WIFE.  566 

delivered  to  her  at  the  matrimonial  domicile  except  by  deed  or 
will." 

§  553.  Gift  by  Wife  to  Husband. 

A  wife  may  make  a  valid  gift  to  her  husband/*  if  it  appears 
that  such  was  her  intention,  and  that  she  intended  to  part  with 
her  title  to  the  property.'^  As  to  such  gifts  fraud  or  undue  influ- 
ence may  be  reasonably  suspected ;  and  transactions  of  this  sort  are 
scrutinized  by  the  courts  with  gerat  care/*  such  a  gift  will  be  en- 
forced if  fair  and  reasonable,  and  not  procured  by  fraud  or  im- 
position.'^  They  will  be  presumed  to  be  valid  prima  facie  as 
against  a  stranger.'*  Where  a  partition  deed  conveys  a  wife's 
land  to  her  husband,  the  intent  to  give  it  to  him  is  a  question  of 
fact.''  The  Virginia  Married  Women's  Act  does  not  take  away 
the  wife's  power  to  make  a  valid  gift  to  her  husband,'®  nor  is  it 
taken  away  by  the  Georgia  statute  requiring  the  approval 
of  a  court  to  validate  her  conveyances  to  him.'®  Under  the 
Missouri  Married  Women's  Act  her  written  transfer  is  required 
to  validate  such  a  gift.*" 

§  554.  Presumptions;  Husband's  Gift  to  Wife. 

Where  a  husband  causes  title  to  his  land  to  be  taken  in  hi» 
wife's  name,  he  is  presumed  to  intend  a  gift  to  her,®^  even  though 

71.  Evans  v.   Higgins,  70  W.   Va.  Merriam  v.  Harsen,  4  Edw.  Ch.   (H. 
640,  74  S.  E.  909.  Y.)   70. 

72.  Evans  v.  Wells   (Ark.),  212  S.  75.  Fritz  v.  Fernandez,  45  Fla,  318, 
W.  328;  Davis  v.  Davis,  93  Ark.  93,  34  So.  315. 

124   S.  W.   525;   Morrison  v.   Dickey,  76.  Gelding  v.  Gelding,  82  K7.  51,  5 

122  Ga.  353,  50  S.  E.  175,  69  L.  K.  A.  Ky.  L.  806. 

87;    American   Ins.   Co.   v.   Bagley,   6  77.  Carter  v.  Becker,  69  Kan.  524, 

Ga.  App.  736,  65  S.  E.  787;   Eea  v.  77  P.   264;    Mays  v.   Hannah,  4  Ky. 

Kea,  156  N.  C.  529,  72  S.  E.  573.  Law,  50. 

73.  Denigan  v.  Hibemia  Savings  &  78.  Throckmorton  v.  Throckmorton, 
Loan  Soc,  127  Cal.  137,  59  P.  389;  In  91  Va.  42,  22  S.  E.  162. 

re  Ford's  Estate,  232  Pa.  179,  81  A.  79.  Eich  v.  Eich,   147   Ga.   488,  94 

200.  B.  E.  566. 

74.  Long  V.  Beard,  20  Ky.  Law,  80.  Craig  v.  Miners'  Bank  of  Jop- 
1036,  48  S.  W.  158;  Spradling  v.  lis,  189  Mo.  App.  389,  176  S.  W.  433. 
Spradling,  101  Ark.  451,  142  S.  W.  81.  Carpenter  v.  Gibson,  104  Ark- 
848;  Selle  V.  Eapp  (Ark.),  170  S.  W.  32,  148  S.  W.  508;  Jentzsch  v. 
1021;  Cruger  v.  Douglas,  4  Edw.  Ch.  Jentzsch,  84  Ark.  322,  105  S.  W.  572; 
(N.  Y.)  433;  Nedby  v.  Nedby,  1  E.  Mayers  v.  Lark  (Ark.),  168  S.  W. 
L.  &  Eq.  106;  Re  Jones,  6  Bias.  (U.  1093;  Hall  v.  Cox,  104  Ark.  303,  149 
8.)  68;  Converse  v.  Converse,  9^  Eich.  S.  W.  80;  O'Hair  v.  O'Hair,  76  Ark. 
Eq.  (S.  C.)  535;  Stiles  v.  Stiles,  14  389,  88  S.  W.  945;  Wilson  v.  Warner, 
Mich.  72;  Hollis  v.  Francois,  5  Tex.  89  Conn.  243,  93  A.  533;  Marchant  v. 
195;  Wales  v.  Newbould,  9  Mich.  45;  Young,    147    Ga.    37,    92    S.    E.   863; 


567 


GIFTS    BETWEEN    SPOUSES. 


§  554 


his  original  intent  was  to  defraud  creditors.*^  The  same  presump- 
tion arises  where  he  expends  his  money  in  improving  her  prop- 
erty,®^ and  where  he  improves  property  held  in  their  joint  names, 
being  presumed  to  intend  a  gift  of  half  the  value  of  the  improve- 
ments in  such  case.^*  The  same  rule  has  been  applied  where  a 
note  in  payment  of  his  land  is  taken  in  the  wife's  name,**  and  to 
money  furnished  her  with  which  to  buy  real  estate,*®  and  to  the 
issuance  in  her  name  of  corporate  stock  owned  by  him.*^  The  pre- 
sumption arises  whether  the  conveyance  is  direct  or  through  a 
third  person,**  and  will  be  indulged  wherever  necessary  to  the 
theory  that  the  land  is  the  wife's  property.*®  Unless  it  is  over- 
thrown she  may  recover  the  premises  from  him  in  ejectment.*" 
The  presumption  may  be  rebutted,®^   and  the  husband   has   the 


Elliott  V.  Prater,  260  111.  64,  102  N.  E. 
1015;  Schultz  v.  Schultz,  274  111.  341, 
113  N.  E.  638;  Hanks  v.  Hanks,  114 
111.  App.  526  (affd.,  75  N.  E.  352,  217 
111.  359);  Corcoran  v.  Corcoran,  119 
Ind.  138,  21  N.  E.  468,  12  Am.  St. 
B.  390,  4  L.  E.  A.  782;  Sims  v.  Rick- 
ets, 35  Ind.  181,  9  Am.  R.  679;  Nail 
V.  Miller,  95  Ky.  448,  15  Ky.  Law, 
862,  25  8.  "W.  1106;  Jaquith  v.  Massa- 
chusetts Baptist  Convention,  172 
Mass.  439,  52  N.  E.  544;  Siling  v. 
Hendrickson,  193  Mo.  365,  92  S.  W. 
105;  Solomon  v.  Solomon,  3  Neb. 
(tJnof.)  540,  92  N.  W.  124;  Doan  v. 
Dunham,  64  Neb.  135,  89  N.  W.  640; 
Veeder  v.  McKinley-Lanning  Loan  & 
Trust  Co.,  61  Neb.  892,  86  N.  W.  982 ; 
Kobarg  v.  Greder,  51  Neb.  365,  70 
N.  W.  921;  Van  Etten  v.  Passumpsic 
Savings  Bank,  79  Neb.  632,  113  N.  W. 
163;  Singleton  v.  Cherry,  168  N.  C. 
402,  84  S.  E.  698;  Cropsey  v.  Crop- 
8ey,  88  N.  J.  Eq.  491,  103  A.  1051; 
Warren  v.  Warren  (N.  J.),  104  A. 
823;  Weigert  v.  Schlesinger,  150  App. 
Div.  765,  135  N.  Y.  S.  335;  Kent  v. 
Tallent,  75,  76  Okla.  185,  183  P. 
422;  Kjolseth  v.  Kjolseth,  27  S. 
D.  80,  129  N.  W.  752;  Tison  v.  Gass, 
46  Tex.  Cir.  163,  102  S.  W.  751; 
Anderson  v.  Cercone  (Utah),  i80  P. 
586;  Effler  v.  Bums,  70  W.  Va.  415, 
74  8.  E.  233;  Perkinson  v.  Clarke,  135 
Wis.  584,  116  N.  W.  229;  Gilmour  v. 
North  Pasadena  Land  &  Water  Co., 


178  Cal.  6,  171  P.  1066;  Lins  v.  Len- 
hardt,  127  Mo,  271,  29  8.  W.  1025. 
The  same  rule  is  established  in 
Georgia  by  statute.  Stonecipher  v. 
Kear,  131  Ga.  688,  63  8.  E.  215. 

82.  Carter  v.  McNeal,  86  Ark.  150, 

110  S.  W.  222. 

83.  Hamby  v.  Brooks,  86  Ark.  448, 

111  S.  W.  277;  Maciejewska  v.  Jar- 
zombek,  243  111.  136,  90  N.  E,  231; 
Anderson  v.  Anderson,  177  N.  C.  401, 
99  S.  E.  106;  Selover  v.  Selover,  62 
N.  J.  Eq.  761,  48  A,  522,  90  Am.  St. 
R.  478. 

84.  Brady  v.  Brady,  86  Conn.  199, 
84  A.  925;  Foreman  v.  Citizens'  State 
Bank,  128  Iowa,  661,  105  N.  W.  163. 

85.  Adams  v.  Button,  156  Ky.  693, 
161  8.  W.  1100. 

86.  Hipkins  v.  Estes,  51  Wash.  1, 
97  P.  1089. 

87.  Colmary  v.  Crown  Cork  &  Seal 
Co.  of  Baltimore  City,  124  Md.  476, 
9'2  A.  1051. 

88.  Balster  v.  Cadick,  29  App.  D.  C. 
405 ;  Andreas  v.  Andreas,  84  N.  J. 
Eq.  368,  96  A.  39. 

89.  Shaw  V.  Bernal,  163  Cal.  262, 
124  P.  1012. 

90.  Balster  v.  Cadick,  29  App.  D. 
C.  405. 

91.  Carle  v.  Heller,  18  Cal.  App. 
577,  123  P.  815;  Gould  v.  Glass,  120 
Ga.  50,  47  8.  E.  505;  Jackson  v.  Wil- 
liams, 129  Ga.  716,  59  8.  E.  776;  Pool 
V.  Phillips,  167  111.  432,  47  N.  E.  758 ; 


§  555 


HUSBAND    AND    WIFE. 


568 


burden  of  proof.®^  The  rebuttal  evidence  may  be  oral,"  and  must 
be  clear  and  convincing.^''  Therefore,  if  the  evidence  is  con- 
flicting the  presumption  prevails.^'*  Eebuttal  evidence  should  be 
of  facts  antecedent  to  or  contemporaneous  with  the  transaction.'" 
Where  the  presumption  is  overcome  there  is  a  resulting  trust  in 
favor  of  the  husband.®^  The  marital  relation  raises  no  presump- 
tion that  a  gift  from  a  husband  to  his  wife  is  the  result  of  undue 
influence.^*  Where  a  father  places  furniture  in  the  house  of  a 
daughter  about  to  be  married,  with  the  consent  of  her  husband,  it 
is  presumed  to  be  a  gift,  but  may  be  shown  to  be  a  loan. 


69 


§  555.  Wife's  Gift  to  Husband  in  General. 

The  rule  is  recognized  under  the  statutes  of  many  States, 
though  in  other  States  denied,  that  she  may  bestow  her  separate 
estate  upon  him  by  way  of  gift.^  A  wife's  delivery  of  her 
property  to  her  husband  or  her  act  in  taking  title  in  his  name  does 
not  of  itself  raise  a  presumption  of  a  gift,^  there  being  a  pre- 
sumption that  it  was  not  a  gift,^  and  either  that  he  holds  as 
trustee  for  her,*  or  that  it  is  a  loan.'^    The  rule  is  the  same  where 


Toney  v.  Toney,  84  Or.  310,  165  P. 
221;  Dean  v.  Dean  (Tex,),  214  S.  W. 
505;  Walston  v.  Smith,  70  Vt.  19,  39 
A.  252. 

92.  Huston  v.  Smith,  248  111.  3?6, 
94  N.  E.  63;  Moran  v.  Neville,  56 
N.  J.  Eq.  326,  38  A.  851. 

93.  Johnson  v.  Johnson,  115  Ark. 
416,  171  S.  W.  475;  Monahan  v.  Mon- 
ahan,  77  Vt.  133,  59  A.  169,  70  L. 
E.  A.  935. 

94.  Hubbard  v.  MeMahon,  117  Ark. 
563,  176  S.  W.  122 ;  Clavey  v.  Schnadt, 
272  III.  464,  112  N,  E.  360;  Hood  v. 
Hood,  83  N.  J.  Eq.  695,  93  A.  797; 
Waggy  V.  Waggy  (W.  Va.),  87  S.  E. 
178. 

95.  Andreas  v.  Andreas,  84  N.  J. 
Eq.  368,  94  A.  415   (affd.,  96  A.  39). 

96.  Wood  V,  Wood,  100  Ark,  370, 
140  S.  W.  275;  Delia  v.  Delia,  98  Ark. 
540,  136  S.  W.  937;  Alexander  v. 
Bosworth,  26  Cal.  App.  589,  147  P, 
607. 

97.  Duvale  v,  Duvale,  54  N.  J.  Eq. 
581,  35  A.  750;  Corey  v.  Morrill,  71 
Vt,  51,  42  A.  976. 

98.  Crofford  v.  Crofford,  29  Cal, 
App.  662,  157  P,  560. 


99.  Nichols  v,  Edwards,  16  Pick. 
(Mass.)  62. 

1.  Hinney  v.  Phillips,  50  Pa.  382; 
Fox  V.  Jones,  1  W.  Va.  205 ;  White  v. 
Callinan,  19  Ind.  43;  2  Kent,  Com. 
Ill,  and  cases  cited,  last  ed, ; 
Johnston  v,  Johnston,  1  Grant,  468; 
Gage  V.  Dauchy,  28  Barb,  (N.  Y.) 
622;  Koper  v.  Koper,  29  Ala.  247. 
See  Postnuptial  Settlements, 

2.  Mahan  v.  Schroeder,  236  111.  392, 
86  N.  E.  97;  Jackson  v.  Kraft,  188 
111.  623,  58  N.  E.  298;  In  re  Mahon'a 
Estate,  202  Pa.  201,  51  A.  745;  Tison 
V.  Gass,  46  Tex.  Civ,  163,  102  S.  W. 
751. 

8.  Denny  v.  Denny,  123  Ind.  240, 
23  N.  E.  519;  Eeed  v.  Tilton 
(N.  J.),  105  A,  597;  Elmer  v.  Tren- 
ton Trust  &  Safe  Deposit  Co.,  76  N, 
J.  Eq.  452,  74  A.  668 ;  Adoue  v.  Spen- 
cer, 62  N,  J.  Eq,  782,  49  A,  10,  56 
L.  R.  A.  817,  90  Am,  St.  R,  484. 

4.  Barber  v.  Barber,  125  Ga,  226, 
53  S.  E,  1017;  Beddow  v,  Sheppard, 
118  Ala,  474,  23  So.  662;  Garner  v. 
Lankford,  47  Ga.  235,  93  S,  E.  411; 
Burt  V,  Kuhnen,  113  Ga.  1143,  39  S. 


569 


GIFTS    BETWEEN    SPOUSES. 


§  555 


the  funds  used  bj  the  husband  were  given  him  by  another  with 
the  express  intention  that  the  land  should  belong  to  the  wife,* 
and  where  the  title  is  taken  in  their  joint  names,  so  that  the 
spouses  did  not  take  by  the  entirety  in  such  case,'  and  where  the 
wife  is  in  possession  under  a  deed,  and  the  husband  gets  in  an 
outstanding  title,  for  the  purpose  of  bettering  her  title,  paying 
for  it  with  community  funds  and  taking  a  deed  to  himself,®  and 
where  he  mingles  it  with  community  funds  so  as  to  destroy  the 
identity  of  the  wife's  separate  funds,®  and  to  personal  property 
in  which  he  has  invested  her  funds  and  taken  title  in  his  name,^"* 
or  in  their  joint  names."  The  rule  does  not  hold  where  the  wife's 
funds  were  loaned  to  the  husband."  No  presumption  of  fraud 
arises  from  such  a  transaction.^^  The  husband  has  the  burden  of 
proving  that  there  was  a  gift,^*  by  clear  evidence.^"     He  must  also 


E.  414;  Buchanan  v.  Hubbard,  119 
Ind.  187,  21  N.  E.  538;  Bristor  v. 
Bristor,  93  Ind.  281;  Black  v.  Black, 
64  Kan.  689,  68  P.  662  Pribble  v. 
Hall,  13  Bush  (Ky.),  61;  Oaks  v. 
West  (Tex.)  64  S.  W.  1033;  L.  W. 
Levy  &  Co.  v.  Mitchell,  52  Tex.  Civ. 
189,  114  S.  W.  172;  Donovan  v.  Se- 
linas,  85  Vt.  80,  81  A.  235;  Bohannon 
V.  Bohannon 's  Adm'x,  29  Ky.  Law, 
143,  92  S.  W.  597 ;  Martin  v.  Reming- 
ton, 100  Wis.  540,  76  N,  W,  614,  69 
Am.  St.  E.  941;  Harter  v.  Holman, 
152  Wis.  463,  139  N.  W.  1128. 

5.  Krider  v.  Hartzell,  40  Pa.  Super. 
186. 

6.  Goldstein  v.  Cockrell  (Tex.),  66 
S.  W.  878. 

7.  McLeod  v.  Venable,  163  Mo.  536, 
63  8.  W.  847. 

8.  Gebhart  v.  Gebhart  (Tex,),  61  S. 
W.  964. 

9.  Title  Ins.  &  Trust  Co.  v.  Inger- 
eoll,  158  Cal.  474,  111  P.  360. 

10.  Ireland  v.  Webber,  27  Ind.  256; 
Nagle's  Am'r  v.  Nagle,  22  Ky.  Law 
E.  1417,  60  S.  W.  639  (deposit  of 
■wife's  money  in  husband's  name); 
Bajohr  v.  Bajohr  (Mo.),  184  S.  W. 
76  (wife's  money  deposited  in  hus- 
band's name). 

11.  Gooch  V.  Weldon  Bank  &  Trust 
Co.  (N.  C),  97  S.  E.  53  (shares  of 
stock) . 


12.  Blethen  v.  Bonner,  30  Tex.  Civ. 
685,  71  S.  W.  290. 

13.  Donlon  v.  Donlon,  154  App.  Div. 
212,  138  N.  Y.  S.  1039. 

14.  In  re  Carpenter,  179'  F.  743; 
King  V.  King,  24  Ind.  App.  598,  57 
N.  E.  275,  79  Am.  St.  R,  287;  Buckel 
V.  Smith's  Adm'r,  26  Ky.  Law,  494, 
82  S.  W.  235;  Gillings  v.  Winter,  101 
Md.  194,  60  A.  630;  Stone  v.  Curtis, 
115  Me.  63,  97  A.  213;  Brady  v. 
Brady  (N.  J.),  58  A.  931. 

Under  the  California  statute  a  gift 
from  a  wife  to  her  husband  is  pre- 
sumed to  be  the  result  of  undue  influ- 
ence, which  he  must  disprove.  White 
V.  Warren,  120  Cal.  322,  4?  P.  129; 
Title  Ins.  &  Trust  Co.  v.  Ingersoll, 
158  Cal.  474,  111  P.  360. 

Under  the  Georgia  statute  no  gift 
is  presumed,  but  the  wife  has  the 
burden  of  showing  fraud  or  undue 
influence.  Third  Nat.  Bank  v.  Poe, 
5  Ga.  App.  113,  62  S.  E.  826.  Under 
the  same  statute  the  evidence  of  her 
intention  to  make  a  gift  must  be  clear 
and  free  from  doubt.  Shackelford  v. 
Orris,  135  Ga.  29,  68  S.  E.  838. 

15.  In  re  McMonagle,  139  App. 
Div.  398,  124  N.  Y.  S.  258;  McKim- 
mie  V.  Postelthwait,  78  W.  Va.  273, 
88  S.  E.  833. 


§    555  HUSBAND    AND    WIFE.  570 

show  that  it  was  freely  and  deliberately  made  and  tlrat  the  transr 
action  was  fair." 

Where  the  question  arises,  then,  whether  the  husband  is  enjoy- 
ing the  wife's  property  by  way  of  gift  from  her,  or  as  her  manag- 
ing attorney,  it  must  be  determined  by  evidence.  In  either  cade 
the  advantage  seems  to  be  with  husband  and  wife  in  all  contro- 
versies with  the  creditor.  The  general  rule  still  prevails,  how- 
ever, that  money  transactions  between  husband  and  wife  should  be 
free  from  fraud,  and  not  prejudicial  to  pre-existing  creditors  of 
the  husband.  The  presumptions  are  not  equally  balanced  in  the 
different  States.  But  presumptions  of  a  gift  from  the  wife  are 
not  to  be  strongly  favored  where  the  husband  is  held  out  to  others 
as  her  agent."  But  it  is  fair  to  say  that  whenever  she  gives  her 
property  to  him  without  agreement  for  any  repayment,  but  for 
investment  in  his  business,  and  to  afford  him  credit  with  the  world, 
and  he  so  invests  it  with  her  knowledge  and  acquiescence,  or  takes 
title  to  real  estate  in  his  own  name  with  her  acquieecense  for  a 
similar  purpose,  his  bona  fide  creditors  ought  not,  especially  when 
his  time  and  energies  were  of  essential  value  to  it,  and  changes  of 
material  or  investment  are  such  as  to  render  identification  of  the 
property  as  hers  impossible,  to  suffer  afterwards,  who  had  relied 
upon  this  capital,  because  of  her  attempt  to  recall  the  gift  when 
she  finds  him  embarrassed ;  not  even  a  special  partner  would  have 
a  right  to  do  so.^* 

Furthermore,  an  investment,  by  the  husband,  of  the  wife's 
separate  means  and  property,  whether  in  purchasing  real  estate  or 
personal  property  for  her  separate  use,  is  valid,  if  the  rights  of 

16.  Manfredo  V.  Manfredo,  191  Ala.  Miss.  353;  Mathews  v.  Sheldon,  53 
Z22,  68  So.  157;  Lamb  v.  Lamb,  18  Ala.  136;  Besson  v.  Eveland,  26  N.  J. 
App.  Div.  250,  46  N.  Y.  S.  219;  Mc-  Eq.  468;  Kaufman  v.  Whitney,  50 
Elveen  v.  King,  83  S.  C.  346,  70  S.  E.  Miss.  103.  The  wife  may  be  her  hu3- 
801;  Turner  v.  Turner,  90  Conn.  676,  band's  creditor  in  bankruptcy.  In  re 
98  A.  324.  Blandin,  1  Lowell  (U.  S.),  543. 

17.  See  Wales  v.  Newbould,  9  Mich.  As  to  the  wife 's  gratuitous  under- 
45;  Miller  v.  Edwards,  7  Bush  (Ky.),  taking  to  subject  her  property  to  her 
394;  Patten  v.  Patten,  75  111.  446;  husband's  debts,  her  Pennsylvania" 
Aldridge  v.  Muirhead,  101  U.  S.  397.  rule  is  that  equity  will  not  enforce  it, 

18.  See  Kuhn  v.  Stansfield,  28  Md.  but  leave  the  parties  to  their  legal 
210;  Wortman  v.  Price,  47  111.  22;  remedies.  White's  Appeal,  36  Pa. 
Mazouck  v.  Iowa  Northern  E.  K.  Co.,  134.  The  husband's  own  waiver  of  a 
30  Iowa,  559;  Guill  v.  Hanny,  1  111.  statute  exemption  for  the  wife 's  bene- 
App.  490;  Lichtenberger  v.  Graham,  fit  will  not  aid  his  creditors  against 
50   Ind.   288 ;   Brooks  v.   Shelton,   54  her.    Hess  v.  Beates,  78  Pa.  429. 


571 


GIFTS    BETWEEN    SPOUSES. 


§    55G 


creditors  be  not  thereby  impaired.^'  But  where  he  purchases  real 
estate  or  other  property,  and  procures  the  title  in  his  wife's  name 
or  in  trust  for  her,  when  largely  indebted,  the  validity  of  the 
transfer  and  its  good  faith  may  well  be  called  in  question,  espe- 
cially if  the  means  were  not  clearly  furnished  from  her  separate 
estate,^"  As  against  creditors,  therefore,  where  a  husband  receives 
and  uses  his  wife's  money  with  her  consent,  a  gift  is  presumed," 
and  that  she  paid  for  it  out  of  her  separate  estate.^^  In  such  case 
she  must  show  an  express  promise  to  repay,  or  that  it  was  a  loan. 
The  evidence  to  show  these  facts  must  be  clear.'* 


23 


§  556.  Validity  in  General. 

Very  slight  or  technical  considerations  are  often  held  sufficient 
to  support  a  gift  to  the  wife  in  English  chancery.^'  That  which 
belongs  to  the  husband  by  common-law  right,  unaffected  by  equity 
or  statute,  unless  he  chooses  to  bestow  it  upon  the  wife,  cannot 
constitute  a  consideration  on  her  part  for  his  further  transfer  of 
property  to  her.^*  A  husband  may  make  a  good  gift  causa  mortis 
to  his  wife,^^  but  her  testimony  in  such  case,  where  no  third  person 
was  present  at  the  time  of  gift,  should  be  received  with  caution.^* 
A  plural  wife  may  accept  a  gift  from  her  husband  or  may  get  a 
title  by  adverse  possession  founded  on  such  gift.^' 


19.  Jackson  v.  Jackson,  91  U.  S. 
122. 

£0.  See  Postnuptial  Settlements, 
ante,  %  520,  et  seq.;  Eldred  v.  Drake, 
43  Iowa,  569 ;  Davidson  v.  Lanier, 
61  Ala.  318;  Bowser  v.  Bowser,  82 
Pa.  57;  Snow  v.  Paine,  114  Mass.  520; 
Hearn  v.  Lander,  11  Bush  (Ky.),669. 

tl.  Nihiser  v.  Nihiser,  127  Md.  451, 
96  A.  611;  Reed  v.  Eeed,  109  Md.  690, 
T2  A.  414;  MeConville  v.  National 
Valley  Bank,  98  Va.  9,  34  S.  E.  891; 
Crumrine  v.  Crumrine,  38  W.  Va.  747, 
18  S.  E.  960;  Throckmorton  v. 
Throckmorton,  91  Va.  42,  22  S.  E. 
162. 

22.  Harr  v.  Shaffer,  52  W.  Va.  207, 
43  S.  E.  89 ;  Shaw  v.  Bemal,  163  Cal. 
S62,   124   P.    1012. 

83.  Miller  v.  Cox,  38  W.  Va.  747, 
18  S.  E.  960;  Homer  v.  Huffman,  52 
W.  Va.  40,  43  S.  E.  132. 


24.  Bennett  v.  Bennett,  37  W.  Va, 
396,  16  S.  E.  638;  Keller  v.  Wash- 
ington (W.  Va.),  98  S.  E.  880. 

25.  Peachey,  Mar.  Settl.  233,  238 
Butterfield  v.  Heath,  15  Beav.  414 
Fitzmaurice  v.  Sadlier,  9  Ir.  Ch.  595 
Hewison  v.  Negus,  16  Beav.  594 
Bayspoole  v.  Collins,  L.  E.  6  Ch.  228 
Ee  Foster,  6  Ch.  D.  87;  Teasdale  v. 
Braithwaite,  L.  R.  5  Ch.  D.  630;  Ex 
parte  Fox,  L.  R.  1  Ch.  D.  302. 

26.  As,  e.  g.,  her  earnings  or  family 
plate.  Belford  v.  Crane,  1  C.  E.  Green 
(N.  J.),  265.  And  see  Terry  v.  Wil- 
son, 63  Mo.  493. 

27.  Marshall  v.  Jaqmth,  134  Mass. 
138. 

28.  Mellor  v.  Bank  of  Willows,  173 
Cal.  404,  160  P.  567. 

29.  Raleigh  v.  Wells,  29  Utah,  217, 
81  P.  908,  110  Am.  St.  R.  689. 


§  557 


HUSBAND    AND    WIFE. 


572 


§  557.  Operation  and  Effect. 

All  valuntary  conveyances,  tHougli  void  against  existing  cred- 
itors and  purchasers  for  value,  are  good  against  the  grantor  and 
those  claiming  under  him.^°  Where  there  is  a  valid  gift  the  donee 
takes  absolute  title,^^  but  subject  to  valid  liens.'^  A  wife  taking 
a  deed  to  her  husband's  property  with  knowledge  of  the  claims  of 
others  is  not  a  bona  fide  purchaser.^^  A  gift  of  certificates  of 
stock  carries  the  dividends,  though  credited  to  the  husband,  in 
whose  name  they  stand  on  the  transfer  books.^* 

Where  a  good  gift  of  real  estate  by  deed  has  been  made,  the 
surrender  and  the  destruction  of  the  deed  will  not  revest  title  in 
the  grantor.^^  Where  a  husband  made  a  written  gift  to  his  wife  of 
three  of  his  houses,  the  court  imposed  as  a  condition  of  the  enforce- 
ment of  the  contract  that  the  wife  release  dower  in  the  others.^' 
Where  a  husband  with  his  wife's  consent  purchases  land  with  her 
money  and  some  of  his  own,  and  takes  title  in  his  own  name  for 
their  joint  use,  her  heirs  cannot  recover  her  money  from  him.'^ 
The  Kentucky  statute  requiring  the  acknowledgment  and  record 
of  written  transfers  to  validate  as  against  "  third  persons  "  gifts 
between  spouses,  refers  only  to  creditors  and  horia  fide  purchasers.^' 
A  similar  statute  in  Mississippi  has  been  held  inapplicable  to  wear- 
ing apparel  and  the  like,  which  the  husband's  marital  duty  obliges 
him  to  furnish  to  her.^*  In  Louisiana  property  acquired  in  the 
name  of  the  wife  and  paid  for  by  the  husband  vests  title  in  the 
wife  as  a  donation  to  his  children  by  a  previous  marriage  and 
reduced  to  a  value  not  exceeding  one-third  of  the  donor's  estate.*" 


30.  Bill  V.  Cureton,  2  Myl.  &  K. 
510;  Doe  v.  Rusham,  17  Q.  B.  724; 
Dayton  Spice-Mills  v.  Sloan,  49  Neb. 
622,  68  N.  W.  1040;  First  Nat,  Bank 
V.  Havlik,  51  Neb.  668,  71  N.  W.  291; 
Fletcher  v.  Wakefield,  75  Vt.  257,  54 
A.  1012. 

31.  Garner  v.  Fry,  104  Iowa,  515, 
73  N.  W.  1079. 

32.  Hopper  v.  Hopper,  151  Ky.  120, 
151  S.  W.  359;  Succession  of  Suarez, 
131  La.  500,  sgf  So.  916. 

33.  City  of  Middlesborough  v.  Coal 
&  Iron  Bank,  33  Ky.  Law,  469,  110 
S.  W.  355. 

84.  First  Nat.  Bank  v.  Holland,  99 


Va.  495,  3  Va,  Sup.  Ct.  Eep.  335,  39 
S.  E.  126,  55  L.  R.  A.  155,  86  Am. 
St.  R.  898. 

35.  Marchant  v.  Young,  147  Ga.  37, 
92  S.  E.  863. 

36.  Cowdrey  v.  Cowdrey,  71  N.  J. 
Eq.  353,  64  A.  98   (affd.,  67  A.  111). 

37.  In  re  Kreider's  Estate,  212  Pa, 
587,  61  A.  1115. 

38.  McWethy's  Adm'x  v.  McCright, 
141  Ky.  816,  133  S.  W.  1001. 

39.  Kennington  v.  Hemingway,  101 
Miss.  259,  57  So.  809,  39  L.  R.  A.  (N. 
S.)    541. 

40.  Succession  of  Graf,  125  La.  197, 
51  So.  115. 


573 


GIFTS    BETWEEN'    SPOUSES. 


558 


In  the  same  State  donations  of  money  and  checks  by  a  wife  to  her 
husband,  if  not  revoked  during  marriage,  become  his  property.*^ 

A  voluntary  conveyance  by  the  husband  to  his  wife  in  consider- 
ation of  natural  love  and  affection  creates  usually  an  equitable 
separate  estate ;  and,  Whether  equitable  or  legal,  she  may  encumber 
or  alienate  or  transfer  it,  as  in  other  instances  of  property  held  to 
her  separate  use.*" 

One  sued  in  respect  of  the  property  transferred  to  the  wife,  or 
an  intruder,  and  third  persons  generally,  utter  strangers  to  the 
transaction,  ought  not,  as  a  rule,  to  dispute  collaterally  the  wife's 
title  as  grantee  or  transferee  from  her  husband  under  the  convey- 
ance or  assignment.*^ 

§  558.  Rescission  or  Avoidance. 

The  gift  or  voluntary  conveyance  once  deliberately  and  ahso- 
lutely  made  cannot  usually  be  recalled  by  the  settlor  or  donor 
upon  allegations  which  fail  to  establish  material  fraud  or  coercion 
in  the  inducement,  or  a  mutual  material  mistake,  or  upon  any 
subsequent  change  of  circumstances,  such  as  death  or  divorce. 
This  is  the  usual  rule,  and  it  applies  to  a  husband's  gifts  to  his 
wife.**  But  the  wife's  gift  to  her  husband  appears  to  be  more 
leniently  regarded  in  this  respect  than  that  of  a  husband  to  his 
wife;  her  readier  liability  to  imposition  or  a  misapprehension  of 
legal  rights  being  admitted,  in  courts  of  equity,  in  her  favor.*** 


41.  Succession  of  Desina,  123  La. 
468,  49  So.  23. 

42.  McMillan  v.  Peacock,  57  Ala. 
127;  Myers  v.  James,  2  Lea  (Tenn.), 
159. 

43.  Thompson  v.  Commissioners,  79 
N.  Y,  54;  Seymour  v.  Fellows,  77  N. 
Y.  178;  Holiifield  v.  "Wilkinson,  54 
Ala.  275;  Depman  v.  Farr,  126  Mass. 
297.  But  see  Hoker  v.  Boggs,  63  111. 
161;  Chicago  v.  McGraw,  75  111.  566; 
Huftalin  v.  Misner,   70  HI.   55. 

A  wife  has  been  allowed,  under  a 
postnuptial  settlement,  to  subject  her 
property  to  her  husband's  debts.  Mul- 
ler  v.  Bayly,  21  Gratt.  (Va.)  521. 

44.  Jagers  v.  Jagers,  49  Ind.  428; 
Chew  V.  Chew,  38  Iowa,  405.  If  the 
husband  made  the  gift,  knowing  that 
his  wife  had  another  husband,  he  can- 
not, after  divorce,  have  the  gift  set 


aside.  Chew  v.  Chew,  38  Iowa,  405. 
And  see  as  to  wife 's  alleged  miscon- 
duct, Kehr  v.  Smith,  20  Wall.  (U. 
S.)  31. 

45.  Boyd  v.  De  La  Montagnie,  73 
X.  Y,  498;  Smyley  v.  Eeese,  53  Ala. 
89;  Campbell's  Appeal,  80  Pa.  298. 
A  provision  more  beneficial  to  a  hus- 
band than  is  reasonable  may  be  set  up 
as  an  abuse  of  his  confidential  rela- 
tion to  his  wife.  McKae  v.  Battle,  6? 
N.  C.  98;  Witbeck  v.  Witbeck,  25 
Mich.  439.  See  also  Birdsong  v.  BiJd- 
song,  2  Head  (Tenn.),  2S9;  Wells  v. 
Wells,  35  Miss.  638;  McClellan  v. 
Kennedy,  3  Md.  Ch.  234. 

Gifts  and  voluntary  transfers  by  the 
husband  to  third  persons,  if  not  with 
the  actual  intent  of  defeating  the 
wife's  rights,  are  held  in  Maryland 
to  be  sustainable,  though  leaving  her 


§    558  HUSBAND    AND    WIFE.  574- 

But  it  may  be  said  generally  that  a  gift  by  one  spouse  to  the  other 
once  completed  cannot  be  revoked  or  anulled  without  the  mutual 
assent  of  donor  and  donee,*'^  and  will  not  be  set  aside  on  a  wife's 
remarriage  after  a  divorce,  though  the  gift  was  made  in  contem- 
plation of  such  divorce/^  but  may  be  set  aside  if  procured  bj 
fraud/^  or  if  made  without  knowledge  of  the  donee's  adultery.** 
The  use  of  more  than  a  persuasive  argument  to  obtain  a  gift  will 
invalidate  it.^°  A  wife  is  not  estopped  by  acts  subsequent  to  a 
void  conveyance  to  her  husband  from  recovering  the  property  from 
him,^^  nor  from  successfully  defending  against  a  void  note  to  him, 
even  in  the  hands  of  his  indorsees.''^  Where  spouses  make  a  con- 
tract whereby  the  wife,  for  a  consideration,  releases  all  rights  for 
dower,  alimony  and  maintenance,  her  later  action  for  divorce  and 
alimony,  not  defended  by  him,  is  not  a  rescission."^  Where  a 
contract  between  spouses  is  void  or  set  aside,  the  consideration 
will  be  returned.*^*  It  was  held  otherwise  where  a  husband,  whose 
gift  from  the  wife  was  set  aside  for  fraud  or  duress,  had  incurred 
expenses  in  the  care  of  the  property  which  he  never  expected  or 
asked  to  be  reimbursed  for."''  Where  a  deposit  stands  in  the  name 
of  a  wife,  creating  a  presumption  of  a  gift,  his  large  money  legacy 
in  his  will  will  not  defeat  the  wife's  right,  though  he  left  no  prop- 
erty to  pay  the  legacy."^  The  right  to  assail  a  deed  from  a  hus- 
band to  a  wife  because  in  violation  of  the  Georgia  statute  requir- 
ing an  order  of  court  to  validate  a  sale  of  the  separate  estate  of  the 

without  the  means  of  subsistence;  but  50.  (Ch.  1908),  Schultze  v.  Sehultze, 

here  the  statutes  of  Elizabeth  would  73  N.  J.  Eq.  597,  75  A.  824  (affd.,  74 

apply.    Feigley  v.  Feigley,  7  Md.  537.  A.  1135). 

46.  2  Schoul.  Pers.  Prop.,  Part  V.,  51.   Connar  v.   Leach,   84   Md.   571, 
ch.  3;  Garner  v.  Graves,  54  Ind.  188;  36  A.  591. 

James  v.  Hanks,  202  111.  114,  66  N.  52.  National  Granite  Bank  v.  Tyn- 

E.  1034.  dale,  176  Mass.  547,  57  N.  E.   1022, 

47.  West  V.  Burke,  165  App.   Div.       51  L.  E.  A.  447. 

667,  151  N.  Y.  S.  329.  53.  O'Day  v.  Meadows,  194  Mo.  588, 

48.  Womack  v.  Womaek,  73  Ark.  32  S.  W.  637,  112  Am.  St.  E.  542. 
281,  83  S.  W.  937  (motion  to  modify  54.  Fay  v.  Fay,  165  Cal.  469,  132  P. 
opinion  denied,  83  Ark.  281);  Hursen  1040;  Wilson  v.  Mullins  (Ky.),  119 
V.  Hursen,  212  111.  377,  72  N.  E.  1034,  S.  W.  1180;  Newby  v.  Cox,  81  Ky. 
103  Am.  St.  E.  230;  Stout  v.  Stout,  58,  4  Ky.  Law,  744;  Ice  v.  Ice,  28 
165  Iowa,  552,  146  N.  W.  474,  L.  E.  Ky.  Law,  1065,  83  S.  W.  135. 

A.  1915  A.  711,  55.  Hoag  v.  Hoag,  210  Mass.  94,  90 

49.  Evans  v.  Evans,   118   Ga.   890,       N.  E.  49. 

45  S.  E.  612;   Warlick  v.  White,  86  56.  In  re  Klenke'a  Estate,  210  Pa. 

N.  C.  139,  41  Am.  E.  453;  Thomas  v.       572,  60  A.  166. 
Thomas,  27  Okla.  784,  109  Pac.  825, 
35  L.  E.  A.  (N.  8.)   124. 


575  GIFTS    BETWEEN    SPOUSES,  §    559 

wife  is  personal  to  ter,  and  cannot  be  exercised  by  a  stranger  to 
the  title,^^  or  by  the  husband's  heirs  °®  or  creditors.^' 

Under  the  Louisiana  statute,  interspousal  donations  are  always 
revokable  except  as  against  third  possessors  acquiring  property  by 
a  prescription  of  ten  years.*^  By  statute  in  the  same  State,  gifts 
between  spouses,  except  in  the  three  cases  specified  by  the  statute, 
are  void,  even  between  the  parties.*^  Under  the  Michigan  statute 
a  voluntary  conveyance  from  a  husband  to  a  wife  cannot  be  set 
aside  by  either  party  except  for  fraud.*^ 

§  559.  Gifts  in  Fraud  of  Creditors. 

A  gift  from  one  spouse  to  the  other  is  valid  against  subsequent 
creditors  of  the  donor,^'  even  though  such  donor  subsequently  has 
possession  and  use  of  the  property,®*  but  not  against  those  to  whom 
the  donor  contemplates  becoming  indebted  when  he  makes  the 
gift.*°  The  mere  fact  that  the  husband  owed  money  to  the  wife 
will  not  validate  a  conveyance  by  him  to  her  made  for  the  purpose 
of  avoiding  liability  as  indorser  on  a  note  not  then  due,  where  the 
wife  knew  of  the  fraudulent  nature  of  the  transaction.®^ 

The  fraudulent  effect  of  a  mere  gift  by  husband  to  wife,  which 
consists  in  placing  the  property  beyond  the  reach  of  his  creditors, 
is  not  averted  by  the  fact  that  the  wife  did  not  know  the  gift  was 
improper,  so  long  as  she  knew  he  was  indebted,  nor,  in  general, 
does  it  appear  that  her  knowledge  is  of  consequence,  since  the 
creditor's  intent  is  here  the  material  point  to  consider.®'^ 

Even  accumulations  by  labor  and  the  natural  produce  of  the 
fund  may  be  reached  by  creditors,  where  the  original  fund  was 
transferred  to  his  wife  in  fraud  of  their  rights  by  an  insolvent 
husband,  and  by  way  of  voluntary  gift  to  her.®^ 

57.  Scaife  v.  Scaife,  134  Ga.  1,  67  64.  Swindell  v.  Swindell,  153  N.  C. 
S.  E.  408.  22,  68  S.  E.  892. 

58.  Munroe  v.  Baldwin,  145  Ga.  215,  65.  Lavigne  v.  Tobin,  52  Neb.  686, 
88  S.  E.  947.  72  N.  W.  1040. 

59.  Williams  v.  Rhodes,  149  Ga.  170,  66.  Strassburger  v.  McGovern,  66 
99  S.  E.  531.  Pittsburgh  Legal  Journal,  653. 

60  Leverett  v.  Loeb,  117  La.   310,  67.  Matson  v.  Melchor,  42  Mich.  477. 

41  So.  584.  Cf.  as  to  antenuptial  settlement  upon 

61.  Kelly  v.  Kelly,  131  La.  1024,  60  a  wife,  who  knew  her  husband  to  be 
8o.  671.  embarrassed,  but  did  not  know  he  was 

62.  Judd  V.  Judd,  192  Mich.  198,  insolvent,  supra,  Prewit  v.  Wibon,  103 
158  N.  W.  948.  U.  S.  22. 

63.  Morey  v.  Wiley,  100  111.  App.  68.  Hamilton  v.  Lightner,  53  Iowa, 
75;  Pare  v.  Renfro,  178  Ky.  143,  198  470.  But  intent  to  defraud  in  convey- 
S.  W.  553;  Sawyer  v.  Metters,  133  ing  a  farm  does  not  necessarily  im- 
Wis.  350,  113  N.  W.  682.  pair  the  wife's  rights  to  crops  raised 


§    559  HUSBAISTD    AND    WIFE.  576 

The  statute  of  13  Eliz.,  ch.  5,  is  generally  recognized  throughout 
the  United  States ;  in  some  cases  having  been  formally  re-enacted ; 
in  others,  claimed  to  be  part  of  the  common  law  transported  hither 
by  the  first  settlers ;  and  hence  gifts  of  goods  and  chattels,  as  well 
as  voluntary  conveyances  of  lands,  by  writing  or  otherwise,  are 
void  when  made  with  intent  to  delay,  hinder,  and  defraud  cred- 
itors, even  though  the  gift  or  conveyance  be  to  wife  and  children.®' 
For  it  is  a  maxim,  both  at  the  civil  and  common  law,  that  the  claims 
of  justice  shall  precede  those  of  affection/" 

thereon.    Sanders  v.  Chandler,  26  Minn.  3  Johns.  Ch.  481;  Pinney  v.  Fellowa, 

273.  15  Vt.  525;  Simpson  v.  Graves,  Eiley 

69.  2  Kent,  Com.  440,  441,  and  cases  Ch.  232 ;  Sexton  v.  Wheaton,  8  Wheat, 

cited;   Bayard  v.  Hoffman,  4   Johns.  (U.  S.)  22?;  1  Am.  Lead.  Cas.  1. 

Ch.  450;  Montgomery  v.  Tilley,  1  B.  70.  Cicero,  de  Off.  I.  14,  cited  in  2 

Mon.  (Ky.)  157  j  Eeade  v.  Livingston,  Kent,  Com.  441. 


677 


CONVEYANCES    BETWEEN    SPOUSES. 


§  560 


CHAPTER  XXVII. 


CONVEYANCES  AND  MORTGAGES  BETWEEN  SPOUSES. 


SacnoK  560. 

561. 

562. 
563. 


Conveyances  and  Leasea. 
Mortgages. 
Operation  and  Effect. 
Transfers  of  Personalty. 


§  560.  Conveyances  and  Leases. 

A  conveyance,  by  husband  and  wife,  of  land  belonging  to  die 
wife,  to  a  third  person,  and  a  conveyance  of  the  same  land  by  such 
third  person  to  the  husband,  vests  the  entire  title  in  the  husband.^^ 
But  a  conveyance  of  lands  by  the  wife  directly  to  her  husband, 
especially  if  it  be  voluntary,  has  been  considered  ineffectual  and 
void.  And  under  the  early  Married  Women's  Acts  her  right  to 
make  such  a  conveyance  was  generally,  though  not  universally, 
denied,  and  she  must  convey  through  a  third  person,  her  husband 
joining  in  the  conveyance.'^  In  many  States  the  wife's  convey- 
ance directly  to  her  husband  is  absolutely  void  in  law  and  equity; 
and  the  safer  course  must  be  to  convey  through  a  third  party.'' 
N'ot  only  was  the  wife  incompetent  to  convey  at  common  law,  but 
the  husband  could  not  take  under  such  a  conveyance.'*  A  convey- 
ance by  a  wife  directly  to  her  husband  might  in  certain  cases  be 
enforced  in  equity,'^  where  the  husband  acted  in  good  faith,  and 


71.  Merriam  v.  Harsen,  4  Edw.  Ch. 
(N,  Y.)  70;  Durant  v.  Eitchie,  4 
Mason  (U.  S.)  45;  Garvin  v.  Ingram, 
10  Rich.  Eq.  (S.  C.)  130;  Bovren  v. 
Sebree,  2  Bush  (Ky.),  112.  This  is 
a  good  conveyance,  even  though  the 
third  person  be  an  adult  son.  Chicago 
V.  McGraw,  75  111.  566. 

72.  White  v.  Wager,  32  Barb.  (N. 
T.)  250;  Winans  v.  Peebles,  32  N.  Y. 
423 ;  Gebb  v.  Rose,  40  Md.  387 ;  Pres- 
ton V.  Fryer,  38  Md.  221;  Fowler  v. 
Trebein,  16  Ohio  St.  493.  But  see 
Robertson  v.  Robertson,  25  Iowa,  350; 
Hannaford  v.  Dowdle,  75  Ark.  127, 
86  S.  W.  818;  Leach  v.  Rains,  149 
Ind.  152,  48  N.  E.  858;  Wicks  v. 
Dean,  103  Ky.  69,  19  Ky.  Law,  1708, 
44  8.  W.  397 ;  Kennedy  v.  Ten  Broeck, 

37 


11  Bush  (Ky.),  241;  Young  v.  Brown, 
136  Tenn.  184,  188  S.  W.  1149', 

73.  Kinnaman  v.  Pyle,  44  Ind.  275; 
Postnuptial  Settlements,  aiite,   §   520. 

A  deed  not  expressed  on  its  face  as 
discharging  the  lien  of  a  mortgage 
held  in  trust  for  the  wife  does  not 
operate  to  extinguish,  even  though 
husband  and  wife  joined  in  the  con- 
veyance. Klein  v.  Caldwell,  91  Pa. 
140. 

74.  Elder  v.  Elder,  256  Pa.  139,  100 
A.  581;  Buchanan  v.  Corson,  51  Pa. 
Super.  558. 

75.  Johnson  v.  Jouchert,  124  Ind. 
105,  24  N.  E.  580,  8  L.  R.  A.  795; 
McCord  V.  Bright,  44  Ind.  App.  275, 
87  N.  E.  654;  Vioroy  v.  Vicroy,  20 
Ky.  Law,  47,  45  S.  W.  75;  Douglass 


§  560 


HUSBAND    AND    WIFE. 


578 


with  proper  motives  and  purposes/'  Such  a  transaction  will  be 
more  closely  scrutinized  by  the  courts  than  a  similar  conveyance 
by  the  husband  to  the  wife ;  ''^  but  in  some  States  she  may  convey 
directly  to  him/^  even  though  the  property  was  acquired  before 
she  had  statutory  power  to  convey  it  to  him.'''     She  may  do  so  by 


V.  Douglass,  51  La.  Ann.  1455,  26  So. 
646;  Alexander  v.  Shalala,  228  Pa. 
297,  77  A.  554;  Wicker  v.  Durr,  225 
Pa.  305,  74  A.  64;  Giffin  v.  Giffin 
(Tenn.),  37  S.  W.  710;  Hughey  v. 
Mosby,  37  Tex.  Civ.  76,  71  S.  W.  395; 
Jarrell  v.  Crow,  30  Tex.  Civ.  629,  71 
S.  W.  3ff7;  Kelley  v.  Dearman,  65 
W.  Va.  49,  63  S.  E.  693;  Smith  v. 
Vineyard,  58  W.  Va.  98,  51  S.  E.  871. 

76.  Wood  v.  Wood,  100  Ark.  372, 
172  S,  W.  860;  In  re  Williams,  4  Del, 
401,  88  A.  716, 

77.  Hannaford  v.  Dowdle,  75  Ark, 
127,  86  S.  W.  818;  McDonald  v. 
Smith,  95  Ark.  523,  130  S,  W,  515, 

78.  Wells  V,  Caywood,  3  Colo.  487; 
Postnuptial  Settlements;  Sample  v. 
Guyer,  143  Ala.  613,  42  So.  106; 
Whittaker  v.  Van  Hoose,  157  Ala,  286, 
47  So.  741;  Tyler  v.  Currier,  147  Cal, 
31,  81  P.  319;  Despain  v,  Wagner, 
163  111,  598,  45  N,  E,  129^;  Stubbings 
T.  Stubbing-3,  248  111.  406,  94  N.  E. 
54;  Noel  v.  Fitzpatrick,  124  Ky,  787, 
30  Ky.  Law,  1011,  100  S.  W.  321; 
Turner  v.  Shaw,  96  Mo.  22,  8  S.  W. 
897,  9  Am,  St,  E,  319;  Glascock  v, 
Glascock,  217  Mo,  362,  117  S,  W,  617; 
Haguewood  v.  Britain,  273  Mo.  89', 
199  S.  W.  950;  Butler  v,  Butler,  169 
N,  C.  584,  86  S,  E.  507;  Rea  v.  Kea, 
156  N.  C.  529,  72  S,  E.  573;  Lawshe  v. 
Trenton  Banking  Co.,  87  N.  J.  Eq.  56, 
99  A.  617;  Battle  v,  Claiborne 
(Ark,),  180  S,  W.  584;  Johnson  v. 
Austin,  86  Ark.  446,  111  S.  W. 
455;  Brandau  v,  McCurley,  124  Md. 
243,  92  A.  540,  L,  R.  A.  1915C, 
767;  Wilkinson  v.  Kneeland,  125 
Mich.  261,  84  N,  W,  142,  7  Det. 
Leg.  N.  409;  Chittenden  v.  Chitten- 
den, 23  Ohio  Cr.  Ct.  498,  12  O,  C,  D, 
526;  Yeager  v.  Yeager,  82  Wash.  271, 
144  P.  22. 


The  Alabama  statute  permitting 
conveyances  by  wives  to  third  persons 
under  certain  restrictions,  does  not 
permit  her  to  convey  to  her  husband. 
Osborne  v.  Cooper,  113  Ala.  405,  21 
S.  320,  59  Am.  St.  E.  117.  Under 
that  statute  it  has  been  held  that  a 
deed  from  a  wife  to  her  husband  re- 
serving a  reversion  to  her  if  she  sur- 
vives him,  but  giving  him  power  to 
convey,  vested  an  absolute  title  in  the 
husband.  Manfredo  v.  Manfredo,  191 
Ala,  322,  68  So,  157. 

Under  the  Georgia  statute  the  ap- 
proval of  a  court  is  required  to  vali- 
date a  transfer  by  the  wife  of  her 
husband  of  her  separate  property. 
Gordon  v.  Harris,  141  Ga.  24,  80  S. 
E.  276;  Buchannon  v.  James,  135  Ga. 
392,  69  S.  E.  543;  Stonecipher  v. 
Kear,  131  Ga.  688,  63  S.  E.  215;  Car- 
penter V,  Booker,  131  Ga.  546,  62  S. 
E.  983;  Webb  v.  Harris,  124  Ga.  723, 
53  S.  E.  247;  Sikes  v.  Bradley,  20 
Ga.  App.  470,  93  S.  E.  111.  Such 
a  conveyance  is  void  under  the 
Louisiana  statute  prohibiting  sales 
between  spouses,  Douglass  v,  Doug- 
lass,  51   La,   Ann,    1455,   26   So.   546. 

Under  the  Tennessee  statute  pro- 
viding that  a  wife  can  convey  aa 
though  sole  only  when  she  abandons 
or  is  abandoned  by  her  husband,  or 
when  he  is  insane,  she  cannot  convey 
directly  to  her  husband  when  she  is 
not  within  the  specified  classes.  Wor- 
rell V.  Drake,  110  Tenn.  303,  75  S.  W. 
1015.  In  that  State,  prior  to  a  stat- 
ute permitting  her  to  contract  as  sole, 
she  could  not  convey  to  him  even  by 
a  deed  otherwise  as  required  by  law 
and  in  which  he  joined.  Bailey  v. 
Apperson,  134  Tenn.  716,  185  S.  W. 
710. 

79.  Smelser  v.  Meier,  271  Mo.  178, 
196  S.  W.  22. 


579 


CONVEYANCES    BETWEEN    SPOUSES. 


§    560 


any  recognized  form  of  coiiveyonce,®°  if  executed  as  required  hj 
law.^^  Such  a  conveyance  must  be  subject  to  th.e  rights  of  cred- 
itors whether  antecedent  or  subsequent  to  the  transaction ;  ^'  and 
where  her  right  to  the  property  is  questioned  by  his  creditors,  she 
has  the  burden  of  showing  her  right  affirmatively  and  distinctly,^' 
A  husband's  agreement  to  support  the  wife's  children  by  a  former 
marriage  will  support  such  a  conveyance.**  A  conveyance  from 
a  wife  to  her  husband  through  a  third  person  will  not  be  avoided 
for  his  coercion  where  the  evidence  is  not  clear.®*  It  must  appear 
that  his  conduct  toward  her  was  of  such  a  character  as  to  preclude 
her  resisting  his  influence.*^ 

In  Arkansas  a  conveyance  by  a  wife  to  her  husband  passes  an 
equitable  interest  only,  the  legal  title  remaining  in  her.*'  A  hus- 
band taking  a  deed  from  his  wife  has  the  burden  of  showing  good 
faith,  the  want  of  undue  influence,  that  the  transaction  was  fair 
and  reasonable,  and  the  consideration  adequate.**  Payment  of  a 
mortgage  from  a  wife  to  her  husband  cannot  be  inferred  from  his 
failure  to  foreclose  after  their  separation.*^  In  Georgia  transfers 
of  property  by  a  wife  to  her  husband  are  not  binding  unless  made 
with  the  consent  of  the  superior  court.®"  An  order  giving  such 
consent  cannot  be  validly  made  in  vacation.®^  The  statute  does 
not  apply  to  a  deed  reconveying  to  the  husband  land  conveyed  to 
the  wife  as  security  for  a  loan.^'  The  statute  applies  to  transfers 
made  while  the  spouses  are  separated,  and  the  want  of  compliance 
with  the  statute  renders  the  deed  void,  and  not  merely  voidable.®' 
Under  the  Xew  Jersey  statute  empowering  a  wife  who  has  land  in 
the  State  and  who  is  living  apart  from  her  husband,  who  refuses 
to  support  her,  to  apply  to  a  court  for  leaye  to  dispose  of  her  land 


80.  Powers   v.    Munson,   74    Wash. 
234,  133  P.  453. 

81.  Funkhouser  v.  Fowler,  117  Tenn. 
539,  101  S.  W.  769. 

82.  MeCabe  v.  Guido,  116  Miss.  858, 
77  So.  801. 

83.  Evans  v.  Bell  (D.  C),  48  Wash. 
L.  R,  218. 

84.  Schroeder  v.  Smith,  249  HI.  574, 
94  N.  E.  969. 

85.  Moorman   v.    Board,    11    Bush 
(Ky.),  135. 

86.  Kennedy    v.     Ten    Broeck,    11 
Bush   (Ky.),  241. 

87.  Mathy   v.   Mathy,   88    Ark.    56, 
113  S.  W.  1012. 


88.  McCord  v.  Bright,  44  Ind.  App. 
275,  87  X.  E.  654;  Thompson  v. 
Brozo,  92  "Wash.  79,  159  P.  105. 

89.  Stelts  v.  Martin,  90  S.  C.  14, 
72  S.  E.  550. 

90.  Webb.  t.  Harris,  124  Ga.  723, 
53  S.  E.  247. 

91.  Frank  v.  McEachin,  148  Ga.  858, 
98  S.  E.  497;  Roland  v.  Roland,  131 
Ga.  579,  62  S.  E.  1042. 

92.  Turner  v.  Woodward,  133  Ga. 
467,  66  S.  E.  160. 

93.  Echols  V.  Green,  140  Ga.  678, 
79  S.  E.  557. 


§  560  HUSBAND  AND  WIFE.  580 

as  sole,  except  such  as  is  given  to  her  by  him,  it  is  immaterial 
whose  fault  caused  the  separation.'**  Under  the  Kentucky  statute 
relating  to  the  sale  of  land  for  reinvestment,  the  court  cannot  order 
the  sale  of  land  of  which  a  wife  is  the  owner  in  fee.®^  In  Tennes- 
see it  is  held  that  a  decree  rendered  in  an  ex  parte  proceeding  bj 
spouses  to  obtain  leave  to  violate  a  restraint  of  alienation  in  a  deed 
creating  a  separate  estate  in  the  wife  is  void  for  want  of  jurisdic- 
tion.'® Likewise  it  is  the  older  rule  that  the  husband  cannot  con- 
vey real  estate  to  his  wife  directly,  and  without  the  intervention 
of  a  trustee.^' 

The  reason  of  this  rule  was  the  legal  unity  of  husband  and  wife 
at  the  common  law,'®  while  the  statute  of  uses  furnished  a  modo 
of  conveyance  through  trustees.''  But  the  husband  may  make  a 
valid  conveyance  to  his  wife  through  the  medium  of  a  third  per- 
son.^ While  it  does  not  appear  that  a  deed  by  husband  to  wife  is 
of  itself  valid  and  operative  in  equity  more  than  law,  special  cir- 
cumstances might  induce  a  court  of  equity  to  give  effect  to  it  where 
a  court  of  law  could  not;  as  by  decreeing  the  husband  a  trustee 
for  his  wife ;  not,  however,  without  strict  scrutiny  where  rights  of 
creditors  are  infringed,  nor  in  any  case  where  the  equity  is  not 
made  apparent."     Under  some  statutes  he  may  convey  directly  to 

&4.  In  re  Staheli,  78  N.  J.  Eq.  74,  Hooper,  50  Me.  371.     And  see  Albin 

78  A.  206.  V.   Lord,    39   N.    H.    196;    Fowler   v. 

95.  Chenault  v.  Chenault,  22  Ky.  Trebein,  16  Ohio  St.  493;  Eansom  v. 
Law,  122,  56  S.  W.  728.  Eansom,  30  Mich.  328;  Wells  v.  Cay- 

96.  Travis  v.   Sitz,   135  Tenn.   605,  wood,  3  Col.  487. 

185  S.  W.  1075.  1.    A    judgment    lien    against    the 

97.  Voorhees  v.  Presbyterian  Church,  third  party  is  not  effectual  against 
17  Barb.  (N.  Y.)  103;  Eansom  v.  the  wife.  O'Donnell  v.  Kerr,  50 
Eansom,  30  Mich.  328.  How.  Pr.    (N.  Y.),   §   324.     And  see 

98.  1  Washb.  Eeal  Prop.  279.  Huftalin  v.  Misner,  70  HI.   55.     De- 

99.  1  Eoper,  Hus.  &  Wife,  53 ;  struction  of  unrecorded  deeds  will  not 
Thatcher  v.  Omans,  3  Pick.  (Mass.)  invalidate  the  wife's  title  as  against 
521;  1  Washb.  Eeal  Prop.  279;  Wms.  the  grantor  and  his  heir.  Dukes  v, 
Eeal  Prop.  185.  The  later  American  Spangler,  35  Ohio  St.  119;  Johnson 
cases  are  disposed  to  sustain  all  such  v.  Eockwcll,  12  Ind.  76;  Battle  v. 
conveyances,  when  with  valuable  con-  Claiborne  (Tenn.),  ISO  S.  W.  584. 
sideration,  upon  equitable  grounda  In  Arizona  the  common-law  rule 
Winans  v.  Peebles,  32  N.  Y.  423",  requiring  the  intervention  of  a  trustee 
Putnam  v.  Bicknell,  18  Wis.  333;  2  to  effectuate  a  transfer  of  property 
Story  Eq.  Juris.,  §  1204 ;  Wallings-  between  spouses  has  never  been 
ford  V.  Allen,  10  Pet.  (U.  S.)  583.  adopted.  Luhrs  v.  Hancock,  181  U. 
In  various  States  the  trustee  or  in-  S.  567,  21  S.  Ct.  726,  45  L.  Ed.  1005. 
termediate  grantee  is  now  dispensed  2.  Loomis  v.  Brush,  36  Mich.  40; 
with  altogether  under  statutes  treat-  Dale  v.  Lincoln,  62  111.  22;  Aultman 
ing  the  wife  as  svi  juris.     Allen  v.  v.  Obermeyer,  6  Neb.  260. 


581 


CONVEYANCES    BETWEEN    SPOUSES. 


§    560 


her;  and  the  deed  (^supposing  it  to  have  been  properly  recorded) 
will  be  good  against  all  but  injured  creditors,^  if  not  intended  to 
avoid  the  necessity  of  administration  at  his  death. ^^  Under  such 
a  statute  a  husband  may  convey  to  his  wife  his  interest  in  an 
estate  by  the  entirety.*  Such  a  transfer  will  destroy  the  tenancy, 
and  give  the  wife  sole  title  in  severalty.'' 

In  West  Virginia  a  deed  by  a  wife  to  her  husband  of  real  estate, 
while  they  cohabit,  passes  no  title  where  be  does  not  join.*  In 
the  same  State,  and  in  Arkansas  and  Delaware,  a  deed  from  him 
to  her  passes  an  equitable  title,  he  holding  the  legal  title  in  trust 
for  her,  without  power  to  incumber  it.'  His  grant'Ces  take  subject 
to  the  trust.*  Under  the  Minnesota  statute  all  contracts  between 
spouses  as  to  their  real  estate  are  void,  even  though  made  after 
their  separation.*  In  Louisiana  a  deed  by  a  husband  to  his  wife 
of  land  to  replace  the  value  of  real  estate  which  is  part  of  her 
paraphernal  property  sold  by  him,  is  valid.^°  Since  the  statute  in 
that  State  provides  a  means  whereby  wives  may  waive  their  rank 
of  mortgage  in  favor  of  subsequent  mortgages  of  tbeir  busbands, 


8.  Jewell  V.  Porter,  11  Fost.  (N. 
H.)  34;  Motte  v.  Alger,  15  Gray 
(Mass.),  322;  Burdeno  v.  Amperse, 
14  Mich.  91;  Crowley  v.  Savings 
Union  Bank  &  Trust  Co.,  30  Cal,  App. 
535,  159  P.  194;  Koch  v.  Sallee,  176 
111.  App.  379;  Merchants'  &  Laborers' 
Building  Ass'n  v.  Scanlan,  144  Ind. 
11,  42  N.  E.  1008;  Hellyer  v.  Hellyer 
(Iowa),  112  N.  W.  196;  Sproul  v. 
Atchison  Nat.  Bank,  22  Kan.  336;  Ice 
V.  Ice,  26  Ky.  Law,  1065,  83  8.  W. 
135;  Wooden  v.  Wooden,  72  Mich.  347, 
4  N.  W,  460;  Strauss  v.  Parshall,  W 
Mich,  475,  51  N.  W.  1117;  Currier  v. 
Teske,  84  Neb.  60,  120  N.  W.  1015; 
Kent  V.  Tallent,  75  Okla.  185,  183  P. 
422;  Watts  v.  Bruce,  31  Tex.  Civ.  347, 
72  S.  W.  258;  Shorett  v.  Signor,  58 
Wash.  695,  107  P.  1033;  Keagle  v. 
Eeagle,  179  Pa.  89,  36  A.  191. 

Under  the  Missouri  statute  a  hus- 
band may  convey  to  a  wife  through 
a  third  person  an  estate  in  land,  to 
commence  at  his  death  and  thereafter 
during  her  life,  without  creating  any 
particular  estate.  O  'Day  v.  Meadows, 
194  Mo.  588,  92  S.  W.  637,  112  Am. 
St.  K.  542.     A  later  case  in  the  same 


State  holds  that  the  same  was  true 
of  a  direct  conveyance  before  the 
Married  Women's  Act.  Carson  v. 
Berthold  &  Jennings  Lumber  Co.,  270 
Mo.  238,  192  S.  W.  1018. 

3a.  Eves  v.  Eoberts,  96  Wash.  99, 
164  P.  915. 

4.  Hardwick  v.  Salzi,  46  Misc.  1,  93 
N.  Y.  S.  265;  Mardt  v.  Scharmach, 
65  Misc.  124,  119  N.  Y.  S.  44?. 

5.  Demerse  v.  Mitchell,  187  Mich. 
683,  154  N.  W.  22. 

6.  Smith  V.  Vineyard,  58  W.  Va.  98, 
51  S.  E.  871. 

7.  Carter  v.  McNeal,  86  Ark.  150, 
110  S.  W.  222;  Stricklin  v.  Moore, 
98  Ark  30,  135  S.  W.  360;  Maupin  v. 
Gains,  125  Ark.  181,  188  S.  W.  552; 
Williams  v.  Betts  (Del.),  98  A.  371; 
Swiger  v.  Swiger,  58  W.'Va.  119,  52 
S.  E.  23. 

8.  Depue  v.  Miller,  65  W.  Va.  120, 
64  S.  E.  740. 

9.  Phillips  V.  Baker,  68  Minn.  152, 
70  N.  W.  1082   (mortgage).' 

10.  Provost  V.  Provost,  4  Mart.  (O. 
S.)  (La.),  506;  Pons  v.  Yazoo  &  M. 
V.   R.  Co.,   122   La.   156,  47   So.  449, 


§  562 


HUSBAND    AND    "WIFE. 


582 


they  cannot  do  so  by  making  in  a  notarial  act  an  unfounded 
acknowledgment  of  payment  by  ber  busband  of  paraphernal  funds 
converted  to  bis  own  use,  with  authority  to  the  recorder  to  eras© 
tbe  mortgage  from  the  record." 

Under  some  statutes  the  wife  may  lease  directly  to  ber  husband/^ 
and  tbe  busband,  perhaps,  to  tbe  wife ;  and  here,  too,  tbe  medium 
of  a  trustee  may  be  invoked  by  way  of  assignment.  Practical 
difficulties  may  arise,  however,  in  suing  upon  the  covenants  as 
between  busband  and  wife  directly,  so  contrary  are  all  such  trans- 
actions to  tbe  old  rule  of  coverture. ^^ 

§  561.  Mortgages. 

A  mortgage  by  a  husband  to  bis  wife  is  now  usually  held  valid.^* 
A  wife  may  acquire  and  foreclose  a  mortgage  on  ber  husband's 
property,  even  though  she  joined  to  release  dower. ^^  The  same  is 
true  where  she  pays  off  bis  note  and  mortgage  and  takes  an  assign- 
ment.^' 

§  562.  Operation  and  Effect. 

Where  a  busband  conveys  property  to  bis  wife,  tbe  presumption 
that  be  intends  a  conveyance  of  tbe  beneficial  as  well  as  tbe  legal 
title  is  very  strong."  Such  a  conveyance  vests  title  in  ber  as 
against  ber  busband  and  those  claiming  under  him,  and  is  subject 
to  ber  conveyance  or  devise,^*  even  though  be  remains  in  possession 
of  and  farms  tbe  land  and  pays  taxes,  unless  be  regains  title  by 
adverse  possession,^®  or  even  if  tbe  busband  bas  used  community 


11.  Equitable  Securities  Co.  v.  Tal- 
bert,  49  La.  Ann.  1393,  22  So.  762; 
Tobin  V.  White,  142  La.  84,  76  So.  248. 

12.  Albin  v.  Lord,  39  N.  H.  196; 
America  Bank  v.  Banks,  101  U.  S.  240. 

13.  Jeune  v.  Marble,  37  Mich.  319; 
supra,  §  411. 

14.  Cort  V.  Benson,  159  Iowa,  218, 
140  N.  W.  419. 

15.  Crosby  v.  Clem,  209  Mass.  193, 
95  N.  E.  297;  Youmans  v,  Loxley,  56 
Mich.  197,  22  N.  W.  282;  Graham 
V.  Lamb,  120  Mich.  577,  79  N.  W. 
804,  6  Det.  Leg.  N.  276. 

16.  Fitcher  v.  Griffiths,  216  Mass. 
174,  103  N.  E.  471. 

17.  In  re  Foss,  147  F.  790;  Mc- 
Cartney V.  Fletcher,  11  App.  D.  C.  1; 
McComb  V.  McComb,  241  HI.  453,  89 
N.  E.  714;  Roper  v.  Getman  (Iowa), 


75  N.  W.  177;   Oliver  v.  Sample,  72 
Kan.   582,  84  P.  138. 

18.  Milam  v.  Coley,  144  Ala.  535, 
39  So.  511;  Donnelly  v.  Tregaskis, 
154  Cal.  261,  97  P.  421;  Shea  v.  Mc- 
Mahon,  16  App.  D.  C.  65;  In  re 
Pieper's  Estate,  45  Iowa,  373,  124  N. 
W.  181 ;  English  v.  English,  229  Mass. 
11,  118  N.  E.  178;  Haines  v.  Royd- 
house,  83  N.  J.  Eq.  675,  93  A.  190. 

Where  a  grantor  had  previously  ex- 
ecuted deeds  to  a  husband  which  were 
not  recorded,  and  where  a  wife  re- 
corded the  deeds  to  her,  it  was  held 
that  she  was  entitled  to  a  cancellation 
of  the  first  deeds.  Ball  v.  Ball,  97 
App.  D.  347,  89  N.  Y.  S.  1046;  Stolte 
V.  Karren    (Tex.),  191  S.  W.  600. 

19.  Bias  V.  Reed,  169  Cal.  33,  145 
P.  516. 


583 


CONVEYANCES    BETWEEN    SPOUSES. 


§    563 


funds  to  buy  it/"  and  even  though  she  later  abandons  him  for 
justifiable  cause."^  She  may  be  shown  to  hold  it  in  trust ^^  She 
may  acquire  a  life  estate  in  his  land  by  a  deed  in  which  she  joins 
which  reserves  to  both  spouses  life  estate  in  the  granted  property.^' 
A  wife  taking  property  from  her  husband  for  a  nominal  consider- 
ation takes  only  his  interest,  and  is  not  a  bona  fide  purchaser  for 
value.'*  In  the  absence  of  statute  the  want  of  record  does  not 
affect  the  validity  of  a  conveyance,  as  between  the  parties,^"  but 
as  against  third  persons  the  deed  must  be  recorded  to  be  effectual.^" 

§  563.  Transfers  of  Personalty, 

In  some  States  transfers  of  personal  property  between  spouses 
are  valid. ^^  In  such  case  the  transferee  may  replevy  it  from  those 
wrongfully  seizing  it  as  the  property  of  the  transferor.^^  Where 
such  transfers  are  not  valid  at  law  equity  will  sometimes  enforce 
them.^'  It  has  been  held  that  a  wife  holding  a  valid  mortgage  of 
her  husband's  personal  property  may  have  the  statutory  remedy 
against  an  officer  attaching  it  as  the  property  of  the  husband.^" 
A  transfer  by  a  husband  to  a  wife  through  a  third  person  has  beea 
upheld  where  both  bills  of  sale  were  handed  to  her  without  having 
been  actually  in  the  hands  of  the  third  person.^^  Under  the  Xorth 
Carolina  statute  a  transfer  of  an  insurance  policy  for  the  benefit 
of  the  wife  is  within  its  requirement  that  contracts  between  the 
spouses  impairing  or  altering  the  body  or  capital  of  her  personal 
estate  for  more  than  three  years  to  be  in  writing  and  acknowledged 


20.  Bott  V,  Wright  (Tex.),  132  S. 
W.  960. 

21.  Purcell  v.  Purcell,  17  Det.  Leg. 
N.  594,  127  N.  W.  310. 

22.  Wilson  v.  Wilson,  86  Md.  638, 
39  A.  276;  Walston  v.  Smith,  70  Vt. 
19,  39  A.  252;  Oliver  v.  Sample,  72 
Kan.   582,   84  P.   138. 

23.  Eeigel  v.  Eeigel,  243  111.  626,  90 
N.  E.  1108. 

24.  Acker  v.  Pridgen,  158  N.  C. 
337,  74  S.  E.  335;  Morgan  v.  North- 
ern Pac.  Ey.  Co.,  50  Wash.  480,  97  P. 
510;  Perkinson  v.  Clarke,  135  Wis. 
584,   116  N.  W.  229. 

25.  Tyler  v.  Currier,  147  Cal.  31, 
81   P.  319. 

26.  Austin  Clothing  Co.  v.  Posey, 
105  Miss.  720^  64  So.  5,  1  A.  L.  R. 
13. 


27.  In  re  Hoffman,  199  F.  448 ;  V.  G. 
Fischer  Art  Co.  v.  Hutching,  41  App. 
D.  C.  156;  Butler  v.  Farmers'  Nat. 
Bank,  173  la.  659,  155  N.  W.  999; 
Sherman  v.  Davenport,  106  la.  741, 
75  N.  W.  187;  Kraft  v.  Kraft,  70 
Minn.  144,  72  N.  W.  804;  Pedrick 
V.  Kuemmell,  74  N.  J,  379,  65  A.  906; 
Connar  v.  Leach,  84  Md.  571,  36  A. 
591. 

28.  Faddis  v.  Woollomes,  10  Kan, 
56. 

29.  Thomas  v.  Harkness,  13  Bush 
(Ky.),  23;  Kulin  v.  Heller,  69  N.  J. 
Law,  33,  54  A.  519. 

30.  Duggan  v.  Wright,  157  Mass. 
228,  32  N.  E.  159. 

31.  Garwood  v.  Garwood,  56  N.  J. 
Eq.  265,  38  A.  954. 


§    563  HUSBAND    AND    WIFE.  584 

in  a  certain  way.'*  The  Missouri  statute  requiring  the  written 
assent  of  the  wife  to  enable  her  husband  to  pass  title  to  her  per- 
sonal property  is  not  complied  with  where  she  delivers  to  him  her 
note  indorsed  in  blank,^'  nor  where  the  fact  that  she  joins  with  him 
in  a  deed  of  her  property  and  permits  the  grantee  to  pay  in  part 
with  a  note  payable  to  her  husband.^*  Except  as  modified  by  the 
Louisiana  Act,  No.  94  of  1916,  a  wife  in  that  State  may  not  con- 
vey her  paraphernal  property  to  her  husband  in  trust  for  a  third 
person  for  life.^^ 

32.  Sydnor  v.  Boyd,  119  N.  C.  481,  34.    McGregor   v.    PoUard,   66   Mo. 
26  S.  E.  92,  37  L.  E.  A.  734.  App.    324. 

33.  Case   v.   Espenschied,   169   Mo.  85.  Marks  v.  Loewenberg,  143  I»a. 
215,    69    S.    W.    276,    92    Am.    St.   B.  196,  78  8o.  444. 

633. 


585  CONVEYANCES    TO    SPOUSES.  §    564 


CHAPTER  XXVIII. 

CONVEYANCES  TO  SPOUSES. 

SscnoN  564.  Estate  by  the  Entirety  in  Land. 

565.  Estate  by  the  Entirety  in  Personalty. 

566.  Essentials  of  Estate  by  the  Entirety. 

567.  Possession  as  Between  Spouses. 

568.  Effect  of  Partition  and  Divorce. 

569.  Effect  of  Statutes. 

570.  Spouses  as  Tenants  in  Common. 

571.  Spouses  as  Joint  Tenants. 

572.  Eights  of  Creditor. 

573.  Conveyance  or  Mortgage. 

574.  Rule  in  Equity  as  to  Gift  or  Conveyance  to  Spouses;  In  GreaersJ. 

575.  Resulting  Trust. 

576.  Effect  of  Purchase  at  Judicial  Sale. 

577.  As  to  Insurance  on  Husband's  Life  in  Favor  of  Wife. 

578.  Equitable  Relief. 

§  564.  Estate  by  the  Entirety  in  Land. 

It  may  here  be  added  that,  at  the  common  law,  a  conveyance  of 
land  to  husband  and  wife  and  their  heirs  vests  the  entirety  in 
each  of  them ;  and  upon  the  death  of  one  the  survivor  takes  the 
whole  estate,  discharged  of  the  other's  debts,  and  to  the  exclusion 
of  the  heirs  of  the  deceased.'*     The  tenancy  may  be  created  by  a 

36.  Wright  v.  Sadler,  20  N.  Y.  320;  Russell  (N.  C),  101  S.  E.  495;  Mait- 

Banton  v.  Campbell,  9  B.  Mon.  (Ky.)  ten  v.  Barley,  174  Ind.  620,  ?2  N.  E. 

587;    Gilson   v.   Zimmerman,   12   Mis.  738;  Dotson  v.  Faulkenberg,  186  Ind. 

385;    Bates    v.    Seely,    46    Pa.    248;  417,  116  N.  E.  577 ;  Tharp  v.  Updike, 

French  v.  Mehan,  56  Pa.  286;  Robin-  55    Ind.   App.    452,    102    N.    E.    855; 

son  V.  Eagle,  29  Ark.  202 ;   Marburg  Holmes  v.  Holmes,  70  Kan.  892,  79  P. 

V.  Cole,  49  Md.  402;  Fisher  v.  Provin,  163;  Louisville  v.  Coleburne,  108  Ky. 

25  Mich.  347;   Johnson  v.  Austin,  86  420,  22  Ky.  Law,  64,  56  S.  W.  681; 

Ark.  446,  111  S.  W.  455;  Johnson  v.  Frey  v.  McGraw,  127   Md.  23,  95  A. 

Johnson,    122    Ark.    363,    183    S.    W.  960;   Lang  v.  Wilmer,   131   Md.   215, 

967;   Maxey  v.  Logan,  131  Ark.  593,  101  A.  706;  Woodard  v.  Woodard,  216 

198  S.  W.  270;  Robertson  v.  Robinson,  Mass.  1,  102  N.  E.  921;  Hoag  v.  Hoag, 

87  Ark.  367,  112  S.  W.  883;  Naler  v.  213  Mass.  50,  99  N.  E.  521;  Appeal  of 

Ballew,   81    Ark.    328,   99   S.   W.   72;  Lewis,   85  Mich.   340,  48   N.  W.   580, 

McWhorter  v.  Green,  111  Ark.  1,  162  24    Am.   R.    94;    W.   C.    Ellis   Co.   v. 

S.   W.   1100;    Kunz  v.   Kurtz,   8   Del.  Walker,    101    Miss    326,    58    So.    97; 

Ch.      404,      68      A.      450;      Marshall  Wilson  v.  Frost,   186  Mo.   311,  85  S. 

▼.     Lane,     27      App.      D.     C.      276;  W.  375,  105  Am.  St.  R.  619;  Moss  v. 

English     V.     English,     66     Fla.     427,  Ardrey,   260  Mo.   595,   169   S.   W.   6; 

63     So.     822;     Kron     v.     Kron,     195  Holmes  v.  Kansas  City,  209'  Mo.  513, 

m.  181,  62  N.  E.  809;  AUes  v.  Lyon,  108    S.   W.   9    (reh.   den.,    108   S.   W. 

216   Pa.   604,   66    Atl.    81;    Odum   v.  1134;  Otto  f.  Stifel's  Union  Brewing 


§  564 


HUSBAND    AND    WIFE. 


586 


joint  devise  to  spouses,^^  and  an  equitable  estate  by  the  entirety 


Co.  V.  Saxy,  273  Mo.  159,  201  S.  W. 
67,  L.  R.  A.  1918C,  1009;  Burke  v. 
Murphy,  275  Mo.  397,  205  S.  W.  32; 
Frost  V.  Frost,  200  Mo.  474,  98  S,  W. 
527;  Hume  v.  Hopkins,  140  Mo.  65,  41 
S.  W.  784;  Ashbaugh  v.  Ashbaugh, 
273  Mo.  353,  201  S.  W.  72;  Edmond- 
son  V.  Moberly,  98  Mo.  523,  11  S.  W. 
990;  Murchison  v.  Fogleman,  165  N. 
C.  397,  81  S,  E.  627;  Ginn  v.  Ed- 
mundson,  173  N.  C.  85,  91  S.  E.  696; 
Harris  v.  Carolina  Distributing  Co., 
172  N.  C.  14,  89  S.  E.  789;  Dorsey  v. 
Earkland,  177  N.  C.  520,  99  S.  E. 
407;  Morton  v.  Blades  Lumber  Co., 
154  N.  C.  278,  70  S.  E.  467;  Eay  v. 
Long,  132  N.  C.  891,  44  S.  E.  652; 
Kimble  v.  Newark,  91  N.  J.  249,  102 
A.  637;  In  re  McKelway's  Estate, 
221  N.  T.  15,  116  N.  E,  348;  Kimble 
V.  Newark  91  N,  J.  249,  102  A. 
637,  L.  E.  A.  191SE,  793  (cit- 
ing, with  approval,  Hardenberg  v. 
Hardenberg,  10  N.  J.  L.  42,  18  Am. 
Dee.  371);  Vollaro  v.  Vollaro,  129  N. 
Y.  S.  43;  Tillman  v.  Lewisburg  & 
Northern  R.  Co.,  133  Tenn.  554,  182 
S.  W.  597,  L.  R.  A.  1916D,  259; 
Price  V.  Pestka,  54  App.  Div.  59,  66 
N.  Y.  S.  297;  Smith  v.  Russell,  172 
App.  Div.  793,  159  N.  Y,  S.  169;  Clay 
V.  Robertson,  30  Okla.  758,  120  P. 
1102;  Oliver  v.  Wright,  47  Ore.  322, 
83  P.  870;  Chase  v.  McKenzie,  81 
Ore.  429,  159  P.  1025.  An  "estate  by 
entireties"  is  one  held  by  husband 
and  wife  by  virtue  of  title  acquired 
by  them  jointly  after  marriage.  In  re 
Rhodes'  Estate,  232  Pa.  489,  81  A. 
643 ;  McCreary  v.  McCorkle,  54  S.  W. 
53;  Young  v.  Brown,  136  Tenn.  184, 
188  S.  W.  1149;  StiefF  Co.  v.  Ullrich, 
110  Md.  629,  73  A.  874;  Alsop  v. 
Fedarwisch,  9  App,  D,  C.  408;  Hud- 
son's Heirs  v.  Hudson's  Adm'r  (Ky.), 
121  S.  W.  973. 

The  venerable  estate  known  as  an 
estate  by  entireties  may  be  out  of 
harmony  with  modern  conditions  but 
it  is  still  recognized.  Fundamentally 
the  estate  rests  on  the  legal  unity  of 


husband  and  wife.  It  is,  therefore,  a 
unit,  not  made  up  or  divisable  parts 
subsisting  in  different  natural  per- 
sons, but  is  an  indivisible  whole  vested 
in  two  persons  actually  distinct,  yet 
to  legal  intendment  one  and  the  same. 
Each  is  seised  of  the  whole  estate 
from  its  inception,  and  upon  the  death 
of  one,  while  the  right  of  survivorship 
remains  to  the  other,  that  other  takes 
no  new  title  or  estate.  Beihl  v.  Mar- 
tin, 236  Pa.  519,  84  Atl.  953,  42  L.  E. 
A.  (N.  S.)   555. 

A  tenancy  hy  the  entirety  is  not 
greater  than  any  other  estate  in  fee. 
Simmons  v,  Meyers  (Ind.),  112  N.  E. 
31. 

An.  administrator  of  a  deceased  hus- 
band, tenant  by  the  entirety,  has  no 
right  of  action  for  a  trespass  com- 
mitted prior  to  the  death  of  his  intes- 
tate. Spruill  V.  Branning  Mfg.  Co., 
130  N.  C.  42,  40  S.  E.  824. 

A  release  of  a  mortgage  on  the  hus- 
band's  land,  the  mortgage  being  in 
the  form  of  an  absolute  deed,  will  not 
create  an  estate  by  the  entirety,  though 
to  spouses  jointly  Haak  Lumber  Co. 
V.  Crothers,  146  Mich.  575,  109^  N.  W. 
1066,  13  Det.  Leg.  N.  957. 

Where  a  husband  owning  mort- 
gaged land  executed  a  deed  in  which 
his  vnfe  joined,  conveying  the  land 
to  a  third  person  who  contracted  to 
reconvey  to  the  husband  and  wife  on 
payment  of  a  specified  sum,  and  the 
wife  made  all  the  payments  and  sur- 
vived the  husband,  she  acquired  the 
property  by  right  of  survivorship. 
Robson  V.  Townley,  176  Mich.  581,  142 
N.  W.  756. 

Hahendum  to  her  heirs.  It  has 
been  held  that  a  deed  to  spouses  will 
not  create  an  estate  by  the  entirety 
where  the  habendum  is  to  her  heirs, 
she  being  a  remarried  widow  and  both 
having  children  by  former  marriages. 
Fullager  v.  Stockdale,  138  Mich.  363, 
101  N.  W.  576,  11  Det.  Leg.  N.  605. 

87.  Booth  V.  Fordham,  185  N.  Y. 
535,  77  N.  E.  1182. 


587 


CONVEYANCES    TO    SPOUSES. 


5G4: 


3» 


maj  be  created  by  a  joint  contract  to  their  buyer  to  sell  land, 
A  wife's  deed  to  her  husband  of  an  undivided  half  in  land,  with 
a  declared  intention  to  create  an  estate  by  the  entirety,  has  been 
held  to  have  that  effect.^^ 

They  do  not  take  by  moieties.  The  theoretic  unity  of  husband 
and  wife  occasioned  this  rule.  It  applies  only  to  conveyances 
made  to  them  during  coverture.  In  the  same  way  a  conveyance 
to  husband  and  wife  and  a  third  person  gives  only  a  moiety  to 
husband  and  wife,*"  and  where  the  conveyance  is  made  to  several 
persons,  two  of  whom  are  husband  and  wife,  these  two  take  their 
portion  as  tenants  by  entirety  likewise,  whether  the  deed  described 
them  as  husband  and  wife  or  not.*^  Nor  can  the  wife  maintain 
ejectment  alone,  or  an  action  for  use  and  occupation  as  to  such 
premises.*" 

Where  the  wife  has  an  estate  for  life,  and  husband  and  wife  are 
seised  of  the  remainder  in  entirety,  the  estate  for  life  does  not 
merge  in  the  estate  in  remainder.*^  Where,  again,  the  conveyance 
is  to  her  for  life,  with  remainder  to  her  husband,  and,  in  case  he 
does  not  survive  her,  to  his  heirs,  the  wife  cannot  claim  the  whole 
by  right  of  survivorship.**  And  if  the  equitable  title  to  land  is 
in  the  wife,  it  cannot,  of  course,  be  conveyed  to  husband  and  wife 
SO  as  to  bar  her  rights.*® 

But  if  lands  descend  to  A.,  B.,  and  C,  they  each  take  a  third 
part,  though  A.  and  B.  happen  to  be  husband  and  wife.*' 

Since  in  theory  the  spouses  each  own  the  entire  estate,  no  new 
estate  accrues  to  the  survivor  which  can  be  subjected  to  an  inherit- 
ance tax.*'' 


88.  In  re  Berry,  247  F.  700 ;  Roach 
V.  Richardson,  84  Ark.  37,  104  S.  W. 
538;  Comfort  v.  Robinson,  155  Mich. 
143,  118  N.  W.  943,  15  Det.  Leg.  N. 
951. 

39.  In  re  Horler's  Estate,  180  App. 
Div.  G08,  168  N.  Y.  S.  221. 

40.  See  1  Washb.  Real  Prop.  278; 
Wms.  Real  Prop.  184. 

41.  Hulett  V.  lulon,  57  Ind.  412. 

42.  Allie  V.  Schmetz,  17  Wis.  169. 
And  see  Torrey  v.  Torrey,  4  Kern. 
430;  Clark  v.  Thompson,  12  Pa.  274; 
Wentworth  v.  Remick,  47  N.  H.  226; 
Freeman  v.  Barber,  1  Hun  (N.  Y.), 
433. 


43.  Bomar  v.  Mullins,  4  Rich.  Eq. 
(S.  C.)  80.    And  see  Brinton  v.  Hook, 

3  Md.  Ch.  477. 

44.  Riggin  v.  Love,  72  111.  553. 

45.  Moore  v.  Moore,  12  B.  Mon. 
(Ky.)  651.    And  see  Hicks  v.  Cochran, 

4  Edw.  Ch.  (N.  Y.)  107;  Barncad  v. 
Kuhn,  36  Pa.  383;  Wright  v.  Sadler, 
20  N.  Y.  320;  Wales  v.  Coffin,  13  Allen 
(Mass.),  213;  1  Washb.  Real  Prop. 
278,  and  cases  cited. 

46.  Knapp  v.  Windsor,  6  Cush. 
(Mass.)   156. 

47.  Palmer  v.  Mansfield,  222  Mags. 
263,  110  N.  E.  283,  L.  R.  A.  191GC, 
677. 


§  565 


HUSBAND    AND    WIFE. 


588 


§  565.  Estate  by  the  Entirety  in  Personalty. 

Wtere  a  promissory  note,  too,  or  other  evidence  of  a  debt,  or 
personal  security,  is  made  payable  to  a  husband  and  wife  jointly, 
it  belongs  to  the  survdvor,  and  may  be  sued  upon  accordingly ;  *' 
but  not  if  the  facts  are  inconsistent  with  that  presumption  of  joint- 
ownership  which  a  technical  expression  of  this  sort  would  afford ;  ** 
and  the  drift  of  modem  policy  is  unfavorable  to  extending  to  per- 
sonalty this  rule  of  survivorship,  applicable  originally  to  real 
estate.^*^  !Revertheless,  some  courts  hold  that  a  conveyance  of 
personal  property  to  spouses  jointly  creates  an  estate  by  the 
entirety,^^  even  in  Wisconsin,  where  such  tenure  in  real  property 
has  been  abolished.^"     But  it  is  otherwise  in  New  York.^^ 

The  courts  are  not  agreed  whether  a  mortgage  to  spouses  jointly 
will  create  the  estate.  The  affirmative  is  held  in  Massachusetts 
and  ISTew  York,  and  seems  the  better  view.'*  The  contrary  has 
been  held  in  Missouri  and  Michigan 


55 


48.  Abshire  v.  State,  53  Ind.  64, 
and  cases  cited. 

49.  Sanford  v.  Sanford,  45  N.  Y. 
723;  Johnson  v.  Lusk,  6  Cold.  (Tenn.) 
113. 

50.  Wait  V.  Bovee,  35  Mich.  425. 

51.  Flaherty  v.  Columbus,  41  App. 
D.  C.  525;  Baker  v.  Baker,  123  Md. 
32,  90  A.  776  (bank  deposit)  ;  Truittv. 
Battle  Creek,  205  Mich.  ISO,  171  N.  W. 
338;  In  re  Greenwood's  Estate  (Mo.), 
208  S.  W.  635;  Eezabek  v.  Kezabek, 
196  Mo.  App.  673,  192  S.  W.  107; 
Craig  V.  Bradley,  153  Mo.  App,  536, 
134  S.  W.  1081 ;  Jones  v.  W.  A.  Smith 
&  Co.,  149  N.  C.  318,  62  S,  E,  1092; 
Beck  V,  Beck,  77  N,  J,  Eq.  51,  75  A, 
228;  In  re  Niles,  142  App.  Div,  198, 
126  N,  y,  S,  1066;  Blick  v,  Cockins, 
252  Pa.  56,  9^7  A.  125;  In  re  Klenke's 
Estate,  210  Pa.  572,  60  A.  166  (bank 
deposit);  In  re  Sloan's  Estate,  254 
Pa.  346,  98  A.  966;  In  re  Parry's 
Estate,  188  Pa.  33,  41  A.  448,  43  "W, 
N.  C,  62,  49  L.  K.  A.  444,  68  Am. 
St.  R.  847  (letter  of  credit)  ;  Smith  v. 
Haire  (Tenn,),  181  S.  "W,  161;  Brewer 
V.  Bowersox,  92  Md.  567,  48  A.  1060 
(certificate  of  deposit)  ;  Temple  v. 
Bradley,  119  Md,  602,  87  A.  394 ;  Am 
V.  Am,  81  Mo.  App.  133  (insurance 
policy)  ;    (1?10)   In  re  Kaupper,   141 


App.  Div.  54,  125  N.  Y.  S.  878  (affd,, 
201  N.  Y,  534,  94  N.  E.  1095, 

Tlius  where  a  hxusband,  tenant  by 
the  entirety,  held  the  income  of  the 
estate  with  the  intention  of  applying  it 
to  the  payment  of  the  mortgage  on  the 
estate  when  the  income  should  amount 
to  $5,000,  the  surviving  wife  was 
held  to  take  the  accumulation,  Col- 
lins V,  Babbitt,  67  N.  J.  Eq.  135,  58 
A,  481. 

52.  Dupont  V,  Jonet,  165  Wis,  554, 
162  N,  W,  664, 

53.  In  re  McKelway's  Estate,  221 
N.  Y.  15,  116  N,  E.  348 ;  In  re  Thomp- 
son's  Estate,  81  Misc,  86,  142  N,  Y. 
S,  1064 ;  Baumann  v,  Guion,  21  Misc. 
Rep,  120,  46  N,  Y,  S,  715;  In  re 
Baum,  121  App,  Div,  496,  106  N.  Y.  S. 
113. 

54.  Boland  v.  McKowen,  189  Mas3, 
563,  76  N,  E,  206,  109  Am,  St,  R. 
663 ;  In  re  Rapelje,  66  Misc.  414,  123 
N,  T.  S.  287. 

55.  McLeod  v.  Free,  96  Mich.  57, 
55  N,  W,  685;  Luttermoser  v.  Leuner, 
110  Mich.  186,  68  N.  W.  117;  John- 
ston V.  Johnston,  173  Mo.  O'l,  73  S. 
W.  202,  61  L.  R.  A.  166,  96  Am.  St. 
R,  486;  Ludwig  v,  Brunner,  203  Mich. 
556,  169  N,  W.  8?0. 


589 


CONVEYANCES    TO    SPOUSES. 


§  567 


§  566.  Essentials  of  Estate  by  the  Entirety. 

In  an  estate  by  the  entirety  there  must  be  unity  of  estate,  unity 
of  possession,  unity  of  control,  and  unity  of  conveying."®  To 
create  the  estate  of  entirety  the  relation  of  husband  and  wife  must 
legally  exist  between  the  grantees  at  the  time  of  the  conveyance,^^ 
and  if  the  relation  in  fact  exists  at  that  time,  the  deed  need  not  so 
recite."*  The  deed  must  grant  a  joint  estate  to  the  spouses,  and 
one  granting  to  each  specified  imdivided  parts  will  not  create  the 
estate." 

Likewise,  a  deed  by  a  husband  to  himself  and  wife  does  not 
create  such  a  tenancy,®"  even  where  the  statute  permits  spouses  to 
convey  directly  to  each  other,®^  nor  is  it  created  where  one  spouse 
receives  a  deed  from  the  co-tenant  of  the  other  spouse  of  such 
co-tenant's  undivided  interest,®^  nor  by  a  deed  from  one  spouse  to 
the  other  of  an  undivided  part  of  an  estate  owned  by  the  grantor 
in  severalty.®' 

It  is  usually  immaterial  who  pays  the  consideration,®*  but  it 
may  be  otherwise  in  equity  where  the  land  was  purchased  with 
the  wife's  money  and  where  the  form  of  the  conveyance  was  with- 
out her  consent.®" 

§  557.  Possession  as  Between  Spouses. 

By  the  common  law  the  beneficial  enjoyment  during  the  joint 
lives  of  husband  and  wife  was  that  of  the  husband;  but  in  this 
respect  "the  Married  Women's  Acts  have  made  some  changes 


60 


56.  Chandler  v.  Cheney,  37  Ind.  391. 

57.  Wright  v.  Kayner,  14  Det.  Leg. 
N.  631,  113  N.  W.  779,  150  Mich.  7; 
Hubatka  v.  Myerhofer,  81  N.  J.  410, 
75  A.  454 ;  Butler  v.  Butler,  93  Misc. 
258,  157  N.  Y.  S.  188;  McKee  v. 
Bevins,  138  Tenn.  249,  197  S.  W.  563. 

68.  Richards  v.  Richards  (Ind.),  110 
N.  E.  103;  Ryan  v.  Ford,  151  Mo. 
App.  689,  132  S.  W.  610;  Bennett  v. 
Hutchena,  133  Tenn.  65,  179  S.  W. 
629;  Deese  v.  Deese,  176  N.  C.  527, 
97  S.  E.  475  (holding  that  the  fact 
must  appear  from  the  deed). 

59.  Blease  v.  Anderson,  241  Pa.  198, 
88  A.  365. 

The  use  of  the  word  "jointly"  in 
a  deed  to  spouses,  does  not  prevent 
their  taking  an  estate  by  the  entirety, 
the  word  being  surplusage.  Simons 
V.  Bolinger,  154  Ind.  83,  56  N.  E. 
23,  23  L.  R.  A.  234. 


60.  Michigan  State  Bank  v.  Kern, 
189  Mich.  467,  155  N.  W.  502 ;  Wright 
V.  Knapp  (Mich.),  150  N.  W.  315; 
Grimminger  v.  Alderton  (N.  J.),  96 
A.  80. 

61.  Ringstad  v.  Hansom,  150  la. 
324,  130  N.  W.  145. 

62.  Isley  v.  Sellars,  153  N.  C.  374, 
69  S.  E.  279;  Tindell  v.  Tindell 
(Tenn.),  37  S.  W.  1105. 

63.  Pegg  V.  Pegg,  165  Mich.  228, 
130  N.  W.  617,  33  L.  R.  A.  (N.  8.) 
166. 

64.  White  t.  Woods  (Ind.),  106  N. 
E.  536;  Stalcup  v.  Stalcup,  137  N.  C. 
305,  49  N.  E,  210;  Hayes  v.  Horton, 
46  Ore.  597,  81  P.  386. 

65.  Donovan  v.  Griffith,  215  Mo. 
149,  114  S.  W.  621. 

66.  Holies  V.  State  Trust  Co.,  27  N. 


§  569  HUSBAND  AXD  WIFE.  590 

Under  such  a  statute  the  occupation  of  spouses  during  coverture 
is  substantially  that  of  tenants  in  common,®^  each  being  entitled 
to  half  the  rents  and  profits.®^  In  Missouri  it  is  held  that  a  wife's 
interest  in  an  estate  bj  the  entirety  is  not  her  separate  property, 
hence  the  husband  has  the  occupation  and  rents  and  profits  of  it 
for  his  life,  jure  mariti.^^ 

The  use  and  occupation  of  such  an  estate  is  not  a  matter  for  an 
accounting  between  the  spouses." 

§  568.  Effect  of  Partition  and  Divorce. 

An  estate  by  the  entirety  is  not  subject  to  partition  or  affected 
by  the  attainder  of  one  of  the  spouses.'^ 

The  courts  are  not  agreed  as  to  the  effect  of  a  divorce.  In  Xorth 
Carolina  it  is  held  that  it  renders  the  spouses  tenants  in  common."' 
The  contrary  is  held  in  Pennsylvania.^^  The  e-state  by  entireties 
is  not  dissolved  by  a  divorce  a  mensa  et  thoro,  as  this  does  not 
purport  on  its  face  to  dissolve  the  bonds  of  matrimony,  but  is  in 
legal  effect  simply  a  decree  of  separation  and  merely  suspends  and 
does  not  alter  the  marriage  relation.''* 

§  569.  Effect  of  Statutes. 

An  estate  by  the  entirety  is  not  affected  by  a  statute  passed 
after  it  has  vested.''^ 

It  has  never  been  recognized  in  Connecticut,  Xebraska,  Ohio,  or 

J.  Eq.  308;  Eap  v.  Kip,  33  N.  J.  Eq.  and  profits  jure  mariti  and  not  aa 
213.  tenant.    Masterman  v.  Masterman,  129 

67.  Schulz  V.  Ziegler,  80  N.  J.  Eq.       Md.   167,  98  A.   537. 

199,  83  A.  968;  Goodrich  V.  Village  of  69.    First    Xat.    Bank   v.    Fry,    168 

Otego,  216  N.  T.  112,  110  N.  E.  162;  Mo.  492,  68  S.  W.  348. 

Quigley  t.  Monsees,  56  Misc.  110,  106  70.  Minion  v.  "Warner,  173  N.  Y.  S. 

X.  Y.  S.  167;   Steenberge  v.  Low,  46  69. 

Misc.  285,  92  N.  Y.  S.  518;  In  re  Vil-  71.  Jacobs  v.  Miller,  50  Mich.  119, 
lage  of  Holeomb,  97  Misc.  241,  162  15  N.  W.  42;  Jones  v.  W.  A.  Smith 
N.  Y.  S.  848.  &  Co.,  149  N.  C.  318,  62  S.  E.  1092. 
The  Maryland  Married  Women's  72.  McKinnon,  Currie  &  Co.  v. 
Act  has  taken  away  the  husband's  Caulk,  167  X.  C.  411,  83  S.  E.  559, 
common-law  right  to  the  whole  of  the  L.  E.  A.  1915C,  39'6;  Freeman  v.  Bel- 
rents  and  profits  of  such  an  estate.  fer,  173  X.  C.  581,  92  S.  E.  486;  see 
Masterman  v.  Masterman,  129  Md.  further  post. 
167,  98  A.  537.  73.  Alles  v.  Lyon,  216  Pa.  604,  66 

68.  Xiehaus  v.  Xiehaus,  141   App.  A.  81,  10  L.  E.  A.  (X.  S.)  463. 

Div.  251,   125  X.   Y.  S.   1071;   In  re  74.  Freeman  v.  Belfaer,  173  X.  C. 

Klatzl's   Estate,    149   X.    Y.    S.    7?4;  581,  9^  S.  E.  486,  L.  E.  A.  1917E,  368. 

Maekotter  v.  Maekotter,  74  Misc.  214,  75.  Pease  v.  Inhabitants  of  "Whit- 

131  X.  Y.  S.  815.  man,   182   Mass.   363,   65  X.   E.   795; 

It  has  been  held  that  at  common  law  Hough  v.  Jasper  County  Light  &  Fuel 

the  husband  was  entitled  to  the  rents  Co.,  127  Mo.  App.  570,  106  S.  W.  547. 


591 


CONVEYANCES    TO    SPOUSES. 


§    569 


Oklahoma/®  but  in   some   States  legislation  has   abrogated   this 
common-law  doctrine  of  entirety/^ 

Such  has  been  held  to  be  the  effect  of  the  Married  Women's  Acts 
in  Alabama,  Colorado,  Illinois,  Maine,  iSTebraska,  South  Carolina, 
Tennessee,  England  and  Canada.^^  In  Arkansas,  Delaware,  Dis- 
trict of  Columbia,  Michigan,  Missouri,  New  York,  North  Carolina, 
and  Pennsylvania  the  Married  Women's  Acts  have  not  abolished 


It 


79 


Cases  holding  the  opposite  view  proceed  on  the  theory  that  such 
acts  have  destroyed  the  unity  of  husband  and  wife,  but  they  over- 
look the  plain  fact  tiiat  such  acts  are  meant  to  destroy  the  unity  of 
unequals,  the  foundation  of  the  jus  mariti,  and  to  thereby  restore 
to  its  full  vigor  the  unity  made  up  of  equals,  the  foundation  of 
the  estate  by  entireties.  The  design  of  such  acts  was  not  to 
destroy  the  oneness  of  husband  and  wife,  but  to  protect  the  wife's 


76.  Whittlesey  v.  Fuller,  11  Conn. 
337;  Miles  v.  Fisher,  10  Ohio  1,  36 
Am.  D.  61;  Wilson  v.  Fleming,  13 
Ohio,  68 ;  Kerner  v.  McDonald,  60  Neb. 
663,  84  N.  W.  92,  83  Am.  St.  E.  550; 
Hamra  v.  Fitzpatrick  (Okla.),  154  P. 
665;  Helvie  v.  Hoover,  11  Okla.  687, 
69  P.  958. 

77.  Hannon  v.  Southern  Pac.  R.  Co., 
12  Cal.  App.  350,  107  P.  335;  Swan  v. 
Walden,  156  Cal.  195,  103  P.  931; 
Bassler  v.  Rewodlinski,  130  Wis.  26, 
109  N.  W.  1032,  7  L.  R.  A.  (N.  S.) 
701 ;  Stewart  v.  Thomas,  64  Kan.  511, 
68  P.  70;  McNeeley  v.  South  Penn. 
Oil  Co.,  52  W.  Va.  616,  44  S.  E.  508, 
62  L.  R.  A,  562;  Wilson  v.  Wilson,  43 
Minn.  398,  45  N.  W.  710. 

And  thus  may  the  spouses  be  re- 
garded as  joint  tenants  or  rather 
tenants  in  common.  Cooper  v.  Cooper, 
76  111.  57;  Whittlesey  v.  Fuller,  11 
Conn.  337;  Clark  v.  Clark,  56  N.  H. 
105;  Meeker  v.  Wright,  76  N.  Y.  262. 

78.  Whyman  v.  Johnston  (Colo.), 
163  P.  76;  Lawler  v.  Byrne,  252  111. 
194,  96  N.  E.  892;  Kerner  v.  Donald, 
60  Neb.  663,  84  N.  W.  92,  83  Am.  St. 
R.  550;  Mettel  v.  Karl,  133  111.  65, 
24  N.  E.  553;  Gill  v.  McKinney,  140 
Tcnn.  549,  205  S.  W.  416;  Donegan 
V.  Donegan,  103  Ala.  488,  15  So.  823; 


Ee  Robinson,  88  Me.  17,  33  Atl.  652; 
Green  v.  Cannaday,  77  S.  C.  193,  57 
8.  E.  832;  Jupp  v.  Buckwell,  L.  R. 
39  Ch.  Div.  148;  Re  Wilson,  20  Ont. 
Rep.  397;  Griffin  v.  Patterson,  45  U.  C. 
Q.  B.   536. 

79.  Roulston  v.  Hall,  66  Ark.  305, 
50  S.  W.  690,  74  Am.  St.  R.  97;  God- 
man  V.  Greer  (Del.),  105  A.  380;  Kunz 
V.  Kurtz,  8  Del.  Ch.  404,  68  A.  450; 
Loughran  v.  Lemmon,  19  App.  D.  C. 
141;  Fisher  v.  Provin,  25  Mich.  347; 
Johnston  v.  Johnston,  173  Mo.  91,  73 
S.  W.  202,  61  L.  R.  A.  166,  96  Am. 
St.  R.  486;  Ashbaugh  v.  Ashbaugh, 
273  Mo.  353,  201  S.  W.  72;  Ray  v. 
Long,  132  N.  C.  891,  44  S.  E.  652; 
Jones  V.  W.  A.  Smith  &  Co.,  149  N.  C. 
318,  62  S.  E.  1092 ;  Bilder  v.  Robinson, 
73  N.  J.  Eq.  169,  67  A.  828 ;  Goodrich 
V.  Village  of  Otego,  160  App.  Div. 
349,  145  N.  T.  S.  497;  In  re  Meyer's 
Estate,  232  Pa.  89,  81  A.  145;  Hoover 
V.  Potter,  42  Pa.  Super.  21;  Hiles  v. 
Fisher,  144  N.  Y.  306,  39  N.  E.  337; 
Pray  v.  Stebbins,  141  Mass.  219,  4  N. 
E.  824;  Stifel's  Union  Brewing  Co. 
v.  Saxy  (Mo.),  201  S.  W.  67,  L.  R.  A. 
1918C,  1009;  Morrill  v.  Morrill,  138 
Mich.  112,  101  N.  W.  209,  4  Ann.  Gas. 
1100;  Diver  v.  Diver,  56  Pa.  106. 


§  570 


HUSBAND    AND    WIFE. 


592 


property  bj  removing  it  from  under  the  dominion  of  the  husband, 
and  has  nothing  to  do  with  the  nature  of  the  estate.*" 

In  Minnesota  neither  estates  by  the  entirety  or  joint  tenancies, 
with  survivorship,  can  be  held  by  spouses  either  in  real  or  personal 
property.®^  In  West  Virginia  it  seems  that  there  may  still  be  a 
life  estate  by  the  entirety.*^  In  Arkansas,  Delaware,  Indiana, 
Massachusetts,  Missouri,  and  iN'orth  Carolina  it  is  held  that  stat- 
utes providing  that  a  deed  to  two  or  more  persons  shall  create  a 
tenancy  in  common  and  not  a  joint  tenancy  have  not  abolished 
estates  by  the  entirety." 


§  570.  Spouses  as  Tenants  in  Common. 

By  express  words  husband  and  wife  may  be  made  tenants  in 
common  by  a  conveyance  to  them  during  coverture,**  where  the 
deed  shows  a  plain  intention  to  create  such  an  estate.'^     Such  an 


80.  Cole  Mfg.  Co.  v.  Collier,  95 
Tenn.  115,  31  S.  W.  100;  Simpson  v. 
Biffle,  63  Ark.  289,  38  S.  W.  345; 
Btifel's  Union  Brewing  Co.  v.  Saxy 
(Mo.),  201  S.  W.  67,  L.  R.  A.  1W8C, 
1009. 

81.  Semper  v.  Coates,  93  Minn.  76, 
100  N.  W.  662. 

82.  Irvin  v.  Stover,  67  W.  Va.  356, 

67  S.  E.  1119. 

83.  Roulston  v.  Hall,  66  Ark.  305, 
50  S.  W.  690,  74  Am.  St.  E.  97;  Davies 
V,  Johnson,  124  Ark.  390,  187  S.  W. 
323;  Kunz  v.  Kurtz,  8  Del.  Ch.  404, 

68  A.  450;  Dotson  v.  Faulkenburg 
(Ind.),  116  N.  E.  577;  McLaughlin 
V.  Rice,  185  Mass.  212,  70  N.  E.  52, 
102  Am.  St.  R.  663 ;  Wilson  v.  Frost, 
186  Mo.  311,  85  S.  W.  375,  105  Am. 
St  R.  613;  Moore  v  Greenville  Bank- 
ing &  Trust  Co.  (N.  C),  100  S.  E. 
269. 

84.  Carroll  v.  Reidy,  5  App.  D.  C. 
59;  Brown  v.  Brown,  133  Ind.  476, 
32  N.  E.  1128;  Prest  Abst.  41;  1 
Washb.  Real  Prop.,  278.  See  Barnes 
V.  Loyd,  37  Ind.  523. 

Under  a  devise  to  husband  and  wife, 
making  them  joint  tenants,  the  hus- 
band's interest  is  vendible  on  execu- 
tion against  him,  the  purchaser,  how- 
ever,   buying    subject    to    the    wife's 


right,  in  case  she  survives  her  hus- 
band, to  take  the  entire  estate.  Hall 
V.  Stephens,  65  Mo.  670. 

85.  Whitley  v.  Meador,  137  Tenn. 
163,  192  S.  W.  718,  L.  R.  A.  1917D, 
736;  Norman's  Ex'x  v.  Cunningham, 
5  Gratt.  (Va.)  63;  Dotson  v.  Faulken- 
burg, 186  Ind.  417,  116  N.  E.  577; 
Messenbaugh  v.  GoU,  198  Mo.  App. 
698,  202  S.  W.  265;  Highsmith  v. 
Page,  158  N.  C.  226,  73  S.  E.  998; 
Holloway  v.  Green,  167  N,  C.  91,  83 
S.  E.  243 ;  Eason  v.  Eason,  159  N.  C. 
539,  75  S.  E.  797;  Booth  v.  Fordham, 
185  N.  Y.  535,  77  N.  E.  1182;  Lerbs 
V.  Lerbs,  71  Misc.  51,  129  N.  Y.  8. 
903 ;  Saxon  v.  Saxon,  46  Misc.  202,  93 
N.  Y.  S.  191 ;  Bedford  Lodge  v.  Lentz, 
194  Pa.  399,  45  A.  378;  American  Nat. 
Bank  v.  Taylor,  112  Va.  1,  70  S.  E. 
534;  Hoover  v.  Potter,  42  Pa.  Super. 
21  (holding  that  a  deed  expressly  re-, 
citing  that  the  grantees  were  husband 
and  wife  created  a  tenancy  by  the 
entirety  though  it  also  provided  that 
they  should  take  as  tenants  in  com- 
mon). 

Where  there  was  an  agreement  be- 
tween the  spouses  that  they  should 
take  in  common,  but  where  by  mistake 
the  deed  was  to  them  as  tenants  by 
the  entirety,  they  were  held  to  take  in 


593 


CONVEYANCES    TO    SPOUSES. 


§  570 


intent  must  be  plainly  expressed,  and  effect  cannot  be  given  to 
random  phrases  inserted  by  an  ignorant  scrivener.**  The  question 
of  intention  is  one  of  fact  for  the  jury.'^ 

Partition  deeds  to  spouses  jointly  conveying  the  distributive 
share  of  one  of  them  in  real  estate  create  a  tenancy  in  common 
and  not  a  tenancy  by  the  entirety,**  even  where  the  deed  is  so 
drawn  at  the  request  of  the  distributee.*' 

Under  the  statutes  of  California,  Iowa,  Mississippi,  and  Okla- 
homa a  deed  to  spouses  jointly  creates  a  tenancy  in  common,'* 
and  as  a  result  of  the  South  Carolina  Married  Women's  Act  it  is 
held  that  a  conveyance  to  spouses  jointly  creates  a  tenancy  in 
common  except  where  a  contrary  intention  appears.'^  In  Minne- 
sota the  spouses  take  equally  and  in  common  in  the  absence  of 
evidence  showing  different  interests.*^  In  California  the  pre- 
sumption that  spouses  take  in  common  may  be  rebutted,'^  and  it 
may  be  shown  to  be  community  property.'*  Under  the  Kentucky 
statute  an  estate  in  common  is  taken  unless  the  deed  expressly 
provides  for  a  survivorship.*^  In  New  Jersey  it  is  held  that  a 
chose  in  action  made  to  spouses  jointly  is  held  by  them  as  tenants 
in  common.'®  In  Illinois  a  judgment  creditor  of  the  husband 
acquires  no  interest  in  the  share  of  the  wife  in  a  joint  estate  by  a 
sale  on  the  judgment.'^ 


common.     Stalcup  v.  Stalcup,  137  N. 
C.  305,  49  N,  E.  210. 

86.  Ashbaugh  v.  Ashbaugh,  273  Mo. 
353,  201  S.  W.  72. 

87.  Olson  V.  Peterson,  88  Kan.  350, 
128  P.  191, 

88.  Harrison  v.  McReynolds,  183 
Mo.  533,  82  S.  W,  120 ;  Jelly  v.  Lamar, 
242  Ma.  44,  145  S.  W.  7?9;  Speas  v. 
Woodhouse,  162  N.  C.  66,  77  S.  E. 
1000;  Stoffal  v.  Jarvis,  235  Pa,  50, 
89  A.  609, 

89.  Sprinkle  v.  Spainhour,  149  N.  C. 
223,  62  S.  E.  910, 

90.  Shaw  V.  Bernal,  163  Cal.  262, 
124  P.  1012;  Bader  v.  Dyer,  106  la. 
715,  77  N,  W,  469,  68  Am.  St.  R,  332; 
Conn  V.  Boutwell,  101  Miss,  353,  58 
So.  105;  Wagoner  v.  Silva,  139  Cal. 
559,  73  P.  433;  Helvie  v.  Hoover,  11 

38 


Okla.  687,  69  P.  958;  Alsop  v.  Fedar- 
wisch,  9  App,  D.  C,  408. 

91.  Green  v.  Cannady,  77  S.  C.  19^, 
57  8.  E.  832. 

92.  Dorsey  v.  Dorsey,  142  Minn. 
279,  171  N.  W,  933. 

93.  Volquards  v,  Myers,  23  Cal. 
App.  500,  138  P.  963. 

94.  In  re  Shirley's  Estate,  167  Cal. 
193,  138  P.  994, 

95.  McCallister  v.  Folden's  Assig- 
nee, 110  Ky.  732,  23  Ky.  Law,  113, 
62  S.  W,  538;  Harris  v.  Taliaferro, 
148  Ky.  150,  146  S.  W.  22;  Campbell 
V.  Asher,  28  Ky.  Law,  50,  88  S.  W. 
1067. 

96.  Aubry  v.  Schneider,  69  N.  J. 
Eq.  629,  60  A.  929. 

97.  Sledge  v,  Dobbs,  254  HL  130, 
98  N.  E.  243, 


§  572 


HUSBAND    AND    WITE. 


594 


§  571.  Spouses  as  Joint  Tenants. 

Spouses  take  as  joint  tenants  in  Connecticut,  where  the  estate 
bv  the  entirety  has  never  been  recognized,"®  and  in  Iowa  and 
Wisconsin,  where  it  has  been  abolished.®'  The  same  is  true  under 
the  West  Virginia  statute.^ 

In  California,  Xebraska  and  Wisconsin  spouses  may  hold  as 
joint  tenants  where  the  deed  clearly  shows  such  an  intention.^ 
They  may  do  so  even  in  Massachusetts  and  Indiana,  where  the 
t-enancy  by  the  entirety  is  recognized.^ 

Where  spouses  hold  as  joint  tenants  the  wife  takes  half  the 
rents  and  profits,  as  though  sole.* 

ISo  joint  tenancy  is  created  where  one  tenancy  in  common  con- 
veys to  the  wife  of  his  co-tenant,^  and  where  husband  and  wife 
take  as  joint  tenants  and  by  virtue  of  the  relation  become  tenants 
by  the  entirety,  a  divorce  will  restore  the  joint  tenancy." 

\Vhere  a  bill  to  reach  the  interest  of  a  husband  in  a  joint  estate 
charged  that  the  wife  paid  no  consideration,  it  was  held  that  she 
had  the  burden  of  showing  the  contrary,  the  presumption  being 
that  the  husband  paid  it.'^ 

§  572.  Rights  of  Creditors. 

It  is  held  by  most  of  the  courts  that  an  estate  by  the  entirety 
cannot  be  subjected  to  the  debts  of  one  tenant,®  but  only  to  their 


98.  New  York,  N.  H.  &  H.  K.  Co. 
V.  Russell,  S3  Conn.  581,  78  A.  324; 
Whittlesey  v.  Fuller,  11  Conn.  337, 

99.  Gruwell  v.  GruweU  (la.),  171 
N.  W.  290;  Fielder  v.  Howard,  99 
Wis.  38S,  75  N.  W.  163;  Bassler  v. 
Eewodlinski,  130  Wis.  26,  109  N.  W. 
1032,  7  L.  K.  A.  (N.  S.)  701. 

1.  McNeeley  v.  South  Penn.  Oil  Co., 
52  W.  Va.  616,  44  S.  E.  508,  62  L.  B. 
A.  562. 

2.  In  re  Harris'  Estate,  169  Cal. 
725,  147  P.  967;  Sanderson  v.  Ever- 
son,  93  Neb.  606,  141  N.  W.  1025; 
Dupont  V.  Jonet,  165  Wis.  554,  162  N. 
W.  664;  Friedrich  v.  Huth,  155  Wis. 
196,  144  N.  W.  202;  Bassler  v.  Ee- 
wodlinski, 130  Wis.  26,  109  N.  W. 
1032,  7  L.  R.  A.  (N.  S.)  701;  Church 
V.  McLennan  (Wis.),  158  N.  W.  89. 

3.  Phelps  V.  Smith,  116  Ind.  387, 
17  N.  E.  602;  Woodard  v.  Woodard, 
216  Mass.  1,  102  N.  E.  921. 


4.  Messing  v.  Messing,  64  App.  Div. 
125,  71  N.  Y.  S.  717. 

5.  Banzer  v.  Banzer,  156  N.  Y.  429, 
51  N.  E.  291. 

6.  Lash  V.  Lash,  58  Ind.  526. 

7.  Murdock  v.  Baker,  46  W.  Va.  78, 
32  N.  E.  1009. 

8.  Baker  v.  Lamb,  IS  N.  Y.  Super. 
519;  Simpson  v.  Biffle,  63  Ark.  289, 
3  S.  W.  345;  Davis  v.  Clark,  26  Ind. 
424,  89  Am.  D.  471;  Simmons  v. 
Meyers  (Ind.),  112  N.  F.  31;  Ades  v. 
Caplan,  132  Md.  66,  103  A.  94,  L.  R. 
A.  1918D,  276;  Masterman  v.  Master- 
man,  129  Md.  167,  98  A.  537;  Sanford 
V.  Bertrau,  204  Mich.  244,  169  N.  W. 
880;  Ashbaugh  v.  Ashbaugh,  273  Mo. 
353,  201  S.  W.  72;  Stifel's  Union 
Brewing  Co.  v.  Saxy,  273  Mo.  159, 
201  S.  W.  67,  L.  R.  A.  1918C,  1009; 
Moore  v.  Greenville  Banking  &  Trust 
Co.  (N.  C),  100  S.  E.  269;  Harris  v. 
Carolina  Distributing  Co.,  172  N.  C. 


595 


CONVEYANCES    TO    SPOUSES. 


§  572 


joint  debts."  Therefore,  a  judgment  against  a  husband  does  not 
affect  the  joint  estate  of  the  husband  and  wife,  and  a  decree  in 
equity  in  favor  of  such  a  judgment  creditor  can  confer  no  better 
title  than  a  sale  of  the  premises  under  the  judgment  at  law/"  A 
sheriff's  sale  fails  to  pass  the  undivided  half  of  either,  or  indeed 
any  title  whatever.^^  It  may  also  be  subject  to  a  vendor's  lien." 
In  Pennsylvania  the  interest  of  a  tenant  may  be  subject  to  lien, 
and  in  New  Jersey  his  interest  as  tenant  by  the  entirety,  but  not 
an  equal  and  undivided  interest,  may  be  subjected  to  his  debts.^' 

The  right  of  one  tenant  cannot  be  affected  by  the  bankruptcy 
of  the  other.'* 

In  Michigan  the  rule  is  that  the  estate  is  not  subject  to  the  sole 
debts  of  either  party  where  contracted  after  the  estate  vested,  but 
it  may  be  subject  to  those  contracted  before  such  time.'' 

Where  a  creditor  is  permitted  to  reach  the  interest  of  a  tenant 
by  the  entirety,  one  buying  at  an  execution  sale  becomes  tenant  in 
common  with  the  other  subject  to  the  survivorship.'® 


14,  S.  E.  789;  Eay  v.  Long,  132  N. 
C.  891,  44  S.  E.  652 ;  Hood  v.  Mercer, 
150  N.  C.  639,  64  S.  E.  897;  Servis  v. 
Dorn,  76  N.  J.  Eq.  241,  76  A.  246; 
Alles  V.  Lyon,  216  Pa.  604,  66  A.  81, 
10  L.  K.  A.  (N.  S.)  463;  Hetzel  v. 
Lincoln,  216  Pa.  60,  64  A.  866;  Citi- 
zens' Sav.  Bank  &  Trust  Co.  v.  Jenk- 
ins (Vt.),  99  A.  250. 

9.  Union  Nat.  Bank  v.  Finley,  180 
Ind.  470,  103  N.  E.  110;  Sharp  v. 
Baker,  51  Ind.  App.  547,  96  N.  E. 
627;  Frey  v.  McGaw,  127  Md.  23,  95 
Atl.  960,  L.  E.  A.  1916D,  113. 

10.  Thomas  v.  De  Baum,  1  MeCart. 
37 ;  Tupper  v.  Fuller,  7  Eich.  Eq.  (S. 
C.)   170;  Davis  v.  Clark,  26  Ind.  424. 

11.  Stifel's  Union  Brewing  Co.  v. 
Saxy,  273  Mo.  159,  201  S.  W.  67,  L.  R. 
A.  1918C,  1009;  Almond  v.  Bonnell,  76 
111.  536;  Anderson  v.  Tannehill,  42 
Ind.  141;  McConntU  v.  Martin,  52 
Ind.  434.  Equity,  however,  reserving 
the  wife's  potential  survivorship  and 
right  to  enjoy,  will  sometimes  dispose 
of  the  husband 's  interest  for  the  bene- 
fit of  his  creditors.  Cochran  v.  Ker- 
ney,  9  Bush  (Ky.),  199. 

12.  Moore  v.  Carey,  138  Tenn.  332, 
197  8.  W.  1093,  L.  R.  A.  1918D,  963. 


13.  Wortendyke  v.  Eayot,  87  N.  J. 
Eq.  159,  99  A.  917,  102  A.  2;  Beihl  v. 
Martin,  236  Pa.  519,  84  A.  953, 

14.  Beihl  v.  Martin,  236  Pa.  519, 
84  A.  953;  Be  Meyer,  232  Pa.  89,  81 
Atl.  145,  36  L.  E.  A.   (N.  S.)  205. 

But  where  subsequently  a  petition 
in  bankruptcy  is  filed  against  the  hus- 
band and  is  followed  by  his  discharge 
in  bankruptcy  this  prevents  the  sale 
of  the  property  during  his  lifetime 
under  an  execution  on  the  judgment, 
as  the  lien  of  the  judgment  is  wiped 
out  by  the  bankruptcy.  The  effect  of 
this  is  practically  the  same  as  if  the 
judgment  had  been  recovered  against 
the  wife  alone,  in  which  case  the  prop- 
erty could  not  have  been  sold  during 
the  lifetime  of  the  husband,  if  at  all, 
under  an  execution  issued  on  such 
judgment.  Ades  v.  Caplan,  132  Md. 
66,  103  Atl.  94,  L.  E.  A.  1918D,  276. 

15.  Dickey  v.  Converse,  117  Mich. 
449,  76  N.  W.  80,  5  Det.  Leg.  N.  306, 
72  Am.  St.  E.  568;  Michigan  Beef  & 
Provision  Co.  v.  Coll,  116  Mich.  261, 
74  N.  W.  475,  4  Det.  Leg.  N.  306; 
Schliess  v.  Thayer,  170  Mich.  395,  136 
N.  W.  365. 

16.  Bartkowaik    v.     Sampson,    73 


§  573 


HUSBAND    AND    WIFE. 


596 


§  573.  Conveyance  or  Mortgage. 

It  is  usually  held  that  neither  spouse  can  convey  or  affect  an 
estate  by  the  entirety  during  the  other's  lifetime  to  the  exclusion 
of  that  other,"  or  dispose  of  it  by  will."  Therefore  it  may  be 
conveyed  in  fee  or  encumbered  only  by  the  joint  deed  of  husband 
and  wife." 

Though  a  husband  alone  cannot  convey  an  interest  in  an  estate 
by  the  entirety  so  as  to  bind  his  co-tenant,  such  deed  may  take 
effect  at  the  wife's  death  and  vest  a  title  in  the  grantee  if  there 
were  covenants  of  title,^"  and  a  quitclaim  deed  of  one  tenant  does 
not  give  an  equitable  lien  for  the  purchase  price  without  joinder 
of  the  other.^^ 

Where  spouses  orally  agreed  to  sell  land  held  by  the  entirety, 
and  the  wife  treated  the  contract  as  valid  in  the  husband's  lifetime 
and  accepted  payments  on  the  contract,  it  was  held  that  she  was 
bound  by  it  after  his  death.^^ 

In  Indiana  a  mortgage  by  both  spouses  to  secure  the  sole  debt 
of  the  husband  is  voidable  by  either,  being  in  violation  of  the 
statute  prohibiting  a  wife  from  binding  herself  as  surety  for  her 
husband.^^  It  is  otherwise  in  Michigan,  Oklahoma  and  Ken- 
Misc.  446,  133  N.  T.  S.  401;  Mardt  v.      re  McKelway's  Estate,  221  N.  Y.  15, 


Scharmach,  65  Misc.  124,  119  N.  Y. 
8.  449. 

17.  Healey  Ice  Mach.  Co.  v.  Green, 
181  F.  890;  In  re  Berry,  247  F.  700; 
Chandler  v.  Cheney,  37  Ind.  391; 
Davis  V.  Clark,  26  Ind.   524,  89  Am. 

D.  471;  Sharpe  v.  Baker  (Ind.),  99  N. 

E.  44;  Adea  v.  Caplan,  132  Md.  66, 
103  A.  94,  L.  R.  A.  1918D,  276;  Mas- 
terman  v.  Masterman,  129  Md.  167, 
98  A.  537 ;  Dutch  v.  Manning,  2  Danl. 
Abr.  (Mass.)  230;  Shaw  v.  Husey,  5 
Mass.  521;  Fox  v.  Fletcher,  8  Mass. 
274;  Vamum  v.  Abbott,  12  Mass. 
474,  7  Am.  D.  87;  Pierce  v.  Chace, 
108  Mass.  254;  Pease  v.  Inhabitants 
of  Whitman,  182  Mass.  363,  65  N.  E. 
795;  Vinton  v.  Beamer,  55  Mich.  559, 
22  N.  W.  40;  Kegan  v.  Haslett,  128 
Mo.  286,  107  8.  W.  17;  Ernst  v. 
Ernst,  178  Mich.  100,  144  N.  W.  513, 
51  L.  R.  A.  (N.  S.)  317;  Stifel's 
Union  Brewing  Co.  v.  Saxy,  273  Mo. 
159,  201  S.  W.  67,  L.  R.  A.  1918C, 
1009;  Moore  v.  Greenville  Banking  & 
Trust  Co.  (N.  C),  100  8.  E.  269;  In 


116  N.  E.  348;  Hayes  v.  Horton,  46 
Ore.  597,  81  P.  386 ;  Gibbs  v.  TifEany, 
4  Pa.  Super.  29;  Yokley  v.  Superior 
Drill  Co.,  26  Ky.  Law,  302,  80  S.  W. 
1153. 

18.  Toung  V.  Biehl,  166  Ind.  357, 
77  N.  E.  406;  Wilson  v.  Johnson,  4 
Kan.  App.  747,  46  P.  833;  Hubert  v. 
Traeder,  139  Mich.  69,  102  N.  W. 
283,  11  Det.  Leg.  N.  756. 

19.  Rogers  v.  Shewmaker,  27  Ind. 
App.  631,  60  N.  E.  462,  87  Am.  St. 
R.  274;  Moore  v.  Greenville  Banking 
&  Trust  Co.  (N.  C),  100  S.  E,  269; 
McDuff  V.  Beauchamp,  50  Miss.  531. 
See  Insurance  Co.  v.  Nelson,  103  IT. 
S.  544 ;  Jones  v.  Shepley,  90  Mo.  307, 
2  S.  W.  400. 

20.  Hume  v.  Hopkins,  140  Mo.  65, 
41  S.  W.  784. 

21.  Ernst  V.  Ernst,  178  Mich.  100, 
144  N.  W.  513. 

22.  Kilsby  v.  Nichols,  168  N.  Y.  8. 
92,  180  App.  Div.  827. 

23.  Neighbors  v.  Davis,  34  Ind. 
App.  441,  73  N.  E.  151. 


597 


CONVEYANCES    TO    SPOUSES. 


§  574 


tucky.'*  In  New  York  it  has  been  lield  either  may  alienate  his 
or  her  interest,^^  while  in  !N^ew  Jersey  a  husband  may  alienate  his 
interest  in  such  an  estate  and  thereby  constitute  the  grantee  tenant 
in  common  with  the  other  tenant  by  the  entirety,  but  for  the  joint 
lives  of  the  spouses  only.^® 

A  husband  may  also  lease  it  for  his  lifetime,^^  and  a  husband 
may  grant  a  license  to  lay  a  sewer  on  land  held  by  himself  and  his 
wife  by  the  entirety,  which  will  be  good  as  against  both  during 
their  joinl;  lives,  and  absolute  against  himself  if  he  survives.^® 
The  contrary  is  held  in  Xew  York." 

§  574.  Rule  in  Equity  as  to  Gift  or  Conveyance  to  Spouses;  In 
General. 

If  a  gift  or  settlement  be  made  to  husband  and  wife  jointly,  the 
husband  (where  permitted,  as  under  the  old  rule,  to  reduce  to 
possession)  may  collect  the  whole;  but  if  not  reduced  to  posses- 
sion, the  fund  will  survive  to  the  wife.  Where  the  fund  is  in 
chancery,  however,  a  settlement  may  be  ordered,  or  the  fund 
reserved  with  a  suitable  decree  as  to  the  disposal  of  the  income; 
and  a  husband's  creditors  may  avail  themselves  accordingly.^" 

A  purchase  or  investment  is  sometimes  made  with  the  joint 
funds  of  husband  and  wife,  or  in  such  other  manner  as  to  make 
their  interest  joint  or  common.^^  Under  such  circumstances  a 
irife  may  claim  protection  of  her  undivided  interest  against  a 
seizure  or  attachment  of  the  fund  by  the  husband's  creditors.^^ 
But  in  equity  a  partition  of  such  interests  is  favored,^^  and  the 


24  Drye  v.  Cook's  Trustee,  14  Bush 
(Ky),  459;  Ehle  v.  Looker,  182  Mich. 
248,  148  N.  "W.  378 ;  Bastin  v.  Schafer, 
15  Okla.  607,  85  P.  349. 

25.  Messing  v.  Messing,  64  App. 
Div.  125,  71  N.  Y.  S.  717. 

26.  Schulz  V.  Ziegler,  80  N.  J.  Eq. 
199,  83  A.  368. 

27.  Pray  v.  Stebbins,  141  Mass.  219, 
4  N.  E.  824,  55  Am.  R.  462;  Bank  of 
Greenville  v.  Gornto,  161  N.  C.  341, 
77  S.  E.  222. 

28.  Ewen  v.  Hart,  183  Mo.  App. 
107,  166  S.  W.  315. 

29.  Wightman  v.  Cottrell,  155  App. 
Div.  76,  139  N.  Y.  S.  564. 

30.  2  Perry  Trusts,  §  644.  Where  the 
husband  transfers  a  fund  to  the  name 
of  himself,  his  vrife,  and  a  third  per- 


son, the  presumable  intent  is  to  make 
that  third  person  a  trustee  for  the 
survivor;  though,  had  the  third  per- 
son contributed  to  the  investment,  the 
effect  would  be  rather  to  cretate  a 
joint  or  common  tenancy  in  the  fund. 
Be  Eykyn's  Trusts,  L.  R.  6  Ch.  D. 
115.  As  to  a  wife's  corresponding 
transfer,  cf.  Batstone  v.  Salter,  L.  B, 
10  Ch.  431. 

31.  Kilby  v.  Godwin,  2  Del.  Ch.  61. 

32.  In  Iowa  the  wife  need  not  resort 
to  remedies  by  injunction,  but  may 
notify  the  officer  of  the  existence  of 
her  claim.  McTighe  v.  Bringolf,  42 
la.   455. 

33.  Long  v.  Perdue,  83  Pa.  214; 
Baggs  V.  Baggs,  54  Ga.  95. 


§  575  HUSBAXD  AND  WIFE.  59& 

subjection  of  the  husband's  interest  or  share  to  the  claims  of  his 
own  creditors.^*  In  Massachusetts,  a  wife  and  her  husband  own- 
ing a  vessel  together  are  jointly  liable  on  the  contracts  of  the 
master  made  within  due  scope  of  authority ;  and  this,  though  the 
husband  himself  be  master.^^ 

Where  real  estate  is  purchased  with  joint  funds  of  husband  and 
wife,  and  the  title  conveyed  to  the  latter  without  fraudulent  com- 
plicity, the  creditors  of  the  husband  must  resort  to  equity  in  order 
to  reach  his  equitable  interest.^" 

§  575.  Resulting  Trust. 

The  question  whether  a  resulting  trust  is  established  in  certain 
property  of  husband  or  wife  comes  up  constantly  in  the  latest 
American  cases,  with  the  extension  of  equity  jurisdiction  in  the 
States  and  the  new  married  women's  legislation.  Issues  of  this 
sort  are  made  up  not  only  where  the  claim  is  that  of  a  wife  against 
her  husband,  or  of  a  husband  against  his  wife,  but  in  controversies 
between  either  one  and  the  creditors  of  the  other.  The  decision 
must  be  according  to  the  evidence  adduced,  which  is  usually  oral, 
deference  being  paid  to  the  usual  presumptions  as  between  hus- 
band and  wife :  but  the  ostensible  title  afforded  bv  instruments  of 
title  or  securitv  standing  in  the  name  of  the  one  is  thus  over- 
thrown  by  proof  that  the  property  actually  belonged  by  right  to 
the  other.^^  As  between  themselves,  therefore,  one  spouse  may 
be  treated  as  in  effect  trustee  for  the  other,  and  bound  to  make  the 
title  according  to  the  just  ownership ;  though  an  intervening  pur- 
chaser in  good  faith  for  value  may  be  entitled  to  protection,  of 
course,  by  reason  of  a  superior  equity,^*  as  also  may  the  general 

34.  Creighton  v.  Clifford,  6  Eich.  head,  see  Sweeney  v.  Damron,  47  111. 
(S.  C.)    188,  450;  Bent  v.  Bent,  44  Vt.  555;  Cotton 

35.  Eeiman  v.  Hamilton,  111  Mass.  v.  Wood,  25  la.  43;  Howe  v.  Colby,  1? 
245.  Wis.     583;     Cairns    V,    Colburn,     104 

36.  Snow  V.  Paine,  114  Maes.  520.  Mass,  274;  Fribble  v.  Hall,  13  Bush 
The  marital  occupation  of  the  wife's  (Ky.),  61;  Evans  v,  English,  61  Ala. 
separate  farm,  as  between  her  and  her  416;  Carpenter  v.  Davis,  72  111.  14; 
husband,  is  but  one  possession,  and  Keller  v.  Keller,  45  Md.  269;  Payne 
manure  accumulated  upon  the  land,  v.  Twyman,  68  Mo.  339;  Dula  v, 
though  produced  in  part  by  his  stock  Young,  70  N.  C.  450;  Irvine  v. 
or  hay,  is  part  of  the  land  belonging  Greever,  32  Gratt.  (Va.)  411;  Davis 
to  her,  Norton  v.  Craig,  68  Me.  275.  v,  Davis,  43  Ind.  561 ;  Lyon  v.  Akin, 
But  where  husband  and  wife  own  78  N.  C.  258.  As  to  disputing  a  deed 
premises  jointly  they  may  join  in  an  by  parol,  notwithstanding  the  statute 
action  for  injury  thereto.  Armstrong  of  frauds,  in  such  an  issue,  see  Foote 
v.  Colby,  47  Vt.  360,  and  cases  cited.  v.  Bryant,  47  N.  Y.  544. 

37.  Among   late    cases    under    thia  38.  Dixon  v.  Brown,  53  Ala.  428. 


599 


CONVEYANCES    TO    SPOUSES. 


§  577 


creditors  in  some  instances.^^  Even  though  the  husband  become 
embarrassed  in  circumstances,  he  may  be  compelled  to  execute  his 
trust  for  the  wife's  benefit.***  But  to  the  extent  of  the  husband's 
own  pecuniary  interest  in  such  a  fund  his  creditors  may  claim 
the  benefit,  besides  which  the  identity  of  the  wife's  property  is  of 
material  importance.^ 


41 


§  576.  Effect  of  Purchase  at  Judicial  Sale. 

A  creditor  or  third  person  may  buy  the  debtor's  property  at  a 
sheriff's  or  bankruptcy  sale,  and  then  give  or  sell  it  to  the  debtor's 
wife,  provided,  of  course,  the  transaction  be  bona  fide;  for  this 
would  be  his  own  gift  or  transfer,  not  the  husband's,  and  the 
husband's  own  insolvency  cannot  invalidate  the  transaction.*^  So, 
too,  the  wife's  purchase  of  her  husband's  property  at  a  sheriff's  or 
bankruptcy  sale,  upon  a  bona  fide  bid,  vests  in  her  a  good  title  as 
her  separate  property.*^  A  similar  rule  applies,  in  the  absence 
of  fraud,  where  she  or  someone  in  her  interest  purchases  under  a 
mortgage  or  judicial  sale  of  premises  belonging  to  her  husband, 
no  fraud  being  disclosed  in  the  transaction.**  But  if  fraud  is 
committed  on  the  wife  in  such  a  transaction,  through  the  husband's 
false  inducement,  or  by  other  means,  she  may  obtain  relief  against 
the  disadvantageous  purchase  and  recover  the  money  paid.*' 

§  577.  As  to  Insurance  on  Husband's  Life  in  Favor  of  Wife. 

Insurance  is  frequently  effected  by  a  husband  on  his  own  life 
for  the  separate  benefit  of  his  wife;  a  provision  most  just  and 
honorable,  if  not  so  unreasonable  in  amount,  with  its  incidental 
payment  of  premiums,  as  to  defraud  one's  antecedent  creditors. 
The  subsequent  bona  fide  assignment  by  wife  and  husband  of  such 
a  policy  for  the  benefit  of  the  latter's  creditors  is  sustained  in 
several  late  cases ;  *®    though  an  assignment  procured  from  the 


39.  Darnaby  v.  Darnaby,  14  Bush 
(Ky.),  485;  Brooks  v.  Shelton,  54 
Miss,  353. 

40.  Payne  v.  T-wyman,  68  Mo.  339. 

41.  Hearn  v.  Lander,  11  Bush 
(Ky.),  669;  Sampson  v.  Alexander,  66 
Me.  182. 

42.  "Winch  v.  James,  68  Pa.  297. 

43.  Bovrser  v.  Bowser,  82  Pa.  57; 
Blum  V.  Harrison,  50  Ala.  16. 

44.  Page  v.  Dixon,  59  Mo.  43 ;  Hill 
V.  Bugg,  53  Miss.  397, 

45.  Case  v.  Colter,  66  Ind,  336,    And 


see  Norman  v.  Norman,  6  Bush  (Ky.), 
495, 

46,  Whether  the  creditors  of  a  mar- 
ried ■woman  for  premiums  paid  on  a 
policy  upon  her  husband's  life  can  en- 
force payment  out  of  her  separate  es- 
tate, see  Ogden  v,  Guill,  56  Miss.  330. 
As  to  the  extent  to  which  the  validity 
of  the  wife 's  title  to  the  policy-money 
may  be  affected  in  consequence,  see 
Barry  v.  ^fut.  Life  Ins.  Co.,  49  How. 
Pr.  (N,  Y.)  504;  Godfrey  v.  Wilson, 
70  Ind.  50,    Under  some  statutes,  the 


§    578  HUSBAND    AND    WIFE.  600 

wife,  injurious  to  her  interest,  must  raise  the  general  question  of 
a  wife's  separate  contracts  and  liability;*^  and  an  assignment 
procured  from  her  by  fraud  or  undue  marital  influence  amounting 
to  compulsion  will  not  be  enforced.^^  Due  reference  being  had 
to  the  language  of  every  policy,  it  is  likewise  true,  in  general, 
that  if  the  husband  survive  the  wife,  for  whose  benefit  the  policy 
was  t-aken  out,  he  m'ay  dispose  of  it  otherwise,  and,  with  the  in- 
surer's consent,  can  have  it  changed  so  as  even  to  benefit  a  subse- 
quent wife,  in  case  he  marries  again.^^ 

The  proceeds  of  a  policy  of  insurance  on  her  husband's  life, 
when  realized  by  the  wife  after  his  death,  are  not  absolved  from 
her  own  liabilities,  although  exempt  from  the  payment  of  debts 
contracted  by  the  husband  during  his  lifetime.^^  Her  constituted 
agent  for  paying  the  premiums  is  liable  to  her  (under  her  separate 
estate  or  statutory  rights)  for  his  default  or  misconduct.^^  And 
chancery  will  sometimes  intervene,  where  the  face  of  the  policy 
does  not  sufficiently  indicate  the  interest  intended  for  wife  or 
children,  and  protect  their  interests  against  the  husband  and  his 
creditors.^^  A  policy  may  be  limited  to  children  in  default  of  the 
wife  surviving;  and,  if  so,  the  wife  cannot  assign  it  to  their 
detriment.^^ 

§  578.  Equitable  Relief. 

Equity,  in  recognizing  husbanid  and  wife  as  distinct  persons 

capable  of  contracting  with  one  another  and  holding  property 

adverse  to  one  another's  claims,  affords  the  relief  appropriate  to 

such  a  situation.     Where  either  one  is  false  to  the  other,  and 

fraudulently  or  through  coercion  procures  an  unjust  advantage, 

chancery  will  relieve  against  the  transaction,''* 

■wife '3  assignment  with  her  husband's  ley,  35  Md.  188;  Gambs  v.  Coyenant, 

consent   may   suflSce   without   his   sig-  &c.,  Life  Ins.  Co.,  50  Misc.  44;   Ker- 

nature.     Whitridge  v.  Barry,  42  Md.  man  v.  Howard,  23  Wis.  108;  Stokes 

140.  V.  Coffey,  8  Bush  (Ky.),  533;  Thomp- 

47.  Supra,  %  223.  son  v.  American,  &c.,  Ins.  Co.,  46  N. 

48.  Whitridge  v.  Barry,  42  Md.  140 ;  T.    674.      And    see    1    Shouler    Pars. 
Fowle  V.  Butterly,  78  N.  Y.  68.  Prop.,  703-727. 

A  policy  in  the  wife 's  name,  and  for  50.  Smedley  v.  Felt,  43  la.  607. 

her  benefit,  upon  her  husband's  life,  51.  Ainsworth  v.  Backus,  5  Hun  (N. 

becomes  her  separate  property  beyond  T.),  414. 

his  reach.     Southern  Life  Ins.  Co.  v.  52.  Be  Mellor's  Policy  Trusts,  L.  R. 

Booker,  9   Heisk,    (Tenn.)    606;    Sue-  6  Ch.  D.  127. 

cession   of  Bofenschen,   29   La.   Ann.  53.  Knickerbocker  Life  Ins.  Co.  t. 

711.  Weitz,  99  Mass.  157. 

49.  See  Pomeroy  v.  Manhattan,  &c.,  54.  Case  v.  Colter,  66  Ind.  336.    The 
Ins.  Co.,  40  111.  398;  Emerick  v.  Coak-  wife's  fraud  on  her  husband  was  re- 


601  CONVEYANCES    TO    SPOUSES.  §    578 

A  voluntary  and  self-imposed  trust,  without  consideration,  may 
likewise,  it  is  held,  be  set  aside  by  a  court  of  equity  when  its 
purpose  has  lx>en  fulfilled  and  there  is  no  reason  for  preserving  it.''^ 

lieved  against  in  fcstone  v.   Wood,  85  55.  Tucker 's  Appeal,  75  Pa.  354. 

III.  COS. 


§  5T9  HUSBAND  AND  WIFE.  602 


CHAPTER  XXIX. 

COMMUNITY     DOCTRINE. 

Sectioit  579.  Nature  and  History   of  Doctrine. 

580.  The  European  Doctrine  of  Community. 

581.  Effect  of  Doctrine  on  American  Jurisprudence. 

582.  Nature  of  Community. 

583.  What  Law  Governs. 

584.  What  Constitutes  Community  Property  in  General. 

585.  Property  Acquired  During  Coverture. 

586.  Public  Lands  Acquired  by  Grant  or  Entry. 

587.  Bents,  Profits  and  Issues  of  Separate  Estates. 

588.  Improvements  on  Separate  Estates. 

589.  Damages  Recovered  by  Spouses. 

590.  Wife 's  Earnings. 

591.  Property  in  Part  Community  Property  and  in  Part  Separate 

Estate. 

592.  Separate  Estate  Distinguished. 

593.  Gifts. 

594.  Insurance  Policies. 

595.  Determination  of  Status  of  Property;    Presumption. 

596.  Evidence  and  Burden  of  Proof. 

597.  Change  of  Status  of  Property  by  Agreement. 

598.  Nature  of  Wife's  Interest. 

599.  Wife 's  Paraphernal  and  Dotal  Property. 

600.  Control  and  Disposition. 

601.  Sales,  Mortgages  and  Conveyances;  By  Husband. 

602.  By  Wife. 

603.  Lease. 

604.  Rights  and  Liabilities  of  Purchasers   During  Coverture. 

605.  Contracts,  Conveyances  and  Gifts  Between  Spouses. 

606.  Actions;   By  Spouses, 

607.  Against  Spouses. 

608.  Liabilities    Chargeable    on    Community    Property;    Community 

Debts  Generally. 

609.  Obligations  as  Surety. 

610.  Bills  and  Notes, 

611.  Torts. 

612.  Separate  Debts. 

613.  Rights  and  Remedies  of  Creditors  During  Existence  of  Com- 

munity. 

614.  Dissolution  of  Community;  Effect  of  Abandonment,  Separation, 

Insanity  or  Divorce. 

615.  Rights  and  Liabilities  of  Survivor. 
€16,  Rights  of  Heirs, 

617.  Effect  of  Re-marriage  of  Survivor. 

618.  Accounting  or  Settlement  of  Community  Rights. 

619.  Necessity  of  Acceptances  or  Renunciation. 


■603  COMMUNITY    DOCTRINE.  §    580 

Section  620.  Sale  or  Mortgage  to  Pay  Debts. 

621.  Eights  and  Liabilities  of  Purchasers  under  Sale  to  Pay  Debts. 

622.  Actions  by  or  Against  Survivor. 

623.  Actions  by  or  Against  Heirs. 

624.  Administration  in  General. 

625.  Control,  Management,  and  Collection  of  Community  Assets. 

626.  Accounting  and  Settlement. 

§  579.  Nature  and  History  of  Doctrine. 

The  communio  honorum,  or  communitj  sjsteon,  relates  ta  marital 
property,  in  which  respect  it  occupies  an  intermediate  position 
between  the  civil  and  common-law  schemes.  The  communio 
honorum.  naay  have  been  part  of  the  Koman  law  at  an  earlier 
period  of  its  history,  but  it  had  ceased  to  exist  long  before  the 
compilation  of  the  Digest ;  though  parties  might  by  their  nuptial 
agreement  adopt  it.^*  This  constitutes  a  prominent  feature  of 
the  codes  of  France,  Spain,  and  other  countries  of  modern  Europe, 
whence  it  has  likewise  found  its  way  to  Louisiana,  Florida,  Texas, 
California,  and  other  adjacent  States,  once  subject  to  French  and 
Spanish  dominion,  and  erected,  in  fact,  out  of  territory  acquired 
during  the  present  century  upon  the  Mississippi,  the  Gulf  of 
Mexico,  and  the  Pacific  Ocean. 

The  relation  of  husband  and  wife  is  regarded  by  these  codes  as 
K  species  of  partnership,  the  property  of  which,  like  that  of  any 
other  partnership,  is  primarily  liable  for  the  payment  of  debts. 
This  partnership  or  community  applies  to  all  property  acquired 
during  marriage;  and  it  is  the  well-settled  rule  that  the  debts  of 
the  partnership  have  priority  of  claim  to  satisfaction  out  of  the 
community  estate.  Sometimes  the  community  is  universal,  com- 
prising not  only  property  acquired  during  coverture,  but  all  which 
belonged  to  the  husband  and  wife  before  or  at  their  marriage. "^^ 

It  is  evident,  therefore,  that  the  provisions  of  such  codes  may 
differ  widely  in  different  States  or  countries.  The  principle 
which  distinguishes  the  community  from  both  the  civil  and  com- 
mon-law schemes  is,  however,  clear;  namely,  that  husband  and 
wife  should  have  no  property  apart  from  one  another. 

§  580.  The  European  Doctrine  of  Community. 

Under  modem  European  codes  this  law  of  community  embraces 
profits,  income,  earnings,  and  all  property  which,  from  its  nature 
and  the  interest  of  the  owner,  is  the  subject  of  his  uncontrolled 

56.  1  Burge,  Col.  &  For.  Laws,  202 ;  ib.  263,  et  seq. 

57.  1  Burge,  Col.  &  For.  Laws,  277  et  seq. 


§  681  HUSBAND  AND  WIFE.  604 

and  absolute  alienation ;  but  certain  gifts  made  between  busband 
and  wife  in  contemplation  of  marriage  are  of  course  properly 
excluded.^*  Whether  antenuptial  debts  are  to  be  paid  from  the 
common  property,  as  well  as  debts  contracted  while  the  relation 
of  husband  and  wife  continues,  would  seem  to  depend  upon  the 
extent  of  the  communio  honorum,  as  including  property  brought 
by  each  as  capital  stock  to  the  marriage,  or  only  sucb  property  as 
they  acquire  afterwards.^' 

The  codes  of  modem  Europe  recognize  no  general  capacity  of 
the  wife  to  contract,  sue  and  be  sued,  as  at  the  later  civil  law. 
On  the  contrary,  the  husband  becomes,  by  bis  marriage,  the  curator 
of  his  wife.  He  has,  therefore,  the  sole  administration  and  man- 
agement of  her  property,  and  that  of  the  community;  and  she  is 
entirely  excluded  in  every  case  in  which  her  acts  cannot  be  referred 
to  an  authority,  express  or  implied,  from  her  husband.*** 

The  community  ceases  on  the  termination  of  marriage  by 
mutual  separation  or  the  death  of  either  spouse.®^  And  the  vari- 
ous codes  provide  for  the  rights  of  the  survivor  on  the  l^al 
dissolution  of  the  community  by  death. 

§  581.  Effect  of  Dcwjtrine  on  American  Jurisprudence. 

The  reader  may  readily  trace  the  influence  of  the  community 
system  upon  the  jurisprudence  of  Louisiana  and  the  other  States 
to  which  we  have  referred,  whose  annexation  was  subsequent  to 
the  adoption  of  our  Federal  Constitution,  by  examining  their 
judicial  reports.  The  Civil  Code  of  Louisiana,  as  amended  and 
promulgated  in  1824,  pronounced  that  the  partnership  or  com- 
munity of  acquets  or  gains  arising  during  coverture  should  exist 
in  every  marriage  where  there  was  no  stipulation  to  the  contrary. 
This  was  a  legal  consequence  of  marriage  under  the  Spanish  law."* 
The  statutes  of  Texas,  Florida,  Missouri,  California,  and  other 
neighboring  States  are  characterized  by  similar  features.  But  all 
of  these  laws  have  been  modified  by  settlers  bringing  with  them 
the  principles  of  the  common  law.  So,  too,  the  doctrines  of  sep- 
arate estate,  revived  in  modern  jurisprudence,  are  introduced  into 
the  legislation  of  these,  as  other  American  States 


63 


58.  1  Burge,  Col.  &  For.  Laws,  281,  59.  7b.  294. 

282.     By  the  French  law  only  the  per-  60.  lb.  296,  301. 

sonal  estate  entered  into  the  commu-  61.  lb.  303,  305. 

nity;    but   the   Spanish   law   included  62.  Art.  2312,  2369,  2370;   2  Kent, 

both  real  and  personal  estate.     Child-  Com.  183,  n. 

ress  V.  Cutter,  16  Mo.  24.  63.  Texas  Digest,  Paschal,  "Mari- 


605 


COMMUNITY    DOCTRINE, 


§    582 


There  is  in  the  doctrine  of  community  much  that  is  fair  and 
reasonable ;  but  in  the  practical  workings  of  this  system  it  is  found 
rather  complicated  and  perplexing,  and  hence  unsatisfactory; 
while  in  no  part  of  the  United  States  can  it  be  said  to  exist  at  this 
day  in  full  force,  since  husband  and  wife  are  left  pretty  free  to 
contract  for  the  separate  enjoyment  of  property,  and  so  exclude 
the  legal  presumption  of  community  altogether ;  °*  and,  moreover, 
the  constant  tendency  of  our  Southwestern  States  is  to  remodel 
their  institutions  upon  the  Anglo-American  basis,  common  to  the 
original  States  and  those  of  the  Ohio  valley. 


§  582.  Nature  of  Community. 

The  community  is  an  entity,  separate  and  distinct  from  either 
spouse.'^  The  community  status,  like  partnership,  has  elements 
of  gains  and  losses  based  on  the  presumed  labors  of  each  spouse, 
irrespective  of  the  real  industry  of  either.**  In  Louisiana  every 
marriage  superinduces  a  partnership  or  community  of  acquets  or 
gains,  unless  there  is  a  stipulation  to  the  contrary."  'No  com- 
munity can  exist  in  the  absence  of  a  lawful  marraige.*®  Therefore, 
no  community  interest  is  acquired  in  a  man's  property  by  one  who 
acts  as  his  housekeeper  and  who  has  illicit  relations  with  him,"" 
even  though  he  holds  her  out  as  his  wife,  and  even  if  she  joins  with 
him  as  such  in  a  mortgage  of  his  property."" 

Where,  at  the  time  a  husband  goes  through  a  marriage  ceremony, 
he  has  a  living,  undivorced  wife,  the  property  purchased  with  joint 
earnings  of  himself  and  his  second  or  putative  wife  does  not 
become  community  property,  but  joint  or  partnership  property  of 


tal  Rights;"  Cal.  Civil  Code,  "Hus- 
band &  Wife;"  Parker's  Cal.  Dig., 
' '  Hu3baiid  &  Wife ; ' '  Walker  v.  How- 
ard, 34  Tex.  478;  Caulk  v.  Picou,  23 
La.  Ann.  277.  And  see  Forbes  v. 
Moore,  32  Tex.  195. 

64.  See  Packard  v.  Arcllanes,  17  Cal. 
525;  Waul  v.  Kirkman.  25  Miss.  603; 
Succession  of  McLean,  12  La.  Ann. 
222;  Jones  v.  Jones,  15  Tex.  143;  Ex 
parte  Melbourn,  L.  R.  6  Ch.  64;  La. 
Civil  Code,  §§  2369-2405;  1  Purge, 
Col.  &  For.  Laws,  277  et  seq.,  where 
the  law  of  community  as  it  was  about 
half  a  century  ago  is  fully  set  forth; 
and  the  learned  note  to  2  Kent,  Com. 
183. 


65.  Ostheller  v.  Spokane  &  I.  E.  R. 
Co.,  107  Wash.  678,  182  P.  630; 
Shorett  v.  Signor,  58  Wash.  695,  107 
P.  1033. 

66.  Briggs  v.  McBride  (Tex.),  190 
S.  W.  1123. 

67.  Succession  of  Le  Besque,  137  La. 
567,  68  So.  956. 

68.  7/1  re  Sloan's  Estate,  50  Wash. 
86,  96  P.  684;  Sortore  v.  Sortore,  70 
Wash.  410,   126  P.  915. 

69.  Harris  v.  Hobbs,  22  Tex  Civ. 
367,  54  S.  W.  1085. 

70.  Engstrom  v.  Peterson,  107 
Wa3h.  523,  182  P.  623. 


§  583  HUSBAND  AND  WIFE.  606 

the  two/^     The  rule  only  applies  as  long  as  the  putative  wife 
acta  innocently." 

§  583.  What  Law  Governs. 

The  status  of  a  debt  owed  to  a  spouse,  as  being  community  or 
separate  estate,  is  determined  by  the  law  of  the  State  where  such 
debt  is  acquired,'^  and  money  which  was  the  separate  property  of 
a  spouse  in  the  State  where  it  was  acquired  will  remain  separate 
estate  when  brought  into  a  State  where  the  community  doctrine 
prevails,''*  even  if  invested  in  land  in  such  latter  State.^'^ 

Likewise,  the  status  of  property  as  community  or  separate  prop- 
erty acquired  in  States  where  the  community  doctrine  prevails  is 
to  be  determined  by  the  law  of  such  State  at  the  time  when  it  is 
acquired,'*  so  that  statutes  regulating  the  disposition  of  community 
property,'^'  or  providing  that  property  formerly  community  prop- 
erty shall  be  presumptively  separate  property,  do  not  affect  prop- 
erty of  which  the  title  has  vested  prior  to  the  enactment  of  the 
statute.''*  But  a  statute  requiring  the  wife's  assent  to  deeds  con- 
veying community  property  is  merely  an  additional  protection  for 
her  existing  interest  in  the  property,  and  not  an  attempt  to  divest 
a  vested  estate  by  later  legislation.'" 

The  community  laws  of  Louisiana  do  not  extend  to  land  in 
another  State  or  country,*"  but  land  in  Louisiana,  owned  by  a 
community  residing  in  Texas,  is  governed  by  the  Louisiana  laws 

71.  Little  V.  Nicholson  (Tex.),  187  42  C.  C.  A.  272;  Winters  v.  Winters, 
S.  W.  506.  34  Nev.  323,  123  P.  17  (reh.  den.,  123 

72.  Middleton  v.  Johnston  (Tex.),  P.  1135);  Sandoval  v.  Priest,  210  F. 
110  S.  W.  789.  814;  Guye  v.  Guye,  63  Wash.  340,  115 

73.  Huyvaerts  v.  Eoedtz,  105  Wash.  P.  731;  In  re  Granniss'  Estate,  142 
657,  178  P.  801 ;  Douglas  v.  Douglas,  Cal.  1,  75  P.  324 ;  Folsom  v.  Folsom 
22  Ida.  336,  125  P.  79'6.  (Wash.),  179  P.  847;  Union  Savings 

74.  Brookman  v.  Durkee,  46  Wash.  &  Trust  Co.  v.  Manney,  101  Wash.  274, 
578,  90  P.  914;  In  re  Niccolls'  Estate,  172  P.  251. 

164    Cal.    368,    129   P.   278;    Gooding  77.  Spreckels  v.  Spreckels,  116  Col. 

Milling    &    Elevator    Co.    v.    Lincoln  339,    48    P.    228,    36    L.    E.    A.    497; 

County  State  Bank,  22  Ida.  468,  126  Clavo  v.  Clavo,  10  Cal.  App.  447,  102 

P.  772;   In  re  Burrows'  Estate,  136  P.    556;    Duncan   v.    Duncan,    6    Cal. 

Cal.  113,  68  P.  488;  Witherill  v.  Fraun-  App.  404,  92  P.  310. 

felter,  46  Wash.  699,  91  P.  1086;  Hunt  78.  Nilson  v.  Sarment,  153  Cal.  524, 

V.  Matthews  (Tex.),  60  S.  W.  674.  96  P.  315. 

75.  McDaniel  v.  Harley  (Tex.),  42  79.  Arnett  v.  Reade,  220  U.  S.  311, 
S.  W.  323;  Blethen  v.  Bonner,  30  31  S.  Ct.  425,  36  L.  R.  A.  (N,  S.) 
Tex.  Civ.  585;  In  re  Warner's  Estate,  1040. 

167  Cal.  686,  140  P.  583.  80.  Nott  V.  Nott,  111  La.  1028,  36 

76.  Seeber  v.  Randall,  102  F.  215,       So.  109. 


607  COMML^lTY    DOCTRINE.  §    583 

as  to  the  validity  of  a  conveyance  by  the  wife  on  the  death  of  the 
husband.*^  The  question  whether  land  acquired  under  the  home- 
stead laws  of  the  United  States  falls  into  a  community  already 
dissolved  by  the  death  of  the  wife  is  governed  by  the  laws  of  the 
United  States.®^ 

A  wife's  right  to  a  tacit  lien  or  mortgage  for  the  repayment  of 
money  brought  by  her  into  the  community  is  determined  by  the 
law  of  the  domicile  of  the  spouses  at  marriage.®'  As  to  personal 
property  acquired  during  coverture,  the  law  of  the  domicile 
controls.®*  Where  stock  in  an  Alabama  corporation  is  part  of  a 
community  estate  in  Louisiana,  the  Alabama  courts  will,  on  the 
principles  of  equity,  avoid  a  donation  of  such  stock  in  fraud  of  the 
wife's  community  rights.*^  In  Idaho  it  is  held  that  where  a 
deceased  spouse  resided  in  Washington  at  the  time  of  death,  the 
distribution  of  such  spouse's  community  interest  may  be  made 
according  to  the  law  of  the  latter  State.*® 

Where  a  resident  of  Mississippi  was  married  in  that  State  to  a 
minor  resident  of  Louisiana,  with  intention  to  reside  in  Missis- 
sippi, the  marriage  was  held  not  constructively  and  de  jure  a 
Louisiana  marriage,  so  as  to  entitle  the  wife  to  a  portion  of  the 
community  property  at  the  husband's  death,  though  the  spouses 
intended  to  be  married  in  Louisiana  and  were  prevented  by  acci- 
dent from  so  doing.*^  The  Spanish  and  Mexican  laws  as  to  com- 
munity or  acquest  property  in  force  when  the  United  States 
acquired  IN^ew  Mexico  are  still  in  force  in  that  State  except  as 
modified  by  statute.**  Since  the  rights  of  separate  spouses  in 
community  property  in  that  State  are  not  regulated  either  by 
statute  or  the  common  law,  such  rights  are,  during  the  lives  of 
both,  determined  by  such  Spanish  and  Mexican  laws.*® 

In  New  York  it  has  been  held  that  the  provision  of  the  French 
code  as  to  the  establishment  of  community  by  the  non-existence  of 
contract  was  limited  to  marriages  between  French  subjects,  or  per- 
sons married  in  France,  so  that  an  ancillary  executrix  was  bound 

81.  Bender  v.  Bailey,  130  La.  341,  86.  Yansickle  v.  Hazeltine,  29  Ida. 
57  So.  998.  228,  158  P.  326. 

82.  Wadkins  v.  Producers'  Oil  Co.,  87.  Connor  v.  Connor,  10  La.  Ann. 
130  La.  308,  57  So.  937.  440. 

83.  In  re  Myer,  14  N.  M.  45,  89  P.  88.  Strong  v.  Eakin,  11  N.  M,  107, 
246.  66  P.   539. 

84.  Colpe  V.  Lindblom,  57  Wash.  89.  Barnett  v.  Barnett,  9  N.  M. 
106,  106  P.  634.                                                 205,  50  P.  337. 

85.  Eustis  V.  Eustis,  236  F.  726,  150 
C.  C.  A.  58. 


585 


HUSBAND    AND    WIFE. 


608 


to  show  affirmatively  the  applicability  of  the  French  law  as  to  a 
legal  community  in  support  of  her  claim  thereunder.'** 

The  proceeds  of  community  property  situated  in  Texas  are  sub- 
ject to  the  law  of  Kentucky  when  received  by  a  husband  in  that 
State,  and  not  by  the  law  of  Texas.'^ 

§  584.  What  Constitutes  Community  Property  in  General. 

The  status  of  property  aa  community  or  separate  property  is 
fixed  by  the  manner  of  its  acquisition,'^  and  by  the  character  of 
the  inception  of  the  title.'^  Separate  property  of  spouses  which  is 
mingled  with  community  property  in  such  fashion  that  its  sep- 
arate character  cannot  be  determined  becomes  community  prop- 
erty.'* A  deed  reciting  a  consideration  for  a  deed  to  a  spouse 
may  be  shown  to  have  been  paid  for  with  community  funds."* 

In  Washington  the  test  of  whether  it  is  community  property  or 
not  is  whether  it  is  acquired  with  community  funds  or  on  com- 
munity credit. 


96 


§  585.  Property  Acquired  During  Coverture. 

The  American  community  doctrine,  as  we  may  term  it,  is  that 
all  property  purchased  or  acquired  during  marriage,  by  or  in  the 
name  of  either  husband  or  wife,  or  both,  shall  be  deemed  to  belong 


90.  In  re  James'  Will,  221  N.  T. 
140,  116  N.  E.  1010;  In  re  James,  221 
N.  Y.  636,  117  N.  E.  1072. 

91.  Cooke  V.  Fidelity  Trust  &  Safety 
Vault  Co.,  104  Ky.  473,  20  Ky,  Law, 
667,  47  S.  W.  325. 

92.  In  re  HiU's  Estate,  167  Cal.  59, 
138  P.  6?0. 

93.  Welder  v.  Lambert,  91  Tex.  510, 
44  S.  W.  281;  Word  v.  Colley  (Tex.), 
173  S.  W.  629;  Osborn  v.  Mills,  20 
Cal  App.  346,  128  P.  1090. 

94.  Brown  v.  Lockhart,  12  N.  M,  10, 
71  P.  1086;  Kobb  v,  Robb  (Tex.),  41 
S.  W.  92;  Edelstein  v.  Brown  (Tex.), 
95  S.  W.  1126  (affd.,  100  Tex.  403, 
100  S.  W.  129)  ;  Moor  v.  Moor,  24 
Tex.  Civ.  150,  57  S.  W.  992;  Doyle  v. 
Langdon,  80  Wash.  175,  141  P.  352; 
In  re  Buchanan's  Estate,  89  Wash. 
172,  154  P.  129. 

Where  a  decedent  during  his  life- 
time had  an  income  of  $550  a  month 
befoi-e    marriage,    and    where    duping 


coverture  his  wife  gave  him  $15  per 
month  from  her  separate  property, 
and  where  at  death  his  property  had 
greatly  increased,  it  was  held  that  the 
fact  that  he  had  mingled  the  small 
amount  paid  him  by  the  wife  with  his 
own  property  did  not  convert  it  all 
into  community  property.  In  re  Cud- 
worth 's  Estate,  133  Cal.  462,  65  P. 
1041. 

Where  a  wife  purchased  prop- 
erty as  her  separate  estate  for  $8,500, 
and  her  husband  purchased  an  ad- 
joining lot  for  $1,700,  later  selling 
both  for  $26,000,  it  was  held  that 
there  was  no  commingling  which  pre- 
vented the  segregation  of  the  wife's 
separate  estate.  Carle  v.  Heller,  18 
Cal.  App.  577,  123  P.  815. 

95.  Newman  v.  Newman  (Tex.),  86 
S.  W.  635. 

96.  United  States  Fidelity  &  Guar- 
anty Co.  V.  Lee,  58  Wash.  16,  107  P. 
870. 


609 


COMMUNITY    DOCTKINE. 


§  585 


prima  facie  to  the  community,'^  unless  by  gift,  devise  or  descent,*' 
or  unless  paid  for  with  the  separate  means  of  a  spouse,^®  even  if  title 
is  taken  in  the  name  of  one  of  the  spouses,^  or  in  the  name  of  a 
third  person,"  unless,  in  Louisiana,  the  purchase  was  made  by  way 
of  investment  or  administration  of  paraphernal  funds,^  and 
even  though  the  spouses  are  separated  and  the  wife  is  obliged  to 
support  herself,  if  they  are  not  divorced.*  Land  acquired  by  either 
spouse  during  coverture  is  community  property,^  even  land  origin- 
ally separate  estate,  if  conveyed  away  and  reconveyed  to  the  spouse 
during  coverture,®  as  is  land  acquired  by  either  spouse  by  adverse 
possession,'  even  where  the  possession  is  under  a  void  deed  to  the 


97.  Baker  v.  Murrey,  78  Wash.  241, 
138  P.  890;  Edwards  v.  White  (Tex.), 
120  S.  W.  914;  Summerville  v.  King, 
98  Tex.  332,  83  S.  W.  6S0  (mod.  reh., 
84  S.  W.  643)  ;  In  re  Slocum's  Estate, 
83  Wash.  158,  145  P.  204;  In  re  Bail- 
ard,  173  Cal.  293,  173  P.  170;  Scott  v. 
Scott,  247  F.  976;  Eowe  v.  Hibernia 
Sav.  &  Loan  Soc,  134  Cal.  403,  66  P. 
569;  Mitchell  v.  Moses,  16  Cal,  App. 
594,  117  P.  685;  Kin  Kaid  v.  Lee,  54 
Tex.  Civ.  622,  119  S.  W.  342;  Eich- 
mond  V.  Sims  (Tex.),  144  S.  W.  1142; 
Louisiana  Civil  Code,  §§  2369-2372; 
Succession  of  Planchet,  29  La.  Ann. 
520;  Tally  v.  Haffner,  29  La.  Ann. 
583;  Wingard  v.  Wingard,  56  Wash. 
389,  105  P.  834. 

98.  Sauvage  v.  Wauhop  (Tex.),  143 
S.  W.  259;  Cotten  v.  Friedman 
(Tex.),  158  S.  W.  780;  Merrell  v. 
Moore,  47  Tex.  Civ.  200,  104  S.  W. 
514 ;  Moody  v.  Southern  Pac.  Co.,  167 
Cal.  786,  141  P.  388;  Scott  v.  Scott, 
247  F.  976. 

Under  the  Texas  atatute  it  was  held 
that  a  monthly  allowance  received  by 
a  spouse  from  a  spendthrift  trust  cre- 
ated in  his  favor  is  his  separate  es- 
tate. McClelland  V.  McClelland  (Tex.), 
37  S.  W.  350. 

99.  Wade  v.  Wade,  (Tex.),  106  S. 
W.  188. 

1.  Fulkerson  v.  Stiles,  156  Cal.  703, 
105  P.  966;  Wells  v.  Allen  (Cal.),  177 
P.  ISO. 

2.  Daniel  v.  Daniel,  106  Wash.  659, 
181  P.  215. 

39 


3.  Knoblock  &  Rainold  v.  Posey,  126 
La.  610,  52  So.  847. 

4.  Gutheridge  v.  Gutheridge  (Tex.), 
161  S.  W.  892. 

5.  Janes  v.  Stratton  (Tex.),  203 
S.  W.  386;  Gameson  v.  Gameson 
(Tex.),  162  S.  W.  1169;  Otto  v.  Long, 
144  Cal.  144,  77  P.  885;  Houts  v. 
First  Trust  &  Savings  Bank,  —  Cal. 
App.  — ,  168  P.   383. 

6.  Word  V.  Colley  (Tex.),  173  S.  W. 
629. 

7.  Mitchell  v.  Schofield  (Tex.),  149 
S.  W.  254;  Villescas  v.  Arizona  Cop- 
per Co.,  20  Ariz.  268,  179  P.  963. 

In  Texas,  under  Rev.  St.  1895,  arta. 
2967,   29'68,   declaring   that   all  prop- 
erty    of    the     husband     "owned    or 
claimed' '  by  him  before  marriage,  and 
that  "acquired"  afterwards  by  gift 
devise,  or  descent,  shall  be  his  sepa 
rate  property,  and  all  property  "ac 
quired"  by  the  husband  or  wife  dur 
ing   the    marriage,   except   that   "ac 
quired"  by  gift,  devise,  or  descent 
shall  be  the  common  property  of  the 
husband  and  wife,  ownership  resting 
in    adverse    possession    for    10    years, 
existing  in  part  before  marriage  and 
in  part  after  marriage,  is  community 
property;    the   word   "acquired"   de- 
noting  all   property   coming   to   hus- 
band   or    wife    during    coverture    by 
title,   other   than   by   gift,   devise,   or 
descent;  and  the  word  "claim,"  when 
applied  to  land,  importing  a  legal  or 
equitable  right  to  the  land;   and  the 
words  "owned  or  claimed"   signify- 


§  585  HUSBAND  AND  WIFE.  610 

wife,  the  consideration  of  which  was  paid  from  her  separate  es- 
tate,^ but  where  title  so  acquired  bj  spouses  occupying  jointly  is 
perfected  after  the  death  of  one,  the  estate  so  acquired  inures  to 
the  separate  estate  of  the  survivor.^  The  community  owns  all 
property  bought  with  community  funds,^°  and  all  property  ac- 
quired in  exchange  for  community  property,"  as  well  as  property 
purchased  in  part  with  community  funds  and  in  part  with  the  joint 
note  and  mortgage  of  the  spouses.^^  Community  property  also 
includes  money  borrowed  by  either  spouse  during  coverture,  in  the 
absence  of  a  different  agreement,"  and  property  purchased  with 
borrowed  money,"  even  though  a  note  given  jointly  by  the  spouses 
for  the  repayment  of  the  loan  is  later  paid  with  the  separate  funds 
of  one  of  them,^'  and  even  though  the  transaction  was  made  in 
another  State,  in  the  absence  of  proof  of  the  laws  of  such  other 
State.^®  The  same  rules  govern  mortgages  given  to  either 
spouse,"  and  leases  made  to  one  of  them  during  coverture,^*  as 
well  as  debts  due  the  spouses  jointly,  even  where  there  is  an  agree- 
ment that  when  the  debt  is  collected  it  shall  be  the  wife's  separate 
property.^*  The  following  have  been  held  to  create  a  community 
property:  money  received  by  a  husband  under  an  agreement  that 
he  should  have  half  his  partner's  winnings  by  gambling,^"  money 
saved  by  a  wife  from  her  household  allowance,  in  the  absence  of  a 
different  agreement,^^  money  deposited  to  the  joint  account  of 
the  spouses  in  a  savings  bank,  though  the  pass-book  recites  that 

ing  a  legal  or  equitable,  ownership  or  14,  Northwestern  &  P.   Hypotheek 

legal  or  equitable  right  to  demand  the  Bank    v.    Eauch,    7    Ida.    152,    61    P. 

land.    Sauvage  v,  Wauhop  (Tex.),  143  516;  Chaney  v.  Gauld  Co.,  28  Ida.  76, 

5.  W.    259.  152  P.  468;  Main  v.  Scholl,  20  Wash. 

8.  Brown    v.    Foster    Lumber    Co.      201,  57  P.  800. 

(Tex.),  178  S,  W.  787.  15.  Katterhagen     v.     Meister,     75 

9.  Cook  V.  Houston  Oil  Co.  of  Texas      Wash.  112,  134  P.  673. 

(Tex.),  154  S.  W.  279.  16.  Clark  v.  Eltinge,  29  Wash.  215, 

10.  Bollinger   v.    Wright,   143   Cal.       69  P.  736. 

292,   76   P.    1108;    Gilmour  v.  North  17.  Nance  v.  Woods,  79  Wash.  188, 

Pasadena  Land  &  Water  Co.,  178  Cal.       140  P.  323. 

6,  171  P.  1066.  18.    Williams    v.    Beebe,    79    Wash. 

11.  Witt  V.  Teat  (Tex.),  167  S.  W.       133,  139  P.  867. 

302.  19.  Gentry  v.  McCarty  (Tex.),  141 

12.  Bollinger  v.   Wright,   143   Cal.       S.  W.  152. 

292,  76  P.  1108.  20.  In  re  Gold's  Estate,   170   Cal. 

13.  Emerson-Brantingham      Imple-       621,  151  P.  12. 

ment  Co.   v.  Brothers    (Tex.),  19'4   S.  21.   McMurray  v.   Bodwell,  16  CaL 

W.   608;    Canfield  v.  Moore,  16  Tex.      App.  574,  117  P.  627. 
Civ.  472,  41  S.  W.  718. 


611  COMMUNITY    DOCTEINE.  §    585 

payment  is  to  be  made  to  either  spouse  producing  the  book,^^  prop- 
erty acquired  under  an  agreement  to  pay  the  grantor  an  annual 
sum,^^  land  paid  for  by  the  labor  of  an  unemancipated  wife  and 
children  while  the  husband  is  in  the  insane  asylum,^*  land  bought 
under  an  oral  agreement  made  before  marriage,  where  the  price, 
to  which  the  wife  contributed,  was  not  paid  till  after  marriage,*'' 
property  purchased  on  credit  for  a  business  conducted  by  the  hus- 
band on  the  wife's  property  and  paid  for  out  of  the  profits  of  such 
business,*®  and  a  ring  purchased  by  the  wife,  in  the  absence  of 
evidence  that  it  was  bought  with  her  separate  estate.*^"*^  The  charac- 
ter of  community  property  will  not  be  changed  by  the  fact  that  it 
is  sold  for  taxes  under  a  wrong  description  to  a  third  person  who 
reconveys  it  to  the  wife,*®  nor  by  the  fact  that  a  partition  decree 
allots  lands  previously  purchased  by  the  husband  to  himself  and 
his  wife,^°  nor,  conversely,  where  a  partition  decree  allots  to  the 
husband  alone  land  belonging  to  both  spouses,^^  nor  by  an  order 
of  court  directing  a  wife's  successor  as  guardian  to  turn  over  to  her 
fees  earned  by  her  as  such  guardian.^*  No  such  estate  is  created 
where  property  is  conveyed  to  a  spouse  without  consideration  so 
that  he  may  qualify  as  surety  on  a  bond,*^  nor  where  land  is  pur- 
chased by  a  surviving  spouse  with  money  secured  from  the  com- 
munity estate.^*  Where  a  community  estate  has  been  created  in 
land  bought  on  a  contract  of  sale,  such  interest  will  be  forfeited 
where  the  terms  of  the  contract  are  not  complied  with,*'  In  Idaho 
all  property  acquired  by  either  spouse  during  coverture  which  is 
not  separate  property  is  community  property.^® 

22.  Lynam  v.  Vorwerk  13  Cal.  App.  31.  O'Connor  v.  Vineyard,  91  Tex. 
507,  110  P.  355.                                                    488,  44  S.  W.  485. 

23.  Winchester      v.      Winchester,  32.  Scott  v.  Scott  (Tex.),  170  8.  W. 
175  Cal.  391,  165  P.  965.                                273. 

24.  Messimer  v.  Echols   (Tex.),  194  33.  Crenshaw  v.  Harris,  16  Tex.  Civ. 
S.  W,  1171.  263,  41  S.  W.  391 

25.  In  re  Mason's  Estate,  95  Wash.  34.    GrifiSn    v.    McKinney,    25    Tex. 
564,  164  P.  205.  Civ.  432,  62  S.  W.  78. 

26.  Farmers'  State  Bank  v.  Farmer  35.  Converse  v.  La  Barge,  92  Wash, 
(Tex.),  157  S.  W.  283.  282,  158  P.  958. 

27-28.  Sweeney  v,  Taylor  Bros.,  41  36.  Hall  v.  Johns,  17  Ida.  224,  105 

Tex,  Civ.  365,  92  S.  W.  442  P.   71;   Douglas  v.  Douglas,  22   Ida, 

29.  Meserole   v.   Whitney,   22    Ida.  336,   125   P.   796;    Kohny  v.   Dunbar, 
543,  127  P.  553.  21  Ida.  258,  121  P.  544. 

30.  Cunha  v.  Hughes,  122  Cal.  Ill, 
54  P.   535,  68  Am,  St,  27. 


§  586 


HUSBAND    AND    WIFE. 


612 


§  586.  Public  Lands  Acquired  by  Grant  or  Entry. 

Where  a  husband  acquires  no  interest  in  a  homestead  because  his 
location  is  invalid,  the  wife  can  take  no  community  interest.'^ 
Under  the  Federal  Homestead  Act  a  patent  issued  to  a  husband 
after  the  death  of  his  wife  creates  a  separate  estate  in  him,^®  as 
well  as  when  he  enters  before  marriage  but  gets  his  patent  during 
coverture,^^  but  under  the  same  law  a  homestead  acquired  by  the 
widow  of  a  deceased  homesteader  after  the  dissolution  of  the  com- 
munity is  her  separate  es/tate/°  she  having,  under  that  statute,  a 
right  of  residence,  cultivation  and  patent  where  he  dies  before  per- 
fecting his  entry.*^  Under  the  same  statute  the  homestead  was 
held  community  property  where  there  was  a  dispute  as  to  part  of 
the  claim,  and  where  the  entryman  died  before  paying  for  the 
disputed  part,  which  was  paid  for  after  his  death,  and  the  patent 
issued  in  his  name.*^  That  statute  does  not  prevent  the  applica- 
tion of  a  State  law  which  makes  such  land  community  property 
after  patent.*^  In  Arizona  land  acquired  from  the  government 
by  a  spouse  during  marriage  is  community  property.**  In  Louisi- 
ana a  homestead  made  and  cultivated  for  five  years  during  the 
existence  of  the  community  is  community  property,  though  the 
final  receipt  is  not  issued  till  after  the  wife's  death,*^  as  is  a  home- 
stead entered  upon  by  a  spouse  under  the  Federal  law  during  the 
existence  of  the  community,  even  though  final  proofs,  certificate 
and  patent  were  not  issued  till  after  the  dissolution  of  the  com- 
munity by  the  death  of  the  wife,  the  acquisition  of  property 
dating  from  the  entry  under  that  statute.*^  In  ISTew  Mexico 
title  obtained  by  a  divorced  husband  to  public  lands  by  patent 
does  not  relate  back  to  its  initiation  by  entry  and  settlement,  so  as 
to  make  the  homestead  community  property.*'^     Under  the  Texas 


37.  Delacey  v.  Commercial  Trust 
Co.,  51  Wash.  542,  99  P.  574. 

38.  Wadkins  v.  Producers'  Oil  Co., 
130  La.  308,  57  So.  937. 

89.  TeynoT  v.  Heible,  74  Wash.  222, 
133  Pa.  1,  46  L.  E.  A.  (N.  S.)  1033; 
Humbird  Lumber  Co.  v,  Doran,  24 
Ida.   507,  135  P.  66. 

40.  Eichard  v.  Moore,  110  La.  435, 
34  So.  593;  Cunningham  v.  Krutz,  41 
Wash.  190,  83  P.  109,  4  L.  E.  A.  (N. 
8.)  967;  Crochet  v.  McCamant,  116 
La.  1,  40  So.  474,  114  Am.  St.  R.  538. 

41,  Wadkins  v.   Producer  Oil  Co., 


227  U.  S.  368,  33   S.   Ct.  380,   57  L. 
Ed.  . 

42.  Douglas  v.  Nicholson,   140  La. 
lOTO,  74   So.   566. 

43.  Buchser  v.  Buchser,  231   U.   S. 
157,  34  S.  Ct.   46,   58  L.  Ed.  — . 

44.  Molina    v.    Eamirez,    15    Ariz. 
249,  138   P.  17. 

45.  Brown  v.  Fry,  52  La.  .\nn.  58, 
26  So.  748. 

46.  Crochet  v.  McCamant,   116  La. 
1,  40  So.  474. 

47.  Baker  v.  Saxon,  24  N.  M.  531, 
174  P.  991. 


^13  COMMUNITY    DOCTRINE.  §    586 

statute  offering  land  to  volunteers  for  the  defence  of  the  State 
the  interest  of  a  married  volunteer  is  community  property,"  as  is 
a  land  certificate  transferred  to  a  husband  during  coverture,"  or 
before  coverture  where  the  location  was  not  made  till  after  mar- 
riao-e,^°  and  land  settled  on  before  the  death  of  the  wife,  where 
guch  death  occurs  before  the  completion  of  occupation."  In  that 
State  a  wife  of  one  who  acquires  a  right  to  land  under  a  pre- 
emption survey  and  conveys  it  to  another  has  only  an  equitable 
title  by  reason  of  her  community  interest.^"  The  question  whether 
public  land  purchased  from  that  St-ate  is  community  property  or 
not  is  determinable  by  the  character  of  the  inception  of  the  title," 
and  if  its  inception  takes  place  during  marriage  it  is  community 
property.^*  Under  the  Washington  homestead  statute  land  so  ac- 
quired is  community  property,'*'  even  though  final  proof  is  not 
made  nor  patent  issued  till  after  the  wife's  death,"  as  well  as  a 
homestead  patented  to  a  husband  under  tiie  Federal  statute."''  It  is 
otherwise  where  the  entryman  marries  after  making  the  entry,  and 
before  final  proofs,"*  and  as  to  property  acquired  under  coal  land 
and  mining  entries."'  In  the  ^me  State  a  wife  divorced  from  her 
husband  prior  to  his  entry  under  the  homestead  law  acquires  no 
community  interest  in  the  homestead,*"  nor  does  a  wife  living 
witii  her  husband  on  land  squatted  on  prior  to  homestead  entry 
take  a  community  interest  therein.'^  In  the  same  State  it  has 
been  held  that  the  fact  th.at  community  fimds  were  used  to  pay 
for  a  timber  claim  which  was  the  husband's  separate  estate  would 
not  give  the  wife  an  interest  in  or  a  lien  upon  the  property  itself." 

48.  Barrett  v.  Spence,  28  Tex.  Cit.  5€.  Eckert  v.  Schmitt,  60  Wash.  23, 
344,  67  S.  W.  921.  110    P.    635;     Ahern    v.    Ahem,    31 

49.  Booth  V.  Clark,  34  Tex.  Civ.  315,  Wash.  334,  71  P.  1023,  96  Am.  St.  R. 
78  S.  W.  392.  912;    Cox   v.    Tompkinson,   39    Wash. 

50.  PhilUps  V.  Palmer,  56  Tex.  Civ.  70,  80  P.  1005. 

91,  120  S.  W.  911.  57.  Buchser  v.  Morss,  202   F.   854, 

51.  Adams    v.    West    Lumber    Co.       121  C.  C.  A.  212 ;  Currj  v.  Wilson,  57 
(Tex.),   162    S.   W.   974;    Creamer   v.       Wash.   509,  107  P.  367. 

Briscoe,  101  Tex.  490,  109  S.  W.  911.  58.  Card  v.  Cerini,  86  Wash  419,  150 

52.  Kirby    Lumber    Co.    v.    Smith  P.  610;  Rogers  v.  Minneapolis  Thresh- 
(Tex.),  185  S.  W.  1068.  ing  Maeh  Co.  48  Wash.  19,  92  P.  774. 

53.  McClintic  v.  Midland  Grocery  &  59.  Guye  v.  Guye,  63  Wash,  340,  115 
Dry    Goods   Co.    (Tex.),    154    S.    W.  P.  731. 

1157;   Stiles  v.  Hawkins   (Tex.),  207  60.  Hall  v.  Hall,  41  Wash.  186,  83 

S.  W.  89.  P.   108,  111  Am.  St.  R.   1016. 

54.  Hawkins  v.   Stiles   (Tex.),  158  61.  Reed  v.  St.  Paul,  M.  &  M.  Ry. 
S.  W.  1011.                                                          Co.,  234  F.  123. 

65.   (D.  C.)   Buchser  v.  Morss,  196  62.  James  v.  James,  51  Wash.  60,  97 

F.  577   (affd.,  202  F.  854).  P.  1113    (affd.  reh.,  51  Wash.  66.  98 

P.  1115). 


§  587  HUSBAND  AND  WIFE.  614 

§  587.  Rents,  Profits  and  Issues  of  Separate  Estates. 

The  rents  and  profits  of  separate  estates  of  spouses  are  generally 
community  propertj,^^  as  well  as  interest  on  such  property,** 
and,  in  Louisiana,  the  revenue  of  the  wife's  paraphernal  property'" 
and  property  acquired  by  the  use  of  separate  property."  Crops 
grown  on  a  spouse's  land  are  community  property,"  as  well  as 
crops  raised  by  a  spouse  on  leased  land  though  the  other  spouse 
gives  a  note  for  the  seed,^^  and,  in  Texas,  the  increase  of  separate 
livestock,^^  but  not  the  natural  enhancement  in  value  of  separate 
property.'"  Where  a  wife  bought  ginning  machinery  with  her 
separate  estate  and  sold  a  half  interest  to  a  son,  later  buying  such 
interest  back  with  the  profits  of  the  mill,  it  was  held  that  the  half 
so  repurchased  was  community  property  as  between  herself  and 
her  husband.'"'  Though  an  interest  in  a  partnership  business 
possessed  by  a  spouse  at  marriage  remains  separate  estate,  yet 
whatever  thereafter  accrues  from  the  personal  activity  of  such 
spouse  is  community  property."  It  has  been  held  otherwise  as 
to  money  realized  by  a  spouse  from  the  sale  of  trees  and  plants 
grown  in  a  nursery  conducted  by  a  spouse  on  land  acquired  before 
marriage,  though  the  industry  and  attention  of  the  spouse  to  the 
business  was  an  Important  element." 

63.  Scott  V.  Scott,  247  F.  976;  In  64.  Parrish  v.  Williams   (Tex.),  53 

re    Finn's    Estate    ("Wash.),    179    P.  S,  W.  79. 

103;      Emerson-Brantingham     Imple-  65.  Succession    of    McCloskey,    144 

raent  Co.  v.  Brothers   (Tex.),  194   8.  La.  438,  80  So,  650. 

W.  608;  Succession  v.  Webre,  49  La.  66.    First   Nat.   Bank   of  Plainview 

Ann.  1491,  22  So.  390  Texas  Lumber  v.  McWhorter  (Tex.),  179  S.  W.  114T. 

&  Loan  Co,  v.  First  Nat.  Bank  (Tex,),  67.  Hanks  v,  Leslie  (Tex.),  159  8. 

209  S.  W.  811;  De  Berrera  v.  Frost,  W.   1056;    Kreisle  v.  Wilson    (Tex.), 

33  Tex.  Civ.  5S0,  77  S.  W.  637;  Sharp  148  S.  W.  1132. 

V.    Zeller,    110    La.    61,    34    So.    129.  68.  Davis  v.  Green,  122  Cal.  364,  55 

Under  the  Texas  statute  the  rents  P.    9. 

of    a    wife's    separate    real    estate,  69.  Barr  v.  Simpson,  54  Tex.  Civ. 

though  community  property,   are   not  105,    117    S.    W.    1041;    Wolford    v. 

eubject  to  community  debts.      Texas  Melton,  26   Tex.   Civ.   486,  63   S.  W. 

Lumber    &    Loan    Co.    v.    First   Nat.  543;    Jordan    v.    Marcantell    (Tex.), 

Bank  (Tex.),  209  8.  W.  811.  147  S.  W.  357. 

Where  the  spouses  owned  adjoining  70.   Guye  v.   Guye,   63   Wash.    340, 

fruit  orchards  and  the  husband  man-  115  P.  731. 

aged  and  sold  the  crop  raised  on  both,  71.    Miller   v.    Fenton    (Tex.),   207 

it  was  held  that  the  wife's  share  of  8.  W.  631. 

the    proceeds    were    not    community  72.   In   re  Gold's  Estate,  170  Cal. 

property,  subject  to  its  debts.     Ten-  621,  151  P.  12. 

nyson  v.  Beggs,  176  Cal.  255,  168  P.  73.  In  re  Pepper's  Estate,  158  Cal. 

140.  619,  112  P.  62. 


615  COMMUNITY    DOCTRINE.  §    589 

§  588.  Improvements  on  Separate  Estates. 

In  Oalifomia  it  is  held  that  a  wife's  separate  property  is  not 
made  community  property  by  the  fact  that  the  labor  of  the  hus- 
band contributed  to  building  a  house  on  such  property,  or  by  the 
fact  that  he  advanced  money  to  pay  a  mortgage  thereon.'*  In 
Louisiana  improvements  made  with  community  funds  on  separate 
estate  are  a  charge  on  such  separate  estate  in  favor  of  the  com- 
munity,'^ though,  subject  to  the  claim  of  the  community,  such 
buildings  belong  to  the  spouse  on  whose  separate  estate  they  are 
placed,"^  who  must  pay  their  value  to  the  community  in  order 
to  claim  them.''  The  community  can  recover  from  the  spouse 
only  the  amount  to  which  the  value  of  the  separate  estate  has  been 
enhanced  thereby,'®  at  the  date  of  the  dissolution  of  the  com- 
munity.'^ In  Texas  such  improvements  are  community  prop- 
erty,®°  but  the  burden  of  showing  that  community  funds  were  so 
used  is  on  those  claiming  the  improvements  as  community  prop- 
erty.^^  In  "Washington  it  is  held  that  improvements  on  separate 
property  paid  for  with  separate  estate  are  not  community  property 
though  the  other  spouse  makes  them  under  employment  from  the 
owner  of  the  separate  estate.^" 

§  589.  Damages  Recovered  by  Spouses. 

Under  most  statutes  rights  of  action  accruing  to  and  damages 
recovered  by  either  spouse  are  community  property,®'  even  if  the 

74.  Carlson  v.  Carlson,  10  Cal.  App.  82.  Glaze  v.  Pullman  State  Bank, 
300,  101  P.  923.                                                  91  Wash.  187,  157  P.  483. 

75.  Succession  of  Webre,  49  La.  83.  Martin  v.  Southern  Pac.  Co.,  130 
Ann.  1491,  22  So.  390.                                   Cal.  285,  62  P.  515;  Moody  v.  South- 

76.  Sims  V.  Billington,  50  La.  Ann.  era  Pac.  Co.,  167  Cal.  786,  141  P. 
968,  24  So.  637.  388;    Justis  v.   Atchison,   T.  &  S.   F. 

77.  Succession  of  Burke,  107  La.  Ey.  Co.,  12  Cal.  App.  639,  108  P.  328 ; 
82,  31  So.  391.  Giffen  v.  City  of  Lewiston,  6  Ida.  231, 

78.  Succession  of  Met^ye,  113  La.  55  P.  545;  Labonte  v.  Davidson,  31 
1012,  37  So.  909.  Ida.  644,  175  P.  588 ;  Ft.  Worth  &  R. 

79.  Dillon  v.  Freville,  129  La.  1005,  G.  Ry.  Co.  v.  Robertson,  55  Tex.  Civ. 
57  So.  316.  309,    121    S.    W.    202;    Schneider    v. 

80.  Brady  v.  Maddox  (Tex.),  124  Biberger,  76  Wash.  504,  136  P. 
S.  W.  739;  Cervantes  v.  Cervantes  701;  Maynard  v.  Jefferson  County, 
(Tex.),  76  S.  W,  790;  Hillen  v.  Wil-  54  Wash.  649,  653,  103  P.  418; 
liams,  25  Tex.  Civ.  268,  60  S.  W.  997;  Bohan  v.  Bohan  (Tex.),  56  S.  W. 
Maddox  v.  Summerlin,  92  Tex.  483,  959;  City  of  San  Antonio  v.  Wil- 
49  S.  W.  1033;  Summerville  v.  King  denstein,  49  Tex.  Civ.  514,  109 
((affd.,  98  Tex.  332,  83  S.  W.  680),  S.  W.  231;  Posener  v.  Long  (Tex.), 
mod.  reh.,  84  S.  W.  643].  156  S.  W.   591;   Chicago,  R.  L  &  G. 

81.  Welder  V.  Lambert,  91  Tex.  510,  Ry.  Co.  v.  Oliver  (Tex.),  159  S.  W. 
44  S.  W.  281.  853 ;   Hawkins  v.  Front,  etc.,  R.  Co., 


§  591 


HUSBAND    AND    WIFE. 


616 


cause  of  action  accrues  after  the  spouses  have  permanently  sepa- 
rated.^^ Under  the  Louisiana  statute  damages  recovered  by  a  wife, 
for  personal  injuries  are  her  separate  property.' 


85 


§  590.  Wife's  Earnings. 

Where  the  community  doctrine  prevails,  earnings  of  the  wife 
are  community  property,®^  if  earned  while  living  together,*^  unlesa 
the  husband  has  given  them  to  her,**  or  unless,  in  Louisiana,  there 
has  been  a  separation  of  property,*'  or  unless  earned  in  a  juris- 
diction where  such  earnings  are  separate  property,®"  even  though 
earned  in  the  active  management  of  her  husband's  business  as  the 
"  man  of  the  family."*^  The  same  rule  applies  to  property  ac- 
quired in  the  wife's  name  and  paid  for  with  her  earnings  during 
coverture,'^ 

§  591.  Property    in    Part    Community    Property    and    in    Part 
Separate  Estate. 

Property  purchased  by  a  spouse  in  part  with  community  funds 
and  in  part  with  separate  estate  is  pro  rata  community  property 
and  separate  estate.*'    The  same  is  true  where  the  purchase  is  in 


3  Wash.  592,  1021;  Ezell  v.  Dodson, 
60  Tex.  331;  Hynes  v.  Colman,  etc., 
Co.,  108  Wash.  642,  185  P.  617;  Davia 
T.  Davis  (Tex.),  186  S.  W.  775. 

84.  Ligon  v.  Ligon,  39  Tex.  Civ. 
392,  87  S.  W.  838. 

85.  Martin  v.  Derenbecker,  116  La. 
495,  40  S.  843. 

86.  Johnson  v,  Burford,  39  Tex. 
242;  Lilly  v.  Teary  (Tex.),  152  S.  W. 
823;  Gentry  v.  McCarty  (Tex.),  141 
B.  W.  152;  Henry  v.  Land  (Tex.), 
168  S.  W.  994;  Cline  v.  Hackbarth, 
27  Tex.  Civ.  391,  65  S.  W.  1086; 
Fisher  v.  Marsh,  69  Wash.  570,  125 
P.  951;  Lewis  v.  Burns,  122  Cal. 
358,  55  P.  132;  Succession  of 
Manning,  107  La.  456,  31  So.  862; 
Barr  v.  Simpson,  54  Tex.  Civ.  105, 117 
S.  W,  1041.  See  Fisk  v.  Flores,  43 
Tex.  340. 

87.  Moore  v.  Crandall,  205  F.  689, 
124  C.  C.  A.  11;  Fennell  v.  Drink- 
house,  131  Cal.  447,  63  P.  734,  82 
Am.  St.  R.  361. 

88.  Dority  v.  Dority,  30  Tex.  Civ. 
216  (affd.,  96  Tex.  215,  71  S.  W.  950, 


60  L.  R.  A.  041) ;  Ahlstrom  v.  Tage, 
31  Ida.  459,  174  P.  605. 

89.  Knight  v.  Kaufman,  105  La. 
35,  29  So.  711. 

90.  Meyers  v.  Albert,  76  Wash.  218, 
135  P.  1003.  Under  the  Texas  stat- 
ute of  1911,  the  wife's  earnings, 
either  before  or  after  the  enactment 
of  the  statute,  are  separate  estate  and 
not  community  property.  Scott  v. 
Scott  (Tex.),  170  S.  W,  273. 

91.  Bekins  v.  Dieterle,  5  Cal.  App. 
690,  91  P.  173. 

92.  Knight  v.  Kaufman,  105  La. 
35,  29  So.  711. 

93.  Beneke  v.  Beneke,  47  Wash.  178, 
31  P.  641;  Texas  Moline  Plow  Co.  v. 
Clark  (Tex.),  145  S.  W.  266;  Letot 
V.  Peacock  (Tex.),  94  S.  W.  1121; 
Moore  v.  Moore,  28  Tex.  Civ.  600,  68 
S.  W.  59 ;  Hillen  v.  Williams,  25  Tex. 
Civ.  268,  60  S.  W.  997;  In  re  Finn's 
Estate  (Wash.),  179  P.  103;  Ochoa  v. 
Edwards  (Tex.),  189  S.  W.  1022; 
Miller  v.  Odom,  106  Tex.  36,  152  S.  W. 
1185;  Strnad  v.  Stmad,  29  Tex.  Civ. 
124,  68  S.  W.  69. 


617  COMMUNITY    DOCTRINE.  §    592 

part  with  separate  fund^  and  in  part  with  a  joint  note  of  the 
spouses,"*  or  with  a  sole  note  of  the  spouse/^  and  where  a  spouse 
purchases  property  in  part  with  separate  estate  and  in  part  with 
money  borrowed  during  coverture.®®  In  Texas  where  spouses  sold 
land  owned  half  by  the  community  and  half  by  the  wife,  it  was 
held  that  the  husband's  receipt  of  and  control  over  cash  and  notes 
received  in  payment  did  not  deprive  the  wife  of  her  right  to  half 
such  cash  and  notes.®^ 

§  592.  Separate  Estate  Distinguished. 

The  character  of  community  property  does  not  attach  to  prop- 
erty owned  by  a  spouse  before  marriage,®*  or  to  property  bought 
with  the  separate  funds  of  a  spouse®'  even  though  bought  on 
credit,  if  afterwards  paid  for  with  separate  funds,^  and  even 
though  its  buildings  are  burned  and  are  replaced  with  money 
secured  by  fire  insurance,  the  premiums  of  which  are  paid  for 
with  the  separate  estate  of  the  other  spouse.^  The  rule  applies 
even  though  advancements  on  the  purchase  price  were  made  before 
marriage  by  the  other  spouse,^  and  to  any  property  acquired  after 
marriage  with  the  proceeds  of  separate  property,*  and  to  prop- 
erty occupied  by  spouse  for  many  years  before  marriage  under  a 
claim  of  ownership,  though  such  ownership  was  not  perfected  by 
deed  till  after  marriage,^  especially  where  tbe  spouse  pays  part  of 
the  purchase  price  before  marriage  from  his  separate  estate,*  and 
improves  it.^  Crops  growing  on  land  rented  by  a  spouse  at  the 
time  of  marriage,  remain  separate  estate,*  as  well  as  funds  or  a 

94.  Katterhagen  v.  Meister,  75  Deschampa'  Estate,  77  Wash.  514, 
Wash.  112,  134  P.  673;  Barr  v.  Simp-       137  P.  1009. 

son,  54  Tex.  Civ.  105,  117  S.  W.  1041.  1.  O'Farrell  v.  O'Farrell,  119  S.  W. 

95.  Heintz  v.  Brown,  46  Wash.  387,  899,  56  Tex.  Civ.  51 ;  McClintic  v. 
90  P.  211.  Midland    Grocery    &    Dry    Goods    Co. 

96.  Northwestern   &   P.   Hypotheek  (Tex.),  154  S.  W.  1157. 

Bank  V.  Ranch,  7  Ida.  152,  61  P.  516.  2.    Rolater  v.   Rolater    (Tex.),   198 

97.  Ochoa  v.  Edwards   (Tex.),  189       S.  W.  391. 

S.  W.  1022.  3.  Morse  v.  Johnson,  88  Wash.  57, 

98.  Douglas  v.  Douglas,  22  Ida.  336,       152  P.  677. 

125  P.  796;  In  re  Cudworth's  Estate,  4.    Worden    v.    Worden,    96    Wash. 

133   Cal.   462,   65   P.   1041;    Graves  v.  592,  165  P.  501. 

Columbia  Underwriters,  93  Wash.  196,  5.  In  re  Pepper's  Estate,  158  Cal. 

160   P.   436;    Allen   v.    Allen    (Tex.),  619,  112  P.  62. 

158  S.  W.  104;   Eslinger  v.  Eslinger,  6.  Guye  v.  Guye,  63  Wash.  340,  115 

47    Cal.    62;    Lake   v.  Lake,    52    Cal.  P.  731. 

428.  7.  Guye  v.  Guye,  63  Wash.  340,  115 

99.  Clark  v.  Baker,  76  Wash.   110,  P.  731,  37  L.  R.  A.  (N.  S.)   186. 
135  P.  1025;   Powers  v.  Munson,  74  8.  Booker  v.  Booker  (Tex.),  207  S. 
Wash.     234 ;     133     P.     453 ;     In     re  W.  675. 


§  592  HUSBAND  AND  WIFE.  618 

partnership  existing  before  marriage  between  the  spouses  which 
were  before  marriage  appropriated  by  one  of  them,'  and  a  claim  of 
a  wife  to  damages  for  indignities  suffered  before  marriage." 
Property  received  in  exchange  for  separate  estate  remains  such," 
as  well  as  land  acquired  during  a  second  marriage  by  the  exchange 
of  land  held  as  community  property  during  the  £rst  marriage,^* 
and  separate  estate  conveyed  to  the  other  spouse  and  by  such 
spouse  recognized  to  the  grantor.^^  The  character  of  property  as 
separate  estate  is  not  changed  by  the  fact  that  the  husband  joins 
in  a  mortgage  of  it  either  to  improve  it,"  or  to  pay  the  purchase 
price,"  or  though  improvements  are  made  with  community  funds,^* 
but  in  such  case  the  property  is  community  property  to  the  extent 
of  the  improvements."  Of  a  wife's  separate  property  she  retains 
the  full  right  of  dominion,  and  may  resume  it  at  any  time;  and 
debts  contracted  by  her,  inuring  to  its  benefit,  bind  her.^®  Under 
the  Idaho  statute  providing,  inter  alia,  that  rents  and  profits  of 
separate  estate  is  community  property,  but  that  the  separate  estate 
of  the  wife  is  exempt  from  her  husband's  debts,  it  was  held  that 
the  increase  of  her  livestock  was  separate  estate.^®  The  same  was 
formerly  held  in  Louisiana  of  the  increase  of  slaves.''**  A  com- 
munity estate  is  not  created  where  after  a  wife's  death  a  husband 
secures  title  under  a  tax  deed  issued,  but  not  recorded,  before  her 
death,^^  even  where  the  tax  deed  was  to  both  spouses,  if  the  wife 
dies  before  the  limitation  period  has  nin.^^  A  yacht  which  is 
the  separate  estate  of  the  wife  remains  such  though  registered  in 
the  name  of  the  husband,  and  kept  in  his  possession  remains  such, 

9.  Lenninger  v.  Lenninger,  167  Cal.  15.  Stewart  v.  Weiser  Lumber  Co., 
297,  139  P.  679.                                                  21  Ida.  340,  121  P.  775. 

10.  St.  Louis  Southwestern  Ey.  Co.  16.  Schwartzman  v.  Cabell  (Tei.), 
V.  Wright,  33  Tex.  Civ.  80,  75  S.  W.       49  S.  "W.  113. 

565.  17.  Clardv  v.  Wilson,  24  Tex.  Civ. 

11.  Holly  St.  Land  Co.  v.  Beyer,  48       196,  58  S.  W.  52. 

Wash.    422,    93    P.    1065;     Smith    v.  18.  Jordan  v.  Anderson,  29  La.  Ann. 

Weed,  75  Wash.  452,  134  P.  1070.  7i9;  Grant  v.  Whittlesey,  42  Tex.  320. 

12.  Haring  v.  Shelton  (Tex.),  114  19.  Thorn  v.  Anderson,  7  Ida.  421, 
S.  W.  389;  Succession  of  Rouse,  144  63  P.  592;  Bank  of  Nez  Perce  v. 
La.  143,  80  So,  229.  Pindel,  193  F.  917,  113  C.  C.  A.  545. 

13.  Grandchampt  v.  Administrator  20.  Bradish  v,  Johnson,  6  La.  Ann. 
of  Succession  of  Billis,  124  La.  117,  49  639,  note. 

So.   998;    Brown  v.   Davis,   98   Wash.  21.  Gaflford  v.  Foster,  36  Tex.  Civ. 

442,    167    P.    1095;    Shook   v.    Shook  56,  81  S.  W.  63. 

(Tex.),  125  S.  W.  638.  22.  Sweeny  v.  Taylor  Bros.,  41  Tex. 

14.  Graves     v.     Columbia     Under-  Civ.  365,  92  S.  W.  442. 
writers,  93  Wash.  196,  160  P.  436. 


(J19  COMMUNITY    DOCTKINE.  §    592 

he  being  presumed  to  hold  it  in  trust  for  her.'^  The  same  is  true 
of  an  automobile  purchased  with  separate  estate.^*  Land  acquired 
by  a  husband  under  the  Federal  Forfeiture  Act,  forfeiting  cer- 
tain lands  granted  to  railroads,  but  providing  that  one  in  posses- 
sion of  such  lands  under  a  grant  from  the  railroad  might  pur- 
chase a  certain  amount  of  land  from  the  government,  is  separate 
estate,  though  the  wife  died  prior  to  the  forfeiture.^^  Under  the 
Federal  statute  the  sole  property  in  a  mining  claim  located  on 
public  land  is  vested  in  the  locator.^^  In  Louisiana  a  husband  may 
prevent  a  purchase  m^ade  by  him  during  coverture  in  his  own 
name  from  falling  into  the  community  by  making,  in  the  act  of 
purchase,  the  double  declaration  that  the  property  is  bought  with 
the  proceeds  of  his  separate  property  and  that  the  purchase  is  for 
his  sole  account,  neither  of  the  declarations  being  alone  sufficient^'' 
Where  a  wife  buys,  such  recital  is  unnecessary.'®  Where  the  pur- 
chase of  property  by  a  husband  and  his  sale  of  other  property, 
the  proceeds  of  which  he  uses  in  the  purchase,  are  not  simultaneous, 
it  should  appear  that  such  proceeds  have  not  in  the  meantime  been 
used  in  the  purchase  of  community  property.^^  Under  the  Texas 
statute  providing,  inter  alia,  that  property  "  claimed  "  by  a  hus- 
band before  marriage  shall  be  his  separate  property,  the  kind  of 
claim  intended  by  the  statute  is  either  a  legal  claim  or  an  equitable 
claim  which  may  ripen  into  a  legal  claim,  not  including  a  claim 
to  land  not  based  on  a  contract  with  its  owner  for  its  sale.^°  In 
that  State,  where  a  husband  insured  his  life  in  favor  of  his  wife, 
and  on  payment  of  the  policy  gave  her  the  money,  and  where  his 
partnership  borrowed  the  money  while  solvent,  and  in  part  pay- 
ment of  the  note  conveyed  her  certain  land,  it  was  held  that  the 
land  was  not  community  property.^^  In  that  State  the  status  of 
community  property  does  not  attach  to  land  before  its  conveyance 
to  a  spouse,  and  therefore  where  at  the  request  of  such  spouse  it  is 

23.  Dyment  v.  Nelson,  166  Cal.  38,  27.   Succession   of  Andrus,   131   La. 
134  P.  ?88.  940,  60  So.  623. 

24.  Ehoades  v.   Lyons    (Cal.),   168  28.  Succession  of  Burke,  107  La.  82, 
P.  385.  31  So.  391. 

25.  Carratt   v.    Carratt,    32    Wash.  29.  Sharp  v.  Zeller,  110  La.  61,  34 
517,  73  P.  481.  So.  129. 

26.  Phoenix  Minning  &  Mill  Co.  v.  30.  Gameson  v.  Gameson  (Tex.),  162 
Scott,  20  Wash.   48,  54   P.   777;    Mc-  S.  W.  1169. 

Alister    v.    Hutchinson    (N.    M.),    75  31.  Hall  v.  Levy,  31  Tex.  Civ.  360. 

P.  41.  72  S.  W.  263. 


§  594 


HUSBAJiTD    AND    WIPE. 


620 


conveyed  to  another,  it  does  not  become  the  community  property 
of  such  spouse  and  his  wife.** 

§  593.  Gifts. 

By  statute  in  several  States  property  acquired  as  a  gift  by  one 
of  the  spouses  during  coverture  is  separate  estate,'^  including  gifts 
from  one  spouse  to  the  other,^*  gifts  made  to  spouses  jointly, 
which  vest  an  undivided  half  in  each  spouse  as  separate  estate," 
and  land  acquired  by  adverse  possession  by  a  spouse  where  her 
father  entered  as  a  trespasser,  and  after  occupying  it  for  some 
years  gave  it  to  his  daughter,  a  wife,  who  with  her  husband  re- 
mained in  possession  long  enough  to  get  title.^'  Property  acquired 
by  a  deed  which  recites  a  consideration  may  be  shown  to  be  a  gift 


87 


§  594.  Insurance  Policies. 

In  Louisiana  proceeds  of  insurance  policies  on  the  life  of  a 
spouse  payable  to  his  executors,  administrators  and  assigns  are  his 
separate  property  if  he  was  not  married  when  the  policies  were 
written,  but  otherwise  they  are  community  property.^*  In  Texas 
an  insurance  policy  on  the  life  of  a  wife,  payable  to  the  husband, 
is  his  separate  property,^"  as  is  a  policy  on  his  own  life,  tbough  the 
premiums  were  paid  from  the  spouses'  community  estate,  unless 
so  paid  with  intent  to  defraud  the  wife,***  but  such  a  policy  on  the 
life  of  another  in  which  a  husband  is  beneficiary  is  community 
property  on  the  death  of  the  insured.*^  After  divorce  a  wife  t^kes 
no  interest  in  a  policy  of  insurance  on  her  husband's  life,  though 
community  property  was  used  in  paying  the  premiums.^ 


42 


82.  Empire  State  Surety  Co.  v.  Bal- 
lon, 66  Wash.  76,  118  P.  9^3. 

83.  Siddall  v.  Haight,  132  Cal.  320, 
64  P.  410;  Fanning  v.  Green,  156  Cal. 
279,  104  P.  308 ;  In  re  Carlin,  19  Cal. 
App.  168.  124  P.  868  Corbett  v.  Sloan, 
52  Wasn.  1,  99  P.  1025;  HoUy  St. 
Land  Co.  v.  Beyer,  48  Wash.  422,  93 
P.  1065;  Hurst  v.  W.  B.  Thompson  & 
Co.,  118  La.  57,  42  So.  645. 

34.  In  re  Cudworth's  Estate,  133 
Cal.  462,  65  P.  1041. 

35.  Summerville  v.  King,  98  Tex. 
332,  83  S.  W.  680  (mod.  reh.,  84  S.  W. 
643). 

86.  Treadwell  v.  Walker  Comity 
Lumber  Co.  (Tex.),  161  S.  W.  397. 


37.  Mahon  v.  Bamett  (Tex.),  45 
S.  W.  24. 

38.  Succession  of  Buddig,  108  La. 
406,  32  So.  361;  Succession  of  Le 
Blanc,  142  La.  27,  76  So.  223,  L.  R. 
A.  1917F  1137;  Succession  of  Ver- 
neuille,  120  La.  605,  45  So.  520. 

89.  Martin  v.  McAllister,  94  Tex. 
567,  63  S.  W.  624. 

40.  Martin  v.  McAllister,  94  Tex. 
567,  63  S.  W.  624;  Jones  v.  Jonee 
(Tex.),  146  S.  W.  265. 

41.  Wooden  v.  Wooden  (Tex.),  11(5 
S.  W.  627 

42.  Northwest€m  Mut.  Life  Ins.  Co. 
V.   Whiteselle    (Tex.),   188   S.   W.   22. 


621 


COMMUNITY    DOCTBINK. 


§    595 


§  595.  Determination  of  Status  of  Property;  Presumptions. 

Prima  facie  property  received  by  either  spouse  during  cover- 
ture is  presumed  to  be  community  property,*^  in  the  absence  of  a 
recital  limiting  it  to  separate  use,**  and  unless,  in  Louisiana,  the 
spouses  are  separate  in  property,**  whether  standing  in  the  name  of 
a  spouse,  or  in  their  joint  names,*'  as  well  as  land  conveyed  to  a 
spouse  after  marriage,*^  or  any  interest  therein.**  The  presump- 
tion does  not  arise  in  Louisiana  where  a  wife,  having  a  separate 
income  sufficient  to  pay  a  separate  debt  owed  by  her,  pays  it  from 
such  income,  though  the  husband  sometimea  receives  rents  from 


48.  La.  Code,  §§  2316,  2369,  2371; 
Pinard's  Succession,  30  La.  Ann.  167; 
McAfee  v.  Eobertson,  43  Tex.  591; 
Webb's  Estate,  Myrick's  Prob.  93; 
Schmeltz  v.  Garey,  49  Tex,  49;  Far- 
rington  v.  McClellan,  26  Cal.  App. 
375,  146  P.  1051 ;  Lisenbee  v.  Lisenbee 
(Cal.),  181  P.  804;  Khodes  v.  Alexan- 
der, 19  Tex.  Civ.  552,  47  S.  "W.  754; 
Strong  V.  Eakin,  11  N.  M.  107,  66  P. 
539;  Wells  v.  Allen  (Cal.),  177  P.  180; 
Brucker  v.  De  Hart,  106  Wash.  386, 
ISO  P.  397;  Chaney  v.  Gauld  Co.,  28 
Ida.  76,  152  P.  468;  Colpe  v.  Lind- 
blom,  57  Wash.  106,  106  P.  634; 
Lynch  v.  Lynch  (Tex.),  130  S.  W. 
461 ;  Palmer  v.  Abrahams,  55  Wash. 
352,  104  P.  648;  Ellerd  v.  Randolph 
(Tex.),  138  S.  W.  1171;  In  re  Pep- 
per's Estate,  158  Cal.  619,  112  P. 
62;  Clark  v.  Thayer,  98  Tex.  142, 
81  S.  W.  1274;  Blackwell  v.  May- 
fleld  (Tex.),  69  S.  W.  659;  O 'Sullivan 
V.  O 'Sullivan,  35  Wash.  481,  77  P. 
806;  Hill  v.  Gardner,  35  Wash.  529, 
77  P.  808. 

44.  Cockbum  v.  Cherry  (Tex.),  153 
S.  W.  161;  Lanfer  v.  Powell,  30  Tex. 
Civ.  604,  71  S.  W.  549. 

45.  Latour  v.  Quillory,  130  La.  570, 
58  So.  341. 

46.  Keyser  v.  Clifton  (Tex.),  50  S. 
W.  957;  Succession  of  Manning,  107 
La.  456,  31  So.  862;  Gastauer  v. 
Gastauer,  131  La.  1,  58  So.  1012; 
Patterson  v.  Bowes,  78  Wash.  476,  139 
P.  225;  Succession  of  Graf,  125  La. 
197,  51  So.  115;  Henry  v.  Vaup-han, 
46  Tex.  Civ.  531,  103  S.  W.  192;  Kil- 


lian  V.  Killian,  10  Cal.  App.  312,  101 
P.  806;  O'Brien  v.  Reardon,  29  Cal. 
App.  703,  155  P.  534;  Aycock  v. 
Thompson    (Tex.),  146  S.  W.   641. 

47.  Douglaa  v.  Douglas,  22  Ida.  336, 
125  P.  796;  Hanna  v.  Reeves,  22 
.Wash.  6,  60  P.  62;  Woodland  Lum- 
ber Co.  V.  Link,  16  Wash.  72,  47  P. 
222;  Hoeck  v.  Greif,  142  Cal.  119, 
75  P.  670;  Stowell  v.  Tucker,  7  Ida. 
312,  62  P.  1033;  Winkle  v.  Conatser 
(Tex.),  171  S.  W.  1017;  Maxson  v. 
Jennings,  19  Tex.  Civ.  700,  48  S.  W. 
781;  Welder  v.  Lambert,  91  Tex.  510, 
44  S.  W.  281;  Wolf  v.  Gibbons  (Tex.), 
69  8.  W.  238;  Dormitzer  v.  German, 
etc.,  Assn.,  23  Wash.  132,  62  P.  682 
(affd.,  192  U.  S.  125,  24  S.  Ct.  221, 
48  L.  ed.  373)  ;  Schneider  v.  Sellers, 
25  Tex.  Civ.  226,  61  S.  W.  541; 
Burleson  v.  Alvis,  28  Tex.  Civ,  51, 
66  S.  W.  235;  Wauhop  v.  Sauvage's 
Heirs  (Tex.),  159  S.  W.  185;  Houston 
Oil  Co.  V.  Griggs  (Tex.),  181  8.  W, 
833  ;  Emery  v,  Barfield,  107  Tex.  306, 
183  S.  W.  386;  Ross  v.  Martin  (Tex.), 
140  S.  W.  432  (mod.  reh.,  104  Tex, 
558, 141  S.  W.  518)  ;  Nilson  v.  Sarment, 
153  Cal.  524,  96  P.  315;  Martin  v. 
Burr  (Tex.),  171  S.  W,  1044;  Swilley 
V.  Phillips  (Tex.),  169  S.  W.  1117; 
Mattson  v.  Mattson,  29  Wash.  417, 
69  P.  1087;  Frey  v.  Myers,  102  Tex. 
527,  113  S.  W.  592;  Glaze  v.  Pullman 
State  Bank,  91  Wash.  187,  157  P. 
488. 

48.  Sauvage  v.  Wauhop  (Tex.),  143 
8.  W.  259. 


HUSBAXD    AND    WIFE. 


622 


§  595 

her  separate  estate/'  Personal  property  acquired  during  the  mar- 
riage is  presumed  to  have  been  earned  by  one  or  both  of  the 
spouses.""  Property  in  possession  of  either  spouse  when  the  com- 
munity is  dissolved  is  presumed  to  be  community  property."^  It 
will  not  be  presumed  that  property  is  acquired  during  the  mar- 
riage,"'  nor  that  pa^nuents  made  during  coverture  on  indebtedness 
against  the  husband's  separate  property  are  made  with  community 
funds,"^  or  that  community  funds  were  used  to  pay  taxes  on  sepa- 
rate estate  where  the  spouse  has  a  separate  income,'**  or  that 
property  acquired  by  a  spouse  after  divorce  is  community  prop- 
erty,^* or  that  a  pavTnent  made  by  a  husband  on  community  prop- 
erty after  his  wife's  death  was  made  from  his  separate  estate,^* 
or  that  a  wife  applies  her  separate  property  rather  than  community 
property  to  family  expenses.*"  Xo  presumption  of  a  gift  arises 
where  title  to  property  purchased  with  community  funds  is  taken 
in  the  name  of  the  wife,*®  or  from  the  fact  that  a  husband  makes 
improvements  on  the  separate  estate  of  the  wife  with  community 
funds.**  Where  the  husband  conveys  community  property  to  the 
wife  it  is  presumed  to  he  separate  property,^"  and  the  same  is 
true  of  a  conveyance  by  the  wife  to  the  husband.®^     Under  the 


49.  Succession  of  Lanphier,  104  La. 
384,  29  So.  122. 

50.  Lyman  v,  Vorwerk,  13  Cal.  App. 
507,  110  P.  355;  Clark  v.  Thayer,  98 
Tex.  142,  81  S.  W.  1274;  Gates  v.  Cun- 
ningham, 30  Cal.  App.  319,  15S  P. 
227;  Marston  v.  Eue,  92  Wash.  129, 
159  P.  Ill;  Jolly  V.  McCoy  (Cal.), 
172  P.  618. 

51.  Hammond  v.  McCullough,  159 
Cal.  639,  115  P.  216;  7n,  re  Bollinger 's 
Estate,  170  Cal.  380,  149  P.  995; 
Cope  V.  Blount  (Tex.),  91  S.  W.  615; 
McCelvey  v.  Cryer  (Tex.),  37  S.  W. 
175;  Cope  v.  Blount,  38  Tex.  Civ.  516, 
91  S.  W.  615;  Edelstein  v.  Brown.  100 
Tex.  403,  95  S.  W.  1126  (affd.,  100  S. 
W.  129)  ;  Byrn  v.  Kleas,  15  Tex.  Civ. 
205,  39  S.  W.  980;  Stein  v.  Mentz,  42 
Tex.  Civ.  38,  94  S.  W.  447;  Phillips 
T.  Palmer,  56  Tex.  Civ.  91,  120  S.  W. 
911. 

52.  Laird  v.  Upton,  8  N.  M.  40?, 
45  P.  1010. 

53.  "Rolater  v.  Rolater  (Tex.),  198 
8.  W.  .TQl. 


54.  Guye  v.  Guye,  63  Wash.  340,  115 
P.   731. 

55.  McDaniel  v.  Lauchner  (Tex.), 
206  S.  W.  221. 

56.  Richmond  v.  Sims  (Tex.),  144 
S.  W.  1142. 

57.  Thompson  v.  Davis,  172  CaL 
491,  157  P.  595. 

58.  Union  Savings  &  Trust  Co.  v. 
^Janney,  101  Wash  274,  172  P.  251; 
Eichards  v.  Hartley  (Tex.),  194  S.  W. 
478;  Swartzman  v.  Cabell  (Tex.),  49 
S.  W.  113;  Caffey's  Ex'rs  v.  Cooksey, 
19  Tex.  Civ.  145,  47  S.  W.  65;  Killian 
V.  Killian,  10  Cal.  App.  312,  101  P. 
806. 

59.  Collins  v.  Bryan,  40  Tex.  Civ. 
88,  88  S.  W.  432. 

60.  Main  v.  Main,  7  Ariz.  149,  60  P. 
888;  Emery  v.  Barfield,  107  Tex.  306, 
183  S.  W.  386;  Alexander  v.  Bog- 
worth,  26  Cal.  App.  589,  147  P.  607. 

61.  In  re  Klumpke's  Estate,  167 
Cal.  415,  139  P.  1062;  Lewis  v.  Bums, 
122  Cal.  358,  55  P.  132;  Lenninger  v. 
Lenninger,  167  Cal.  297,  139  P.  697. 


623 


COMMUNITY    DOCTRINE. 


§  59G 


California  statute  conveyances  to  a  wife  are  presumed  to  create  a 
separate  estate  in  Jier.  The  presumption  applies  whether  the 
property  conveyed  was  purchased  with  se2:)arate  estate  or  com- 
munity property.®'  The  presumption  is  'prima  facie  as  between 
the  wife  and  creditors,  and  between  the  husband  and  the  repre^ 
sentative  of  the  wife.®^  In  the  same  State  a  joint  deposit  in  a 
savings  bank  was  held  prima  facie  to  create  an  estate  in  common.'* 

§  595.  Evidence  and  Burden  of  Proof. 

Where  property  is  conveyed  to  a  spouse  during  coverture,  those 
claiming  it  as  separate  estate  have  the  burden  of  showing  that 
fact  aflfirmatively,®^  or,  if  the  claim  is  only  to  part  of  the  property, 


62.  Carle  v.  Heller,  18  Cal.  App.  577, 
123  P.  815. 

63.  Fanning  v.  Green,  156  Cal.  279, 
104  P.  308, 

64.  Crowley  v.  Savings  Union  Bank 
&  Trust  Co.,  30  Cal.  App.  535,  159 
P.   194. 

65  In  re  Boody's  Estate,  113  Cal. 
682,  45  P.  858;  Graves  v.  Columbia 
Underwriters,  93  Wash.  196,  160  P. 
436;  Lanigan  v.  Miles,  102  "Wash.  82, 
172  P.  894;  Polsom  v.  Folsom,  106 
Wash.  315,  179  P.  847;  Brown  v. 
Lockhart,  12  N.  M.  10,  71  P.  1086; 
Hoopes  V.  Mathis,  40  Tex.  Civ.  121,  89 
S.  W.  36;  Fennell  v.  Drinkhouse,  131 
Cal.  447,  63  P.  734,  82  Am.  St.  R.  361; 
Succession  of  Manning,  107  La.  456, 
31  So.  862;  Strong  v.  Eakin,  11  N. 
M.  107,  66  P.  539 ;  Stewart  v.  Weiser 
Lumber  Co.,  21  Ida.  340,  121  P.  775; 
Blum  V.  Smith,  66  Wash.  192,  119  P. 
183 ;  Allen  v.  Chambers,  22  Wash.  304, 
60  P.  1128;  Bunker  v.  Hattrup,  20 
Wash.  318,  55  P.  122;  Somes  v.  Ains- 
worth  (Tex.),  67  S.  W.  468;  Plath  v. 
Mullins,  87  Wash.  403,  151  P.  811; 
Humbird  Lumber  Co.  v.  Doran,  24  Ida. 
507,  135  P.  66;  In  re  Hill's  Estate, 
167  Cal.  59,  138  P.  690;  United  States 
Fidelity  &  Guaranty  Co.  v.  Lee,  58 
Wash.  16,  107  P.  870;  Hames  v.  State, 
46  Tex.  Cr.  562;  Guye  v.  Plimpton,  40 
Wash.  234,  82  P.  596;  Worden  v. 
Worden,  96  Wash.  592,  165  P.  501; 
Foy  V.  Pacific  Power  &  Lijrht  Co.,  105 
Wash.  525,  178  P.  452;  Gooding  ]\rill- 


ing  &  Elevator  Co.  v.  Lincoln  County 
State  Bank,  22  Ida.  468,  126  P.  772; 
O'Farrell  v.  O'Farrell,  56  Tex.  Civ. 
51,  119  S.  W,  899';  First  Nat.  Bank 
V.  Thomas  (Tex.),  118  S.  W.  221; 
McClintic  v.  Midland  Grocery  &  Dry 
Goods  Co.  (Tex.),  154  S.  W.  1157; 
Parks  V.  Worthington,  101  Tex.  505, 
104  S.  W.  921  (affd.,  lOQ'  S.  W.  909; 
Hoopes  V.  Mathias,  40  Tex.  Civ.  121, 
89  S.  W,  36;  Emery  v.  Barfield,  107 
Tex.  306,  183  S.  W.  386;  Emery  v. 
Barfield,  107  Tex.  306,  156  S.  W.  311; 
Smith  V.  Smith  (Tex.),  91  S.  W.  815; 
Clardy  v.  Wilson,  27  Tex.  Civ.  49,  64 
S.  W.  489 ;  Simpson  v.  Texas  Tram  & 
Lumber  Co.  (Tex.),  51  S.  W.  655; 
Edelstein  v.  Brown,  100  Tex,  403,  95 
S.  W.  1126  (affd.,  100  Tex.  403,  100 
S.  W.  129);  Allardyce  v.  Hambleton, 
96  Tex.  30,  70  S.  W.  76;  Letot  v.  Pea- 
cock   (Tex.),   94   S.  W.   1121. 

Thus  where  a  husband  exchanged 
his  own  property  for  other  property 
and  gave  money  to  boot,  he  was 
held  bound  to  show,  in  a  settlement 
with  the  community,  that  the  money 
given  as  boot  was  his  separate  estate. 
Dillon  V.  Freeville,  129  La.  1005,  57 
So.  316. 

Where  in  an  action  for  a  partition 
of  community  property  a  spouso 
claims  that  such  property  was  ac- 
quired in  a  State  whose  laws  made  it 
separate  property,  such  spouse  must 
plead  and  prove  the  facts  claimed, 
and    the    laws    of    such    other    State. 


§  596 


HUSBAND    AND    WIFE. 


624 


the  extent  to  which  it  is  separate  estate/*  bj  clear  and  convincing 
evidence,'^  which  will  produce  conviction  in  an  unprejudiced  mind, 
or  will  amount  to  proof  to  a  moral  certainty."*  such  fact  may  be 
shown  either  by  recital  in  the  deed  making  the  property  separate 
estate,*®  or  an  agreement  to  that  effect,'"  or  by  tax  receipts  running 
to  the  spouse  claiming  the  estate,'^  or  by  showing  a  contrary  in- 
tention from  declarations  and  conduct  of  the  parties,'^  or  that  it 
was  purchased  with  separate  estate,'^  or  that  it  was  acquired  by 
gift,  bequest,  devise  or  descent,'*  or  that  it  was  acquired  before 
marriage,'*  or,  in  Louisiana,  that  a  husband  so  acquiring  prop- 
erty declared  that  it  was  made  with  his  separate  funds,'®  or,  in 
the  same  State,  that  a  wife's  paraphernal  fnnds  were  used  in  the 
purchase,"  or  by  other  evidence  that  the  property  was  separate 
estate.'*  In  determining  the  character  of  the  property  the  court 
will  look  beyond  the  terms  of  the  conveyance  to  ascertain  the 
GriflSn  V.  McKinney,  25  Tex.  Civ.  432,      460,   107   P.    359;    Hirsch   v.   Howell 


57  S.  W.  992. 

66.  Potter  v.  Kennedy  (Tex.),  41 
S.  W.  711. 

67.  Denny  v.  Schwabacher,  54  Wash. 
689,  104  P.  137;  In  re  NicoU's  Estate, 
164  Cal.  368,  129  P.  278;  Davidson  v. 
Woodward,  156  F.  915,  84  C.  C.  A. 
495 ;  Ballard  v.  Slyfield,  47  Wash.  174, 
91  P.  642;  Smith  v.  Weed,  75  Wash. 
452,  134  P.  1070;  Watkins  v.  Watkins 
(Tex.),  119  S.  W.  145;  Blackwell  v. 
Mayfield  (Tex.),  69  S.  W.  659;  Game- 
son  V.  Gameson  (Tex.),  162  S.  W. 
1169;  In  re  Slocum's  Estate,  83  Wash. 
158,  145  P.  204;  Smith  v.  Smith 
(Tex.),  91  S.  W.  815;  Freese  v.  Hi- 
bemia  Sav.  &  Loan  Soc,  139  Cal.  392, 
73  P.  172;  Neher  v.  Armijo,  9  N.  M. 
327,  54  P.  236;  York  v.  Hilger  (Tex,), 
84  S.  W.  1117;  Ahlstrom  v.  Tage,  31 
Ida.  459,  174  P.  605;  Wells  v.  Allen 
(Cal.),   177   P.    180. 

68.  In  re  Pepper's  Estate,  158  Cal. 
619,  112  P.  62. 

69.  Flannery  v.  Chidney,  33  Tex. 
Civ.  638,  77  S.  W.  1034;  Richards  v. 
Hartley  (Tex.),  194  S.  W.  478. 

70.  McMurray  v.  Bodwell,  16  Cal. 
App.  574,  117  P.  627. 

71.  Svetinich  v.  Sheean,  124  Cal. 
216,  56  P.  1028,  71  Am.  St.  R.  50. 

72.  Carpenter  v.  Brackett,  57  Wash. 


(Tex.),  60  S.  W.  887. 

73.  York  v.  Hilger  (Tex.),  84  S. 
W.  1117;  Strong  v.  Eakin,  11  N.  M. 
107,  66  P.  539;  Clark  v.  Thayer,  98 
Tex.  142,  81  S.  W.  1274;  Austin  v. 
Clifford,  24  Wash.  172,  64  P.  155;  In 
re  Warner's  Estate,  167  Cal.  686,  140 
P.  583;  In  re  Boselly's  Estate  (Cal.), 
175  P.  4. 

74.  Booker  v.  Castillo,  154  Cal.  672, 
98  P.  1067, 

75.  Gilbert  v.  Edwards,  32  Tex.  Civ. 
460,  74  S.  W.  959. 

76.  Hall  V.  Toussaint,  52  La.  Ann. 
1763,  28  So.  304;  Succession  of  Mai- 
ler, 106  La.  89,  30  So.  329. 

77.  Succession  of  Rogge,  50  La. 
Ann.  1220,  23  So.  933;  Fortier  v. 
Barry,  111  La.  776,  35  So.  900;  Jordy 
V.  Muir,  51  La.  Ann.  55,  25  So.  550. 

It  must  also  be  shown  that  the  wife 
had  the  separate  administration  of 
such  funds,  Ellerslie  Planting  Co.  v. 
Blackman,  129  La.  948,  57  So.  279; 
Succession  of  Burke,  107  La.  82,  31 
So.  391. 

78.  Thompson  v.  Wilson,  24  Tex. 
Civ.  666,  60  S.  W.  354;  Baldwin  v. 
McFarland,  26  Ida.  85,  141  P.  76; 
Winfield  V.  Billing  (Tex.),  132  S.  W. 
828. 


625  COMMUNITY    DOCTKINE.  §    597 

intention  of  the  parties.'"  The  evidence  to  rebut  the  presumption 
may  be  parol,*"  except  where  the  property  has  been  conveyed  to  a 
hona  fide  purchaser  for  value.®^  The  presumption  is  not  rebutted 
merely  by  a  recital  in  the  deed  that  money  was  paid  by  a  spouse 
as  a  consideration  for  it,^^  or  by  a  recital  that  the  property  is 
separate  estate,®'  nor  by  the  mere  testimony  of  the  spouse  claim- 
ing the  estate.'*  A  spouse  who  claims  fraud,  error,  or  lesion  in 
the  division  of  community  property  on  separation  has  the  burden 
of  showing  it  by  a  preponderance  of  the  evidence.®'  To  rebut  the 
statutory  presumption  in  California  that  a  conveyance  to  a  wife 
creates  a  separate  estate  the  evidence  must  be  clear  and  convinc- 
ing.®^ Declarations  of  the  wife  that  the  property  was  that  of  the 
community  are  not  sufficient  to  rebut  the  presumption,®^  though 
of  some  weight  when  supported  by  other  evidence.®® 

§  597.  Change  of  Status  of  Property  by  Agreement. 

Usually  the  spouses  may  by  agreement  change  a  community 
estate  in  property  into  a  joint  tenancy,®'  or  a  separate  estate  in 
one  of  the  spouses,^"  and  may  in  the  same  way  change  separate 
property  into  community  property.'^  The  court  may  do  the  same 
when  essential  to  a  determination  of  the  rights  of  the  spouses  in 

79.  In  re  Deschamps'  Estate,  77  (La.),  art.  IS^S.  Haddad  v.  Haddad, 
Wash.  514,  137  P.  1009.  120  La.  218,  45  So.  109. 

80.  hi  re  Bollinger's  Estate,  170  86.  Lewis  v.  Burns,  122  Cal.  358, 
Cal.  380,  149  P.  995;  Clarke  v,  Lassus,  55  P.  132;  Lenninger  v.  Lenninger, 
128  La.  919,  55  So.  576;  Woods  v.  167  Cal.  297,  139  P.  679;  Thompson 
Whitney,  42  Cal.  358.  v.  Davis,  172  Cal.  491,  157  P.  595. 

81.  Crawford  v.  Gibson  (Tex.),  203  87.  Pabst  v.  Shearer,  172  CaL  139 
8.  W.  375.  156  P.  466. 

82.  MeCulloch  v.  Nicholson  (Tex.),  88.  Bias  v.  Eeed,  169  Cal.  33,  145 
162  S.  W.  432.  P.  516. 

83.  Westmore  v.  Harz,  111  La.  305,  89.  Ives  v.  Connacher,  162  Cal.  174, 
35  So.  578.  121  P.  394;  Yoakam  v.  Kingery,  126 

84.  Newman  v.  Cooper,  50  La.  Ann.  Cal.  30,  58  P.  324;  In  re  Gurnsey's 
1220,  23  So.  116;  Carlson  v.  Eea,  94  Estate,  177  Cal.  211,  170  P.  402;  Bias 
Wash.  218,  161  P.  1195.  v.  Reed,  169  Cal.  33,  145  P.  516. 

85.  Haddad  V.  Haddad,  120  La.  218,  90.  Jordan  v.  Marcantell  (Tex.), 
45  So.  109;  Walther  v.  Walther,  139  147  S.  W.  357;  Perkins  v.  Sunset 
La.  138,  71  So.  344.  Telephone  &  Telegraph  Co.,  155  Cal. 

Lesion,  to  invalidate  a  partition  of  712,  103  P.  190. 

community  property  after  separation  91.    In   re   Klumpke's   Estate,   167 

of  husband   and  wife,  must  be  more  Cal.   415,   139   P.   1062;    Title   Ins.   & 

than  one-fourth  of  the  true  value  of  Trust  Co.  v.  Ingersoll,  153  Cal.  1,  94 

the    property    received    by    the    com-  P.   94. 
plainant,   as   provided   by   Civ.    Code 
40 


§  597  HUSBAND  AND  WIFE.  626 

an  action  between  them.®^  This  cannot  be  done  in  Washington  by 
an  oral  agreement.*^  Usually  S'pouses  may  divide  the  community 
property  by  agreeanent,®*  if  the  division  is  fair,"^  and  without 
fraud  or  coercion.'®  I^o  money  consideration  is  required  to  sup- 
port such  an  agreement."  Where  it  includes  an  executory  contract 
to  convey  land,  the  party  entitled  may  have  specific  performance."' 
A  division  of  community  property  on  separation  may  be  rescinded 
for  the  husband's  fraud  where  he  makes  promises  of  future  sup- 
port to  the  wife  as  a  consideration  for  the  division,  which  he  in- 
tends to  disregard  and  actually  does  disregard.'*  Where  spouses 
received  money,  notes  and  land  in  exchange  for  property  ovmed 
in  part  by  the  community  and  part  by  the  wife  separately,  the 
husband  was  held  not  entitled  to  partition  the  consideration  by 
allotting  the  land  to  the  wife  without  her  consent,  though  that 
might  have  been  done  by  agreement.^  In  Idaho,  where  in  a  di- 
vorce proceeding  a  wife  agreed  to  convey  to  their  minor  child 
certain  community  lands,  which  agreement  was  approved,  her 
later  deed  of  the  same  land  to  her  husband  was  held  void.'  In 
Louisiana  spouses  cannot  put  an  end  to  the  community  by  agree- 
ment,^ or  make  a  valid  contract  with  even  others  relating  to  com- 
munity property.*  In  that  State  separation  of  property  must  be 
the  result  of  a  judicial  proceeding  as  required  by  the  statute.^  In 
Texas  where  spouses  separate  intending  to  live  apart  permanently 
and  by  agreement  divide  the  community  property,  their  later  co- 
ot. Fay  V.  Fay,  165  Cal.  469,  132  95.  Cox  v.  Mailander  (Tex,),  178 
P.  1040.                                                                 S.  W.  1012. 

93.  Graves  v.  Graves,  48  Wash.  664,  96.  Corrigan  v.  Goss  (Tex.),  160  8. 
94  P.  481.                                                              W.  652. 

94.  Murrison  v.  Seller,  22  La.  Ann.  97.   Worden   v.   Worden,  96  Wash. 
327;  Desobry  v.  Schlater,  25  La.  Ann.       592,  165  P.  501. 

425 ;    Smith  v.  Boquet,  27  Tex.   507 ;  98.  Carpenter  v.  Brackett,  57  Wash. 

Texas,  Louisana,  and  California  Codes,  460,  107  P.  359. 

Succession    of    Wade,    21    La.    Ann.  99.      Swearingen      v.      Swearingen 

343;  Peck  v,  Brummagim,  31  Cal.  440;  (Tex.),  193  S.  W.  442. 

Warfield  v.  Bobo,  21  La.  Ann.  466;  1.   Ochoa  v.  Edwards    (Tex.),  189 

La.  Code,  §§  2316,  2393-2398;  Hussey  S.  W.  1022. 

V.    Castle,    41    Cal.    239;    Couch    v.  2.  Lamb  v.  Brammer,  29  Ida.  770, 

Schwalbe,  51  Tex.  Civ.  94,  111  S.  W.  162  P.  246. 

1046.  3.  Driscoll  v.  Pierce,  115  La.  156, 

The     California     statute     permits  38  So.  949. 

spouses  to  agree  on  separation  to  set-  4.  Guillot  v.  Guillot,  141  La.  86,  74 

tie  their  rights  in   community  prop-  So.  704. 

erty.     In  re  Sloan's  Estate,  179  Cal.  5.  Jones  v.  Jones,  119  La.  677,  44 

393,  177  P.  150.  So.  429. 


^27  COMMUNITY    DOCTKINB.  §    599 

habitation  will  not  chauge  the  status  of  property  as  agreed  on, 
where  they  do  not  intend  to  change  it,  and  do  nothing  to  change  it.* 

§  598.  Nature  of  Wife's  Interest. 

A  wife's  rights  in  community  property  are  not  contingent,  but 
axe  a  present  estate,^  and  she  has  as  much  interest  in  the  estate  as 
and  as  much  right  to  its  beneficial  use,*  no  distinction  being 
made  as  to  the  degree,  quantity,  nature  and  extent  of  the  in- 
terest of  each,"  whether  the  conveyance  be  to  one  of  them  or  is 
joint."  She  can  have  no  accounting  from  her  husband  of  such 
estate  till  the  community  is  dissolved  by  death  or  divorce,  or  in 
some  other  legal  manner,^^  and  he  cannot  be  compelled  to  account, 
even  then,  for  recklessness  and  extravagance  in  its  management." 
Under  the  Spanish  law  the  wife's  interest  was  a  mere  expectancy, 
similar  to  that  of  an  heir."  As  her  interest  in  the  community 
property  attaches  at  is  acquisition  and  is  not  derived  from  her 
husband,  she  is  not  liable  to  an  inheritance  tax  at  his  death.^*  In 
Nevada  her  interest  in  the  community  property  is  more  than  a 
mere  expectancy,  though  the  statute  speaks  of  property  which 
"  belongs  to  "  the  husband,  and  that  which  "  goes  to  "  the  wife.^^ 

§  599.  Wife's  Paraphernal  and  Dotal  Property. 

Separate  property  of  the  wife,  under  these  codes,  is  of  two 
kinds :  dotal  and  extra-dotal.  Dotal  property  is  that  which  the  wife 
brings  to  the  husband  to  assist  him  in  bearing  the  expenses  of  the 
marriage  establishment.  Extra-doral  property,  otherwise  called 
paraphernal  property,  is  that  which  forms  no  part  of  the  dowry.^' 
Whatever  in  the  marriage  contract  is  declared  to  belong  to  the 
wife,  or  to  be  given  to  her  on  account  of  the  marriage  by  other 
persons  than  the  husband,  is  part  of  the  dowry,  unless  otherwise 
stipulated,  and  husband  and  wife  may  by  their  marriage  contract 

6.  Batla  v.  Batla  (Tex.),  51  S.  W.  12.  Garrozi  v.  Dastas,  204  U.  S.  64, 
664;  Moore  v.  Moore,  28  Tex.  Civ.  600,       27  S.  Ct.  224,  51  L.  Ed.  369. 

68  S.  W.  59.  13.  Eeade  v.  De  Lea,  14  N.  M.  442, 

7.  Marston  v.   Rue,   92   Wash.   129,       95  P.  131. 

159  P.  111.  14.  Kohny  v.  Dunbar,  21  Ida.  258, 

8.  Davia  v.  Davis  (Tex.),  186  S.  W.  121  Pac.  544,  39  L.  R.  A.  (N.  S.), 
775.  1107;  Be  Williams,  40  Nev.  241,  161 

9.  Ewald   v.   Hufton,   31   Ida.   373,  Pac.  741,  L.  R.  A.  1917C,  602. 

173  P.  247.  15.  In  re  Williams'  Estate,  40  Nev. 

10.  Burnham  v.  Hardy  Oil  Co.,  108       241,  161  P.  741. 

Tex.  555,  195  S.  W.  1139.  16.   La.   Code,    §    2315;    Hannie   v. 

11.  Daniel  v.  Daniel,  106  Wash.  659,       Browder,  6  Mart,  (La.)  15. 
181  P.  215. 


§  599  HUSBAND  AND  WIFE.  628 

make  reciprocal  arrangement  as  to  donations  from  one  another  or 
tliird  persons;  but  dowry  proper  is  an  antenuptial  arrangement, 
and  of  this  dowry  the  husband  has  usually  the  income  and  manage- 
ment, so  as  to  help  support  the  charges  of  matrimony,  though 
stipulations  more  favorable  may  be  made  on  the  wife's  behalf." 
The  wife's  paraphernal  or  extra-dotal  property  she  may  manage 
with  or  without  invoking  her  husband's  assistance ;  his  permitted 
participation  therein  is  somewhat  in  the  character  of  her  agent, 
as  to  binding  it  for  debt  or  managing  it,  though  the  risk  is  thus 
incurred  of  subjecting  its  income  to  the  community  rule;  and 
while  he  should  authorize  its  conveyance  or  transfer,  the  wife  may 
be  authorized  by  the  judge  in  case  of  his  absence  or  refusal.^^  In 
Louisiana  it  was  held  that  under  an  antenuptial  contract  a  wife's 
property  c^uld  not  be  treated  as  paraphernal  instead  of  dotal,  so 
as  to  render  a  husband  liable  for  interest  where  he  took  control  of 
6ueh  property.^*  The  wife  has  a  tacit  mortgage  for  her  separate 
property,  so  far  as  the  law  may  have  placed  it  in  her  husiband's 
control ;  also  upon  the  community  property  from  the  time  it  went 
into  bis  hands ;  so  that,  notwithstanding  his  conveyance  or  trans- 
fer without  ber  consent  and  to  her  injury,  during  the  marriage, 
she  has  an  interest,  and  not  a  mere  hope  or  expectancy,  left,  which 
interest  becomes  absolute  and  enforceable  at  his  death,  she  su]^ 
viving  him.  In  this  respect  our  codes  follow  the  Spanisb  rather 
than  the  French  law.  And  for  the  wife's  further  protection  and 
benefit,  judicial  intervention  is  sometimes  permitted,  not  only  to 
secure  her  support  from  the  funds  in  her  husband's  control,  while 
marriage  continues,  but  for  a  separation  of  the  common  property 
altogether,  where  her  interests  are  exposed  to  great  hazard  by  his 
mismanagement.^"  The  wife's  tacit  mortgage  for  her  security 
against  her  husband's  acts  applies  to  both  her  dotal  and  extra- 
dotal property.^^ 

17.  La.   Code,   §§   2317-2332;    Guil-  20.  Newman  v.  Eaton,  27  La.  Ann. 
beau  V.  Cornier,  2  La.  6.  341. 

18.  La.  Code,  §§   2360-2367;   Stuf-  21.  7ft.;  Newman  t.  Eaton,  27  La. 
fler  V.  Puckett,  30  La.  Ann.  811.  Ann.   341;    Lehman   v.   Levy,   30   La. 

19.  Murphy  v.  McLoughlin,  247  F.  Ann.    745.      After   the    wife    has    ob- 
385,  153  C.  C.  A.  439.  tained   and  executed  a   separation   of 

"Paraphernal   property"    is   prop-  property  from  her  husband,  no  tacit 

erty  brought  to  the  marriage  by  one  mortgage  is  acquired  by  her  upon  the 

of  the  spouses,  and  there  can  be  no  husband's      later      acquisitions,      as 

Buch   thing    as   paraphernal   property  against    the    public.      Succession    of 

prior  to  marriage.  Le  Boeuf  v.  Melan-  Gayle,  27  La.  Ann.  547. 
eon,  131  La.  148,  59  So.  102. 


629  COMMUNITY    DOCTRIIfK.  §    600 

§  600.  Control  and  Disposition. 

The  husband,  being  the  head  of  the  family,  has  the  sole  right 
to  administer  or  control  community  property,^^  having  the  same 
power  of  disposition  which  he  has  of  his  separate  property,^'  the 
real  legal  title  being  in  him  during  the  existence  of  the  com- 
munity,"* though  the  record  title  is  in  the  wife.'^  The  spouse  in 
whose  name  the  title  stands  is  deemed  to  hold  the  title  in  truant 
for  the  commTinity.^®  The  husband  is  not  bound  by  any  agreement 
of  the  wife  with  reference  to  it,  unless  authorized  or  sanctioned 
by  him,^^  except  for  family  necessaries,^*  even  though  the  title 
is  in  the  wife's  name.^'  But  a  husband  cannot  dispose  of  it  by 
will,^°  or  convert  it  into  his  separate  property  by  gift.^^  Under 
the  California  statute  the  husband  is  the  absolute  owner  of  the 
community  property,  the  wife  having  no  vested  interest  in  it  till 
the  dissolution  of  the  community.^^  In  the  same  State  a  gift 
by  the  husband  of  community  property  without  the  wife's  consent 
is  not  void  as  to  him,  and  cannot  be  avoided  by  him,  but  may  be 
avoided  by  his  wife  after  his  death.^^  In  Texas  he  has  the  man- 
agement of  such  estate,  with  the  exception  of  a  conveyance  of  the 
homestead,  unless  the  wife  is  abandoned,  or  he  acts  in  fraud 
of  her.^*  In  the  same  State  a  conveyance  of  community  property 
by  the  husband  during  the  wife's  insanity  is  void  as  to  the  wife 
where  made  without  an  application  for  management,  etc,'" 

22.  La.  Code,  §  2373;  Kellogg  v.  27.  Travers  t.  Barrett,  30  Nev.  402, 
Duralde,  26  La.  Ann.  234;   Cooper  v.       97  P.   126. 

Cappel,  29  La.  Ann.  213;   Kanney  v.  28.  Bowers  t.  Good,  52  Wash.  384, 

Miller,  51  Tex.  263;  Strother  v.  Ham-  100  P.  848. 

let,  28  La.  Ann.  839;  Schaadt  v.  Mu-  29.  Nilaon  v.  Sarment,  153  Cal.  524, 

tual  Life  Ins.  Co.  of  New  York,  2  Cal.  96  P.  315. 

App.    715,   84    P.   249;    Merriman   v.  30.  Eowlett  v.  Mitchell,  52  Tex.  Civ. 

Patrick,  103  Wash.  442,  174  P.  641;  589,  114  S.  W.  845. 

Waterman  Lumber   &   Supply   Co.   v.  In  California  a  husband  may  dis- 

Eobins  (Tex.),  159  S.  W.  360;  Pearll  pose  by  will  of  half  the  community 

V.  Pearll  Advertising  Co.,  17  Det.  Leg.  property.     Giuffre    v.    Lauricella,    25 

N.  543,  127  N.  W.  264.  Cal.  App.  422,  143  P.   1061. 

23.  Kohny  v.  Dunbar,  21  Ida.  258,  31.  Rowlett  v.  Mitchell,  52  Tex,  Civ. 
121  P.  544.  589,  114  S.  W.  845. 

24.  Hall  V.  Johns,  17  Ida.  224,  105  32.  Sprecklea  v.  Spreckles,  116  Cal. 
P.  71;  Reade  v.  De  Lea,  14  N.  M.  442,  339,  48  P.  228,  36  L.  R,  A,  497,  58 
95   P.    131.  Am.  St.  R,  170, 

25.  Osborn  v.  Mills,  20  Cal,  App.  33.  Spreckels  v,  Spreckels,  172  Cal. 
346,  128  P.   1009.  775,  158  P.  537, 

26.  Mitchell  v.  Schofield,  106  Tex.  34.  Briggs  v.  McBride  (Tex.),  190 
512,    171    S.    W.    1121;     Mitchell    v.  S.  W.  1123. 

Moses,  16  Cal.  App.  594,  117  P.  685.  35.  Gibson  t.  Pierce  (Tex.),  146  S. 

W.  983. 


§  601 


HUSBAND    AND    WIFE. 


630 


§  601.  Sales,  Mortgages  and  Conveyances;    By  Husband. 

A  husband  has  generally  the  power  to  sell  or  mortgage  the  com- 
munity property,^®  or  pledge  it.*^  The  power  may  be  exercised 
without  the  wife's  joinder/^  or  acknowledgment,^®  or  privy  exami- 
nation,*" or  approval,*^  and  without  even  consulting  her.*'  His- 
right  to  do  so  is  not  taken  away  by  the  wife's  right  to  dispose  of 
such  estate  when  deserted.*'  even  though  the  property  is  personal 
and  exempt.**  A  sale  of  community  property  executed  in  a  hus- 
band's lifetime  but  not  delivered  till  after  his  death  is  invalid.*^ 
He  cannot  make  a  gift  of  his  wife's  interest  to  a  stranger,**  or 
dispose  of  it  by  will,*'  or  in  fraud  of  his  wife,*®  his  power  being- 
limited  to  conveyances  of  community  property  for  value.**  Under 
the  California  statute  a  husband  cannot  bind  the  wife  by  a  convey- 
ance of  community  property  without  consideration  without  her 
written  consent.^"  Such  a  transfer  is  not  void,  but  voidable  by 
the  wife  as  to  her  half  interest  as  survivor."^  Her  written  con- 
sent is  also  required  to  validate  his  sale  of  their  household  fumi- 


36.  Hearfield  v.  Bridges,  75  F.  47, 
21  C.  C.  A.  212;  Tustin  v.  Adams,  87 
F.  377;  "Watts  v.  Snodgrass  (Tex.), 
152  S.  W.  1149;  Wits-Keets-Poo  t. 
Eowton,  28  Ida,  193,  152  P.  1064 ;  De- 
lay V,  Truitt  (Tex.),  182  S.  "W.  732; 
Mabry  v.  Harrison,  44  Tex.  286. 

37.  Sweeney  v.  Taylor  Bros.,  41  Tex. 
Civ.  365,  92  S.  W.  442. 

38.  Northwestern  &  P.  Hypotheek 
Bank  v.  Kaueh,  7  Ida.  152,  61  P.  516; 
Boehm  v.  Butler,  16  Tex.  Civ.  658,  41 
S.  W.  658 ;  Zuckerman  v.  Munz,  48 
Tex.  Civ.  337,  107  S.  W.  78;  Wilson 
V.  Wilson,  6  Ida.  597,  57  P.  708 ;  Gulf, 
C.  &  S.  F.  Ey.  Co.  V.  Fenn,  33  Tex, 
Civ.  352,  7  S.  W.  597;  Kimball  v. 
Slater,  20  Ariz.  81,  176  P.  843. 

39.  Clopper  v.  Sage,  14  Tex.  Civ, 
296,  37  S.  W.  393;  MeCleUan  v.  Lewis 
(Cal.),  16?  P.  436. 

40.  Phoenix  Ins.  Co.  v.  Neal,  23 
Tex.  Civ.  427,  56  S.  W.  91. 

41.  Simon  v.  Meaux  (La.),  79  So. 
330;  First  Nat.  Bank  of  Ely  v. 
Meyers    (Nev.),  150  P.  308. 

42.  Demarets  v.  Demarets,  144  La. 
173,  80  So.  240. 

43.  King  V.  King,  41  Tex.  Civ.  473, 
91  S.  W.  633. 


44.  King  V.  King,  41  Tex.  Civ.  473, 
91  S.  W.  633. 

45.  Cox  v.  Busch-Everett  Oil  Co.^ 
131  La.  817,  60  So.  256. 

46.  Watson  v.  Harris  (Tex.),  130 
S.  W.  237. 

47.  Mealy  v.  Lipp,  16  Tex.  Civ.  163, 
40  S.  W.  824. 

48.  Krenz  v.  Strohmeir  (Tex.),  177 
S.  W.  178;  Cetti  v,  Dunman,  26  Tex. 
Civ.  433,  64  S.  W.  787;  Eeade  v.  De 
Lea,  14  N.  M.  442,  95  P.  131. 

The  failure  of  a  husband  to  take 
title  to  community  property  in  the 
name  of  his  wife,  in  accordance  with 
his  promise  to  her,  and  his  subsequent 
transfer  of  the  property,  do  not  con- 
stitute a  fraud  upon  her  unless  done 
with  a  fraudulent  intent.  Clavo  v. 
Clavo,  10  Cal.  App.  447,  102  P.  556; 
Eowlett  V.  Mitchell,  52  Tex.  Civ.  589, 
114  S,  W.  845. 

49.  Strauss  v.  Canty,  169  Cal.  101, 
145  P.  1012 ;  Eagan  v.  Eagan,  29  Cal. 
App.  63,  154  P.  479. 

50.  Winchester  v.  Winchester,  175 
Cal.  391,  165  P.  965;  Johnson  v. 
Johnson,  33  Cal.  App.  93,  164  P.  421. 

51.  Dargie  v.  Patterson,  176  Cal. 
714,  169  P.  360. 


631 


COMMUNITY    DOCTEINE. 


§  601 


ture  and  furni swings,  if  community  property.'^  In  Louisiana  a 
husband's  voluntary  conveyance  of  immovable  community  prop- 
erty is  void  unless  made  for  the  establishment  of  children  of  the 
marriage,'^  In  the  same  State  he  cannot  dispose  of  the  immov- 
ables of  the  community  during  the  pendency  of  a  divorce  proceed- 
ing.^* Under  the  Xew  Mexico  statute  the  joinder  of  both  spouses 
is  necessary  to  convey  community  land.^'  In  Texas  he  cannot 
alienate  or  incumber  the  community  property  during  the  pendency 
of  a  divorce  proceeding,  if  his  intention  is  to  defraud  the  wife,  if 
the  divorce  proceeding  is  filed  prior  to  the  conveyance,^^  nor  can 
he  alienate  or  mortgage  the  homestead  without  the  wife's  con- 
Bent.^^  Where  a  wife  avoids  a  sale  of  community  property  she 
can  avoid  it  only  as  to  her  half,  his  conveyance  being  valid  against 
himself  as  to  his  own  half/*  In  Washington  a  woman  living  in 
adultery  with  the  husband  of  another  takes  no  interest  in  convey- 
ances of  such  husband's  community  estate  made  without  the 
joinder  of  his  wife.^**  In  the  same  State  a  husband's  contract 
for  the  sale  of  community  property  not  joined  in  by  the  wife  is 
binding  on  her  where  she  joins  in  the  deed  in  execution  of  the 
contract,®"  but  otherwise  her  consent  is  required.®^  Since  by 
statute  in  that  State,  the  husband  has  power  to  sell  and  dispose 
of  community  personalty,  his  mortgage  of  such  property  is  bind- 
ing,'^ but  he  cannot  wast«  it  or  give  it  away,*^  nor  can  he  alone 
empower  a  trustee  of  community  property  to  sell  it,  except  as  to 
bona  fide  purchasers,**  nor  can  he  convey  or  mortgage  community 
land  without  his  wife's  joinder."'     She  may  be  estopped  to  claim 


52.  Drincan  v.  Duncan,  6  Cal.  App. 
404,  92  P.  310. 

53.  Melady  v.  Succession  of  Bonne- 
gent,  142  La.  534,  77  So.  143;  Kado- 
vich  V.  Jenkins,  123  La.  355,  48  So. 
988. 

64.  Gastauer  v.  Gastauer  (La.),  79 
So.  326. 

55.  Arnett  v.  Eeade,  220  U.  S.  311, 

31  S.  Ct.  425,  55  L.  Ed.  ;  Miera 

T.  Miera,  25  N.  M.  299,  181  P.  583. 

56.  Sparks  v.  Taylor,  99  Tex.  411, 
90  S.  W.  485,  6  L.  R.  A.   (N.  S.),  381. 

57.  Flynn  v.  J.  M.  Eadford  Grocery 
Co.  (Tex.),  174  S.  W.  902;  Mabry  v. 
Harrison,  44  Tex.  286:  Paschall  t. 
Brown,  105  Tex.  247,  133  S.  W.  509; 
Wiener  v.  Zwieb,  105  Tex.  262,  141 
8.  W.  771;  Best  v.  Kirkendall  (Tex.), 


107  S.  W.  932;  Jones  v.  Harris  (Tex), 
139  S.  W.  69;  Mass  v.  Bromberg,  28 
Tex.  Civ.  145,  66  S.  W.  468. 

58.  Gutheridge  v.  Gutheridge  (Tex.), 
161   S.  W.  892. 

59.  Kimble  v.  Kimble,  17  "Wash.  75, 
49  P.  216. 

60.  Wash.   State   Bank  v.   Dickson, 
35  Wash.  641,  77  P.  1067. 

61.  Leimantz  v.  Blake,  39  Wash.  6, 
80  P.  822. 

62.  First  Nat.  Bank  v.  Fowler,   54 
Wash.  65,  102  P.  1038. 

63.  Marston  v.  Rue,  92  Wash.   129, 
159  P.   111. 

64.  Norgren   v.   Jordan,   46   Wash. 
437,  90  P.  597. 

65.  Olson  V.  Springer,  60  Wash.  77, 


§   602 


HUSBAND    AND    WIFE. 


632 


community  rights  in  land  whicli  is  sold  without  her  joinder,  where 
she  consents  to  and  approves  of  the  sale  and  permits  the  grantee 
to  improve  the  property  without  objection.®^  Where  the  wife  has 
been  adjudged  insane,  the  vendees  under  a  contract  of  sale  of 
community  property  may  rescind  at  once.^^  A  husband's  contract 
to  sell  land  is  not  invalid  in  Porto  Rico  because  the  wife  did  not 
join  as  required  by  the  statute  in  case  of  community  property 


68 


§  602.  By  Wife. 

A  wife  may  convey  community  property  as  the  attorney-in-fact 
of  her  husband,®®  or  with  his  consent,'**  though  he  does  not  join 
therein.'^  'Such  authority  may  be  inferred  from  his  joinder  and 
acknowledgement  of  a  deed  containing  a  recital  of  his  consent  and 
authority,'^  or  even  where  he  merely  signs  and  acknowledges, 
though  not  named  as  grantor.''^  She  may  contract  for  its  sale  to 
pay  community  debts,'*  or  for  community  purpose,'^  or  may  sell 
perishable  personal  property.'^  She  may  also  convey  a  good  title 
to  such  property  where  she  is  abandoned  and  where  she  and  their 
children  are  in  neces'sitous  circumstances,''  or  to  obtain  neces- 
saries even  where  she  has  no  children.'*  Her  mortgage  of  com- 
munity property,  even  if  invalid,  may  be  a  lien  on  her  separate 
interest  when  the  community  ceases.'®  Where  a  divorced  wife  was 
indebted  to  her  husband  on  an  accounting  of  community  property, 
it  was  held  that  a  gift  by  her  of  community  land  to  their  children 


110  P.  807 ;  Monroe  v.  Staydt,  57  Wash. 
592,  107  P.  517 ;  Anders  v.  Bouska,  61 
Wash.  393,  112  P.  523. 

66.  Schillreff  v.  Schillreff,  50  Wash. 
435,  97  P.  457;  Stevens  v.  Kittredge, 
44  Wash.   347,  87  P.  484. 

67.  Colpe  V.  Lindblom,  57  Wash. 
106,  106  P.  634. 

68.  Parker  v.  Monroig,  239  U.  S.  83, 
36  S.  Ct.  42,  60  L.  Ed.  . 

69.  Succession  of  Brown,  Man.  TJn- 
rep.  Cas.    (La.)    216. 

70.  Hanks  v.  Leslie  (Tex.),  159  S. 
W.  1056. 

71.  Roos  V.  Basham,  41  Tex.  Civ. 
551,  91  S.  W.  656;  Roos  v.  Basham, 
41  Tex.  Civ.  551,  91  S.  W.  656. 

72.  Maxson  v.  Jennings,  19  Tex.  Civ. 
196,  48  S.  W.  781. 

73.  Couch  V.  Schwalbe,  51  Tex.  Civ. 
94,  111  S.  W.  1046. 


74.  Hughes  v.  Landrum,  40  Tex. 
Civ.  196,  89  S.  W.  85. 

75.  Litzell  v.  Hart,  96  Wash.  471, 
165  P.  393. 

76.  Maraton  v.  Rue,  92  Wash.  129, 
159  P.  111. 

77.  Fermier  v.  Brannan,  21  Tex.  Civ. 
543,  53  S.  W.  699;  Irwin  v.  Irwin 
(Tex.),  110  S.  W.  1011;  Hall  v.  Johns, 
17  Ida.  224,  105  P.  71;  Word  v.  Ken- 
non  (Tex.),  75  S.  W.  334;  Lasater  v. 
Jamison  (Tex.),  203  S.  W.  1151;  Had- 
not  V.  Hicks  (Tex.),  198  S.  W.  359; 
Snipes  v.  Morton  (Tex.),  144  S.  W. 
286;  Hanks  v.  Leslie  (Tex.),  159  S. 
W.  1056. 

78.  Adams  v.  Wm.  Cameron  &  Co. 
(Tex.),   161  S.  W.  417. 

79.  Pauy  v.  Kelly,  52  Cal.  334. 


633 


COMMUNITY    DOCTRINE. 


§    603 


was  in  fraud  of  him  where  both  &he  and  they  knew  of  the  account- 
ing.^'' Where  a  wife  sought  to  set  aside  her  deed  of  communitj 
property  to  her  son  for  fraud,  it  was  held  that  she  could  only  re- 
cover her  half  of  the  property,  where  the  son  owned  his  father's 
share  by  inheritance.*^  Where  a  wife  joins  in  a  deed  of  trust  of 
community  property,  her  death  does  not  revoke  the  power  of 
siale.*^  Where  she  joins  in  such  an  incumbrance  she  is  a  principal 
and  not  a  surety,  and  her  rights  in  the  property  may  be  fore- 
closed.®^ Under  the  Arizona  statute  providing  that  community 
personal  property  may  be  disposed  of  by  the  husband  only,  it  was 
held  that  a  wife's  chattel  mortgage  of  such  property  was  invalid, 
even  though  given  to  secure  a  note  given  as  her  husband's  agent, 
though  in  her  own  name.**  In  Louisiana  and  Washington  the 
wife's  mortgage  of  community  property  cannot  usually  be  en- 
forced,®^ but  is  binding  where  given  to  secure  the  purchase  price 
of  property  bought  with  community  funds.^"  In  TTevada  the  fact 
that  the  wife  runs  a  lodging  house  or  community  land  does  not 
empower  her  to  sell  the  furniture  or  rent  the  land.*^  In  Wash- 
ington those  taking  community  personal  property  from  a  wife 
have  the  burden  of  showing  unusual  facts  which  enable  her  to 
pass  title  to  it.**  Therefore,  her  sale  of  community  property  to  a 
purchaser  who  knew  that  she  had  acted  contrary  to  her  husband's 
instructions  has  been  held  void,  where  there  were  no  unusual  con- 
ditions.*' 


§  603.  Lease. 

In  Washington  a  husband  cannot  lease  community  property 
without  the  wife's  authority,  acquiescence  or  consent.'*'  Therefore, 
an  oral  lease  of  community  property  cannot  be  established  against 
a  wife  not  bound  by  deed,  part  payment,  ratification  or  estoppel.'^ 


80.  Messimer  v.  Echols  (Tex.),  194 
S.  W.  1171. 

81.  Wade  v.  Wade  (Tex.),  106  S. 
W.  188. 

82.  Western  Union  Tel  Co.  v.  Heame 
(Tex.),  40  S.  W.  50. 

83.  Bird  v.  Steele,  74  Wash.  68, 132 
P.  724. 

84.  Richards  v.  Warnekros,  14  Ariz. 
488,  131  P.  154. 

85.  Schrcpfer  v.  Florane,  Man.  Un- 
rep.  Cas.  (La.)  323;  Humphries  v. 
Sorenson,  33  Wash.  563,  74  P.  690. 


86.  Knoblock  &  Rainold  v.  Posey, 
126  La.  610,  52  So.  847. 

87.  Travers  v.  Barrett,  30  Nev.  402, 
97  P.  126. 

88  Marston  v.  Rue,  92  Wash.  129, 
159  P.  111. 

89.  McAlpine  v.  Kohler  &  Chase,  96 
Wash.   146,  164  P.  755. 

90.  Snyder  v.  Harding,  34  Wash. 
286,  75  P.  812;  Ryan  v.  Lambert,  49 
Wash.  649,  96  P.  232. 

91.  Spreitzer  v.  Miller,  98  Wash. 
601,  168  P.  179. 


§  604 


HUSBAND    AND    WIFE. 


634 


Under  a  written  lease  from  the  husband  without  the  wife's  joinder 
the  lessee  is  onlj  a  tenant  at  will. 


92 


§  604.  Rights  and  Liabilities  of  Purchasers  During  Coverture. 

A  purchaser  for  value  of  community  property  from  the  husband 
gets  a  good  title  as  against  the  wife  where  the  title  is  in  the  hus- 
band and  where  the  purchaser  has  no  notice  that  the  property  be- 
longs to  the  community,®^  or  that  the  grantor  had  a  wife,**  or 
where  the  land  has  never  been  occupied  by  the  community.""^  But 
if  he  buys  with  notice  he  takes  only  the  grantor's  interest,*^  even 
though  the  sale  was  for  the  purpose  of  obtaining  necessaries.*^ 
In  such  case  the  sale  does  not  operate  as  a  partition,  but  creates 
a  tenancy  in  common.®^  The  same  rules  apply  to  mortgages  given 
by  the  husband  as  head  of  the  community.*'  The  fact  that  the 
title  is  in  one  spouse  is  not  notice  of  the  community  interests  of 
the  other.^  Where  a  purchaser  of  community  land  under  an  oral 
contract  with  the  husband  entered  and  paid  the  price,  it  was  held 
that  both  spouses  were  presumed  to  consent  and  that  the  vendee 
was  entitled  to  specific  performance,  there  being  no  evidence  that 
the  fact  as  to  consent  was  otherwise.^  Where  a  husband  bought 
land  with  community  funds  and  caused  the  deed  to  be  made  to  the 
wife,  after  which  he  executed  a  deed  to  a  third  person  without 
consideration,  it  was  held  that  such  third  person  could  not  compel 


92.  Brownfield  v.  Holland,  63  Wash. 
86,  114  P.  890. 

93.  Alexander  v.  Barton  (Tex.),  71 
S.  W.  71 ;  Mangum  v.  White,  16  Tex. 
Civ.  254,  41  S.  W.  80;  Derrett  v.  Brit- 
ton,  35  Tex.  Civ.  485,  80  S.  W.  562; 
Trahan  v.  Wilson,  130  La.  541,  58  So. 
178;  Patty  v.  Middleton,  82  Tex.  586, 
17  S.  W.  909;  Gallup  v.  Huling,  241 
F.  858,  154  C.  C.  A.  560;  Euedas  v. 
O'Shea  (Tex.),  127  S.  W.  89'1 ;  Mit- 
chell V.  Schofield,  106  Tex.  512,  140 
S.  W.  254;  Fidelity  &  Deposit  Co.  v. 
Wiseman,  103  Tex.  286,  124  S.  W. 
621  (mod.  reh.,  103  Tex.  286,  126  S. 
W.  IIOQ'). 

94.  Nelson  v.  Bridge,  39  Tex.  Civ. 
283,  87  S.  W.  885;  Magee  v.  Eisley, 
82  Wash.   178,  143   P.   1088. 

95.  Daly  v.  Rizzutto,  59  Wash.  62, 
109  P.  276. 

96.  Burlo3on  v.  Alvis,  28  Tex.  Civ. 
51,  66  S.  W.  235;  Gurley  v.  Dickason, 


19  Tex.  Civ.  203,  46  S.  W.  43;  David- 
son V.  Green,  27  Tex.  Civ,  394,  65  S. 
W.  1110;  Eddy  v.  Bosley,  34  Tex.  Civ. 
116,  78  S.  W.  565 ;  Parker  v,  Stephens 
(Tex.),  39  S.  W.  164;  Summerfield  v. 
King,  98  Tex.  332,  83  S.  W.  680  (mod. 
reh.,  84  S.  W.  643)  ;  Janes  v.  Strat- 
ton  (Tex.),  203  S.  W.  386;  Leury  t. 
Mayer,  122  La.  486,  47  So.  839. 

97.  Booth  V.  Clark,  34  Tex.  Civ.  358, 
80  S.  W.  237. 

98.  McAnulty  v.  Ellison  (Tex.),  71 
S.  W.  670;  George  v.  Delaney,  111  La. 
760,  35  So.  894. 

99.  Ostrom  v.  Arnold,  24  Tex.  Civ. 
192,  58  S.  W.  630;  Abraham  v.  Casey, 
179  U.  S.  210,  21  S.  Ct.  88,  45  L.  Ed. 
156. 

1.  Mitchell  V.  Schofield,  106  Tex. 
512,  171  S.  W.  1121. 

2.  O'Connor  v.  Jackson,  33  Wash. 
219,  74  P.  372. 


635 


COMMUNITY    DOCTRINE. 


§    606 


the  wife  to  oonvey  him  the  legal  title  on  the  theory  that  he  was 
an  equitable  owner,* 

§  605.  Contracts,  Conveyances  and  Gifts  Between  Spouses. 

A  conveyance  of  community  property  from  one  spouse  to  the 
other  creates  a  separate  estate  in  the  jG^rantee,*  as  between  the 
spouses  and  their  heirs,^  and  subsequent  creditors  of  the  husband,^ 
if  the  husband  is  not  insolvent  when  the  conveyance  is  made/ 
but  the  conveyance  must  be  direct  and  not  through  a  third  person.* 
A  husband  may  convey  a  life  estate  in  community  property  to  his 
wife,  with  remainder  to  their  children.®  The  fact  that  a  husband 
causes  land  purchased  with  community  funds  to  be  conveyed  to 
the  wife  is  not  conclusive  evidence  of  a  gift/"  but  a  gift  of  com- 
munity property  is  sufficiently  completed  by  delivery  where  a 
husband  deposits  money  in  his  own  name,  and  gives  her  an  order 
enabling  her  to  draw  it,  when  she  does  so  and  deposits  it  in  her 
own  name.^^  The  Oalifomia  statute  requiring  a  wife's  written 
consent  to  validate  a  gift  of  community  property  does  not  apply 
to  a  gift  to  her." 

§  606.  Actions;   By  Spouses. 

Actions  in  reference  to  community  property  are  usually  to  be 
brought  by  the  husband  without  the  joind-er  of  the  wife,^*  even 


3.  Nolan  v.  Hyatt,  163  Cal.  1,  124 
P.  439. 

4.  Sponogle  v.  Sponogle,  86  Wash. 
649,  151  P.  43;  Hayden  v.  Zerbst,  49 
Wash.  103,  94  P.  909 ;  Wall  v.  Brown, 
162  Cal,  307,  122  P,  478;  Shorett  v. 
Signor,  107  P.  1033,  58  Wash,  635; 
Hunter  v.  Hunter  (Tex.),  45  S,  W. 
820;  Collett  v.  Houston  &  T.  C.  R. 
Co,  (Tex.),  186  S.  W.  232;  Killian  v. 
Killian,  10  Cal.  App.  312,  101  P,  806; 
Powers  V,  Munson,  74  Wash.  234,  133 
P,  453, 

5.  Emery  v,  Barfield,  107  Tex,  306, 
183  S,  W,  386, 

6.  Amend  v.  Jahns  (Tex,),  184  S. 
W,  729 ;  City  Nat.  Bank  v.  Kinnebrew 
(Tex.),    190   S.   W.    536;    Stewart   v. 

Kleinschmidt,  51  Wash.  90,  97  P.  1105. 

7.  Printz  v.  Brown,  31  Ida.  443,  174 
P.  1012;  Peterson  v.  Badger  State 
Land  Co.,  86  Wash,  530,  150  P.  1187; 
Dawson  v.  Baldridge,  55  Tex.  Civ. 
124,  118  S.  W.  593, 


8.  Carpenter  v,  Brackett,  57  Wash. 
460,  107  P.  359. 

9,  Lindly  v,  Lindly,  102  Tex,  135, 
113  S,  W,  750, 

10.  Fanning  v.  Green,  156  Cal.  279, 
104  P,  308, 

11,  Sprague  v,  Walton,  145  Cal,  228, 
78  P.  645, 

12,  Kaltschmidt  v.  Weber,  145  Cal. 
596,  79  P,  272. 

13.  Tell  V,  Gibson,  66  Cal,  247,  5 
Pac,  223;  Hawking  v.  Front,  &c.,  B, 
Co.,  3  Wash,  592,  28  Pac,  1021;  Ezell 
V,  Dodson,  60  Tex.  331 ;  Hynes,  v.  Col- 
man,  &c.,  Co.,  108  Wash.  642,  185 
Pac,  617;  Malmstrom  v.  People's 
Drain  Ditch  Co.,  32  Nev.  246,  107  P, 
98;  Jackson  v,  Bradshaw,  28  Tex,  Civ, 
394,  67  S.  W,  438;  Galveston  H.  &  S, 
A.  Ry.  Co.  V.  Baumgarten,  31  Tex. 
Civ.  253,  72  S.  W,  78;  Gentry  v,  Mc- 
Carty  (Tex.),  141  S.  W.  152;  Labonte 
V.  Da%ndson,  21  Tda.  644,  175  P.  .=)88  : 
Spreeklcs  v.  Spreckles,   116  Cal.  339, 


§  606 


HUSBAND    AND    WIFE. 


63e 


though  the  obligation  sued  on  is  payable  to  her,"  and  even  thou^ 
the  action  be  to  recover  for  the  loss  of  her  credit  as  a  merchant 
and  for  the  loss  of  her  business,^^  but  both  spouses  are  proper 
parties  to  an  action  to  recover  lost  personal  property,  part  of 
which  is  community  property  and  part  the  separate  estate  of  the 
wife.^®  It  is  generally  a  good  defence  to  a  wife's  sole  action  that 
it  is  to  recover  a  community  debt,^^  but  where  she  is  abandoned 
she  may  maintain  such  an  action/*  In  such  case  she  need  not  be 
in  actual  want,^^  but  must  aver  and  prove  the  abandonment  and 
that  she  has  the  sole  management  and  control  of  the  community 
property.^"  She  may  also  recover  community  property  wrong- 
fully and  wastefully  disposed  of  by  the  hu&band.^^ 

In  California  both  parties  are  necessary  to  her  action  for  dam- 
ages for  personal  injury,^^  or  for  her  false  imprisonment.^^ 

In  Louisiana  actions  for  the  wife's  personal  injuries  during  the 
regime  of  the  community  should  be  brought  by  her,  with  the  usual 
authorization,  in  her  own  name  and  for  her  separate  use.^* 

In  Washington  both  spouses  are  necessary  parties  to  an  action 
to  recover  rents  and  profits  of  community  property,^^  and  to  an 
action  for  an  assault  on  her,^"  and  are  proper  parties  to  an  action, 
to  quiet  title  to  community  land,^^  as  well  as  in  an  action  for  her 
personal  injuries,  where  the  community  sustained  damage  for 
medical  services  and  wages  to  persons  to  perform  the  wife's  work," 


48  P.  228,  36  L,  B.  A.  497,  58  Am. 
St.  E.  170;  Cone  v.  Belcher  (Tex.), 
124  S.  W.  149;  Campbell  v.  Kearns, 
13  Ida.  287,  90  P.  108-;  Allemania 
Fire  Ins.  Co.  v.  Angier  (Tex.),  214 
S.  W.  450;  Paganini  v.  Polostrini,  26 
Cal.  App.  342,  146  P.  1046. 

14.  Brenneke  v.  SmaUman,  2  Cal. 
App.  306,  83  P.  302. 

15.  Ainsa  v.  Moses  (Tex.),  100  S. 
W.  791. 

16.  Zeiger  v.  Woodson  (Tex,),  202 
S.  W.  164. 

17.  Helton  V.  Sand  Point  Lumber 
Co.,  7  Ida.  573,  64  P.  889. 

18.  Baldwin  v.  Second,  &c.,  R.  Co., 
77  Cal.  390,  19  Pac.  644 ;  Hamlett  v. 
Coates  (Tex.),  182  S.  W.  1144; 
Vaughn  v.  St.  Louis  Southwestern  R. 
Co.,  34  Tex.  Civ.  445,  79  S.  W.  345. 

19.  Davis  V.  Davis  (Tex.),  186  S. 
W.  775. 


20.  Hadnot  v.  Hicks  (Tex.),  198  8. 
W.  359;  Schwuslst  v.  Neely  (Tex.), 
50  S.  W.  608. 

21.  Marston  v.  Rue,  92  Wash.  129, 
159   Pac.   111. 

22.  Paine  v.  San  Bernardino  Valley- 
Traction  Co.,  143  Cal.  654,  77  P.  659; 
Ju3tis  V.  Atchison,  T.  &  S.  F.  Ry. 
Co.,  12  Cal.  App.  639,  108  P.  328. 

23.  Gomez  v.  Scanlan,  155  Cal.  528, 
102  P.   12. 

24.  Harkness  v.  Louisana  &  N.  W. 
R.  Co.,  110  La.  822,  34  So.  791. 

25.  Lownsdale  v.  Gray's  Harbor 
Boom  Co.,  21  Wash.  542,  58  P.  663. 

26.  Schneider  v.  Biberger,  76  Wash. 
504,  136  P.  701. 

27.  Snyder  v.  Harding,  34  Wash. 
286,  75  P.  812. 

28.  O 'Toole  v.  Faulkner,  34  Wash. 
371,  75  P.  975. 


637  COMMUNITY    DOCTBIXH.  §    607 

but  the  wife  is  not  a  necessary  party  to  such  actions,^*  nor  to  an 
action  by  the  husband  to  recover  for  breach  of  a  contract  bene- 
fiting land  in  which  she  has  a  community  interest^"  In  the  same 
State  she  may  maintain  action  on  a  note  and  mortgage  payable  to 
her,  though  the  property  is  that  of  the  community.^^  Since  the 
statute  in  that  State  makes  the  husband  a  necessary  party  to  all 
actions  concerning  the  community  property,  she  cannot  maintain 
euch  an  action  alone  without  showing  that  he  unreasonably  refused 
to  join  m  it. 

§  607.  Against  Spouses. 

Generally  an  action  for  a  community  debt  can  only  be  main- 
tained against  the  husband.'^  Therefore  a  personal  judgment  can- 
not generally  be  rendered  against  a  wife  for  a  community  debt 
contracted  by  the  husband,'*  but  such  a  judgment  may  be  had 
where  she  contracts  the  debt.'^  A  judgment  against  the  wife  alone 
is  not  a  lien  against  the  community  estate  standing  in  the  name 
of  the  husband,  though  for  a  community  debt.'* 

In  an  action  to  try  title  to  community  property  against  spouses, 
the  wife  is  not  a  necessary  party,  since  her  rights  by  limitation, 
if  any,  inure  to  the  community,''^  even  if  the  property  is  a  home- 
stead.'* In  California  a  husband  may  maintain  an  action  against 
the  wife  to  quiet  title  to  community  property."  In  Louisiana  a 
husband  who  has  the  administration  of  his  wife's  paraphernal 
estate  can  stand  in  judgment  in  a  suit  for  damages  growing  out 
of  the  diminution  of  value.*"  In  Washington  the  wife  of  the 
maker  of  a  note  is  a  proper  party  in  an  action  thereon,  for  the 
purpose  of  determining  whether  the  debt  is  for  the  community 

29.  Ostholler  v.  Spokane  &  I.  E.  E.  35.  Grote-Rankin  Co.  v.  Brownell,  76 
Co.  (Wash.),  182  P.  630.                                Wash.  335,  136  P.  145. 

30.  Belt  V.  Washington  Water-  36.  Conley  v.  Greene,  89  Wash.  39, 
Power  Co.,  24  Wash.  387,  64  P.   525.       153   P.    1089. 

31.  Nance  v.  Woods,  79  Wash.  188,  37.  Hamilton  v.  Blackburn,  43  Tex, 
140  P.  323.                                                       Civ.   153,   95  S.   W.   1094;   Wilson  v. 

32.  Hynes     v.     Colman,     &c.,     Co.       Dickey  (Tex.),  133  S.  W.  437. 
(Wash.),  185  P.  617.  38.    Central    Coal    &    Coke    Co.    v. 

33.  Graham  v.  Thayer,  29  La.  Ann.  Henry  (Tex.),  47  S.  W.  281;  Childress 
75.  V.  Robinson  (Tex.),  161  S.  W.  78. 

34.  Bird  v.  Steele,  74  Wash.  68,  132  39.  Mitchell  v,  Moses,  16  Cal.  App. 
P.   724;    Dashiell  v.  W.  L,  Moody  &  594,  117  P.  685. 

Co.,  44   Tex.  Civ.   87,  97  S.  W.   843;  40.  Lewis  v.  Colorado  Southern,  N. 

Anderson  v.  Burgoyne,  60  Wash.  511,  O.  &  P.  E.  Co.,  122  La.  572,  47  So. 

Ill    P.    777;    Peacock   v.   Eatliff,   62  90&. 
Wash.  653,  114  P.  507. 


§  608  HUSBAND  AND  WIFE.  638 

or  is  a  separate  obligation  of  a  spouse/^  and  the  same  is  true  of 
an  action  on  any  community  debt,"  and  to  an  action  against  the 
husband  for  an  assault  committed  by  the  husband  in  taking  posse- 
sion of  community  property,"  and  to  an  action  against  a  husband 
on  an  agreement  to  save  a  surety  harmless,  entered  into  on  behalf 
of  the  community/*  Both  spouses  are  necessary  parties  to  an 
action  to  enforce  an  assessment  lien  on  community  property  on 
which  they  reside,*'  or  in  an  action  of  tort  arising  out  of  the 
husband's  fraud  in  management  of  the  community  property,*'  as 
well  as  to  an  action  to  foreclose  a  mortgage  on  community  land.*' 

§  608.  Liabilities  Chargeable  on  Community  Property;    Com- 
munity Debts  Generally. 

A  "  community  debt "  is  a  liability  contracted  by  the  husband 
during  coverture.**  Any  debt  so  created  is  presumed  to  be  a 
community  debt,*"  even  debts  created  for  the  improvement  of 
separate  property.""  Community  debts  include  the  expense  of 
interdiction  proceedings  resulting  in  the  appointment  of  a  guardian 
during  coverture,"  the  purchase  price  of  community  property,'" 
attorney's  services  rendered  to  the  wife  in  securing  a  divorce  from 
bed  and  board  and  a  separation  of  property,  to  be  recovered  on 
quantum  meruit/^  the  antenuptial  debts  of  the  wife,"  especially 
after  her  separate  estate  is  exhausted,^"  but  not  her  postnuptial 
debts  incurred  for  the  benefit  of  her  separate  estate,^^  the  husband's 

41.  Clark  v.  Eltinge,  29  Wash.  215,       12  N.  M.   10,  71  P.  1086;    Dever  t. 
69  P.  736.  Selz,  39  Tex.  Civ.  558,  87  S.  W.  891; 

42.  Allen   v.   Chambers,    18  Wash.       Jones-Rosquist-Killen    Co.    v.    Nelson, 
341,  51  P.  478.  98  Wash.  539,  167  P.  1130. 

43.  Geissler  v.   Geissler,  96  Wash.           50.  Summerville  v.  King  (Tex.),  80 
150,  164  P.  746,  166  P.  1119.  S.   W.   1050    (affd.,   98    Tex.   332,   83 

44.  National  Surety  Co.  v.  Blumauer       S.  W.  680;  mod.  reh.,  84  S.  W.  643). 
247  F.  937,  160  C.  C.  A.  127.  51.   Succession   of  Bothick,    52   La. 

45.  French  v.  Taylor,  54  Wash.  624,       Ann.  1863,  28  So.  458. 

104  P.  125;  City  of  Seattle  v,  Baxter,  52.  Neighbors  v.  Anderson,  94  Tex. 

20  Wash,  714,  55  P.  320;   McNair  v.  487,  62   S.  W.  417;   Culmore  v.  Med- 

Ingebrigtsen,    36    Wash.    186,    78    P.  lenka,  —   Tex.   Civ.   App.   504,   61   S. 

789.  W.  145. 

46.  Miller  v.  Gerry,  81  Wash.  217,  53.  Benedict  v.  Holmes,  104  La.  528, 
142   P.   668.  29  So.  256. 

47.  Dane  v.  Daniel,  23  Wash.  379,  54.   Dunlap  v.  Squires    (Tex.),  186 
63  P.  268.  S.  W.  843. 

48.  Word  V.  Colley   (Tex.),  143  S.  55.  Taylor  v.  Murphy,  50  Tex.  291. 
W.  257.  56.  Hall  v.  Johns,  17  Ida.  224,  105 

49.  Johns  V.  Clother,  78  Wash.  602,  P.  71;  Winkie  v.  Conatser  (Tex.),  171 
139  P.  755;  Strong  v.  Eakin,  11  N.  M.  S.  W.  1017. 

107,  66  P.  539;   Brown  v.  Lockhart, 


639 


COMMU>'ITy    DOCTKINE. 


§    608 


partnership  debts,"^  a  judgment  against  a  husband  on  a  contract 
made  as  principal,  though  for  an  undisclosed  principal/'^^®  and  the 
husband's  statutory  liability  on  corporate  stock  bought  by  him.'" 

^Yhe^e  a  wife's  health  required  her  to  live  in  a  place  other  than 
that  where  the  husband's  business  compelled  him  to  live,  her  pur- 
chase of  a  home  where  she  lived  was  not  family  necessaries,  so  as 
to  be  a  charge  on  the  community,^"  a  piano  purchased  by  the  wife 
and  used  by  the  family  was  held  not  a  family  expense, 
chargeable  against  the  community,*^  or  against  the  husband's 
property.*^  The  test  of  the  character  of  a  debt,  as  to  whether  it  is 
community  or  separate,  is  whether  the  transaction  was  intended  to 
be  for  the  benefit  of  the  community  and  not  whether  it  was  actually 
benefited.®^  Neither  spouse  can  create  a  community  debt  or  use 
the  community  property  to  pay  debts  after  a  decree  of  partition.'* 
Community  debts  are  a  charge  on  all  community  property,'"  ex- 
cept, in  Texas,  the  homestead,"  even  though  the  wife  manages  the 
property  and  creates  the  debt,^^  both  spouses  being  equally  bound." 
Community  debts  attach  to  the  property  and  need  not  be  recorded 
to  follow  it  into  the  hands  of  third  persons.'*  The  lien  of  a  judg- 
ment against  the  husband  for  a  community  debt  against  community 
property  is  superior  to  that  of  the  wife  in  divorce  proceedings.'" 
Where  a  husband  has  both  separate  and  community  funds  in  his 


67.  Euuth  V.  Morse  Hardware  Co., 
74  Wash.  361,  133  P.  587. 

58.  Lawler  v.  Armstrong,  53  Wash. 
€64,  102  P.  775. 

69.  Shuey  v.  Adair,  24  Wash.  519, 
64  P.  536. 

60.  Bexar  Building  &  Loan  Ass  'n  v. 
Heady,  21  Tex.  Civ.  154,  50  S.  W. 
1079. 

61.  Hall  V.  Deeherd  (Tex.),  131  S. 
W.  1133;  Jones-Rosquist-Killen  Co, 
V.  Nelson,  98  Wash.  539,  167  P.  1130. 

62.  Bush  &  Lane  Piano  Co.  v.  Wood- 
ard,  103  Wash.  612,  175  P.  329'. 

63.  Way  v.  Lyric  Theater  Co.,  79 
Wash.  275,  140  P.  320;  McGregor  v. 
Johnson,  58  Wash.  78,  107  P.  1049,  27 
27  L.  R.  A.  (X.  S.)  1022;  Goodfellow 
V.  Le  May,  15  Wash.  684,  47  P.  25; 
Bird  V.  Steele,  74  Wash.  68,  132  P. 
724;  Vinson  v.  Whitfield  (Tex.),  133 
8.  W.  1095. 


64.  Moor  V.  Moor  (Tex.),  63  S.  W, 
347. 

65.  Calvin  Philips  &  Co.  v.  Langlow, 
55  Wash.  385,  104  P.  610;  Horton  v. 
Donohoe-Kelly  Banking  Co.,  15  Wash. 
399,  46  P.  409;  Williams  v.  Beebe, 
79  Wash.  133,  139  P.  867;  Fisher  v. 
Marsh,  69  Wash.  570,  125  P.  951. 

66.  Williamson  v.  McElroy  (Tex.), 
155  S.  W.  998. 

67.  Fielding  v.  Ketler,  86  Wash. 
194,  149  P.  667;  Richburg  v.  McH- 
■waine,  Knight  &  Co.  (Tex.),  131  S.  W. 
1166. 

68.  Peterson  v.  Badger  State  Land 
Co.,  86  Wash.  530,  150  P.  1187. 

69.  Thompson  v.  Vance,  110  La.  26, 
34  So.  112. 

70.  Ghent  v.  Boyd,  18  Tex.  Civ.  88, 
43  S.  W.  891. 


§  610 


HUSBAND    AND    WIFE. 


640 


possession,  and  pays  debts  therewith,  it  is  presumed  that  he  pays 
them  from  the  proper  fund/^ 

In  Louisiana,  in  establishing  the  residuum  of  the  community 
by  deducting  the  debt  from  the  active  mass,  only  community  debts 
are  to  be  deducted,  and  not  debts  secured  by  special  mortgage  in 
proceedings  in  favor  of  minors/^  In  that  State,  where  a  husband 
administers  the  separate  property  of  the  wife,  the  debts  incurred 
in  such  administration,  including  the  expense  of  cultivating  her 
plantation,  are  community  debts/'  and  the  wife  is  not  liable 
therefor.'^*  In  Texas  funeral  expenses  of  the  husband,  paid  by 
the  wife,  are  community  debts,  for  which  his  estate  is  not  liable.'' 

§  609.  Obligations  as  Surety. 

The  community  is  generally  liable  for  the  husband's  obligations 
as  surety  where  made  for  its  benefit,'®  but  not  where  the  stock  was 
purchased  with  the  husband's  separate  earnings,  and  where  there 
was  an  agreement  that  such  earnings  should  be  his  separate  prop- 
erty,'' or  where  the  husband's  act  was  not  for  the  benefit  of  the 
community.'^  Where  a  husband  who  held  stock  in  a  corporation 
becomes  surety  for  it  the  liability  is  a  community  debt,"  even 
though  the  wife  objects  to  the  purchase  of  the  stock.' 


80 


§  610.  Bills  and  Notes. 

A  note  made  by  the  husband  is  presumptively  a  community 
debt,®^  especially  where  made  for  the  benefit  of  the  community,*' 
in  which  case  the  signature  of  the  wife  is  not  necessary  to  bind  the 
community.*'  The  community  is  not  liable  for  the  husband's 
accommodation  note,  even  in  the  hands  of  a  holder  in  due  course 


71.  In  re  Finn's  Estate,  105  Wash. 
532,  179  P.  103. 

72.  Scovell  V.  Levy's  Heirs,  106  La. 
118,  30  So.  322. 

73.  Pior  V.  Giddens,  50  La.  Ann. 
216,  23  So.  337. 

74.  Courrege  v.  Colgin,  51  La.  Ann. 
1069,  25  So.  9^42. 

75.  Gilroy  v.  Richards,  26  Tex.  Civ. 
355,  63  S.  W.  664. 

76.  Peter  v.  Hensen,  86  Wash.  413, 
150  P.  611 ;  Williams  V.  Hitchcock,  86 
Wash.  536,  150  P.  1143. 

77.  Union  Securities  Co.  v.  Smith, 
93  Wash.  115,  160  P.  304. 

78.  Kanters  v.  Kotick  (Wash.),  173 
P.  329;  American  Surety  Co.  of  New 


York  v.  Sandberg,  244  F.  701,  157  C. 
C.  A.  149 ;  J.  I.  Case  Threshing  Mach. 
Co.  V.  Wiley,  89  Wash.  301,  154  P. 
437. 

79.  Horton  v.  Donohoe-Kelly  Bank- 
ing Co.,  15  Wash.  399,  46  P.  409; 
National  Surety  Co.  v.  Blumauer,  247 
F.  937,  160  C.  C.  A.  127. 

80.  Floding  v.  Denholm,  40  Wash. 
463,  46  P.  409. 

81.  Reed  v.  Loney,  22  Wash.  433, 
61  P.  41. 

82.  McLean  v.  Burginger,  100 
Wash.  570,  171  P.  518;  .Johnson  v. 
Garner,  233  F.  756. 

S3.  Northern  Bank  &  Trust  Co.  v. 
Graves,  79  Wash.  411,  140  P.  328. 


641 


COMMUNITY    DOCTEINE. 


§  612 


before  maturity,®*  but  a  joint  note  of  tbe  spouses  to  pay  a  note  on 
which  the  husband  was  surety  is  a  community  debt.®'  A  wife 
abandoned  by  her  husband  may  bind  herself  by  a  note  to  pay 
community  debts.®' 

Where  there  is  a  division  of  community  property,  the  wife  is 
jointly  liable  with  her  husband,  to  the  extent  of  the  property 
received  by  her,  for  a  community  note  executed  by  her  husband, 
but  not  for  his  renewal  of  the  note  after  the  division.®^ 

§611.  Torts. 

The  community  is  not  liable  for  the  tort  of  either  spouse," 
unless  committed  in  the  management  of  community  property,®'  or 
for  the  tort  of  a  servant  of  the  husband.""  A  wife's  torts  are  pre- 
sumed not  to  be  for  the  benefit  of  the  community.*'^  Where  the 
community  is  engaged  in  the  business  of  a  notary  it  may  be  liable 
for  a  false  certification  made  by  one  of  the  spouses.'^  In  Arizona 
community  property  is  liable  for  fines  inflicted  on  a  husband  in  a 
criminal  prosecution.*' 

§  612.  Separate  Debts. 

The  tendency  of  the  courts  and  legislatures  is  to  make  com- 
munity property  liable  for  community  debts  alone,  and  separate 
property  of  the  wife  for  her  separate  debts  alone.'* 

In  Idaho  and  Texas  community  property  is  liablp  for 
the     husband's     separate     debts,^^     but     not     in 


Washing- 


84.  Shuey  v.  Holmes,  20  Waah.  13, 
54  P.  540;  Giind  v.  Parke,  15  Wash. 
393,  46  P.  1045. 

85.  McKee  v.  Whitworth,  15  Wash. 
536,  46  P.  1045. 

86.  Crowder  v.  McLeod  (Tex.),  151 
8.  W.  1166. 

87.  Grandjean  v.  Eunke  (Tex.),  39 
8.  W.  945. 

88.  Day  v.  Henry,  81  Wash.  61,  142 
P.  439;  Schramm  v.  Steele,  97  Wash. 
309,  166  P.  634;  Wilson  v.  Stone,  90 
Wash.  365,  156  P.  12 ;  Floding  v.  Den- 
holm,  40  Wash.  463,  82  P.  738. 

89.  Oudin  v.  Grossman,  15  Wash. 
519,  46  P.  1047;  Woste  v.  Eugge,  68 
Wash.  90,  122  P.  988 ;  Bice  v.  Brown, 
98  Wash.  416,  167  P.  1097;  Milne  v. 
Kane,  64  Wash.  254,  116  P.  659, 

90.  Killingsworth  v.  Keen,  89  Wash. 

41 


597,  154  P.  1096;  Milne  v.  Kane,  64 
Wash.  254,  116  Pac.  659,  36  L.  E,  A, 
(N.  S,)  88, 

91.  Killingsworth  v.  Keen,  89  Wash. 
597,  154  P.  1096;  Patterson  &  Wal- 
lace V.  Frazer,  93  S.  W.  146  (judg- 
ment reversed  [Sup,]),  100  Tex.  103, 
94  S.  W,  324. 

92.  Kangley  v.  Eogers,  85  Wash. 
250,  147  P.  898. 

93.  Villescas  v.  Arizona  Copper  Go., 
20  Ariz.  268,  179  P.  963. 

94.  Vickers  v.  Block,  31  La.  Ann. 
267;  La.  Code,  §§  2355,  2367,  2399- 
2412;  Lewis  v,  Winston,  26  La.  Ann. 
707;  Newman  v.  Eaton,  27  La.  Ann. 
341 ;  Drumm  v.  Kleinman,  31  La,  Ann. 
124. 

95.  Holt  V.  Empey,  32  Ida,  106, 
178  P.  703;  Ochoa  v.  Edwards  (Tex.), 


§  614 


HUSBAND    AND    WIFE. 


642 


ton.®'  But  the  separate  debt  of  a  spouse  becomes,  on  his  death, 
chargeable  against  his  half  of  the  community  property.®'  In 
Louisiana  a  husband's  funeral  expenses  are  to  be  charged  to  his 
share  of  the  community  estate  and  not  to  the  community.®^  In 
that  State  the  costs  of  a  proceeding  for  separation  from  bed  and 
board  taxed  against  the  husband  are  his  separate  debt,  such  costs 
retroacting  to  the  date  of  filing  the  suit.®® 

§  613.  Rights  and  Remedies  of  Creditors  During  Existence  of 

Cominumty. 

The  right  of  a  community  creditor  to  subject  the  community 
property  to  his  debt  is  not  affected  though  the  husband  has  aban- 
doned the  wife  and  has  taken  with  him  community  property  to 
the  extent  of  more  than  half  the  estate,^  nor  by  the  fact  that  the 
spouses  have  agreed  that  the  property  should  be  separate  eetate 
of  the  wife.^  A  judgment  creditor  of  the  community  may  sell 
only  the  husband's  interest,  where  he  does  not  object,  though  the 
wife's  interest  is  also  liable.' 

Where  a  wife  engages  in  trade,  she  is  presumed  to  do  so  with 
community  funds,  and  the  fact  that  the  husband  permits  her  to 
use  his  money  or  property  as  her  own,  and  to  obtain  credit  on  the 
faith  of  it,  does  not  estop  him  from  claiming  the  property  as 
against  her  creditors.* 

§  614.  Dissolution    of    Community;     Effect    of    Abandonment, 
Separation,  Insanity  or  Divorce. 

Abandonment  by  the  husband  will  enable  the  wife  to  maintain 
an  action  for  her  interest  in  community  property,"  but  not  for  a 
fraudulent  disposition  of  his  wages,  since  such  wages  are  subject 


189  S.  W.  1022;  Seabrook  v.  First 
Nat.  Bank  of  Port  Lavaca  (Tex.), 
171   S.  W.  247. 

96.  La  Selle  v.  Woolery,  14  Wash. 
70,  44  Pac.  115,  53  Am.  St.  R.  855; 
Eo83  V.  Howard,  31  Wash.  333,  72 
P.  74;  Harry  L.  Olive  Co.  v.  Meek 
(Wash.),  175  P.  33,  178  P.  450;  Huy- 
vaerts  v.  Eoedtz,  105  Wash.  657,  178 
P.  801 ;  Deering  v.  Holcomb,  26  Wash. 
588,  67  P.  240;  Morse  v.  Estabrook, 
19  Wash.  92,  52  P.  531,  67  Am.  St.  R 
723;  Gund  v.  Parke,  15  Wash.  393,  46 
P    408. 

97.  Crawford  v.  Morris,  ?2  Wash. 
288,  158  P.  957. 


98.  Succession  of  Pizzati,  141  La. 
645,  75  So.  498. 

99.  Gastauer  v.  Gastauer,  143  La. 
74?,  79  So.  326. 

1.  Teague  v.  Lindsey,  31  Tex.  Civ. 
161,  71  S.  W.  573;  Ochoa  v.  Edwards 
(Tex.),  189  S.  W.  1022. 

2.  Jordan  v.  Marcantell  (Tex.),  147 
S.  W.  357. 

3.  Campbell  v.  Antis,  21  Tex.  Civ. 
161,  51  S.  W.  343. 

4.  Bashore  v.  Parker,  146  Cal  525, 
80  P.  707. 

5.  Coss  V.  Coss  (Tex.),  207  8.  W. 
127. 


643  COMMUNITY    DOCTRINE.  §    614: 

to  his  disposition  for  his  own  purposes  although  community  prop- 
erty.^ The  community  is  not  dissolved  by  the  ins'anity  of  a 
spouse.'  Divorce  will  dissolve  the  conmiunity,®  but  not  the  mere 
fact  that  cause  for  divorce  exists.^  A  decree  of  divorce  making 
no  division  of  community  property  does  not  deprive  a  wife  of  her 
rights  in  the  community  property  as  a  matter  of  law/"  such  a 
decree  rendering  the  spouses  tenants  in  common  of  the  community 
property.^  ^ 

It  is  otherwise  in  Washington,  where  community  property  un- 
disposed of  by  the  decree  remains  such,  as  between  the  parties, 
but  may  be  recovered  in  another  action.^^  Where  a  divorced  wife 
forms  a  new  community  by  remarriage,  she  cannot  claim  rights 
under  the  first  community,"  but  a  wife  who  remarries  under  a 
belief  that  her  husband  has  obtained  a  divorce  from  her  does  not 
forfeit  her  community  rights.^*  A  divorced  wife  claiming  to 
share  in  the  increase  of  value  of  her  husband's  separate  property 
by  reason  of  the  expenditure  of  community  funds  has  the  burden 
of  showing  the  amount  of  such  increase.^® 

Where,  during  the  pendency  of  an  action  by  the  husband  to 
recover  community  property  from  a  grantee  of  his  wife,  a  decree 
of  divorce  is  rendered  which  awards  the  property  involved  to  the 
wife,  the  husband  can  recover  only  costs  and  damages  for  the 
detention.^® 

In  Louisiana  a  community  which  has  been  once  dissolved  can- 
not be  re-established.^^  In  the  same  State  a  divorce  from  bed  and 
board  dissolves  the  community.^*  In  order  to  secure  a  separation 
of  property  in  that  State  the  wife  need  only  show  that  the  habits 

6.  Irwin  v.  Irwin  (Tex.)>  HO  S.  W.       Peverill,  4  Cal.  App.  671,  88  P.  994; 
1011.  Roemer  v.  Traylor  (Tex.),  128  S.  W. 

7.  Succession    of    Bothick,    52    La.       685. 

Ann.  1863,  28  So.  458.  12.  Harvey  v.  Pocock,  92  Wash.  625, 

8.  Milekovich  v.  Quinn   (Cal.),  181       159  P.  771, 

P.  256;  Givens  v.  Givens   (Tex.),  195  13.  Bedal  v.  Sake,  10  Ida.  270,  77 

S.  W.  877.  P.  638,  270  L.  R.  A.  60. 

9.  Merrell  v.   Moore,   47   Tex.   Civ.  14.  Merrell  v.  Moore,  47  Tex.  Civ. 
200,  104   8.  W.   514.  200,  104  S.  W.  514. 

10.  Moor  V.  Moor,  24  Tex.  Civ.  150,  15.  Young  v.  Rapier,  94  F.  283,  36 
57  S.  W.   992.  C.  C.  A.  248. 

11.  Southwestern  Mfg.  Co.  v.  Swan  16.   Carney   v.   Simpson,   15    Wash. 
(Tex.),    43    S.    W.    813;    Barkley    v.  227,  46  P.  233. 

American  Savings  Bank  &  Trust  Co.,  17.  American  Hoist  &  Derrick  Co.  v. 

61  Wash.  415,  112  P.  495;  Johnson  v.  Frey,  127  La.  183,  53  So.  486. 

Gamer,  233  F.  756;  Jones  v.  Frazier  18.   Succession   of  Le   Besque,    137 

(Tex.),    201    S.    W.    445;    Table*    v.  La.  567,  68  So.  956. 


§  615  HUSBAND  AND  WIFE.  644 

and  circumstances  of  the  husband  make  it  necessary  for  her  to 
preserve  for  her  family  the  earnings  from  her  separate  industry 
and  talents/®  The  Texas  statute  providing  that  property  in  the 
possession  of  either  spouse  at  the  time  the  marriage  is  "  dissolved," 
includes  a  dissolution  by  divorce  as  well  as  one  by  death.*" 

The  rule  of  the  Spanish  law  that  a  wife  against  whom  a  decree 
of  divorce  for  adultery  has  been  made  forfeits  her  rights  to  com- 
munity property  does  not  obtain  in  Porto  Rico,  there  being  in 
that  territory  a  rule  of  limited  forfeiture,  by  which  the  guilty 
party  forfeits  all  gifts  from  the  innocent  party,  who  retains  every- 
thing acquired  from  the  other.^^  By  statute  in  the  same  territory 
a  divorce  carries  with  it  a  division  of  all  property  and  effects 
between  the  spouses.^^ 

§  615.  Rights  and  Liabilities  of  Survivor. 

Upon  the  dissolution  of  marriage  by  death,  there  having  been 
no  testamentary  disposition  to  the  contrary  of  the  disposable  share 
of  deceased,  this  community  property  goes,  after  payment  of  all 
community  debts,  as  generally  regulated,  to  the  survivor,  if  the 
deceased  leaves  no  descendant;  otherwise,  one  half  to  the  sur- 
vivor,"^ and,  in  Texas,  even  if  there  are  living  grandchildren,  the 
statute  not  including  them  by  the  word  "children;'"*  subject  to 
debts  and  charges  of  administration,*^  and  subject  to  the  settle- 

19.  Gastauer  v.  Gastauer,  131  La.  282;  Slavin  v.  Greever  (Tex.),  209^ 
1,  58  So.  1012.  S.  W.  479;   Perry  v.  Eogers,  52  Tex. 

20.  Gameson  v.  Gameson  (Tex.),  Civ.  594,  114  S.  W.  897;  Graves  v. 
162  S.  W.  1169.  Smith  (Tex.),  140  S.  W.  487;  Melton 

21.  Garrozi  v.  Dastas,  204  U.  S.  64,  v.  Beasley,  56  Tex.  Civ.  537,  121  S.  W. 
27  S.  Ct.  224,  51  L.  Ed.  369.  574;    In  re  Kattenhorn's  Estate,   41 

22.  Garrozi  v.  Dastas,  204  U.  S.  64,  Nev.  384,  171  P.  164;  Adels  v.  Josepn 
27  S.  Ct.  224,  51  L.  Ed.  36?.  (Tex.),  148  S.  W.  1154;   Myrack  v. 

23.  La.  Code,  §§  2375,  2378;  Broad  Volentine  (Tex.),  65  S.  W.  674; 
V.  Murray,  44  Cal.  228;  Johnson  v.  Harle  v.  Harle  (Tex.),  204  S.  W.  317; 
Harrison,  48  Tex.  257;  La  Tourette  Whisler  v.  Cornelius,  34  Tex.  Civ.  511, 
V.  La  Tourette,  15  Ariz.  200,  137  P.  79  S.  W.  360;  McCown  v.  Owens,  15 
426;  In  re  Pickard's  Estate,  169  Cal.  Tex.  Civ.  346,  40  S.  W.  336;  Daniels 
162,  146  P.  425;  Kohny  v.  Dunbar,  v.  Spear,  65  Wash.  121,  117  P.  737. 
21  Ida.  258,  121  P.  544;  Peck  v.  24.  Eoss  V.  Martin,  140  S.  W.  432 
Board  of  Directors  of  Public  Schools  (judgment  mod.  reh.,  104  Tex.  558, 
for  Parish  of  Catahoula,  137  La.  334,  141  S.  W.  518). 

68  So.  629;  Barnett  v.  Barnett,  9  N.  25.  In  re  Cannon's  Estate,  18  Wash. 

M.    205,    50    P.    337;    Woodward    t.  101,  50  P.  1021;  Thompson  v.  Vance, 

Sanger  Bros.,  246  F.  777,  159  C.  C.  110  La.  26,  34  So.  112;   Thatcher  v. 

A.  79   (cert,  den.,  246  IT.  S.  674,  38  Capeca,  75   Wash.   249,   134   P.   923; 

S.  Ct.  425,  62  L.  Ed.  932)  ;  Schwartz  Embree-McLean  Carriage  Co.  v.  John- 

V.  West,  37  Tex.  Civ.  136,  84  S.  W.  son    (Tex.),  85  S.  W.   1021;   Martin 


645 


COMMUNITY    DOCTRINE. 


§  615 


ment  of  accounts  between  the  community  and  the  survivor,^'  being 
tenant  in  common  with  the  heirs  or  devisees  of  the  deceased,  if 
anj,^^  even  if  the  heir  be  a  divorced  first  wife  claiming  title  under 
her  son  bj  the  first  marriage,  who  was  heir  to  his  father's  rights 
under  the  second  marriage."^  A  survivor  has  such  power  over  the 
whole  as  will  enable  such  survivor  to  close  the  business  of  the 
community,^^  and  pay  debts.^° 

In  Texas  the  survivor  has  a  life  estate  in  the  homestead,'^  and 
a  surviving  husband  is  life  tenant  of  his  deceased  wife's  share  in 
the  community  property.^^  In  the  same  State  a  deserted  wife 
whose  husband  remarries  takes  half  the  community  property  ac- 
quired prior  to  the  remarriage  and  a  fourth  of  that  acquired 
afterwards.^' 

Where  a  surviving  spouse  sells  community  property  and  uses 
more  than  half  for  private  purposes,  the  excess  over  one  half  is 
held  in  trust  for  the  heirs  of  the  deceased.^^  Such  a  sale  will 
operate  as  a  partition,  as  between  the  parties,  and  the  survivor 
will  be  estopped  to  assert  title,  as  against  the  heirs  of  the  deceased, 
to  the  unsold  portion  if  its  value  does  not  exceed  one  half  the 
property.^'  Under  the  California  statute  the  surviving  wife  takes 
one  half  the  community  property,  plus  what  her  husband's  wife 
gives  her.^'  In  Louisiana  the  survivor  is  owner  of  half  the  com- 
munity property,  with  the  lifetime  usufruct  of  the  minor's  por- 
tion," where  a  deceased  spouse  does  not  dispose  by  will  of  his 


Davie  &  Co.  v.  Carville,  110  La.  862, 
34  So.  807. 

26.  Kelly  v.  Kelly  131  La.  1024, 
60  So.  671. 

27.  "Waterman  Lumber  &  Supply 
Co.  V.  Eobins  (Tex.),  159  S.  W.  360; 
Worst  V.  Sgitcovieh  (Tex.),  46  S.  W. 
72;  Ewald  v.  Hufton,  173  Ida.  373, 
173  P.  247;  Schlarb  v.  Castaing,  50 
Wash.  331,  97  P.  289;  Bullock  v. 
fiprouls  (Tex.),  54  S.  W.  657  (affd., 
93  Tex.  188,  54  S.  W.  661,  47  L.  R.  A. 
326,  77  Am.  St.  R.  849). 

28.  Johnson  v.  Johnson  (Tex.),  207 
S.  W.  202. 

29.  Wiener  v.  Zweib  (Tex.),  128  S. 
W.  699. 

SO.  Stone  v.  Jackson  (Tex.),  210 
S.  W.  953. 

31.  Crocker  v.  Crocker,  19  Tex.  Civ. 
296,  46  S.  W.  870;  Janes  v.  Stratton 


(Tex.),  203  S.  W.  386;  Texas  Tram 
&  Lumber  Co.  v.  Gwin,  29  Tex.  Civ. 
App.  1,  67  S.  W.  892. 

32.  Richmond  v.  Sims  (Tex.),  144 
S.  W.  1142. 

S3.  Parker  v.  Parker,  222  F.  186, 
137  C.  C.  A.  626. 

34.  Oaks  v.  West  (Tex.),  64  S.  W. 
1033. 

35.  Eddy  v,  Bosley,  34  Tex.  Civ.  116, 
78  S.  W.  565. 

86,  In  re  Rossi's  Estate,  169  Cal. 
148,  146  P.  430;  In  re  Angle's  Estate, 
148  Cal.  102,  82  P.  668;  In  re  Dar- 
gie's  Estate  (Cal.),  177  P.  165;  In 
re  Boody's  Estate,  113  Cal.  682,  43 
P.  858. 

87.  Mazzei  v.  Gruis,  128  La.  860, 
55  So.  555;  Succession  of  Webre,  49 
La.  Ann.  1491,  22  So.  390;  Succession 
of  Planchett,  29  La.  Ann.   520;  For- 


§  615  HUSBAND  AND  WIFE.  646 

community  interest,  if  there  is  issue  of  the  marriage,  and  until 
remarriage,^*  Such  a  usufructuary  is  bound  to  pay  taxes  on  the 
property  to  which  the  usufruct  attaches,^*  and  is  merely  entitled 
to  the  income,  but  does  not  become  owner  of  the  property.*"  In 
order  that  a  surviving  widow  may  enjoy  that  right  she  must 
inventory  and  appraise  the  property  and  record  an  abstract  thereof 
in  the  book  of  mortgages  for  the  parish  in  which  the  property  is 
situated.*^  The  usufruct  which  ceases  on  remarriage  attaches  to 
the  interest  in  community  property  inherited  by  the  heirs  of  the 
deceased,  but  a  usufruct  established  by  will  does  not  cease  on  re- 
marriage.'*^ The  usufructuary  right  is  not  affected  by  the  pur- 
chase by  the  widow  of  the  shares  of  certain  heirs,  nor  does  such 
purchase  amount  to  a  partition  between  the  widow  and  such  ven- 
dees of  shares,*'  nor  by  the  fact  that  there  is  an  adopted  child  of 
the  spouses.**  The  statute  in  that  State  regulating  usufructs 
generally  does  not  apply  to  the  case  of  a  widow's  usufruct  after 
the  dissolution  of  a  community.*^  In  the  same  State,  where  she 
has  taken  more  than  her  share  of  the  community  property  she 
owes  her  husband's  share  to  his  succession,  but  is  not  liable  directly 
to  any  particular  creditor.*®  In  the  same  State,  where  a  putative 
wife  acts  in  good  faith  without  knowledge  of  the  first  marriage, 
the  property  acquired  by  the  husband  during  the  second  marriage 
is  to  be  divided  between  the  two  wives,  their  children  being  not 
interested.*''  In  the  same  State  a  widow  who  converts  her  hus- 
band's property  to  her  own  use  without  notice  to  the  forced  heirs, 
and  without  an  order  of  court  and  inventory,  as  required  by  the 
statute,  is  a  spoliator  and  liable  as  such.** 

stall  V.    Forstall,    28   La.   Ann.    107;  tion  of  his  usufruct.     Miquez  v.  Del- 

Hickman   v.   Thompson,  24  La.  Ann.  cambre,  125  La.  176,  51  So.  105. 

264.  41.  Succession  of  Landier,   51   La. 

38.  Keems   v.    Dielmann,    111    La.  Ann.  968,  25  So.  938, 

96,  35  So.  473.  42.   Smith  v.  Nelson,  121  La.  170, 

39.  Babin's  Heirs  v.  Daspit,  120  La,       46  So.  200. 

755,  45  So.  597;  In  re  Daspit,  Id.  43.  Succession  of  Dielmann,  119  La. 

40.  Leury  v.  Mayer,  122  La.  486,       101,  43  So.  972. 

47  So.  839.  44.  Succession  of  Teller,  49r  La.  Ann. 

Notes    not    being    capable    of    use  28,  21  So.  265. 

without  their  being  expended  or  con-  45.  Succession  of  Dielmann,  119  La. 

sumed  or  without  their  substance  be*  101,  43  So.  972. 

ing  changed  are  subject  to  imperfect  46.  Martin  Davie  &  Co.  v.  Carville, 

usufruct  under  the  express  provisions  110  La.  862,  34  So.  807. 

of  Civ.  Code,  art.   534,  and  the  usn-  47.  Waterhouse  v.   Star  Land  Co., 

fructuary  may  dispose  of  them  at  his  139  La.  177,  71  So.  358. 

pleasure  under  the  obligation  of  ac-  48.   Tujague  v.  Courtiade,  140  La. 

counting  for  their  value  at  the  expira-  779,  73  So.  862. 


64:7 


COMMUNITY    DOCTEINE. 


§  616 


§  616.  Rights  of  Heirs. 

Heirs  can  have  no  greater  rights  in  community  property  than 
their  ancestor  would  have  had.*^  On  the  death  of  a  spouse  such 
spouse's  community  interest  passes  to  such  spouse's  heirs,  who  are 
usually  his  children,'"  in  equal  shares,'^  as  tenants  in  common 
with  each  other,'^  and  with  the  survivor,"**  subject  to  the  home- 
stead rights  of  the  survivor,'*  and  subject  to  the  rights  of  a  bona 
fide  purchaser  from  the  survivor,''  whether  the  survivor  admin- 
isters or  qualifies  as  survivor,'*  and  even  though  after  the  death 
of  the  ancestor  the  form  of  the  property  is  changed."  The  rule 
is  not  inclusive  of  adopted  heirs."  Heirs  cannot  recover  any 
specific  community  property,  but  only  their  shares  of  the  balance 
remaining  after  a  settlement  of  the  property,'*  they  having  no 
certain  interest  in  the  community  property  until  debt's  are  paid,®" 


49.  Lanigan  v.  Miles  (Wash.),  172 
P.   894. 

50.  Coe  V.  Sloan,  16  Ida.  49,  100  P. 
354;  Weiss  v.  Goodhue,  98  Tex.  274, 
83  S.  W.  178;  Carl  v.  Settegast 
(Tex.),  211  8.  W.  506;  Duvall  v. 
Healj  Lumber  Co.,  107  P.  357  (judg- 
ment affd.  reh.,  51  Wash.  446,  109  P. 
305) ;  Festivan  v.  Clement,  135  La. 
938,  66  So.  304;  Owen  v.  M.  Hanlon's 
Sons,  136  La,  455,  67  So.  329;  Lynch 
V.  Lynch  (Tex.),  130  S.  W.  461; 
Merrill  v.  Bradley,  102  Tex.  481,  119 
8.  W.  297;  Mitchell  v.  Schofield 
(Tex.),  140  S.  W.  254;  Mazzei  v. 
Gruis,  128  La.  860,  55  So.  555;  Mc- 
Clure  V.  Bryant,  18  Tex.  Civ.  141,  44 
8.  W.  3;  Sims  v.  Hixon  (Tex.),  65 
8.  W.  36  (affd.,  65  S.  W.  35) ;  Mc- 
Anulty  V.  Ellison  (Tex.),  71  S.  W. 
670;  Belt  v.  Cetti,  100  Tex.  92,  93 
8.  W.  1000 ;  Schultze  v.  Frost-Johnson 
Lumber  Co.,  132  La.  366,  61  So.  404; 
Succession  of  Kleinert,  125  La.  549, 
51  So.  584;  Aldredge  v.  Aldredge 
(Tex.),  204  8.  W.  355. 

The  rule  that  on  the  death  of  a 
spouse  half  the  community  property 
goes  to  the  survivor  and  half  to  the 
heirs  of  the  deceased  is  a  rule  of  prop- 
erty in  Washington.  Warburton  v. 
White,  18  Wash.  511,  52  P.  233  (affd., 
176   U.   R.   484.  20  8.  Ct.   404,  44   L. 


Ed.  555);   Krieg  v.  Lewis,  56  Wash. 
196,  105  P.  483. 

51.  Ewald  V.  Hufton,  31  Ida.  373, 
173  P.  247. 

52.  Miller  v.  Blackwell,  142  La.  571, 
77  So.  285. 

53.  Wingo  v.  Eudder,  103  Tex.  150, 
124  8.  W.  899 ;  Eckert  v.  Schmitt,  60 
Wash.  23,  110  P.  635;  Daniel  v. 
Daniel,  106  Wash.  659,  181  P.  215. 

54.  Barkley  v.  Stone  (Tex.),  195 
S.  W.  925;  Morse  v.  Nibbs  (Tex.), 
150  8.  W.  766. 

55.  Woodburn  v.  Texas  Town  Lot 
&  Improvement  Co.  (Tex.),  153  8.  W. 
365;  Loomis  v.  Cobb  (Tex.),  15?  S. 
W.  305;  Washington  v.  Filer,  127  La. 
862,  54  So.  128. 

56.  Belt  V.  Cetti,  100  Tex.  92,  93 
S.  W.  1000. 

57.  In  re  Brady's  Estate,  171  Cal. 
1,  151  P.  275. 

58.  Harle  v.  Harle  (Tex.),  204  8. 
W.   317. 

59.  Baird      v.      Stevenson,      Man. 
Unrep.  Cas.  (La.),  418. 

60.  Baird  v.  Stevenson,  Man. 
Unrep.  Cas.  (La.)  418;  Succession 
of  Saux,  2  McGloin  (La.)  38;  Amer- 
ican Nat.  Bank  of  Paris  v.  First  Nat. 
Bank,  52  Tex.  Civ.  519,  114  8.  W. 
176;  Guillory  v.  Latour,  138  La.  142, 
70   So.    66;    Belt   v.    Cetti,    100   Tex. 


§  616 


HUSBAND    AND    WIFE. 


648 


but  nevertheless  on  the  death  of  the  ancestor  their  rights  to  the 
residuum  attach  at  once,  and  are  absolute,  if  there  is  a  residuum.'^ 

The  interest  of  an  heir  cannot  be  charged  with  de'bts  made  after 
the  death  of  the  ancestor.^^  On  the  death  of  the  survivor  the  heirs 
may  have  a  partition.^^  A  conveyance  of  community  lands  by  a 
survivor  to  his  children  in  severalty,  if  accepted  by  them,  will 
constitute  a  partition  as  between  such  heirs.®*  A  community  sur- 
vivor cannot  devest  the  interests  of  such  heirs  by  gift,®'*  or  will,""* 
or  by  a  conveyance  of  the  estate,®^  unless  there  are  community 
debts  sufficient  to  warrant  the  sale,®'  or  unless  the  grantee  is  with- 
out notice  of  the  equitable  rights  of  such  heirs,®*  or  unless  the 
heirs  join  in  the  deed,^°  nor  are  such  rights  affected  by  a  false 
inventory  of  such  survivor's  estate.'^^ 

Where  community  property  has  been  sold  by  a  survivor  the 
heirs  of  the  deceased  may  have  their  rights  in  such  property 
allowed  to  them  out  of  the  survivor's  interest  in  the  remaining 
property,'^  as  well  as  where  survivor  used  money  of  a  deceased 
spouse  in  making  improvements  on  community  lands.'*  The  fail- 
ure of  a  hus^band  to  plead  the  Statute  of  Limitations  in  an  action, 
against  him  as  survivor  on  a  community  debt  is  not  a  fraud  on 
the  heirs  of  his  deceased  wife.'* 

Where  property  was  acquired  by  a  man  living  with  a  woman 


92,  93  S.  W.  1000;  In  re  Mason's 
Estate,  95  Wash.  564,  164  P.  205; 
Stone  V.  Jackson  (Tex,),  210  S,  W. 
953;  American  Nat.  Bank  of  Paris 
V.  First  Nat.  Bank,  52  Tex.  Civ.  519, 
114  S.  W.  176;  Succession  of  Trouilly, 
52  La.  Ann.  276,  26  So.  851. 

61.  Bossier  v.  Herwig,  112  La.  539, 
36  So.  557;  Colonial  &  U.  S.  Mort. 
Co.  V.  Thetford,  27  Tex.  Civ.  152,  66 
S.    W.    103. 

62.  In  re  Mason's  Estate,  95  Wash. 
564,  164  P.  205. 

63.  Richmond  v.  Sims  (Tex.),  144 
S.  W.  1142. 

64.  White  v.  Simonton  (Tex.),  67 
S.  W.  1073  Word  v.  Colley  (Tex.), 
173  S.  W.  629';  Rackman  v.  Campbell, 
15  Wash.  57,  45  P.  895. 

65.  Bass  V.  Davis  (Tex.),  38  S.  W. 
268. 

66.  Tomlmson  v.  H.  P.  Drought  & 
Co.  (Tex.),  127  S.  W.  262. 


67.  Burnham  v.  Hardy  Oil  Co. 
(Tex.),  147  S.  W.  330;  Eagley-Mc- 
Williams  Lumber  Co.  v.  Davidson 
(Tex.),  152  S.  W.  856;  Evans  v. 
Ashe,  50  Tex.  Civ.  54,  108  S.  W.  398. 

68.  Norwood  v.  King  (Tex.),  155 
S.  W.  366. 

69.  Wallis,  Landes  &  Co.  v.  Dehart 
(Tex.),  108  S.  W.  180. 

70.  Evans  v.  Ashe,  50  Tex.  Civ.  54, 
108  S.  W,  398. 

71.  McCord  v.  HoUoman  (Tex.),  46 
S.  W.  114. 

72.  Williams  v.  Emberson,  22  Tex. 
Civ.  522,  55  S.  W.  595;  Clements  v. 
Maury,  50  Tex.  Civ.  158,  110  S.  W. 
185. 

73.  Tison  v.  Gass,  46  Tex.  Civ.  163, 
102  S.  W.  751. 

74.  Stone  v.  Jackson  (Tex.),  210 
S.  W.  953. 


649 


COMMUNITY    DOCTRINE. 


§  617 


not  his  wife,  and  who  was  fully  aware  of  the  fact  that  their  rela- 
tions were  meretricious,  the  heirs  of  such  woman  by  a  former 
marriage  were  not  entitled  to  share  in  the  property  as  being  com- 
munity property/^  A  person's  expectancy  in  the  community 
estate  of  her  mother  is  the  subject  of  a  sale  by  her  after  the  death 
of  her  father." 

In  Louisiana,  where  a  wife  dies  while  the  community  is  in- 
debted to  her  for  paraphernal  funds,  the  claim  descends  to  her 
children  as  their  property. '^^  In  the  same  State  counter  letters 
quoad  community  land,  executed  by  the  husband  during  coverture, 
are  binding  on  the  wife's  heirs.^*  The  mortgage  rights  of  children 
upon  the  interest  of  their  natural  tutrix  on  community  property 
are  not  greater  than  her  share  of  the  residuum  after  settlement.'" 
In  the  same  State,  where  by  a  simulated  sale  property  is  conveyed 
by  a  husband  to  a  wife  on  the  pretence  that  it  is  bought  with  para- 
phernal funds,  while  in  reality  it  is  bought  by  the  community,  the 
forced  heirs  may  have  the  sale  annulled  and  the  property  returned 
to  the  community.®" 

Where  minor  heirs  inherit  from  their  mother  a  paraphernal 
claim  against  the  community,  and  their  father  quailfies  as  tutor, 
the  legal  mortgage  in  their  favor  does  not  absorb  their  claim  aa 
community  creditors,  or  alter  the  character  of  that  claim  from  one 
due  by  the  community  to  one  due  by  the  tutor.*^  In  the  same 
State  statutes  giving  minors  the  right  to  dispose  of  their  property 
mortis  causa  even  to  the  detriment  of  the  usufruct  on  their  prop- 
erty does  not  confer  similar  rights  on  heirs  of  age.*^ 

§  617.  Effect  of  Remarriage  of  Survivor. 

On  the  remarriage  of  a  widow  her  right  to  settle  the  community 
estate  of  herself  and  her  first  husband  ceases,®^  so  that  she  cannot 


75.  In  re  Sloan's  Estate,  50  Wash. 
86,  96  P.  684. 

76.  Barre  v.  Daggett  (Tex.),  153  S. 
W.  120. 

77.  Zeigler  v.  His  Creditors,  49  La. 
Ann.  144,  21  So.  666. 

78.  Sucession    of   Gurley,    120    La. 
810,  45  So.  734. 

79.  Childs  V.  Lockett,  107  La.  270, 
31  So.  751. 

80.  Westmore  v,  Harz,  111  La.  305, 
35  So.  578. 

81.  Scovel  V.  Levy's  Heirs,  118  La. 


982,  43  So.  642;  Thompson  v.  Vance, 
110  La.  26,  34  So.  112. 

82.  Eeems  v.  Dielman,  111  La.  96, 
3  So.  473. 

83.  Wingfield  v.  Hackney,  95  Tex. 
490,  68  S.  W.  262 ;  Hasseldenz  v.  Dof- 
flemyre  (Tex.),  45  S.  W.  830;  Oar  v. 
Davis  (Tex.),  135  S.  W.  710;  Davi3  v. 
McCartney,  64  Tex.  584 ;  Hames  v. 
Stroud,  51  Tex.  Civ.  562,  112  S.  W. 
775;  Richmond  v.  Sims  (Tex.),  144 
S.  W.  1142. 


§  617  HUSBAND  AND  WIFE.  650 

be  dued  as  tlie  representative  of  the  community.**  If  thereafter 
she  invests  oommunitv  funds  in  land,  she  holds  it  in  trust  for  the 
heirs  of  the  deceased/^  and  her  renewal  of  community  notes  will 
not  prevent  the  running  of  the  statute  in  favor  of  such  heirs,^' 
Her  divorce  from  her  second  husband  will  revive  her  powers  as 
survivor  under  the  first  marriage."  A  surviving  husband  who 
remarries  after  selling  less  than  half  of  the  homestead  may  require 
the  interest  of  heirs  of  the  deceased  spouse  to  be  satisfied  out  of 
the  unsold  portion.** 

Where  a  husiband  purchases  land  on  deferred  payments,  the  wife 
takes  a  community  interest,  which  is  not  devested  where,  after  her 
death,  he  remarries  and  later  completes  the  payments.*®  Where, 
after  the  death  of  a  husband  leaving  a  wife  and  children,  the  wife 
remarries  and  has  a  child  by  the  second  marriage,  after  which  one 
of  the  children  by  the  first  marriage  dies,  the  child  of  the  second 
marriage  is  one  of  the  heirs  of  the  dead  child  to  the  interest  of 
the  mother  and  the  first  husband.'" 

Under  the  Louisiana  statute  property  bequeathed  to  a  survivor 
by  the  deceased,  or  inherited  from  a  deceased  child,  becomes,  on 
the  remarriage  of  the  sur^'ivor,  the  property  of  the  children  of  the 
first  marriage,  of  which  the  survivor  has  thereafter  only  the  usu- 
fruct.®^ The  right  of  usufruct  of  the  share  of  an  heir  in  com- 
munity property  does  not  extend  to  the  survivor  of  a  second 
marriage.'^ 

In  Texas,  where  a  husband  qualifies  as  survivor  as  required  by 
the  statute,  his  powers  as  such  are  not  affected  by  his  remarriage, 
and  can  only  be  terminated  by  the  heirs  of  the  deceased  wife  in  a 
proceeding  provided  by  the  statute.®^  There  was  an  exception  to 
thia  rule  under  the  Spanish  law  in  favor  of  a  woman  becoming  a 
widow  before  majority,   which  under  that  law  was  twenty-five 

84.  Moore  v.  Belt  (Tex.),  206  S.  W.  89.  Guest  v.  Guest  (Tex.),  208  S.  W. 
225.  547. 

85.  Worst  V.  Sgitcovich  (Tex.),  46  90.  Woodburn  v.  Texas  Town  Lot  & 
S.  W.  72.  Improvement  Co.    (Tex.),   153   S.   W. 

86.  Proetzel  v.  Rabel,  21  Tex.  Civ.  365. 

559,  54  S.  W.  373.  91.  Zeigler  v.  His  Creditors,  49  La. 

87.  Summerville   v.   King,   98   Tex.       Ann,  144,  21  So.  666. 

32,  83  S.  W.  680  (mod.  reh.,  84  S.  W.  92.  Hall  v.  Toussaint,  52  La.  Ann. 

643).  1763,  28  So.  304. 

88.  McBride   v.   Moore    (Tex.),  37  93.   Drought  v.   Story    (Tex.),   143 
S.  W.  450.  8.  W.  361. 


651  COMMUNITY    DOCTEINE.  §    618 

jears,  but  she  had  the  burden  of  showing  that  she  was  within  the 
exception-'* 

§  618.  Accounting  or  Settlement  of  Community  Rights. 

On  partition  of  a  community  estate  a  spouse  who  has  expended 
separate  estate  in  purchasing,  repairing  or  improving  it,  or  di^ 
charging  claims  against  it,  may  have  reimbursement  for  the 
amount  so  expended,®^  even  for  a  house  wtich  is  community  prop- 
erty, though  the  land  on  which  it  stands  is  the  separate  estate  of 
the  deseased,'®  but  not  for  street  improvements  on  property  of  a 
husband  descending  to  his  heirs,  though  made  with  community 
funds,  where  such  improvements  are  not  a  lien  on  the  property." 
Such  survivor  becomes  a  creditor  of  the  community,'*  and  may 
have  credit  in  his  account  with  the  heirs  of  the  deceased  for  the 
amounts  advanced,®'  or,  in  case  of  payment  of  a  debt,  be  subro- 
gated to  the  rights  of  the  creditor  against  the  community.* 

Where  after  divorce  the  community  property  is  greatly  en- 
hanced by  the  services  of  the  husband,  he  should  be  allowed  for  the 
value  of  such  services.*  Alimony  allowed  pendente  lite  and  ex- 
penses incurred  by  a  wife  in  securing  a  divorce  may  also  be 
allowed  in  such  a  partition,  but  not  counsel  fees  in  an  action  to 
compel  it.' 

In  Louisiana  a  husband  may  take  from  the  live  stock  remaining 
at  the  dissolution  of  the  community  a  number  of  head  equal  to  that 
brought  by  him  to  the  marriage.*  The  fact  that  a  widow  does  not 
claim  against  her  husband's  estate  for  community  property  used 
in  improving  his  homestead  does  not  prevent  her  from  later  mak- 
ing that  claim.**  In  Louisiana  a  wife's  claim  against  the  estate 
of  her  former  husband  for  paraphernal  funds  was  held  recoverable 

94.  Childress  v.  Cutter,  16  Mo.  24.  98.  Huey    v.    Huey,    Man.    XJnrep. 

95.  Denegre  v.  Denegre,  30  La.  Ann.      Cas.  (La.),  264;  Fortier  v.  Barry,  111 
275;  Martin  v.  Martin,  52  Cal.  235;       La.  766,  35  So.  900. 

Simms  v.  Hixson  (Tex.),  65  S.  W.  38  99.  Newman  v.  Cooper,  50  La.  Ann. 

(affd.,  65  S.  W.  35)  ;  Coons'  Heirs  v.  397,  23  So.  116. 

Stringer,  14  La.  Ann.  726;   Burns  v.  1.  Pior  v.  Giddens,  50  La.  Ann.  216, 

Parker  (Tex.),  137  S.  W.  705;  Siverd  23    So.    337;    Succession    of  Saux,   2 

V.  Dumestre,  143  La.  578,  78  So.  969;  McGloin  (La.),  38. 

Succession  of  Pierce,  119  La.  727,  44  2.  Johnson  v.  Garner,  233   F.  756. 

8o,  446 ;  Haddad  v.  Haddad,  120  La.  3.  Garrozi  v.  Castas,  204  TJ.  S.  64, 

218,  45  So.  109.  27  S.  Ct.  224,  51  L.  Ed.  36?. 

96.  Gilroy  v.  Richards,  26  Tex.  Civ.  4.   Succession  of   Andrus,   131   La. 
355,  63  S.  W,  664.  940,  60  So.  623. 

97.  Gilroy  v.  Pichards.  26  Tex.  Civ.  5.  Hillen  v.  Williams,  25  Tex.  Cir. 
355,  63  S.  W.  664.  268,  60  S.  W.  997. 


§  619  husba:xd  and  wife.  652 

though  the  estate  was  not  sufficient  to  pay  debts  and  legacies.' 
In  the  same  State  a  spouse  whose  separate  property  has  been  sold 
and  the  proceeds  used  for  the  benefit  of  the  community  recovers 
from  it  the  price  for  which  the  property  was  sold  and  not  that 
which  was  paid  for  it  originally/  The  spouse  claiming  allowance 
for  improvements  has  the  burden  of  showing  with  reasonable  cer- 
tainty the  amount  to  which  the  community  property  has  been 
enhanced  there^by,^  and  that  the  money  used  was  separate  estate,** 
and  that  it  was  expended  for  the  benefit  of  the  community.^" 

In  Louisiana,  since  on  judgment  of  separation  the  wife's  para- 
phernal estate  becomes  her  separate  estate,  the  husband  is  liable  for 
interest  thereon  from  the  date  of  the  judgment."  Where,  in  the 
same  State,  the  wife  obtains  a  separation  and  sues  for  a  partition 
of  community  property  and  settlement  of  accounts,  the  husband 
must  account  for  all  community  property  shown  by  his  books  to  be 
in  his  possession  a  few  months  before  the  dissolution  of  the  com- 
munity." If  he  is  in  charge  of  the  property,  he  must  account  for 
revenue  or  be  charged  with  interest  on  the  wife's  share  from  the 
date  of  such  possession  subsequent  to  the  filing  of  suit  for  separa- 
tion." In  the  same  State  a  husband  who  transfers  property  to  a 
third  person  to  transfer  it  to  the  wife  in  settlement  of  her  money 
judgment  in  separation  proceedings,  and  who  signs  the  act  by 
which  the  third  person  transfers  the  property  to  the  wife,  is 
■estopped  to  claim  that  the  two  transactions  are  simulations." 
Where  the  husband  has  used  the  wife's  separate  funds  for  the 
benefit  of  her  separate  estate,  tihat  fact  is  a  good  defence  to  an 
action  by  her  heirs  for  an  accounting." 

§  619.  Necessity  of  Acceptance  or  Renunciation. 

In  Louisiana  both  the  surviving  wife  and  her  heirs  or  assigns 
have  the  privilege  of  exonerating  themselves  from  the  debts  con- 
tracted during  the  marriage,  by  renouncing  the  partnership  or 

6.  Succession  of  McCloskey,  144  La.  11.  Succession    of    McCloskey,    144 
438,  80  So.  650;   Jones  v.  Jones,  130       La.  438,  80  So.  650. 

La.  438,  58  So.  140.  12.  Hill  v.  Hill,  115  La.  490,  39  So. 

7.  Succession  of  McGee,  132  La.  335,       503. 

61  So.  394.  13.  Hill  V.  Hill,  115  La.  490,  39  So. 

8.  Munchow  v.   Munchow,   136   La.       503. 

753,  67  So.  819.  14.  Nuss  v.  Nuss,  112  La.  265,  36 

9.  Succession  of  Lyons,  50  La.  Ann.       So.  345. 

60,  23  So.  117.  15.  Murray  v.  Hawkins,  138  La.  463, 

10.  Dillon  V.  Freville,  129  La.  1005,       70  So.  476. 
57  So.  316. 


659 


COMMUNITY    DOCTEIXE. 


§    620 


oommumtj;  in  which  case  the  wife  takes  back  all  her  effects, 
whether  dotal,  extra-dotal,  hereditary  or  proper  ;^^  but  subject, 
perhaps,  to  the  intermediate  rights  of  innocent  purchasers.^^  A 
wife's  acceptance  of  her  hu&band's  will  disposing  only  of  his  com- 
munity  rights  does  not  operate  as  a  denunciation  of  her  community 
rights/* 

In  California  a  wife's  renunciation  of  community  rights  under 
a  mistaken  theory  that  she  could  take  under  her  husband's  will  in 
no  other  way  was  held  void/'  In  Louisiana  the  surviving  wife's 
usufructuary  right  does  not  shield  her  from  the  necessity  of  ac- 
cepting or  renouncing  the  community  when  called  on  to  elect." 
Under  the  statute  in  that  State  a  wife  is  presumed  to  have  re- 
nounced the  community  where  she  does  not  accept  it  within  the 
delays  fixed  by  the  statute,  or  within  a  prolongation  secured  within 
the  term/^  Where  she  accepts  it  unconditionally,  she  is  entitled 
to  the  protection  of  the  statute  in  that  State  excluding  parol  evi- 
dence when  sued  on  notes  executed  by  the  husband  which  are 
prescribed  on  their  face,  on  the  ground  of  acknowledgment  or 
promise  to  pay  made  by  her  deceased  husband.'^ 

In  Texas  a  wife  is  not  boimd  by  her  renunciation  of  her  com- 
munity rights  through  a  trustee  where  the  consideration  is  inade- 
quate/* 

§  620.  Sale  or  Mortgage  to  Pay  Debts. 
A  survivor  may  sell  or  mortgage  community  property  to  pay  debts, 


2+ 


16.  La.   Code,  §§  2379-2392, 

17.  Kirk  v.  Houston  Nav.  Co.,  49 
Tex.  213. 

18.  Hutchens  v.  Dres-ser  (Tex.),  196 
S.  W.  969. 

19.  In  re  Wickersham 's  Estate,  138 
Cal.  355,  70  P.  1076  (mod.  reh.,  138 
Cal.  355,  71  P.  437). 

20.  Eeems  v.  Dielman,  111  La.  96, 
35  So.  473. 

21.  Young  y.  Eapier,  94  F.  283,  36 
C.  C.  A.  248;  Lapice  v.  Lapice,  21  La. 
Ann.  226. 

22.  Weil  V.  Jacobs'  Estate,  111  La. 
357,  35  So.  599. 

23.  Suggs  V.  Singley  (Tex.),  167 
S.  W.  241. 

24.  Cockburn  v.  Cherry  (Tex.),  153 
S.  W.  161;  Wiseman  v.  Swain  (Tex.), 
114  S.  W.   145;   Davis  v.  Carter,  55 


Tex.  Civ.  423,  119  S.  W.  724;  Jen- 
nings  V.  Borton,  44  Tex.  Civ.  280,  98 
S.  W.  445;  Crosby  v.  Ardoin  (Tex.), 
145  S.  W.  70?;  Grundv  v.  Greene 
(Tex.),  207  S.  W.  964;  Kidd  v. 
Prince  (Tex.),  182  S.  W.  725;  Burn- 
ham  V.  Hardy  Oil  Co.,  108  Tex.  555, 
195  S.  W.  1139;  Pyle  v.  Pyle  (Tex.), 
159  S.  W.  488;  Cage  v.  Tucker's 
Heirs,  14  Tex.  Civ.  316,  37  S.  W.  180; 
Crary  v.  Field,  10  N.  M.  257,  61  P. 
118;  Von  Eosenberg  v.  Perrault,  5 
Ida.  719,  51  P.  774;  Kane  v.  Sholars, 
41  Tex.  Civ.  154.  90  S.  W.  937;  Mor- 
ris V.  Morris,  47  Tex.  Civ.  244,  105  S. 
W.  242;  Barkley  v.  Stone  (Tex.),  195 
S.  W.  925;  Elizardi  v.  Kelly,  115  La. 
712,  39  So.  851;  Miller  v.  Blackwell, 
142  La.  571,  77  So.  285;  W.  C. 
Belcher  Land  Mortgage  Co.  v.  Taylor 


§  620 


HUSBAND    AND    WIPE. 


654 


even     the    homestead,^^     and,     in     Texas,     without     giving     an 

administration  bond,"^  even  though  such  spouse  is  the  vendee,  if 

full  value  is  paid,"  and  even  if  such  survivor  sells  to  pay  a  debt 

to  himself,^^  and  even  if  barred  by  the  Statute  of  Limitations,  if 

the  debt  is  a  valid  claim  against  the  community,^®  or  even  if  not 

due,^°  and  even  if  the  proceeds  are  in  excess  of  the  debts,^^  and 

even  if  the  deed  contains  false  recitals  of  his  authority  and  acts  as 

guardian  of  minor  heirs  of  the  deceased.^^     Such  survivor  may 

renew  a  mortgage  given  during  coverture  with  another  given  as 

survivor."     A  presumption   of  good   faith   attends   such  a  sale, 

though  the  price  realized  is  disproportionate  to  the  vlaue  of  the 

property,^*  if  the  consideration  is  not  grossly  inadequate,^'  and 

where  a  long  time  has  elapsed  since  the  conveyance  of  community 

property  by  a  surviving  spouse,  it  will  be  presumed  that  the  sale 

was  made  to  pay  debts.^®     The  sale  must  not  be  in  fraud  of  the 

heirs  of  the  deceased,^'  who  may  show  the  true  character  of  the 

transaction,  regardless  of  its  form.^*     A  survivor  may  also  bind 

the  estate  by  an  agreement  to  pay  interest  as  a  consideration  for 

an  extension  of  time  in  payment  of  a  community  debt,^®  and  may 

(Tex.),    173    S.    W.    278;    Hinzie    v.  30.  Rippy  v.  Harlow,  46  Tex.  Civ. 

Robinson,  21  Tes.  Civ.  9,  50  S.  W. 
635;  Beck  v.  Natalie  Oil  Co.,  78  La. 
153,  78  So.  430. 

25.  (Sup.  1911)  Wiener  v.  Zwieb, 
105  Tex.  262,  141  S.  W.  771;  Jung  v. 
Peterman  (Tex.),  134  S.  W.  202;  Mc- 
Daniel  v.  Harley  (Tex.),  42  S.  W. 
323;  Burkitt  v.  Key  (Tex.),  42  S.  W. 
231;  Barrett  v.  Eastham,  28  Tex.  Civ. 
189,  67  S.  "W.  198;  Linson  v.  Poin- 
dexter,  35  Tex.  Civ.  358,  80  S.  W. 
237;  Horan  v.  O 'Connell  (Tex.),  144 
8.  W.  1048. 

26.  Pierce  v.  Gibson,  108  Tex.  62, 
188  S.  W.  502. 

27.  Suggs  V.  Singley  (Tex.),  167 
S.  W.  241. 

28.  Sharp  v.  Zeller,  110  La.  61,  34 
So.    129. 

29.  Stone  v.  Jackson  (Tex.),  210 
2.  W.  953;  Broocks  v.  Payne  (Tex.), 
124  S.  W.  463;  Jackson  v.  Stone 
(Tex.),  155  S.  W.  960  (holding  that 
the  bar  of  the  statute  cannot  be 
■waived  without  the  authority  of  the 
probate  court) 


52,  101  S.  W.  851. 

31.  Morgan  v.  Lomaa  (Tex.),  159 
S.  W.   869. 

32.  Rippy  V.  Harlow,  46  Tex.  Civ. 
52,  101  S.  W.  851. 

33.  Echols  v.  Jacobs  Mercantile 
Co.,  38  Tex.  Civ.  65,  84  S.  W.  1082, 
It  is  otherwise  in  Idaho.  Ewald  v. 
Hufton,  173  Ida.  373,  178  P.  247. 

34.  Crawford  v.  Gibson  (Tex.),  203 
S.  W.  375. 

35.  Morse  v.  Nibbs  (Tex,),  150  8. 
W.  766. 

36.  Milby  v.  Hester  (Tex,),  94  8. 
W.  178;  Gillett  v,  Warren,  10  N,  M. 
523,  62  P,  975;  Hasseldenz  v,  Doffie- 
myre  (Tex.),  45  S,  W.  830;  Cruse  v, 
Barclay,  30  Tex,  Civ,  211,  70  8.  W. 
358;  Stipe  v,  Shirley,  33  Tex,  Civ. 
223,  76  8,  W,  307. 

37.  Henry  v.  Yaughan,  46  Tex.  Civ. 
531,  103  S.  W,  192;  Dever  v.  SeLz,  39 
Tex.  Civ.   558,  87  S.  W.  801, 

38  Garrison  v.  Richards  (Tex.),  107 
S.  W.  861. 

39.  Morris  v.  Morris,  47  Tex.  Civ. 
244,  105  S.  W.  242. 


655  COMMUNITY    DOCTEINE.  §    621 

renew  a  community  obligation  and  make  it  a  charge  on  community 
property.*" 

In  Louisiana  a  sale  of  community  property  to  pay  debts  may  be 
ratified  at  a  family  meeting  held  in  the  interest  of  the  minors.*^ 
In  that  State  a  surviving  husband  cannot  mortgage  his  wife's 
heirs'  interest  in  community  property  unless  specifically  authorized 
to  do  so.*^  In  Texas,  where  a  husband  does  not  within  four  years 
after  the  death  of  the  wife  leaving  children  make  application  to 
the  county  court  for  authority  to  dispose  of  the  community  estate, 
the  court  has  no  jurisdiction  to  grant  such  application  thereafter.*' 

§  621.  Rights  and  Liabilities  of  Purchasers  under  Sale  to  Pay 
Debts. 

The  purchaser  under  a  sale  of  community  property  to  pay  valid 
community  debts  gets  a  good  title,  whether  there  is  a  necessity  for 
the  sale  or  not,**  and  even  though  the  sale  was  not  made  solely  to 
pay  debts,*^  the  question  whether  the  grantee  is  a  bona  fide  pur- 
chaser for  value  not  arising  in  such  case.*®  If  the  sale  is  by  order 
of  court,  the  decree  protects  the  purchaser,  who  need  not  look 
beyond  it.*^  Therefore,  such  a  purchaser  is  not  bound  to  take 
notice  of  the  manner  in  which  the  proceeds  are  applied  by  the 
survivor,**  if  the  vendee  knows  that  there  were  community  debts 
at  the  time  of  sale,*®  but  such  grantee  has  the  burden  of  showing 
that  the  sale  was  to  pay  debts.°° 

In  Louisiana  the  heirs  of  a  deceased  spouse  cannot  enforce  the 
general  mortgage  which  the  law  gives  them  against  the  estate  of 
the  survivor  as  natural  tutrix  upon  her  interest  in  community 

40.  Word  V.  Colley  (Tex.),  143  8.  46.  Therriault  v.  Compere  (Tex.), 
W.  257.  47  S.  W.  750. 

41.  Elizardi  v.  Kelly,  115  La.  712,  47.  Childs  v.  Lockett,  107  La.  270, 
39  So.  851.  31  So.  751  Messick  v.  Mayer,  52  La. 

42.  Owen  v.  M.  Hanlon's  Sons,  136  Ann.   1161,  27  So.  815. 

La.  455,  67  So.  329.  48.  Crawford  v.  Gibson  (Tex.),  203 

43.  Williams  v.  Steele,  101  Tex.  382,  S.  W.  375 ;   Linson  v.  Poindexter,  35 

44.  Eoy  V.  Whitaker,  92  Tex.  346,  Tex.  Civ.  358,  80  S.  W.  237;  Crary 
49  S.  W.  367;  Sharp  v.  Loupe,  120  v.  Field,  9  N.  M.  222,  P.  342;  Oaks  v. 
Cal.  89,  52  P.  134;  Wolf  v.  Gibbons  West  (Tex.),  64  S.  W.  1033;  Cruse  v. 
(Tex.),  69  S.  W.  238;  Cage  v.  Tuck-  Barclay,  30  Tex.  Civ.  211,  70  S.  W. 
er's  Heirs,  25  Tex.  Civ.  48,  60  S.  W.  358. 

579;    Phoenix   Assur.  Co.  of  London  49.    Jones    v.    Harris    (Tex.),    139 

V.   Deavenport,   16   Tex.   Civ.   283,  41  S.  W.  69. 

8.  W.  399 ;  Dever  v.  Selz,  39  Tex.  Civ.  50.  Waterman    Lumber    &    Supply 

558,  87  S.  W.  801.  Co.  v.  Robins  (Tex.),  159  S.  W.  360. 

45.  Cage  v.  Tucker's  Heirs,  29  Tex. 
Civ.  586,  69  S.  W.  425. 


§  622  HUSBAND  AND  WIFE.  656 

property  where  tihe  property  has  been  sold  in  the  succession  of  the 
father  to  pay  a  debt  secured  by  vendor's  privilege,  because  the  sale 
extinguishes  her  right."  In  the  same  State  the  rights  of  minors 
in  community  property  are  not  affected  by  their  failure  to  ques- 
tion their  father's  right  to  sell  his  interest  or  their  own  at  the  time 
of  sale  so  as  to  prevent  them  from  later  urging  their  claims  against 
his  grantee.^' 

Where  community  property  is  sold  for  taxes  after  the  death  of 
a  spouse,  and  is  reconveyed  to  the  survivor,  it  remains  community 
property,  and  where  at  the  instance  of  a  creditor  it  is  sold  in  such 
survivor's  succession,  the  sale  is  not  void,  but  voidable  only  by  a 
direct  proceeding  to  annul  the  sale  in  the  succession.'* 

§  622.  Actions  by  or  Against  Survivor. 

An  action  may  be  maintained  against  a  surviving  spouse  to  sub- 
ject community  property  in  the  hands  of  such  spouse  to  community 
debts,^*  even  before  taking  out  letters  of  survivorship.®^  A  judg- 
ment against  a  survivor  for  a  community  debt  is  valid,  even  if 
the  heirs  of  the  deceased  are  not  joined  as  parties.*^®  A  creditor 
seeking  to  enforce  his  claim  against  the  survivor  of  a  community 
for  such  survivor's  separate  debt  should  force  a  settlement  of  the 
community  and  then  subject  to  his  debt  the  interest  of  his  debtor," 
which  attaches  only  to  the  residuum  after  payment  of  community 
debts,  which  have  a  priority  over  separate  debts,®®  of  which  the 
community  creditor  cannot  be  deprived,  even  though  he  has  not 
registered  his  claim.®^  In  order  to  charge  the  separate  estate  of 
a  spouse  with  community  funds  expended  for  taxes,  insurance, 
betterments,  and  the  like,  it  must  affirmatively  appear  that  such 
funds  were  so  used.®° 

A  divorced  wife  cannot  recover  from  the  estate  of  her  husband 

51.  Childs  V.  Lockett,  107  La.  270,  57.  Pior  v.  Giddings,  50  La.  Ann. 
31  So.  751.  216,  23  So.  337. 

52.  Thompson  v.  Vance,  110  La,  26,  58.  Zeigler  v.  His  Creditors,  49  La. 
34  So.  112.  Ann.  144,  21  So.  606;   Child  v.  Lock- 

53.  Sicard  v.  Gumbel,  112  La.  483,  ett,  107  La.  270,  31  So.  751;  Scovel 
36  So.  502.  V.  Levy's  Heirs,  118  La.  982,  43  So. 

54.  First  Nat.  Bank  of  New  Bos-  642. 

ton  V.  Daniel   (Tex.),  172  S.  W.  747;  59.  Thompson  v.  Vance,  110  La.  26, 

Dashiell  v.   W.   L.   Moody   &   Co.,   44  34   So.   112;    Scovel  v.  Levy's  Heirs, 

Tex.  Civ.  87,  97  S.  W.  843.  118  La.  982,  43  So.  642. 

55.  Wiseman  v.  Swain  (Tex.),  114  60.  Succession  of  Meteye,  113  La. 
S.  W.   145.  1012,  37  So.  909. 

56.  Barrett  v.  Eastham,  28  Tex.  Civ. 
ISg-,  67  S.  W.  198. 


657  COMMUNITY    DOCTRINE.  §    623 

any  specific  article  of  community  property  not  appearing  to  be  in 
the  possession  of  or  claimed  by  the  defendant.®^  A  sun'iving  wife 
may  recover  her  proportionate  part  of  damages  accruing  to  the 
community  after  the  death  of  her  husband.®" 

In  Louisiana  a  wife  must  establish  her  right  as  against  her 
husband's  heirs  before  questioning  his  donation  of  community 
property  as  in  fraud  of  her.*'  Likewise,  in  the  same  State,  she 
must  reduce  to  judgment  her  claim  against  his  separate  estate  as 
community  survivor  for  community  funds  used  to  improve  such 
separate  estate  before  causing  it  to  be  sold  to  pay  the  debt.®*  In 
the  same  State  a  widow  id  a  necessary  party  to  a  suit  to  dissolve 
a  sale  of  community  property  made  by  the  husband  in  his  life- 
time.®' In  that  State  where  the  succession  of  a  spouse  is  insol- 
vent and  unsettled,  creditors  will  be  restrained  from  selling  com- 
munity property,  which  is  the  common  pledge  of  all  creditors." 
In  the  dame  State  a  community  creditor  may  enforce  his  claim- 
against  the  husband  even  after  the  dissolution  of  the  community 
by  the  death  of  the  wife,®^  and  if  he  gets  judgment  against  the 
husband  before  the  community  land  is  sold  by  the  administrator 
of  the  wife's  succession,  he  may  have  priority  as  to  the  husband's 
half  over  ordinary  creditors.®*  In  an  action  after  the  death  of 
the  wife  to  recover  community  land  for  non-payment  of  the  price, 
the  wife's  heirs  are  necessary  parties.®®  Under  the  Texas  statute 
an  action  may  be  maintained  against  a  widow  for  community  debts 
only  where  the  husband  left  no  children  or  separate  estate,  no 
administration  being:  necessarv  in  that  case.'^"  In  such  case  the 
creditor  must  aver  the  facts  making  administration  unnecessary.'^^ 

§  623.  Actions  By  or  Against  Heirs. 

The  survivor  has  only  a  reasonable  time  in  which  to  retain  con- 
trol of  the  community  property  to  pay  debts  after  the  death  of 
the  deceased,  after  which  an  action  may  be  maintained  by  the 

61.  Young  V.  Eapier,  94  F.  283,  36  67.  Simpson  v.  Bulkley,  140  La.  589, 
C.  C.  A.   248.  T3  So.  691. 

62.  San  Antonio  &  A.  P.  Ey.  Co.  v.  68.  Succession    of    Brou3sard,     142 
Erans  (Tex.),  198  S.  W.  674  La.  99.  76  So.  253. 

63  Eustis  V.  Eustis,  236  F.  726,  150  69.  Latour  v.  Latour,  134  La.  342, 

C.  C.  A.  58.  64  So.  133. 

64.  Succession  of  Casey,  130  La.  743,  70.  Whitmire  v.  Farmers'  Nat.  Bank 
58  So.  556.  (Tex.),97S.  W.  512. 

65.  Bankston  v.  Owl  Bayou  Cypress  71.  Whitmire  v.  Farmers'  Nat.  Bank 
Co.,  117  La.  1053,  42  So.  500.  (Tex.),  97  S.  W.  912. 

66.  Petry  v.  Booth,  10  La.  Ann.  682. 

42 


§     624: 


HUSBAND    AND    WIFE. 


658 


heirs  to  recover  their  interest's/*  but  such  an  action  may  be  barred 
by  failure  to  sue  within  the  period  of  limitation  after  repudiation 
of  the  community  and  the  rights  of  the  heirs  by  the  survivor." 
Where  there  is  no  such  repudiation,  the  statute  will  not  begin  to 
run  till  the  survivor's  death.^*  The  interest  acquired  by  the  heir 
of  a  deceased  spouse  will  support  an  action  to  try  title.''^  In  an 
action  by  heirs  of  a  deceased  spouse  such  heirs  should  not  be 
required  to  account  for  the  full  value  of  advancements  made  to 
them  by  the  survivor  of  community  property.''* 

The  rights  of  heirs  of  a  deceased  spouse  to  the  community  estate 
occupied  as  a  homestead  are  not,  as  to  them,  homestead  rights,  and 
are  therefore  subject  to  execution  for  their  debts,  subject  to  the 
homestead  rights  of  the  survivor.''^  Heirs  of  a  deceased  spouse 
are  not  proper  parties  to  a  proceeding  for  the  foreclosure  of  a 
vendor's  lien  attaching  to  community  property  during  the  lifetime 
of  their  ancestor.'^' 

In  Louisiana  the  heirs  of  a  deceased  spouse  are  not  bound  to 
await  the  settlement  of  a  community  before  bringing  a  petitory 
action  to  recover  their  share  in  it,^^  whether  the  community  is 
insolvent  or  not.*°  Where,  in  the  same  State,  an  heir  brought  a 
petitory  action  both  as  such  and  as  administrator  of  his  mother's 
succession,  it  was  held  that  he  could  not  recover  as  administrator 
where  it  appeared  that  the  other  heirs  did  not  authorize  the  suit 
but  had  accepted  the  succession  and  made  a  partition.*^  In  the 
same  State  an  heir  to  whom  his  mother's  paraphernal  claim  against 
the  community  has  descended  may  enforce  it  as  an  ordinary 
claim.** 

§  624.  Administration  in  General. 

Administration  is  usually  unnecessary  where  there  are  no  com- 
munity debts.*'     Under  the  Spanish  law  in  force  in  the  Philip- 


72.  Miller  v.   Miller,   34   Tex.  Civ. 
367,  78  S.  W.  1085. 

73.  Heidelberg  v,  Behrens   (Tex.)> 
85  S.  W.  1029. 

74.  Thomas  v.  Wilson   (Tex.),  204 
8.  W.  1010. 

75.  Arnold  v.  Hodge,  20  Tex.  Civ. 
211,  49  S.  W.  714. 

76.  Clements  v.  Maury,  50  Tex.  Civ. 
158,  110  S.  W,  185. 

77.  Johnston    v.    Rockhold    (Tex.), 
171  8.  W.  282. 

78.  Henry  v.  McNew,  29  Tex.  Civ. 


288,  69  S.  W.  213 ;  Schlieder  v.  Boulet, 
124  La.  658,  50  So.  617. 

79.  George  v.  Delaney,  111  La.  760, 
35  So.  894;  Ogden  v.  Leland  Univer- 
sity, 49  La.  Ann.  IffO,  21  So.  685. 

80.  Levy  v.  Eobaon,  112  La.  398,  3 
So.  472. 

81.  Wilson  v.  Ober,  109  La.  718,  33 
So.  744. 

82.  Thompson  v.  Vance,  110  La.  26, 
34  So.  112. 

83.  In  re  Wilson's  Estate  (Ariz.), 
168  P.  503 ;  Succession  of  Ditch,  Man. 


659 


COMMUNITY    DOCTRINE. 


§   624 


pines  a  surviving  husband  has  the  right  to  adminijrter  the  com- 
munity property  and  after  his  death  his  administrator  is  the 
proper  administrator.**  In  Texas  the  survivor  has  the  right  to 
settle  the  community  property  for  the  payment  of  debts  without 
administration,*^  his  power  being  not  limited  to  the  property  de- 
scribed in  the  inventory,  but  including  all  community  property 
and  debts.*"  Such  right  is  exclusive  if  a  petition  for  leave  to 
qualify  as  survivor  is  filed  within  four  months  after  the  death  of 
the  deceased,  though  an  administrator  has  been  appointed  in  the 
meantime.*^  The  court  may  appoint  a  statutory  administrator," 
or  a  temporary  administrator,**  or  community  property  may  be 
partitioned  between  the  survivor  and  the  heirs  by  agreement.'" 
The  community  estate  cannot  be  distributed  until  a  year  has  ex- 
pired after  the  filing  of  the  bonds.*^  A  bond  given  by  a  survivor 
describing  himself  as  "  administrator "  will  not  qualify  him  as 
survivor. 

In  Arizona,  where  a  will  disposes  of  community  property,  the 
court  may  assume  jurisdiction  of  all  community  property  to  deter- 
mine community  debts,  and  may  direct  the  payment  of  the  debts 
therefrom.*^  In  Louisiana,  where  a  community  is  unsettled  at  the 
death  of  a  survivor  and  where  the  heirs  of  both  spouses  are  their 
children,  the  succession  of  such  survivor  carrier  with  it  the  settle- 
ment of  the  community,®*  but  community  property  cannot  be 
administered  in  a  deceased's  spouse's  succession  except  where 
necessary  to  pay  community  debts.'^  A  dative  tutor  appointed  for 
minor  children  whose  mother  is  survivor  may,  if  creditors  and 
legatees  do  not  object,  administer  on  the  succession  of  the  deceased 
in  its  entirety  without  administration  eo  nomine  or  bond.®®  A 
widow  and  sole  heir  ah  iniestaio  may  invoke  the  aid  of  the  court 


Unrep.  Cas.  (La.)  312;  Molina  v.  Ra- 
mirez, 15  Ariz,  249,  138  P.  17. 

84.  Enriquez  v.  Go-Tiongco,  220  IT. 
S.  307,  31  S.  Ct.  423,  55  L.  Ed. . 

85.  Levy   v,   W,   L.   Moody   &   Co. 
(Tex.),  87  S.  W.  205. 

86.  Thoma3    v.    First    Nat.    Bank 
(Tex.),  127  S.  W,  844. 

87.  In  re  Chapman's  Estate  (Tex.), 
213  S.  W.  989. 

88.  Clark     v.     First.     Nat.     Bank 
(Tex.),  210  S.  W.  677. 

89.  Huth  V.  Huth  (Tex.),  187  8.  W. 
523. 


90.  Cheek  v.  Hart  (Tex.),  Ill  S.  W. 
775. 

91.  Houston  Fire  &  Marine  Ins.  Co. 
V.  Swain  (Tex.),  114  S.  W.  149. 

92.  Green  v.  White,  18  Tex.  Civ.  509, 

45  S.  W.  389. 

93.  La  Tourette  v.  La  Tourette,  15 
Ariz.   200,   137  P.   426. 

94.  Kremer  v.  Kremer,  121  La.  484, 

46  So.  600. 

95.  Festivan  v.  Clement,  135  La.  938, 
66   So.   304. 

98.   Succession  of  Keppel,  113  La. 
246,  36  So.  955. 


§  625 


HUSBAND    AjSTD    WIFE. 


660 


to  preserve  the  communitj  property,  if  no  other  person  is  appointed 
charged  with  that  duty.*^  The  right  of  usufruct  is  not  defeated 
because  the  survivor  also  takes  out  administration,®*  and  a  widow 
in  community  is  not  obliged  to  give  bond  as  usufructuary  of  com- 
munity property  inherited  by  her  under  her  husband's  will." 

In  the  same  State  a  surviving  husband  administering  his  wife's 
micoession  and  claiming  the  usufruct  of  the  deceased's  share  in 
the  community  property  cannot  claim  from  a  child  of  the  marriage 
a  collation  of  advances  to  him  during  the  marriage,  nor  provoke 
a  settlement  between  such  children  by  charging  them  with  advance* 
during  the  lifetime  of  the  deceased,  such  accounting  being  avail- 
able only  in  partition  between  the  forced  heirs  of  the  wife.^ 

In  Washington  a  surviving  husband  who  is  solely  interested  in 
the  community  property  may  bind  himself  by  a  contract  with  a 
third  person  to  act  formally  as  administrator  for  a  fixed  compen- 
sation.^ In  the  same  State  the  whole  community  property  is 
subject  to  administration  on  the  death  of  a  spouse,^  but  adminis- 
tration of  the  undivided  half  only  cannot  be  collaterally  attacked, 
though  irregular.* 

§  625.  Control,    Management,    and    Collection    of    Community 
Assets. 

A  surviving  husband  controls  the  community  assets,  by  way  of 
administration,  however,  until  the  debts  of  the  marriage,  which 
are  in  effect  his  debts,  are  settled,  as  prior  to  all  claims  for  a 
distribution.^     A  survivor  is  not  precluded  from  claiming  com- 


97.  Barber  v.  "Watson,  105  La.  326, 
29  So.  889. 

98.  Succession  of  McGee,  132  La. 
335,  61  So.  394. 

99.  Succession  of  Glancey,  114  La. 
1051,  38  So.  826. 

1.  Succession  of  Hanna,  126  La.  475, 
52  So.  669. 

2.  In  re  Field's  Estate,  33  "Wash.  63, 
73  P.  768. 

3.  Magee  v.  Big  Bend  Land  Co.,  51 
"Wash.  406,  99  P.  16 ;  First  Nat.  Bank 
V.  Cunningham,  72  "Wash.  532,  130  P. 
1148. 

After  a  nonintervention  will  is  proven 
and  the  estate  adjudged  solvent  and 
the  executors  have  undertaken  their 
office,  the  estate  is  removed  from  the 
probate    court's    jurisdiction,    except 


as  otherwise  provided  by  statute  so 
that  equity  thereafter  has  jurisdiction 
to  determine  such  questions  as  the 
wife's  community  interest  in  the 
estate.  Clark  v.  Baker,  76  "Wash.  110, 
135  P.  1025. 

4.  "Wiley  v.  Verhaest,  52  Wash.  475, 
100  P.  1008 ;  In  re  Guye  's  Estate,  54 
"Wash.  264,  103  P.  25. 

5.  Hawley  v.  Crescent  City  Bank,  26 
La.  Ann.  230;  "Williams  v.  Fuller,  27 
La.  Ann.  634;  Cordier  v.  Capje,  44  Tex. 
352;   Cook  v.  Xorman,  50  Cal.  633. 

On  dissolution  of  marriage  by  di- 
vorce, community  property  must  sat- 
isfy community  debts  incurred  before 
institution  of  the  divorce  suit.  Eichey 
V.  Hare,  41  Tex.  336.  And  see  Mann 
V.  Mann,  24  La.  Ann.  437. 


661 


COMMUNITY    DOCTRINE. 


§    626 


munitj  property  by  the  fact  that  it  has  been  inventoried  as  separate 
property,®  nor  from  claiming  separate  property  which  has  been 
inventoried  as  community  property/  but  if  the  administrator  of 
the  deceased  claims  separate  property  of  the  survivor  as  community 
property,  the  survivor  must  litigate  the  question.* 

In  Louisiana,  since  the  settlement  of  a  deceased  wife's  estate 
does  not  involve  a  settlement  of  the  community  property,  her 
administrator  cannot  assume  control  of  the  latter.*  A  widow,  as 
administratrix  of  her  deceased  husband's  succession  and  natural 
tutrix  of  her  minor  children,  may  maintain  ejectment  against  an 
alleged  lessee  of  the  succession  and  community  property.^** 

In  Texas  it  is  held  that  where  the  community  estate  is  insolvent, 
and  the  will  of  the  deceased  empowered  his  executor  to  manage 
his  estate  in  the  interest  of  the  creditors,  the  powers  of  the  ex- 
ecutor included  both  community  and  separate  estate.^^  Under  the 
statute  in  that  State  a  survivor  does  not,  by  qualifying  as  such, 
become  the  owner  of  community  property  so  as  to  make  the  heirs 
<rf  the  deceased  the  creditors  of  such  survivor  for  their  interests." 

§  626.  Accounting  and  Settlement. 

In  Louisiana  attorney's  fees  and  expenses  of  administration  of 
a  gruccession  and  the  consequent  administration  of  the  community 
are  to  be  paid  by  each  in  proportion  to  the  interest  of  each.^^  In 
the  same  State,  to  constitute  an  adjudication  of  property  owned  in 
indivision  by  a  survivor  and  minor  children  of  the  deceased,  there 
must  be  a  decree  of  court  adjudging  the  property  to  such  survivor, 
which,  or  an  act  of  adjudication  based  on  the  same,  must  be 


As  to  the  survivor's  selling  real  es- 
tate, &c.,  for  payment,  there  are  num- 
erous decisions.  Charpaux  v.  Bellocq, 
31  La.  Ann.  164;  Wright  v.  McGinty, 
37  Tex.  733.  It  is  a  long-established 
principle  that  a  sale  of  community 
property,  fairly  made  by  the  surviving 
husband  for  discharging  the  commu- 
nity obligations,  cannot  be  disturbed 
by  the  wife's  heirs;  and  that  (inde- 
pendently of  later  requirements)  he  is 
not  required  to  exhaust  the  personalty 
bfore  selling  land  for  that  purpose. 
Wcnar  v.  Stenzel,  48  Tex.  484;  Haw- 
ley  V.  Crescent  City  Bank,  26  La.  Ann. 
230. 

6.  Huey  v.  Huey,  Man.  Unrep.  Cas. 
(La.)  264. 


7.  Koppelman  v.  Koppelman,  94 
Tex.  40,  57  S.  W.  570. 

8.  Lloyd  V.  Lloyd,  34  Wash.  84,  74 
P.  1061. 

9.  Hawes  v.  Baxter,  46  La.  1286,  16 
So,  198;  Succession  of  Fernandez,  50 
La.  Ann.  564,  23  So.  457. 

10.  Campbell  v.  Hart,  118  La.  871, 
43  So.  533. 

11.  CarletoH  v.  Goebler,  94  Tex.  93, 
58  S.  W.  82?. 

12.  Faris  v.  Simpson,  30  Tex.  Civ. 
103,  69  S.  W.  1029. 

IS.  Succession  of  Webre,  49  Ann. 
1491,  22  So.  390;  Sims  v.  Billington, 
50  La.  Ann.  968,  24  So.  637 ;  Succes- 
sion of  Bothick,  52  La.  Ann.  1863, 
28  So.  458. 


§    626  HUSBAND    AND    WIFE.  662^ 

recorded  in  the  mortgage  records  in  the  parish  where  the  land 
lies,"  but  a  failure  to  do  so  will  be  cured  by  the  substitution  of  a 
special  mortgage  under  the  statute."  In  the  same  State,  where 
the  funds  of  the  community  are  insufficient  to  pay  the  claims  of 
both  wife  and  husband,  the  claims  of  the  former  must  be  paid 
before  the  latter."  Where  a  surviving  wife  assents  to  the  settle- 
ment of  her  husband's  succession  by  a  dative  tutor,  the  settlement 
carries  with  it  as  an  incident  the  settlement  of  the  widow's  rights 
in  the  community."  In  Texas  a  survivor  must  account  for  all 
claims  due  the  estate  at  the  time  of  qualification  as  such,  with 
interest,  unless  the  claims  are  shown  to  be  uncollectible.*' 

14.  Succession   of  Burguieres,   104  17.  Succession  of  Keppel,  113  La.. 
La.  46,  28  So.  883.  246,  36  So.  955. 

15.  Brewer  v.  Wright,  130  La.  491,  18.    Koppelmann    v,    Koppelmann, 
58  So.  160.  94  Tex.  40,  59  S.  W.  827. 

16.  Bergey  ▼.  Labat,  112  La.  992, 
36  So.  829. 


663  ACTIONS.  §  627 


CHAPTEK  XXX. 

ACTIONS. 

Bbotion  627.  Actions    Between   Spouses   at   Law. 

628.  In  Equity. 

629.  Effect  of  Statute  of  Limitations. 

630.  Effect  of  Divorce  or  Abandonment. 

631.  Under  Married  Women's  Acts  in  General. 

632.  Implied  Statutory  power  to  Maintain  Action. 

633.  Torts  in  General. 

634.  Assault  by  Husband  on  "Wife. 

635.  Ejectment. 

636.  Replevin. 

637.  Negligence. 

638.  Contract. 

639.  Partition. 

640.  Amoimts  Expended    for    Necessaries. 

641.  Confession  of  Judgment. 

642.  Trover. 

643.  Actions  by  Wife  against  Third  Persons. 

644.  In  Equity. 

645.  Under  Married  Women's  Acta. 

646.  Necessity  of  Joining  Husband  as  Partr-at-Law. 

647.  In  Equity. 

■  648.  Necessity  of  Guardian  ad  Litem  or  Next  Friend. 

649.  Effect  of  Husband's  Refusal  to  Join. 

650.  Effect  of  Separation. 

651.  Compromise  of  Claim. 

652.  Contract. 

653.  Confession  of  Judgment. 

654.  Submission  to  Arbitration. 

655.  In  Tort;  In  General. 

656.  Under  Married  Women 's  Acts. 

657.  Trespass. 

658.  Professional  Negligence. 

659.  Assault  and  Battery. 

660.  Ejectment  and  Forcible  Detainer. 

661.  Replevin. 

662.  Personal  Injuries  to  Wife. 

663.  Fraud  and  Deceit. 

664.  Libel  or  Slander. 

665.  Malicious  Prosecution. 

666.  Injury  to  Wife's  Personal  Property. 

667.  Trover. 

668.  For  Loss  of  Husband  'a  Consortium  and  Services. 

669.  For  Death  of  Husband. 

670.  Pleading. 

671.  Defences  to  Action  by  Wife. 

672.  Damages. 


§  628 


HUSBAND    AND    WIFE. 


664 


Section  673. 
674, 

675. 
676. 
€77. 
678. 
679. 
680. 
681. 
682, 


Abatement  and  Survival  of  Action. 

Husband's  Eights. 

For  Mental  Anguish    Suffered  by  Wife. 

Seduction  of  Wife. 

For  Loss  of  Consortium  and  Medical  Expense*. 

For  Loss  of  Services. 

For  Death  of  Wife. 

Necessity  of  Joinder  of  Wife, 

Actions  against  Wife  in  General. 

Under  Married  Women's  Acts. 


683.  Trover. 

684.  Actions  against  Wife, 

§  627.  Actions  Between  Spouses  at  Law. 

^N'either  spouse  can  sue  the  other  at  common  law.^*  In  States 
having  no  sufficient  enabling  act,  and  considerate  for  the  old  policy 
of  preserving  domestic  harmony,  the  married  women  cannot, 
even  by  next  friend,  sue  the  husband  at  law  upon  a  contract  made 
during  coverture.^"  But,  as  we  shall  hereafter  see,  equity  and 
modem  legislation  introduce  a  different  principle. 

This  disability  of  the  spouses  to  sue  one  another  is  not  merely 
the  technical  one  that,  under  the  old  procedure,  husband  and  wife 
must  join,  but  is  founded  on  the  principle  that  husband  and  wife 
are  one, 


31 


§  628.  In  Equity. 

Equity  is  the  proper  forum  in  which  to  enforce  contracts  be- 
tween spouses  where  they  cannot  sue  at  law.**     That  is  the  forum 


19.  Hobbs  V.  Hobbs,  70  Me,  381; 
Shane  v.  Dickson,  111  Ark.  353,  163 
6.  W,  1140;  Lawler  v.  Lawler,  107 
Ark.  70,  153  S.  W.  1113;  Gillan  v. 
West,  232  Pa.  74,  81  A.  128 ;  Whiting 
V.  Whiting,  114  Me,  382,  96  A,  500; 
Fitcher  v,  Griffiths,  216  Mass,  174,  103 
N.  E.  471 ;  Copp  v.  Copp,  103  Me.  51, 
68  A.  458, 

Lord  Harwicke,  in  Lannoy  v. 
Duchess  of  Athol,  2  Atk,  448;  1  Bl, 
Com.  442 ;  2  Kent  Com,  129.  The  mar- 
ried women 's  acts  in  this  country  have 
changed  the  common  law  greatly  as  to 
the  mutual  right  of  suit.  And  see,  as 
to  modern  rules,  Transactions  between 
Husband  and  Wife., 

20,  Ritter  v,  Eitter,  31  Pa,  396, 
Neither  assumpsit  nor  replevin  can 
thus  be  maintained,  Hobbs  v.  Hobbs, 
70  Me.  381,  383. 


21.  Blackburn,  J.,  in  Phillips  v.  Bar- 
net,  1  Q.  B.  D.  436. 

22.  Heckman  v.  Heckman,  215  Pa. 
203,  64  A.  425,  114  Am.  St.  R.  953; 
Greenwood  v.  Greenwood,  113  Me.  226, 
93  A.  360;  Perkins  v,  Blethen,  107 
Me.  443,  78  A.  574;  Bishop  v.  Bour- 
geois, 58  N.  J.  Eq.  417,  43  A.  655; 
Spruance  v.  Equitable  Trust  Co. 
(Del.),  103  A.  577;  McKie  v.  McKie, 
116  Ark.  68,  172  S,  W.  891;  Eiker  v. 
Riker,  83  N,  J,  Eq.  198,  693,  92  A. 
586;  Sehomaker  v.  Schomaker,  247  Pa. 
444,  93  A.  460;  Abramsky  v.  Abram- 
sky,  261  Mo.  117,  168  S.  W.  1178;  In 
re  Hoffman,  199  F,  448;  In  re 
Haynes'  Will,  82  Misc,  228,  143  N,  Y. 
S.  570;  Crosby  v.  Clem,  209  Mass.  193, 
95  N.  E.  297, 

In  Pennsylvania  it  is  held  that  this 
right  is  not  taken  away  by  a  statute 
prohibiting  her  from  suing  her  hua- 


665  ACTIONS.  §  628 

in  which  to  enforce  rights  accruing  to  a  wife  and  children  under 
the  South  Carolina  statute  providing  where  the  husband  of  such 
wife  shall  convey  more  than  one  fourth  of  his  real  estate  after  the 
payment  of  debts  to  a  concubine,  the  excess  over  shall  be  void  in 
favor  of  such  wife  and  children.^^  She  may  restrain  him  by 
injunction  from  interfering  with  the  peaceable  possession  of  her 
property.^* 

Where  the  wife,  through  threats  of  bodily  injury  and  fraud,  is 
induced  to  convey  to  her  husband  all  her  interest  in  certain  prop- 
erty bought  chiefly  with  her  money,  she  is  not  barred  from  relief 
in  equity  for  the  duress  and  fraud  by  the  fact  that  she  condoned 
his  cruelty  by  returning  to  him  and  living  with  him  as  his  wife. 
Condonation  in  its  proper  sense  has  reference  only  to  marital 
rights  and  liabilities  as  such,  and  to  none  other,  and  while  acts 
which  amount  to  condonation  of  marital  wrongs  as  such  may  be 
evidence  of  ratification  of  an  act  done  under  duress,  or  waiver  of 
a  fraud  leading  to  the  act,  they  are  not  necessarily  conclusive. 
The  question  is  not  whether  there  has  been  condonation,  but 
whether  the  act  which  the  plaintiff  seeks  to  have  declared  void  has 
been  in  any  way  ratified  by  her.  If  it  has  been,  then  she  must 
stand  by  it,  and  if  it  has  not  been,  then,  unless  barred  by  estoppel 
or  laches,  she  may  avoid  it.  And  that  is  so  whether  or  not  she 
has  condoned,  so  far  as  respects  her  marital  rights,  the  violence 
by  means  of  which  she  was  led  to  the  act.  Whether  there  had 
been  ratification  is  a  question,  not  of  law,  but  of  fact.^* 

Where  a  wife's  remedy  at  law  is  adequate  she  cannot  sue  in 
equity.^"  In  Massachusetts  a  husband  may  sue  his  wife  in  equity 
during  coverture  to  try  the  question  of  their  respective  title  to 
property.^^  In  the  same  State  the  statute  forbidding  actions  be- 
tween spouses  at  law,  and  providing  that  it  shall  not  be  construed 
to  authorize  such  suits  in  equity,  has  been  held  not  to  prevent  a 
suit  in  equity  by  the  wife  to  recover  from  her  husband  her  separate 
property  which  has  been  obtained  from  her  by  fraud  and  coercion.'* 

In  Michigan  a  hus'band  who  has  given  his  wife  no  cause  for 

band,  such  statute   only  applying  to  See    also    Womack    v.    Womack,    73 

actions  at  law.    Heckman  v.  Heckman,  Ark.  281,  83  S.  W.  937,  1136. 

215  Pa.  203,  64  A.  425.  26.   Niehaus  v.   Niehaus,   141   App. 

2S.  Williams  v.   Halford,   64   S.  C.  Div.  251,  125  N.  Y,  S.  1071. 

396,  42  S.  E.  187.  27.   Lombard   v.   Morse,   155   Mass. 

24.  Lemon  v.  Lemon,  141  Ga.  448,  136,  29  N.  E.  205,  14  L.  E.  A.  273. 
81  S.  E.  118.  28.  Frankel  v,  Frankel,   173   Mass. 

25.  Hoag  V.  Hoag,  210  Mass.  94,  96  214,  53  N.  E.  398,  73  Am.  St.  E.  266. 
N.  E.  49,  36  L.  E.  A.    (N.  S.)    329. 


§  628 


HUSBAND    AND    WIFE. 


666 


divorce  may  enjoin  her  from  conducting  a  business  in  competition 
with  his.^*  In  that  State  a  wife  need  not  be  represented  by  a 
trustee  in  the  enforcement  of  her  contracts  with  her  husband 
respecting  her  separate  estate.^" 

The  Missouri  statute  giving  the  wife  the  right  to  a  decree  for 
the  sole  possession  of  her  real  estate  held  "  in  her  own  right " 
where  she  leaves  her  husband  for  cruelty  is  not  limited  to  land  of 
which  she  holds  the  legal  title,  but,  being  highly  remedial,  extends 
to  land  of  which  she  holds  only  the  equitable  title.^^  In  the  same 
State  she  may  sue  him  in  equity  during  coverture  to  recover  her 
property  to  which  he  has  wrongfully  taken  title  in  his  own  name.^^ 
The  statute  in  the  same  State  giving  her  power  to  sue  him  at  law 
does  not  affect  her  right  to  sue  him  in  equity  also  for  the  protection 
of  her  separate  estate. ^^  Prior  to  the  Married  Women's  Act  in 
that  State  spouses  could  become  each  other's  debtor  and  creditor, 
and  enforce  their  rights  in  equity  as  such  where  the  wife  has  a 
separate  estate.^* 

Under  the  Pennsylvania  and  Maryland  Married  Women's  Acts 
a  wife  may  maintain  a  bill  in  equity  against  her  husband  to  pro- 
tect her  separate  estate  and  enforce  property  rights.^^  In  South 
Carolina  a  wife  who  has  purchased  a  mortgage  on  property  of  a 
partnership  of  which  her  husband  is  a  member  may  foreclose  it." 
In  Texas  a  wife  may  sue  her  husband  for  the  protection  of  sep- 
arate property  in  his  possession  against  waste  or  damage,  for  its 
recovery  when  wrongfully  converted,  and  to  have  a  resulting  trust 
declared.'^  The  ignorance  of  a  wife  as  to  her  rights  under  the 
Virginia  Married  Women's  Act  passed  after  her  marriage  does  not 
entitle  her  to  recover  in  equity  property  the  proceeds  of  which 
have  been  expended  by  her  husband.^^  In  Vermont  she  may  have 
specific  performance  of  a  contract  to  convey  land  to  him.*' 


29.  Eoot  V.  Eoot,  164  Mich.  638,  130 
N.  W.  194,  17  Det.  Leg.  N.  1222. 

30.  Eandall   v.   Eandall,   37    Mich. 
563. 

31.  Sackman  v.  Sackman,  143  Mo. 
576,  45  S.  W.  264. 

32.  Eeed  v.  Painter,   145  Mo.   341, 
46  S.  W.  1089. 

33.  Woodward    v.    Woodward,    148 
Mo.  241,  49  S.  W.  1001. 

34.  Grimes  v.  Eeynolds,  184  Mo.  679, 
83  S.  W.  1132. 

35.  Masterman   v.   Masterman,   129 


Md.  167,  98  A.  537;  Heekioan  v. 
Heckman,  215  Pa.  203,  64  A.  425,  114 
Am.  St.  E.  953;  Ireland  v.  Ireland, 
244  Pa.  489,  g'O  A.  911. 

36.  Youmans  v.  Youmans,  94  8.  C. 
88,  77  S.  E.  755. 

37.  Borton  v.  Borton  (Tex.),  190  8. 
W.  192 ;  Heintz  v.  Heintz,  56  Tex.  Civ. 
403,  120  S.  W.  941, 

38.  Throckmorton  v.  Throckmorton, 
9-1  Va.  42,  22  S.  E.  162. 

39.  Kittredge  v.  Kittredge,  79  Vt. 
337,  65  A.  89. 


667 


ACTIONS. 


§  631 


§  629.  Effect  of  Statute  of  Limitations. 

At  common  law  the  Statute  of  Limitations  does  not  begin  to  run 
against  a  claim  of  one  spouse  against  the  other  till  after  coverture 
ceases,"  but  it  is  otherwise  where  the  statute  permits  the  spouse  to 
sue  both  at  law  and  in  equity.*^ 

§  630.  Effect  of  Divorce  or  Abandonment. 

There  is  sound  policy  in  discouraging  the  pair  from  making  of 
their  matrimonial  bickerings  a  cause  of  action  for  damages  against 
one  another.  However  it  may  be,  at  this  day,  therefore,  as  to 
actions  of  contract,  or  proceedings  in  equity,  arising  out  of  their 
distinct  property  relations,  the  wife  has  no  cause  of  action  in 
damages  against  her  husband  for  a  pure  tort  committed  upon  her 
person  during  the  marriage  relation,  such  as  assault  or  false 
imprisonment.  And  as  the  objection  to  such  actions  is  not  merely 
one  of  procedure,  the  fact  that  she  has  since  procured  a  divorce 
will  not  enable  her  to  bring  such  a  suit.*^ 

A  decree  a  mensa  et  ihoro  will  not,  in  New  Jersey,  enable  a  wife 
to  bring  any  action  at  law  against  him.*^  Under  the  Connecticut 
statute  only  a  wife  abandoned  by  her  husband  may  maintain  an 
action  against  him  on  a  contract. 


44 


§  631.  Under  Married  Women's  Acts  in  General. 

But  in  some  States  the  legislature  permits  the  wife  to  sue  her 
husband,  as  well  as  others,  in  respect  of  her  separate  property.** 
Under  the  North  Carolina  statute  a  wife  may  maintain  an  action 
against  her  husband.**  In  Alaska  a  wife  cannot  maintain  an  ac- 
tion against  her  husband  for  necessaries  of  life,  nor  for  any  other 
«ct  or  failure  of  duty  connected  with  or  arising  out  of  the  marital 
relation.*^  Under  the  Arkansas  statute  a  wife's  representatives 
may  maintain  an  action  against  her  husband  for  her  wrongful 
death,**  and  in  that  State  and  in  Virginia  she  may  sue  her  hus- 


40.  In  re  Gracie's  Estate,  158  Pa. 
521,  27  A.  1083. 

41.  Eice  V.  Crozier,  139  la.  629,  117 
N.  W.  984. 

42.  Phillips  V.  Baraett,  1  Q.  B.  D. 
436;  Abbott  v.  Abbott,  67  Me.  304. 

43.  Drum  v.  Drum,  69  N.  J.  Law, 
557,  55  A.  86. 

44.  Muller  v.  Witte,  78  Conn.  495, 
62  A.  756;  Mathewson  v.  Mathewson, 
79  Conn.  23,  63  A.  285,  5  L.  R.  A. 
(N.  8.)  611. 


45.  Davis  t.  First  Nat.  Bank,  5  Neb. 
242;  Hardin  v.  Gerard,  10  Bush 
(Kv.),  259;  Scott  v.  Scott,  13  Ind. 
225;  Chestnut  v.  Chestnut,  77  HI.  346. 

46.  Graves  v.  Howard,  159  N.  C. 
594,  75  S.  E.  998. 

47.  Decker  v.  Kedly,  148  F.  681,  79 
C.  C.  A.  305- 

48.  Fitzpatrick  v.  Owena,  124  Ark. 
167,  186  8.  W.  832,  187  8.  W.  460. 


§  632 


HUSBAND    AND    WIFE. 


66a 


band's  estate  at  law.*'  Where  a  wife  may  maintain  an  action 
against  her  husband  for  a  personal  deibt,  marriage  will  not  operate 
to  discontinue  a  suit  begun  hj  the  wife  against  the  husband  before 
marriage 


BO 


§  632.  Implied  Statutory  Power  to  Maintain  Action. 

There  is  much  conflict  of  authority  as  to  whether  the  acts  re- 
moving the  disabilities  of  married  women  to  sue  repeal  by  impli- 
cation the  provisions  in  the  statutes  of  limitations  allowing  marred 
women  to  sue  a  certain  time  after  the  removal  of  the  "  disability  " 
of  coverture.  The  majority  of  the  courts  which  have  passel  on 
this  topic  hold  that  there  is  an  implied  repeal  and  that  a  married 
woman  under  the  so-called  Married  Women's  Acts  must  bring  suit 
within  the  statutory  period  named  for  other  adults  and  for  the 
following  reasons: 

First,  that  it  is  the  disability  as  the  result  of  marriage,  and 
not  the  marriage  itself,  that  is  the  reason  for  the  exception  or 
saving  clause  in  the  general  statute.  It  is  the  disability  that  is 
removed ;  the  marriage  status  is  not  in  contemplation  for  removal 
as  an  impediment. 

Second,  the  reason  for  the  exception  ceasing,  the  saving  clause 
ceases  also,  and  is  no  longer  protective  of  the  married  woman."*^ 

The  courts  which  take  the  opposite  view  rely  on  the  fact  that 
implied  repeal  of  statutes  is  not  favored  and  that  state  tbe  fol- 
lowing reasons: 

First,  the  wife  is  always  largely  under  the  influence  and  control 
of  her  husband,  and  the  naked  legal  right  to  sue  may  be  of  little 
avail  to  her  if  his  influence  or  command  be  that  suit  shall  not  be 
brought. 


49.  Free  v.  Marwell  (Ark.),  212  S. 
W.  325;  De  Baun 's  Ex'x  v,  De  Baun, 
119  Va.  85,  89  S.  E.  239. 

50.  Holland  v.  Riggs,  53  Tex.  Civ. 
367,  116  S.  W.  167. 

51.  In  the  following  States  it  haa 
been  held  that  there  is  an  implied  re- 
peal of  the  exception  in  the  statutes 
of  limitation  by  enactment  of  the 
married  women's  acts: 

Moody  V.  Southern  P.  Co.,  167  Cal. 
786,  141  Pac.  388  (relying  on  express 
language  of  statute) ;  Perkins  v. 
Crompton,  69  Ga.  736;  Castner  v.  Wal- 


rod,  83  III.  171,  25  Am.  R.  369 ;  Beat- 
tie  V.  Whipple,  154  111.  273,  40  N.  E. 
340;  Brown  v.  Cousens,  51  Me.  301; 
King  V.  Merritt,  67  Mich.  194,  34  N. 
W.  689;  Murphy  v.  J.  H.  Evans,  &c., 
Co.,  52  Neb.  593,  72  N.  W.  960;  Nisa- 
ley  V.  Brubaker,  192  Pa.  388,  43  A, 
967;  Mclrvin  v.  Lincoln  Memorial 
University,  138  Tonn.  260,  197  S.  W. 
862,  L.  R.  A.  1918C,  191.  England: 
Lowe  v.  Fox,  L.  R.  15  Q.  B.  Div.  667; 
Weldon  v.  Neal,  32  Week.  R.  828; 
Cameron  v.  Walker,  1?  Ont.  212. 


669 


ACTIONS. 


§  633 


Second,  mere  ability  to  sue  does  not  create  an  obligation  to  do 

eo. 

Third,  tbere  is  no  logical  impropriety  in  the  legislature  provid- 
ing that  a  married  woman  may  siie  alone,  and  in  providing  also 
that  she  may  be  given  time  to  sue  after  the  disability  of  coverture 
is  removed ;  therefore,  a  repeal  of  the  earlier  statute  by  implica- 
tion is  not  effected  by  reason  of  repugnancy  in  the  two  acts. 

Fourth,  a  married  woman  is  not  exempted  from  the  operation 
of  the  general  statute  merely  because  she  is  not  allowed  to  sue 
Alone,  but  on  account  of  the  marital  relation  itself,  which  may  be 
supposed  to  disable  or  embarrass  her  in  the  assertion  of  her 
ri^ts." 

§  633.  Torts  in  General. 

At  common  law  marriage  extinguished  all  rights  of  action  by 
the  wife  against  the  husband  for  antenuptial  torts."'  A  wife  can- 
not, even  under  Married  Women's  Acts,  maintain,  either  before 
or  after  divorce,  an  action  against  her  husband  for  a  personal  tort 
committed  during  coverture,"*  In  Oklahoma  a  wife  may  maintain 
an  action  against  her  husband  for  a  personal  tort.""     The  District 


52.  In  the  following  States  it  has 
been  held  that  there  is  no  implied  re- 
peal by  the  Married  "Women's  Acts: 

Big  Sandy  Co.  v.  Eamey,  162  Ky. 
236,  172  S.  W.  508;  Lindell  Eeal  Es- 
tate Co.  V.  LindeU,  142  Mo.  61,  43  8. 
W.  368;  Babcock  v.  Adams  (Mo.), 
196  S.  W.  1118.  See  Mueller  v.  Beck- 
er, 263  Mo.  165,  172  S.  W.  322;  Carey 
V.  Paterson,  47  N.  J.  Law,  365,  1  A. 
473;  State  v.  Troutman,  72  N.  C.  551; 
Wilkes  V.  Allen,  131  N.  C.  279,  42  S. 
E.  616;  Ashley  v.  Rochwell,  43  Ohio 
8t.  386,  2  N.  E.  437 ;  Morrison  v.  Hol- 
laday,  27  Ore.  175,  39  Pac.  1100; 
Wicsner  v.  Zaun,  39  Wis.  188;  Bliler 
V.  Boswell,  9  Wyo.  57,  59  P.  798,  61 
P.  867. 

A  distinction  has  been  laid  down  in 
Arkansas  which  finds  no  support  else- 
where that  there  is  no  repeal  if  the 
statute  provides  for  action  within  a 
specified  time  after  discoverture. 
Hershy  v.  Latham,  42  Ark.  305; 
Cooper  V.  Newton,  68  Ark.  150,  56  S. 
W.  867.     While  there  is  a  repeal  by 


implication  if  the  statute  provides  for 
action  within  a  specified  time  after  re- 
n.oval  of  disability.  Garland  County 
V.  Gaines,  47  Ark.  558,  2  S.  W.  460. 

53.  Henneger  .v.  Lomas,  145  Ind. 
287,  44  N.  E.  462,  32  L.  R.  A.  848. 

54.  Abbe  v.  Abbe,  22  App.  Div.  483, 
48  N.  Y.  S.  25;  Strom  v.  Strom,  98 
Minn.  427,  107  N.  W.  1047;  Band- 
field  V.  Bandfield,  117  Mich.  80,  75 
N.  W.  287,  5  Det.  Leg.  N.  145,  72  Am. 
St.  R.  550,  40  L.  R.  A,  757;  Strom  v. 
Strom,  98  Minn.  427,  107  N.  W.  1047, 
6L.  R.  A.  (N.  S.)  191,  116  Am.  St.  R. 
387;  Wilson  v.  Brown  (Tex.),  154  S. 
W.  322;  Sykes  v.  Speer,  102  Tex.  451, 
112  S.  W.  422;  Peters  v.  Peters,  156 
Cal.  32,  103  P.  219;  Butterfield  v. 
Butterfield,  195  Mo.  App.  37,  187  S. 
W.  295;  Rogers  v.  Rogers,  265  Mo. 
200,  177  S.  W.  382;  Lillienkamp  v. 
Rippetoe,  133  Tenn.  57,  179  6.  W. 
628,  L.  R.  A.  1916B,  881. 

55.  Fiedeer  v.  Fiedeer,  42  Okl.  124, 
140  P.  1022,  52  L.  R.  A.  (N.  8.)   189. 


§  633  HUSBAND  AND  WIFE.  670 

of  Columbia  statute  enabling  a  wife  to  sue  for  torts  committed 
against  her  does  not  extend  to  torts  committed  by  her  busband 
against  her.^® 

The  question  of  the  effect  of  the  modem  Married  Women's 
Acts  in  giving  the  wife  a  right  to  sue  the  hus'band  for  torts  com- 
mitted by  him  on  her  depends  on  the  language  of  each  act.  Statutes 
enlarging  the  rights  of  married  women  to  contract  and  to  main- 
tain suits  both  upon  contract  and  for  tort  the  same  as  that  given 
by  law  to  the  husband  have  been  uniformly  construed  to  give  no 
greater  rights  than  the  husband  had  and  therefore  not  to  confer 
the  right  to  sue  for  a  tort  for  the  reason  that  the  husband  had  no 
such  right.**^ 

In  other  States  where  there  are  statutes  authorizing  the  wife  to 
contract  either  with  her  husband  or  with  others  and  providing 
that  she  may  sue  or  be  sued  alone  the  courts  have  construed  those 
statutes  to  refer  solely  to  contractural  rights.''* 

In  still  other  States  statutes  somewhat  similar  are  held  merely 
to  give  the  right  to  sue  upon  causes  of  action  which  existed  at 
common  law  and  not  to  otherwise  enlarge  the  common-law  rights 
of  a  married  woman.°° 

It  has  even  been  held  that  a  statute  giving  the  married  woman 
the  right  to  sue  for  torts  committed  against  her  as  fully  and 
freely  as  if  she  were  unmarried  did  not  confer  upon  the  wife  the 
right  to  sue  her  husband  for  damages  on  account  of  tort  committed 
by  him.«° 

Statutes,  however,  declaring  that  married  women  are  given  all 
rights  as  if  sole  have  been  held  to  give  a  wife  the  right  to  sue  her 
husband  for  tort®^  and  therefore  her  administrator  may  sue  for 
her  death  caused  by  her  husband.'^ 

56.  Thompson  v.  Thompson,  31  App.  60.  Thompson  v.  Thompson,  218  IT. 
D.  C.  557.                                                           S.  611,  31  Sup  Ct.   Ill,  30  L.  R  A. 

57.  Strom  v.  Strom,  98  Minn.  427,       (N.  8.)  1153. 

6   L.   E.    A.    (N.   S.)    191;    Drum   v.  61.  Fiedler  v.  Fiedler   42  Okla.  124, 

Drum,  69  N.  J.  Law,  557,  55  A.  86;  140  Pac.   1022,   52  L.  R.  A.    (N.  8.) 

Schultz  V.  Christopher,  65  Wash.  496,  189.      A   declaration   that   a   married 

118  Pac.  629,  38  L.  R.  A.  (N.  S.)  780.  woman  should  hold  all  property  here- 

58.  Peters  v.  Peters,  156  Cal.  32,  103  after  acquired  for  her  sole  and  sepa- 
Pac.  219,  23  L.  R.  A.  (N.  S.)  699;  rate  use  was  held  to  give  the  wife  the 
Bandfield  v.  Bandfield,  117  Mich.  80,  right  to  sue  the  husband  for  tort  in 
75  N.  W.  287,  40  L.  R.  A.  758.  Brown  v.  Brown,  88  Conn.  42,  89  A. 

69.  Peters  v.  Peters,  42  la.  182 ;  Ab-       889,  52  L.  R.  A.  (N.  8.)  185. 
bott  V.  Abbott,  67  Me.  304,  24  Am.  62.  Fitzpatrick  v.  Owens,  124  Ark. 

R.  27.  167,  186  S.  W.  832,  187  8.  W.  460,  L. 

E.  A,  1917B,  774. 


.671  ACTIONS.  §  634 

§  634.  Assault  by  Husband  on  Wife. 

Husband  and  wife  cannot,  without  express  legislation  to  that 
effect,  be  indicted  for  the  larceny  or  burglary  or  arson  of  one  an- 
other's property,  nor  sued  in  tort  for  damages  respecting  such 
mutual  property,  more  than  at  common  law ;  equity  and  the  Mar- 
ried Women's  Acts  importing  no  change  in  this  respect,  by  the 
mere  creation  of  a  separate  estate  in  the  wife's  favor.*'  The 
tendency,  however,  is  to  exempt  each  from  the  consequences  of  the 
other's  torts,  holding  husband  or  wife  liable  only  for  the  wrong  to 
others  in  which  he  or  she  participates,  nor  permitting  the  incidental 
and  unsanctioned  fraud,  injury,  or  negligence  of  the  one  to  obstruct 
the  legal  remedies  of  the  other  and!  innocent  one.'*  A  husband 
who  communicates  syphilis  to  his  wife  is  guilty  of  assault  and 
battery."*  A  man  who  beats  a  woman  with  whom  he  has  gone 
through  a  marriage  ceremony  and  is  living  as  his  wife  is  liable 
under  the  Delaware  statute  making  wife  beating  a  misdemeanor, 
though  the  marriage  was  void.*®  The  punishment  for  such  offence 
may  be  either  a  whipping,  or  fine  and  imprisonment.*^  Under  the 
Arkansas  constitution  providing  that  a  wife's  separate  property 
acquired  either  before  or  during  coverture  shall  remain  such,  a 
husband  may  be  guilty  of  larceny  of  his  wife's  property,*^  and 
the  same  is  true  under  a  similar  Indiana  statute.*'  Under  recent 
statutes  a  husTsand  may  be  prosecuted  for  slandering  his  wife.'" 
In  some  States  a  wife  may  now  maintain  an  action  against  her 
husband  for  an  assault  committed  by  him  on  her,''^  but  under  some 

63.  Thomas  v.  Thomas,  51  111.  162;  988;  State  v.  Fulton,  149  N.  C.  485, 
Snyder  v.  People,  26  Mich.  106;  Mor-       63  S.  E.  145. 

gan  V.  State,  63  Ga.  307;  Overton  v.  71.  Oilman  v.  Gilman,  78  N.  H.  4,  95 

State,  43  Tex.  616.  A,     657,     L.     R.     A.     1916B,     907; 

64.  Moore  v.  Foote,  34  Mich.  443;  Brown  v.  Brown,  88  Conn.  42,  Sgf  A. 
Flori  V.  St.  Louis,  3  Mo.  App.  231;  889,  52  L.  R.  A.  (N.  S.)  185;  Mathew- 
Campbell  v.  Quackenbush,  33  Mich.  son  v,  Mathewson,  79  Conn.  23,  63 
287;  Martin  v.  Robson,  65  HI.  129.  A.  285,  5  L.  R.  A.  (N.  S.)  611;  Fitz- 

65.  State  v.  Lankford,  6  Boyce's  patrick  v.  Owens,  124  Ark.  167,  186 
(Del.),   594,   102   A.   63.  S.  W.  832,  L.  R.  A.  1917B,  774,  Ann. 

66.  State  v.  Collins  (Del.),  99  A.  87.  Cas.  19-18C,  772;  Johnson  v.  Johnson, 

67.  State    v.    Finley,    4    Pennewill       201  Ala.  41,  77  So.  335. 

(Del.),  29,  55  A.  1010.  In    Johnson    v.    Johnson,    201    Ala. 

68.  Hunt  V.  State,  72  Ark.  241,  79       41,  77  So.  335,  the  court  remarks: 

B.  W.  769,  105  Am.  St.  R.  34,  65  L.  R.  "  The  ancient  common  law  of  Eng- 

A.  71.  land,  which  gave  the  husband,  at  least 

60.  Beasley  v.  State,  138  Ind.  552,  among  'the  lower  rank  of  the  people,' 

38  N.  E.  35,  46  Am.  St.  R.  418,  the  right  to  restrain  the  wife  of  her 

70.  Stayton  v.  State,  46  Tex.  Cr,  R.  liberty   and   to   chastise   her    (1    Blk. 

205,  78  S.  W.  1071,  108  Am.  St.  R.  Com.  444),  was  never  in  this  State  the 


§  636 


HUSBAND    AND    WIFE. 


672 


Married  Women's  Acts  a  wife  still  cannot  maintain  an  action 
against  her  husband  for  his  assault  on  her/* 
§  635.  Ejectment. 

In  Alabama  a  wife  may  maintain  ejectment  against  her  husband 
to  recover  possession  of  land,"  Her  judgment  against  the  hus- 
band to  recover  her  premises  which  are  occupied  as  the  matri- 
monial abode,  must  needs  be  attended  with  practical  difficulties.'* 
and  so  must  her  entry  to  foreclose,  where  she  is  mortgagee  of  the 
land,  while  her  husband  holds  the  equity  of  redemption.^' 

§  636.  Replevin. 

Under  the  Missouri  Married  Women's  Act  either  spouse  may 
maintain  replevin  against  the  other.' 


T9 


^  law  for  any  rank  or  condition  of  peo- 
ple (Fulgham  v.  State,  46  Ala.  143). 
The  Legislature,  as  we  have  seen,  has 
given  the  wife  an  action  against  the 
husband  for  injuries  to  her  property 
rights,  and  we  can  hardly  conceive 
that  the  Legislature  intended  to  deny 
her  the  right  to  sue  him  separately  in 
tort  for  damages  arising  from  assaults 
upon  her  person.  The  language  of  the 
statute  covers  the  one  form  of  injury 
as  well  as  the  other,  and  we  hold  that 
the  wife  was  properly  allowed  to  pro- 
ceed with  her  suit,  defendant's  pleas 
and  special  charges  requested  to  the 
contrary  nevertheless.  The  wife's 
remedies,  by  a  criminal  prosecution  or 
an  action  for  divorce  and  alimony, 
which  in  some  jurisdictions  are  al- 
lowed to  stand  as  her  adequate  reme- 
dies for  wrongs  of  the  sort  described 
in  this  complaint,  so  far  from  being 
adequate  remedies,  appear  to  us  to  be 
illusory  and  inadequate,  while,  as  for 
the  policy  which  would  avoid  the  pub- 
lic airing  of  family  troubles,  we  see 
no  reason  why  it  should  weigh  more 
heavily  against  this  action  than 
against  those  which  the  courts  uni- 
versally allow." 

There  is  no  more  breach  of  pubUe 
policy  involved  here  than  in  the  award- 
ing of  alimony  or  in  allowing  the  wife 
to  prosecute  the  husband  criminally 
for  assault.  Fiedler  v.  Fiedler 
(Okla.),  140  Pac.  1022,  52  L.  R.  A. 
(N.  8.)  1S9. 


72.  Osburn  v.  Kuster  (Va.),  96  8. 
E.  315,  1  A.  E.  L.  439;  Thompson  t. 
Thompson,  218  U.  S.  611,  31  S.  Ct. 
Ill,  54  L.  Ed.  1180;  Keister's  Adm'r 
V.  Keister's  Ex'rs  1918,  (Va.)  96  S.  E. 
315. 

73.  Cook  V.  Cook,  125  Ala.  583,  27 
So.  918,  82  Am.  St.  R.  264. 

74.  Manning  v.  Manning,  79  N.  C. 
293.  Whether  trover  lies  for  fixtures 
placed  by  the  husband  on  his  wife's 
land,  see  Morrison  v.  Berry,  42  Mich. 
389. 

75.  Tucker  v.  Fenno,  110  Mass.  311. 
And  so  vice  versa,  where  her  husband 
desires  to  foreclose.  Cormerais  ▼. 
Wesselhoeft,  114  Mass.  550. 

The  policy  recognized  in  several 
cases,  upon  this  mooted  point  of  stat- 
ute construction,  is  to  regard  the  wife 
as  having  rights  of  action,  though  not 
permitting  the  remedy  to  be  fully  en- 
forced while  coverture  lasts;  but  in 
others,  right  and  remedy  are  more 
decidedly  negatived;  and  in  either 
instance  the  desire  manifested  is  to 
uphold  the  sanctity  and  peace  of  con- 
jugal life  by  discouraging  litigious 
disputes  between  the  united  parties. 
Another  objection  to  admitting  such 
suits  is  the  danger  that  husband  and 
wife  may  thus  connive  to  defraud 
creditors,  as  where,  for  instance,  the 
one  should  default  upon  an  improper 
claim,  and  permit  his  property  to  be 
nominally  absorbed  by  the  other. 

76.  Shewalter  v.  Wood  (Mo.  1916), 
182  9.  W,  1127. 


673 


ACTIONS. 


§  638 


§  637.  Negligence. 

Under  the  Georgia  statute  a  wife  cannot  maintain  an  action 
against  her  husband  for  negligence  in  operating  an  automobile.'^ 
Under  the  Missouri  Married  Women's  Act  neither  spouse  can  sue 
tJie  other  for  negligence 


78 


§  638.  Contract. 

In  some  States  a  wife  may  sue  her  husband  on  a  contract  as 
though  sole/'  even  on  a  contract  made  by  the  husiband  at  mar- 
riage to  treat  his  wife  as  a  husband  should.^"  In  Connecticut  and 
Iowa  a  wife  may  maintain  an  action  against  her  husband  on  a  note 
given  for  money  loaned  him  by  her,*^  as  well  as  on  his  note  which 
she  has  inherited  from  her  father's  estate.*^  Under  the  Arkansas 
statute  a  wife  may  sue  her  husband's  estate  for  a  debt  accruing 
to  her  before  the  enactment  of  the  enabling  statute,  which  is  of 
procedure  only.^^  In  Illinois  spouses  may  sue  each  other  on  all 
contracts  except  for  services  to  each  other.^*  The  Iowa  statute 
empowering  a  spouse  to  sue  the  other  spouse  for  property  of  which 
such  other  spouse  has  obtained  possession  either  before  or  after 
coverture,  or  for  any  right  growing  out  the  same  does  not  enable 
a  wife  to  maintain  an  action  against  her  husband  on  his  personal 
contract.*^  Under  the  Kentucky  statute  enabling  a  wife  to  sue  and 
be  sued,  it  was  held  that  she  might  sue  for  a  judicial  sale  of  land 
owned  by  them  jointly,  where  it  was  not  capable  of  division  and 
could  not  be  sold  by  agreement,**  and  recover  any  debt  he  owes 
her,*^  and  may  sue  a  partnership  for  money  loaned  to  it  though 
her  husband  was  a  member  and  though  the  money  passes  through 
his  hands.*®     In  Michigan  a  husband  cannot  sue  his  wife  on  a 


77.  Heyman  v.  Heyman,  19  Ga.  App. 
634,  92  S.  E.  25. 

78.  Shewalter  v.  Wood  (Mo.),  183 
8.  W.  1127. 

79.  Trayer  v.  Setzer,  72  Neb.  845, 
101  N.  W.  989;  McDowell  v.  McDow- 
ell, 37  N.  D.  367,  164  N.  W.  23 ;  Regal 
Realty  &  Investment  Co.  v.  Gallagher 
(Mo.),  188  S.  W.  lol. 

80.  Montgomery  v.  Mortgomery,  142 
Mo.  App.  481,  127  S.  W.  118. 

81.  In  re  Deaner's  Estate,  126  la. 
701,  102  N.  W.  825,  106  Am.  St.  R. 
374;  Mathewson  v.  Mathewson,  79 
Conn.  23,  63  A.  285. 

82.  Miller  "Watt   &   Co.   v.   Mercer 

43 


(la.),  150  N.  W.  694;  Heacock  v. 
Heacock,  108  la.  540,  79'  N.  W.  353, 
75  Am.  St.  R.  273. 

83.  Free  v.  Maxwell  (Ark.),  212  S. 
W.  325. 

84.  Hendrickson  v.  Hendrickson,  198 
111.  App.  442. 

85.  Heacock  v.  Heacock,  108  la. 
540,  79  N.  W.  353,  75  Am.  St.  R.  273. 

86.  Nilea  v.  Niles,  143  Ky.  94,  136 
S.  W.  127. 

87.  Greenup  v.  United  States  Fidel- 
ity &  Guaranty  Co.,  159  Ky.  647,  167 
S.  W.  910. 

88.  Walker's  Assignees  v.  Walker 
(Ky.),  114  S.  W.  338. 


§  642  HUSBAND  AND  WIFE.  674 

purely  executory  contract.^*  In  the  same  State  where  a  wife 
holding  a  note  of  her  husband  delivered  it  to  him  with  the  under- 
standing that  it  was  paid,  and  that  he  was  to  use  the  money  till 
she  called  for  it,  it  was  held  that  she  could  recover  against  him 
for  money  loaned,  but  not  on  the  note.®"  In  Massachusetts  where 
a  husband  gave  a  wife  a  note  before  divorce  to  be  accepted,  with 
other  property,  in  lieu  of  alimony  if  the  divorce  was  granted,  it 
was  held  that  after  the  divorce  she  could  maintain  an  action  upon 
the  note,  where  the  transaction  was  made  known  to  the  court  at 
the  time  the  divorce  was  granted.®^  Under  a  statute  giving  the 
wife  the  right  to  bargain  and  contract  as  a  married  man  may 
do  the  wife  may  maintain  action  against  the  husband  for  unusual 
services  rendered  under  an  express  agreement  that  she  should 
be  paid  for  them  where  the  services  are  in  the  course  of  his  busi- 
ness outside  of  the  family  relation.®^ 

§  639.  Partition. 

In  Oklahoma  where  an  undivided  interest  in  land  is  awarded  to 
a  wife  for  her  child,  she  may  maintain  partition  against  her  hus- 
band."" 

§  640.  Amounts  Expended  for  Necessaries. 

In  Oklahom  and  in  New  York  a  wife  who  has  been  forced  to 
support  herself  by  her  husband's  failure  to  do  so  may,  under  the 
statute,  recover  from  him  the  amount  so  expended. 


»4 


§  641.  Confession  of  Judgment. 

In  Pennsylvania  a  wife  may  confess  judgment  against  her  hus- 
band on  a  warrant  of  attorney.*" 

§  642.  Trover. 

Under  the  Arizona  statute  a  wife  may  maintain  an  action 
against  her  husband  for  a  conversion  of  her  separate  estate." 
Under  the  Rhode  Island  Married  Women's  Act,  enabling  a  wife 
to  sue  and  be  sued  alone,  she  may  maintain  trover  against  her 

89.  Jenne  v.  Marble,  37  Mich.  319.  94.  De  Brauwere  v.  De  Branwere, 

90.  Letts  V.  Letts,  73  Mich.  138,  41       144  App.  Div.  521,  129  N.  Y.  S.  587; 
N.  W.  99.  Sodowaky   v.   Sodowsky    (Okla.),   152 

91.  Chapin    v.    Chapin,    135    Mass.       P.  390. 

393.  95.   Harwood  v.  Harwood,  235   Pa. 

92.  Be  Cormick   (Neb.),  160  N.  W.       532,  84  A.  426. 

989,  L.  R.  A,  1917D,  265.  96.  Eshom  v.  Eshom,  18  Ariz.  170, 

98.  Moore  v.  Moore  (Okla.),  158  P.       157  P.  974. 
578. 


675  ACTIONS.  §  643 

hu^and  for  the  conversion  of  ier  household  furniture.'^  In  the 
same  State  she  may  maintain  trover  against  him  for  property  of 
the  wife  not  included  in  a  separation  agreement  between  them 
which  he  has  taken.®^  Under  the  Missouri  Married  Women's 
Act  either  spouse  may  maintain  an  action  for  conversion.*' 

§  643,  Actions  by  Wife  Against  Third  Persons. 

Married  Women's  Acts  enabling  the  wife  to  sue  alone  are  pros- 
pective in  their  operation/  and  being  enabling  or  remedial,  should 
be  construed  so  as  to  accomplish  their  purpose.^  An  act  providing 
that  a  wife  may  sue  or  be  sued  as  if  sole  effects,  it  would  appear, 
the  remedy  only,  in  such  a  sense  as  to  apply  whether  the  contract 
was  made  before  or  after  the  law  was  passed,  provided  the  action 
be  not  commenced  until  after.*  As  such  acts  are  commonly  con- 
strued, some  allegation  of  separate  contract  capacity  or  liability 
on  hei;  part  ought  to  be  shown  by  the  pleadings  ;*  for,  after  all, 
3uch  capacity  or  liability,  as  conferred  by  the  Married  Women's 
Acts,  is  taken  to  be  somewhat  exceptional,  and  courts  and  legis- 
latures still  disincline  to  permit  a  married  woman  to  sue  and 
be  sued  in  respect  of  her  contracts,  irrespective  of  her  separate 
property.^  Since  the  right  of  a  wife  to  sue  alone  is  dependent  on 
statute,  the  question  is  governed  by  the  law  of  the  forum,"  both 
as  to  liability  and  damages,^  even  though  she  could  not  sue  by  the 
law  of  her  domicile.*  Where  a  wife,  temporarily  in  Louisiana, 
was  entitled  by  the  law  of  her  domicile  to  sue  in  her  own  name 
for  a  tort  or  trespass  to  her  person,  it  was  held  that  she  might 
do  so  in  Louisiana  for  an  injury  sustained  there,  though  the  law 

97.  Smith  v.  Smith,  20  E.  I.  556,  40  3.  Buckingham  v.  Moss,  40  Conn. 
A.  417.                                                             461. 

98.  Carpenter  v.  Carpenter,  154  4.  Nash  v.  Mitchell,  71  N.  Y.  199; 
Mich.  100,  117  N.  W.  598,  15  Det.  Leg.  Magruder  v.  Buck,  56  Miss.  314; 
N.  686.                                                            Smith  v.  New  England  Bank,  45  Conn. 

99.  Shewalter  v.  Wood,  183   S.  W.       416;  Starke  v.  Malone,  51  Ala.  169. 
1127.  5.  "What  qualifications  apply  in  cer- 

1.  St.  Louis  Southwestern  Ry.  Co.  v.  tain  States  to  this  rule,  the  reader  will 
Purcell,  135  F.  499,  68  C.  C.  A.  211;  gather  from  this  and  the  preceding 
Rogers  v.  Lynch,  44  W.  Va.  94,  29  S.       chapters. 

E.  507;  Snyder  V.  Jett,  138  Tenn.  211,  6.   Rogers  v.  Rogers,   265  Mo.  200, 

197    S.   W.    488;    Moody    v.    Southern  177  S.  W.  382. 

Pac.  Co.,  167  Cal.  786,  141  P.  388.  7.  Libaire  v.  Minneapolis  &  St.  L. 

2.  Beagles  v.  Beagles,  95  Mo.  App.  R.  Co.,  113  Minn.  517,  130  N.  W.  8. 
338,  68  S.  W.  758;  Arnold  v.  Arnold,  8.   Texas  &  P.  Ry.   Co.  v.  Humble, 
140  Ind.  199,  39  N.  E.  862.  181  U.  S.  57,  21  S.  Ct.  526,  45  L.  Ed. 

747. 


§  644  HUSBAND  AND  WIFE.  C76 

of  that  State  is  otherwise.'  Under  the  Missouri  Married  "Women's 
Act  a  wife  may  maintain  there  in  her  own  name  an  action  on  a 
contract  made  in  another  State,  though  the  common  law  will  con- 
trol both  its  construction  and  effect.^" 

§  644.  In  Equity. 

In  N^ew  York  and  Mississippi  it  is  held  that  the  Married 
Women's  Act  does  not  oust  the  original  jurisdiction  of  courts  of 
equity  in  cases  affecting  the  separate  estates  of  married  women.^^ 
Speaking  of  the  legislation  in  the  former  State,  the  court  observes 
that  the  statutes  of  1848  and  1849  are  but  the  legislative  adoption 
of  the  equitable  rules,  and  their  application  to  all  property  of  the 
wife  whether  legal  or  equitable.  "  The  evil  complained  of  was 
the  too  great  subjection  of  the  property  of  the  wife,  at  common 
law,  to  the  control  of  the  husband  and  his  creditors.  The  remedy 
was  to  apply  the  rule  of  this  court,  in  respect  to  the  separate 
property  of  married  women,  to  all  property  belonging  to  the  wife. 
It  is  true  the  property  is  thus  converted  into  a  legal  estate,  but  it 
is  none  the  less  a  separate  estate,  independent  of  the  husband.^^ 
So,  too,  in  a  Michigan  case,  it  is  observed  that,  as  regards  the 
wife's  individual  property,  the  married  women's  legislation  has 
done  little  more  than  to  give  legal  rights  and  remedies  to  the 
wife,  where  before,  by  settlement  or  contract,  she  might  have 
established  corresponding  equitable  rights  and  remedies.^^  That 
this  legislation,  properly  so  called,  does  not  profess  to  operate  upon 
the  family  relation,  or  take  from  the  husband  his  marital  rights, 
except  as  pertaining  to  property,  is  frequently  insisted  upon.^* 

"  The  estate  thus  assured  to  the  wife,"  as  a  Pennsylvania  case 
well  obsen-es,  "  is  only  analogous  to  the  equitable  separate  estate, 
and  is  seriously  modified  by  the  fact  that  she  has  no  trustee  sepa- 

9.  Williams  v.  Pope  Mfg.  Co.,  52  12.  Colvin  v.  Currier,  22  Barb.  (N. 
La.  Ann.  1417,  27  So.  851,  50  L.  R.  A.       T.)  382. 

816.  13.  Snyder  v.  People,  26  Mich.  106. 

10.  Coombes  v.  Knowlson  (Mo.),  And  see  Clawson  v.  Clawson,  25  Ind. 
182  S.  W.  1040.  229. 

11.  Mitchell  V.  Otey,  23  Miss.  236;  14.  Snyder  v.  People,  26  Mich.  106. 
Colvin  V.  Currier,  22  Barb.  (IST.  T.)  A  conveyance  to  a  married  woman's 
371.  See  the  recent  case  of  Wood  v.  separate  use  does  not  create  in  her  a 
Wood,  83  N.  Y.  575,  -where  Folger,  C.  separate  estate  by  contract,  in  opposi- 
J.,  observes  that  the  Married  Women's  tion  to  her  separate  estate  by  statute, 
Acts,  by  their  o-wti  operation,  changed  where  a  large  portion  of  the  purchase- 
the  wife 's  capacity  to  hold  a  separate  money  came  from  her  separate  statu- 
estate  as  a  matter  of  equity  into  a  tory  estate.  Molton  v.  Martin,  43  Ala. 
legal  estate.  *51. 


677  ACTIONS.  §  645 

rate  from  lier  husband ;  and  that  he,  therefore,  as  the  legal  guard- 
ian of  her  rights,  necesarily  becomes,  in  a  large  sense,  her  trustee, 
but  without  all  of  the  law's  suspicion  of  his  dealing  with  the  trust 
property,  for  the  community  of  interests  and  sympathies  of  hus- 
band and  wife  forbid  this."^^  In  general,  however,  where  local 
statute  confers  upon  the  wife  the  full  legal  title  to  her  separate 
property,  together  with  ample  remedies,  she  cannot  come  into 
equity  unless  she  can  show  some  special  ground  of  equitable 
cognizance,  such  as  fraud  upon  her  rights.^®  Chancery  has  power 
to  reform  a  wife's  conveyance  where  it  is  clearly  shown  that  by 
mistake  of  the  scrivener  the  land  conveyed  is  wrongly  described. ^^ 

§  645.  Under  Married  Women's  Acts. 

Concerning  actions,  &c.,  by  or  on  behalf  of  a  married  woman, 
including  arbitration.  Modem  local  statutes  have  in  these  re- 
spects wrought  great  changes.  Doubtless,  in  various  States,  the 
joinder  of  husband  and  wife  as  plaintiffs  is  still  proper  even 
where  the  wife  is  the  meritorious  cause  of  action.^®  The  English 
act  of  1870  permits  the  married  woman  to  maintain  an  action  in 
her  own  name  in  respect  of  her  separate  property.^*  And  in  some 
States,  a  wife  may  now  sue  at  law,  in  matters  relating  to  her 
separate  property,  without  joining  her  husband,^"  but  under  some 

15.  Lowrie,  C.  J.,  in  Walker  v.  17  S.  W.  967;  Harvey  v.  Sparks  Bros., 
Eeamy,  36  Pa.  410,  414.  45  Wash.  57S,  88  P.  1108;  Sheldon  v 

16.  Dani«l  v.  Stewart,  55  Ala.  278;  Birmingham  Bldg.  &  Loan  Ass'n,  121 
Furness  v.  McGovern,  78  HI.  337.  Ala.  278,  25  S.  820;  Campbell  v.  Gal- 

17.  Lewis  V.  Ferris  (N.  J.),  50  A.  breath,  12  Bush  (Ky.),  459;  Corey  v. 
€30;  Herring  v.  Fitts,  43  Fla.  54,  30  Howard,  19  K.  L  723,  37  A.  946; 
S.  804;  Christensen  v.  Holingsworth,  Moore  v.  Moore  (Okla.),  158  P.  575; 
€  Ida.  87,  53  P.  211,  96  Am.  St.  E.  Bechtol  v.  Ewing  (Ohio),  105  N.  E. 
256.  72;  Gage  v.  Gage,  78  Wash.  262,  138 

18.  See  supra,  Beinheimer  v.  Carter,  P.  886 ;  Duncan  v.  Duncan,  6  Cal. 
31  Ohio  St.  579;  Baird  v.  Fletcher,  50  App.  404,  92  P.  310;  Walker  v.  Gil- 
Vt.  603.  As  to  actions  affecting  the  man,  45  Me.  28;  Ackly  v.  Tarbox,  31 
wife 's  real  estate,  where  the  adult  hus-  N.  Y.  565 ;  Furrow  v.  Chapin,  13  Kan. 
band  is  under  guardianship  for  insan-  107 ;  Alexanders  v.  Goodwin,  54  N.  H. 
ity,  Sec,  see  Hamilton  v.  Colwell,  10  423;  Forbes  v.  Tuckerman,  115  Mass. 
R.  I.  39.  115;  Peters  v.  Fowler,  41  Barb.   (N. 

19.  Act  33  and  34  Vict.,  ch.  93  T.)  467;  Emerson  v.  Clayton,  32  111. 
(1870).  493;    Leonard   v.    Townsend,   26    Cal. 

20  Willis  V.  J.  G.  White  &  Co.,  150  435 ;  Weymouth  v.  Chicago,  &c.,  E.  E. 

N.  C.  199,  63  S.  E.  942  ;  Sonnemann  v.  Co.,  17  Wis.  550;  Jordan  v.  Cummings, 

Loeb,  11  App.  D.  C.   143;    Gallagher  43  N.  H.  134;  Gee  v.  Lewis,  20  Ind. 

V.  Mjelde,  98  Wis.  509,  74  N.  W.  340;  149;  Beavers  v.  Baucum,  33  Ark.  722; 

Porter  v.  Taylor,  64  Fla.  100,  59  So.  Earnhardt  v.  Clement,  137  N.  C.  91, 

400;  Gotcher  v.  Hacfner,  107  Mo.  270,  49  S.  E.  49. 


§  645 


HUSBAND    AND    WIFE. 


678 


such  statutes  lie  may  join  with  her  in  such  an  action.'*  Under 
such  statutes  she  may  contest  a  will  alone.^^  Under  some  Married 
Women's  Acts  a  wife  may  now  sue  alone  without  regard  to  her 
separate  estate,^^  against  persons  other  than  her  husband."  Where 
property  of  each  spouse  is  included  in  a  mortgage  under  which 
an  illegal  sale  is  made,  the  wife  may  sue  alone  to  avoid  the  mort- 
gage as  to  both.^^  A  wife  may  maintain  an  action  to  have  a  deed 
declared  a  mortgage  where  she  incurred  the  debt  and  made  the 
contract  under  which  the  property  was  conveyed  and  has  an  in- 
terest in  the  land.'®  Where  a  contract  was  assigned  to  a  wife  in 
Illinois,  it  was  held  that  she  might  sue  on  it  in  Missouri,  regard- 
less of  the  common-law  presumption  that  the  common  law  pre- 
vailed in  Illinois,  which  would  have  obliged  her  to  sue  in  equity." 
Under  other  statutes  her  husband  must  be  joined.^*  In  Louisiana 
a  wife  may  sue  in  her  own  name  to  recover  her  paraphernal 
funds.^"  The  proper  form  of  such  action  in  that  State  is  by  the 
wife,  with  the  authorization  of  the  court  or  her  husband.^**  The 
husband's  authorization  must  appear  of  record  in  order  to  enaWe 
her  to  sue,**  but  it  is  enough  if  it  is  filed  before  trial  on  the 
merits,*^  and  is  sufficiently  shown  where  he  joins  in  the  action, 


ss 


21.  City  of  New  Albany  v.  Lines,  21 
Ind.  App.  380,  51  N.  E.  346 ;  Mitchell 
V.  Penny,  66  W.  Va.  660,  66  S.  E. 
1003;  Clay  v.  City  of  St.  Albans,  43 
W.  Va.  539,  27  S.  E.  368,  64  Am.  St. 
E.  883;  Cox  v.  St.  Louis,  M.  &  S.  E. 
Ry.  Co.,  123  Mo.  App.  356,  100  S.  W. 
1096. 

22.  In  re  Beauchamp  's  Will,  146  N. 
C.  254,  59  S.  E.  687 ;  Pierce  v.  Farrar 
(Tex.),  126  S.  W.  932. 

23.  Child  V.  Emerson,  102  Mich.  38,  6 
N.  W.  292;  Fox  v.  Manufacturer's 
Fire  Ins.  Co.,  31  W.  Va.  374,  6  S.  E. 
(r29;  Howard  v.  Gibson,  22  Ky  Law, 
1294,  60  S.  W.  401 ;  Wright  v.  Wright, 
97  Ind.  444;  Turner  v.  Gill,  105  Ky. 
414,  20  Ky.  Law,  1253,  49  S.  W.  311; 
Richmond  Ey.  &  Electric  Co.  v. 
Bowles,  92  Va.  738,  24  S.  E.  388; 
Buck  V.  Troy  Aqueduct  Co.,  76  Vt. 
75,  56  A.  285;  Holmes  v.  Leadbetter, 
95  Mo.  App.  419',  69  S.  W.  23;  -Rice 
Stix  &  Co.  V.  Sally,  176  Mo.  107,  75  S. 
W.  398;  Quirk  v.  Liebert,  12  App.  D. 
C.   394;    Texas  City  Terminal  Co.  v. 


Thomas  (Tex.),  178  S.  W.  707;  Ennis 
V.  Nusbaum,  90  Kan.  296,  133  P.  537. 

24.  In  re  Hill,  190  F.  39fl;  Schults 
V.  Christopher,  65  Wash.  496,  118  P. 
629. 

25.  Shew  V.  Call,  119  N.  C.  450,  26 
S.  E.  33,  56  Am.  St.  E.  678. 

26.  Eodda  v.  Needham,  78  Wash. 
636,  139  P.  628. 

27.  Coombes  v.  Knowlson  (Mo.),  200 
S.  W.  743. 

28.  Fink  v.  Campbell  70  F.  664,  17 
C.  C.  A,  325,  37  U.  S.  App.  462;  Sa- 
marzevosky.  v.  Baltimore  City  Pass. 
Ey.  Co.,  88  Md.  479,  42  A.  206. 

29.  Hart  v.  Bowen,  86  F.  877,  31  C. 
C.  A.  31  (cert,  den.,  171  U.  S.  688,  18 
Sup.  Ct.  943). 

SO.  Martin  v.  Derenbecker,  116  La. 
495,  40  So.  849. 

31.  M.  M.  Sanders  &  Son  v.  Schill- 
ing, 123  La.  1009,  49  So.  689. 

32.  Evans,  v.  De  L'Isle,  24  La.  Ann. 
248. 

33.  Delacroix  v.  Meux,  28  La.  Ann. 
515. 


679 


ACTIONS. 


§   646 


which  is  the  proper  method  of  showing  his  authorization.'*  In 
the  same  State  where  a  wife  is  not  property  authorized  to  sue, 
the  defendant  may  be  relieved  from  answering  till  such  authority 
is  obtained.^^  In  case  of  the  interdiction  of  the  husband,  the 
court  may  authorize  the  wife  to  sue.^®  Under  a  later  statute  such 
authorization  is  not  necessary  to  enable  the  wife  to  maintain  an 
action  for  personal  injuries.'^  She  cannot  maintain  an  appeal 
without  such  authorization.^*  An  infant  wife  may  sue  for  par- 
tition where  aided  and  assisted  by  her  husband,  without  the  au- 
thority of  the  judge,  on  the  advice  of  a  family  meeting.^"  The 
Michigan  statute  enabling  a  wife  to  sue  in  her  own  name  for 
exempt  property  seized  on  process  against*  her  husband  applies 
only  where  the  seizure  was  on  adversary  process  against  him,*" 
Under  the  South  Dakota  statute  it  was  held  that  the  wife  could 
maintain  an  action  for  injury  to  her  rights  by  the  sale  of  opium 
to  her  hus^band.*^ 

§  646.  Necessity  of  Joining  Husband  as  Party-at-Law. 

At  common  law  both  spouses  must  join  to  recover  on  a  cause 
of  action  accruing  to  the  wife  before  coverture.*^  Under  the 
California  statute  a  husband  need  not  be  joined  in  an  action  on 
a  note  which  is  his  wife's  separate  estate,  though  the  consider- 
ation of  the  note  was  at  one  time  community  property,*'  but  it  is 
proper  to  join  him.**  Under  the  Indiana  statute  a  husband  is  not 
a  proper  party  to  an  action  against  a  wife  for  breach  of  an  agree- 
ment made  by  him  as  her  agent  to  make  improvements  on  land 
demised  by  her.*^  Though  under  the  Kentucky  statute  a  wife  can- 
not sell  her  land  without  her  husband's  joinder,  he  is  not  a  neces- 
sary party  to  an  action  to  enforce  a  lien  on  such  land.**  In  Massa- 
chusetts a  husband  is  a  proper  party  to  a  suit  to  charge  a  wife's 


34.  Jones  v.  Henry,  Man.  Unrep, 
Cas.  (La.),  65. 

85.  Longino  v.  Webb  Press  Co.,  132 
La.  25,  60  So.  707. 

36.  Cartwright  v.  Puissigur,  125  La. 
700,  51  So.  692. 

37.  Shield  v.  F.  Johnson  &  Son  Co., 
132  La.  773,  61  So.  787. 

38.  Jurey  &  Harris  v.  Hord,  Man. 
TJnrep.  Cas.  (La.),  52. 

39.  Tobin  v.  U.  S.  Safe  Deposit  & 
Sav.  Bank,  115  La.  366,  39^  So.  33. 

40.  Singer  Mfg.  Co.  v.  Cullaton,  90 
Mich.  639,  51  N.  W.  687. 


41.  Moberg  v.  Scott,  38  S.  D.  422, 
161  N.  W.  998,  L.  R.  A.  1?17D,  732. 

42.  Hennessey  v.  White,  2  Allen 
(Mass.),  48. 

43.  Cullen  v.  Bisbee,  168  Cal.  695, 
144  P.  968. 

44.  Clark  v.  Koesheyan,  26  Cal.  App, 
305,  146  P.  904;  Garver  v.  Thoman,  15 
Ariz.  38,  135  P.  724. 

45.  Richardson  v.  League,  21  Ind. 
App.  429,  52  N.  E.  618. 

46.  Rhodes  v.  People 's  Sav.  &  Bldg. 
Ass'n,  107  Kv.  ligf,  21  Ky.  Law,  747, 
52  S.  W.  1050. 


§  647 


HUSBAND    AND    WIFE. 


680 


separate  estate  with  a  debt  created  by  an  invalid  mortgage.*^  In 
some  States  bis  joinder  is  optional  with  the  wife.**  Where  she 
is  neither  a  necessary  or  proper  party  her  joinder  is  fatal  to  the 
action.*^  Where  the  wife  should  not  sue  alone  in  law,  it  might 
appear  that,  in  respect  of  separate  property,  the  husband  should 
sue  alone  as  trustee  for  her;  so  that  in  either  case  their  joint 
suit  would  be  bad.**" 


§  647.  In  Equity. 

While,  as  concerns  suits  by  a  wife  at  law  in  respect  to  her 
separate  estate,  it  may  not  be  deemed  necessary  to  join  the  husband 
with  her  as  plaintiff,  in  equity  proceedings  it  might  be  different, 
for  here  all  interested  parties  are  to  be  embraced  in  a  bill.  Thus, 
where  the  wife  seeks  to  enforce  a  vendor's  lien  for  money  on  land 
conveyed  by  her  and  her  husband,  but  belonging  solely  to  her,  it  is 
proper  that  the  husband  should  be  made  a  party,  so  as  to  protect 
the  title  from  any  subsequent  claim  on  his  part.®^  But  the  Massa- 
chusetts act  is  construed  as  to  "  suing  and  being  sued,"  so  that  the 
husband  need  not  be  made  a  party  complainant,  even  to  a  bill  in 
equity  brought  by  the  wife,  where  it  concerns  her  separate  prop- 
erty." 

Chancery  proceedings  may  be  instituted  by  the  wife  as  it  would 
appear,  by  her  next  friend  or  otherwise,  in  respect  of  her  sepa- 
rate property,  so  as  to  render  the  husband  a  party  defendant  and 
bind  him  by  the  decree.^^  In  Florida  a  husband  is  a  necessary 
party  to  a  suit  to  enforce  his  wife's  mortgage.^*  In  West  Virginia 
where  a  bill  against  spouses  jointly  on  joint  and  several  notes  was 


47.  Heburn  v.  Warner,  112  Mass. 
271,  17  Am.  St.  R.  86. 

48.  Bowers  v.  Starbuck  (Ind.),  116 
N.  E.  301;  Normile  v.  "Wheeling  Trac- 
tion Co.,  57  W.  Va.  132,  49  S.  E.  1030, 
68  L.  R.  A,  901. 

49.  Oakley  v.  Emmons,  73  N.  J. 
Law,  206,  62  A.  996. 

50.  Bell  V.  Allen,  53  Ala.  125.  And 
see  Wilson  v,  Garaghty,  70  Mo.  517. 

51.  Wing  V.  Goodman,  75  111.  159. 

52.  Forbes  v.  Tuckerman,  115  Mass. 
115.  This  appears  to  be  the  New  Jer- 
sey rule.  Tantum  v.  Coleman,  26  N. 
J.  Eq.  128.  But  cf.  Robinson  v.  Tro- 
fitter,    109    Mass.     578;     Cantrell    v. 


Davidson,  3  Tenn.  Ch.  426,  where  the 
husband  may  be  deemed  an  interested 
party  defendant.  So  as  to  restraining 
the  collection  of  an  illegal  tax,  where 
both  husband  and  wife  occupy  the 
land  as  their  home.  Henry  v.  Gregory, 
29  Mich.  68.  See  further,  Koehler  v. 
Bernicker,  63  Mo.  368. 

53.  Cantrell  v.  Davidson,  3  Tenn.  Ch. 
426;  Robinson  v.  Trofitter,  109  Mass. 
578;  Bennett  v.  Winfield,  4  Heisk. 
(Tenn.)  440;  Reynaud  v.  Memphis 
Ins.  Co.,  7  Baxt.  (Tenn.)  279. 

54.  Garrison  v.  Parsons,  45  Fla.  335, 
33  So.  525, 


681  ACTIONS.  §  649 

dismisesd  on  demurrer  as  against  the  husband,  it  was  held  that  the 
action  might  proceed  against  the  wife.° 


S5 


§  648.  Necessity  of  Guardian  ad  Litem  or  Next  Friend. 

A  married  woman  sometimes  sues  properly  by  a  next  friend.^' 
The  object  of  suing  by  next  friend  is  to  secure  the  costs,  or  for 
convenience,  where  she  is  disqualified  to  act  for  herself  in  the 
matter  sued  on.^^  Where  she  is  insane,  for  instance,  the  law  will 
not  in  general  presume  her  consent  to  a  bill  in  equity  filed  by  her 
husband  in  their  joint  names,  nor  his  agency  in  employing  an 
attorney  to  represent  her ;  her  interests  being  distinct  from  his 
own.^^  A  statute  guardian  is  sometimes  appointed  to  protect  the 
separate  interests  of  an  insane  married  woman,  with  relation  to 
her  property,  or  suits  in  which  she  is  concerned.'*'  Where  the 
action  is  against  the  husiband,  as  for  divorce  or  alimony,  or  in 
cases  involving  trusts,  title  or  management  or  property,  etc.,  no 
next  frend  is  necessary.®"  In  Florida  a  wife  sues  by  her  husband 
as  next  friend.®'^  Under  the  ISTew  Jersey  Married  Women's  Act  a 
wife  may  sue  in  equity  without  a  next  friend  to  recover  costs 
awarded  in  proceeding  for  divorce  a  mensa  et  thoro.^'^ 

§  649.  Effect  of  Husband's  Refusal  to  Join. 

In  Kentucky  she  may  sue  alone  if  he  refuses  to  join."'  Under 
that  statute  desertion  and  failure  to  support  the  wife  for  several 
years  has  been  held  a  refusal  to  unite  with  her  in  actions  she  may 
bring  against  third  persons.®*  In  Indiana  he  may  be  joined  as 
defendant,  if  he  refuses  to  join  as  plaintiff.®^  In  Pennsylvania  if 
the  husband  does  not  join  within  twenty  days  after  service  of  a 
rule  to  join,  the  wife  may  proceed  alone.®*     In  Texas  a  husband 

55.  Skidmore  v.  Jett,  39,  W.  Va.  544,  122,  19  Ky.  Law,  308,  39  S.  W.  844, 
20  S.  E.  573.  72  Am.  St.  R.  397;   Anderson  v.  An- 

56.  Leftwick  v.  Hamilton,  9  Heisk.  derson,  11  Bush   (Ky.),  327   (decided 
(Tenn.)  310.  under  a  former  statute). 

57.  "Wood  V.  Wood,  56  Fla.  882,  47  64.    Baumeister    v.    Markham,    101 
So.  560.  Ky.  122,  19  Ky.  Law,  308,  39  S.  W. 

58.  Stephens   v.   Porter,    11    Heisk.       844,    72    Am.    St.    R.    397;    Hart    v. 
(Tenn.)  341.  Bowen,  86  F.  877,  31  C.  C.  A.  21  (cert. 

59.  Gardner  v.  Maroney,  95  111.  552.  den.,  171  U.  S.  688,  18  S.  Ct.  943). 

60.  Wood  V.  Wood,  56  Fla.  882,  47  65.  Logan  v.  Logan,  77  Ind.  558. 
S.  560.  66.   Rockwell   v.   Waverly,  S.   &   A. 

61.  Wood  V.  Wood,  56  Fla.  882,  47  Electric  Traction  Co.,  187  Pa.  568,  41 
So.  560.  A.  324,  43  W.  N.  C.  105;  Donoghue  v. 

62.  Van  Orden  v.  Van  Orden   (N.  Consolidated    Traction    Co.,    201    Pa. 
J.),  41  A.  671.  181,  50  A.  952. 

63.  Baumeister  v.  Markham,  101  Ky. 


§  653 


HUSBAND    AND    WIFE. 


682 


may  sue,  either  alone  or  with  his  wife,  to  recover  her  separate 
estate,  and  she  may  sue  alone  with  the  authority  of  court,  if  he 
neglects  or  refuses  to  do  so.*^ 

§  650.  Effect  of  Separation- 

In  some  States  a  deserted  wife  may  sue  alone,"  as  well  as  where 
the  spouses  are  separated,^^  especially  where  he  refuses  to  join,'* 
even  though  the  desertion  has  not  continued  long  enough  to  be 
cause  for  divorce."  In  Florida  the  wife  may  sue  alone  if  the 
husband  has  deserted  her  and  the  desertion  has  continued  six 
months.'^ 

§  651.  Compromise  of  Claim. 

A  wife  may  make  a  compromise  and  settlement  as  to  claims, 
by  right  of  her  separate  estate.'^ 

§  652.  Contract. 

A  wife  may  sue  alone  for  rent  under  her  lease,'*  or  on  an  agree- 
ment to  convey  real  efitate  to  her,  which  did  not  name  her  husband 
as  a  party."  In  Delaware,  Georgia,  Iowa,  Maryland  and  New 
York  a  wife  may  recover  for  board  furnished  by  her  only  with 


67.  Kingsbury  v.  Phillips  (Tex.), 
142  8.  W.  73 ;  Western  Bank  &  Triist 
Co.  V.  Gibbs  (Tex.),  96  S.  W.  947. 

88.  Missouri,  K.  &  T.  Ry.  Co.  v. 
Allen,  53  Tex.  Civ.  433,  115  S.  W. 
1179;  Brown  v.  Brown,  121  N.  C.  8, 
27  S.  E.  998,  38  L.  R.  A.  242 ;  Koch 
T.  City  of  Williamsport,  195  Pa.  488; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Hennesey, 

20  Tex.  Civ.  316,  49  S.  W.  917;  Word 
V.  Kennon  (Tex.),  75  S.  W.  365; 
Heagy  v.  Kastner  (Tex.),  138  S.  W. 
788;  Union  Oil  Co.  v.  Stewart,  158 
Cal.  149,  110  P.  313;  Madden  v.  Hall, 

21  Cal.  App.  541,  132  P.  291;  Duncan 
V.  Duncan,  6  Cal.  App.  404,  92  P.  310; 
MuUer  v.  Hale,  138  Cal.  163,  71  P.  81. 

69.  Horton  v.  City  of  Seattle,  53 
Wa3h.  316,  101  P.  1091;  Work  v. 
Campbell,  164  Cal.  343,  128  P.  943. 

70.  City  of  San  Antonio  v.  Wilden- 
fltein,  49  Tex.  Civ.  514,  109  S.  W. 
231. 

71.  Humphrey  v.  Pope,  122  Cal.  253, 
54  P.  847. 

72.  Saunders  Transfer  Co.  v.  Un- 
derwood (Fla.)  81  So.  105. 


73.  Husband  v.  Epling,  81  111.  172 ; 
Lewis  V.  Gunn,  63  Ga.  542. 

74.  Hayner  v.  Smith,  63  111.  430. 

75.  Stampoffski  v.  Hooper,  75  HI. 
241. 

For  suit  for  injury  to  reversion  of 
her  land,  as  distinguished  from  injury 
to  the  joint  marital  possessions  or 
crops,  see  Lyon  v.  Green  Bay  R.,  42 
Wis.  548;  Indianapolis  R.  v.  Mc- 
Laughlin, 77  lU.  275.  Where  the  suit 
relates  to  unpaid  taxes  upon  the  wife  *s 
land,  the  wife  may  sue,  and  show  by 
parol  that  they  are  her  separate  lands, 
notwithstanding  they  were  taxed  to 
her  husband.  Dinsmore  v.  Winegar, 
57  N.  H.  382.  Cf.  Williams  v.  Turner. 
50  Tex.  137.  The  husband  cannot 
maintain  trespass  qu.  cl.  fr.  against 
one  who  carries  away  soil  from  his 
wife's  farm.  Bradford  v.  Hanscom, 
6S  Me.  103. 

The  Statute  of  Limitations  runs,  as 
usual,  so  far  as  the  coverture  disa- 
bility has  been  removed  under  the 
local  act.  Hayward  v.  Gunn,  82  HL 
385. 


6S3 


ACTIONS. 


§  653 


her  husband^s  consent.^'  Under  the  Delaware,  Indiana  and  Mis- 
souri Married  Women's  Acts  a  wife  may  recover  for  her  personal 
labor  performed  for  persons  other  than  her  husband,"  and  where 
the  services  were  rendered  jointly  the  spouses  may  recover  therefor 
in  a  joint  action/*  In  Iowa  where  a  farm  hand  contracted  to 
work  for  a  stipulated  sum  and  the  board  of  himself  and  wife,  she 
to  assist  in  the  housework,  it  was  held  that  he  alone  could  sue  for 
its  breach,  there  being  no  independ'ent  employment  of  the  wife/* 
Under  the  Michigan  statute  a  wife  may  recover  for  her  services 
only  where  the  consent  of  the  husband  is  communicated  to  the 
debtor  and  where  the  latter  understands  that  he  is  contracting 
with  the  wife  and  that  she  expects  compensation/"  In  New 
Jersey  the  husband  only  can  recover  for  such  services/^  In  Ohio 
a  wife  may  recover  in  her  own  name  for  special  care  and  atten- 
tion given  to  an  invalid  for  whose  board  and  lodging  her  husband 
has  already  received  payment/^ 


§  653.  Confession  of  Judgment, 

A  wife  cannot  usually  confess  judgment,  though  it  be  for  a 
debt  incurred  for  the  benefit  of  her  separate  estate,  as  this  is  not 
beneficial  to  her,  and  its  exercise  is  liable  to  abuse/^ 


76.  Neudecker  v.  Leister  (Md.),  104 
A.  47;  7»  re  Grogan's  Estate,  82  Misc. 
555,  145  N.  Y.  S.  285;  Broughton  v. 
Nicholson,  150  la.  119,  129  N.  W.  814; 
Tucker  v.  Anderson  (la.),  154  N.  W. 
477;  Central  of  Georgia  Ey.  Co.  v. 
Cheney,  20  Ga.  App.  393,  93  S.  E,  42 ; 
Johnson  t.  Tait,  97  Misc.  48,  160  N. 
Y,  8.  1000 ;  Briggs  v.  Devoe,  89  App. 
Div.  115,  84  N.  Y.  S.  1063 ;  Vincent  v. 
Ireland,  2  Pennewill  (Del.),  580,  49 
A.  172;  In  re  Dailey's  Estate,  43 
Misc.  552,  89  N.  Y.  S.  538;  Holcomb 
V.  Harris,  166  N.  Y.  257,  59  N.  E. 
820. 

77.  Lillard  v.  Wilson,  178  Mo.  App. 
609;  Arnold  v.  Rifner,  16  Ind.  App. 
442,  45  N.  E.  618;  Lodge  v.  Fraim, 
5  Pennewill  (Del.),  352,  63  A.  233. 

78.  Lambert  v.  Hodgdon,  172  Mo. 
24,  154  S.  W.  450. 

79.  Weeksman  v.  Powell  (la.),  160 
N.  W.  377. 


80.  Brackett's  Estate  v.  Burnham's 
Estate  (Mich.),  174  N.  W.  121;  Heral 
V.  McCabe,  171  Mich.  530,  137  N.  W. 
237. 

81.  Garretson  v.  Appleton,  58  N.  J. 
Law,  386,  37  A.  150;  Peterson  v. 
Christiansom,  68  N.  J.  Law,  392,  56 
A.  288;  Wooster  v.  Eagan,  88  N.  J. 
Law,  687,  97  A.  291;  Stevenson  v. 
Akarman,  83  N.  J.  Law,  458,  85  A. 
166. 

82.  Badger  v.  Orr,  1  Ohio  App.  293, 
34  Ohio  Cir.  Ct.  328. 

83.  Watkins  v.  Abrahams,  24  N.  J. 
72.  And  see  Patton  v.  Stevens,  19 
Ind.  233.  Otherwise  in  some  States, 
for  the  right  itself  is  theoretically  in- 
cidental to  the  liability  of  being  sued 
as  if  sole.  Bank  v.  Garlinghouse,  53 
Barb.  (N.  Y.)  615;  Travis  v.  "Willis, 
55  Miss.  557.  See  Thomas  v.  Lowy, 
60  111.  512. 


§656  HUSBAND    AND    WIFE.  684 

§  654.  Submission  to  Arbitration. 

A  wife  may,  in  some  States,  bind  herself  by  a  submission  to 
arbitration.®* 

§  655.  In  Tort;   in  General. 

At  common  law  the  husband  was  entitled  to  the  recompense  for 
all  such  injuries  to  the  wife's  person,  property,  or  character,  by 
suit  brought  in  his  own  name,  or  in  the  name  of  both,  as  the  case 
might  be.®^  And  the  rule  is  the  same  in  all  these  cases,  whether 
the  fraud  or  injury  was  committed  before  or  during  coverture. 
But  if  the  wife  be  a  privy  to  the  wrong,  or  knowingly  suffer  an 
injury  to  be  committed  upon  her,  the  husband  cannot  maintain 
his  action;  for  his  right  to  damages  cannot  be  greater  than  hers 
would  have  been,  had  she  remained  single.*'  Nor  can  an  action 
be  maintained  where  the  husband  instigates  the  wrong.'^ 

Where  the  tort  was  committed  before  the  woman  was  married, 
the  action,  if  she  marries  afterwards,  should  be  brought  by  husband 
and  wife ;  or  if  she  marries  pending  the  action,  the  husband  is  en- 
titled to  be  admitted  as  a  plaintiff.®*  Und'cr  certain  local  statutes, 
too,  a  wife  may  now  sue  a  liquor-dealer  for  damages  caused  her 
by  selling  liquors  to  her  husband,**  or  a  gamester  for  money  lost 
by  her  husband  at  gaming.*" 

§  656.  Under  Married  Women's  Acts. 

The  tendency  of  modern  legislation  is  to  secure  to  the  wife's 
separate  use  all  compensation  in  the  nature  of  damages  for  injuries 
sustained  by  her  through  the  negligence  or  misconduct  of  others,*^ 
and  the  wife  sues  in  her  individual  name  in  many  States  to  obtain 

84.  Palmer  v.  Davis,  28  N.  Y.  242 ;  90.  Head  v.  Stewart,  129  Mass.  407. 
Duren  v.  Getchell,  55  Me.  241.  As  to  91.  Waldo  v.  Goodsell,  33  Conn.  432; 
Mississippi,  cf.  Handy  v.  Cobb,  44  Moody  v.  Osgood,  50  Barb.  (N.  Y.) 
Miss.  699;  Memphis  E.  v.  Scruggs,  628;  Knapp  v.  Smith,  27  N.  Y.  277. 
50  Miss.  284.  Where   her   husband   is   insane   and 

85.  See  supra,  §  157.  out  of  the  State,  the  wife  may  sue,  on 

86.  Pillow  V.  Bushnell,  5  Barb.  (N.  her  personal  wrong,  in  her  own  name. 
Y.)  156.  Gustin  v.  Carpenter,  51  Vt.  585. 

87.  Tibbs  v.  Brown,  2  Grant 's  Cases,  Where  the  wife  is  required  to  sue 
39.  Nor  in  slander  where  the  words  alone  by  statute,  the  husband's 
are  not  actionable,  though  the  wife  joinder  is  ground  for  reversal.  Chi- 
become  ill  in  consequence  of  the  cago  v.  Speer,  66  111.  154.  As  to 
Blander.  Wilson  v.  Goit,  17  N.  Y.  "notice  of  injury,"  see  Babcock  v. 
442.  Guilford,  47  Vt.  519';  Church  v.  WeBt- 

88.  Gibson  v.  Gibson,  43  Wis.  23.  minster,  45  Vt.  380. 

89.  Schneider  v.  Hosier,  21  Ohio  St. 
98. 


685 


ACTIONS. 


§  059 


such  compensation.®^  In  general  damages  recovered  in  a  wife's 
action  are  her  separate  property,®^  but  in  the  District  of  Columbia 
her  separate  release  will  not  discharge  the  cause  of  action,  the 
cause  of  action  not  being  her  separate  property. 


S4 


§  657.  Trespass. 

A  wife  may  sue  in  trespass.®'  Where  land  is  conveyed  to  spouses 
jointly,  the  wife  alone  cannot  maintain  trespass."  The  wife  has 
such  an  interest  in  the  homestead,  though  in  her  husband's  name, 
as  to  make  a  trespass  thereon  a  wrong  to  her.®^  By  statute  in 
California  they  may  sue  jointly  for  trespass  to  land  held  in  com- 


mon 


•  8 


§  658.  Professional  Negligence. 

The  wife,  as  sole  or  substantial  party,  has  been  allowed  to  sue 
for  direct  injury  to  herself  from  another's  malpractice,"  also  for 
the  malpractice  of  a  physician.^  Under  the  Maryland  statute  a 
husiband  must  join  in  such  an  action.' 

§  659.  Assault  and  Battery. 

At  common  law  the  spouses  must  sue  jointly  for  battery  of  the 
wife.'    Under  the  Oklahoma  and  South  Carolina  statutes  she  may 


92.  Stoneman  v.  Erie  R.  Co.,  52 
N.  Y.  429;  Berger  v.  Jacobs,  21  Mich. 
£15;  Ball  v.  BuUard,  52  Barb.  (X.  Y.) 
141 ;  Chicago,  etc.,  E.  R.  Co.  v.  Dunn, 
52  111.  260.  But  the  husband  is  some- 
times a  necessary  party  still.  Shad- 
dock V.  Clifton,  22  Wis.  114;  Pan- 
coast  V.  Burnell,  32  Iowa,  394 ;  Church 
V.  Westminster,  45  Vt.  380;  Farmer 
V.  Lanman,  73  Ind.  568  ;  Packet  Co.  v. 
Clough,  20  Wall.  (U.S.)  28;  Anderson 
V.Anderson,  11  Bush  (Ky.),327.  Where 
the  husband  must  join,  the  wife  should 
not  sue  in  his  name  without  his  assent. 
Clark  V.  Koch,  9  Phila.  (Pa.)  109; 
Sims  V.  Sims,  79  N.  J.  Law,  577,  76 
A.  1063;  Dodge  v.  Rush,  28  App.  D. 
C.  149. 

93.  P.  B.  Arnold  Co.  v.  Buchanan 
(Ind.),  Ill  N.  E.  204;  Engle  v.  Sim- 
mons, 148  Ala.  92,  41  So.  1023,  7  L. 
R.  A.  (N.  S.)  96;  Taxarkana  Tele- 
phone Co.  V.  Burge  (Tei.),  192  S.  W. 
807. 


94.  Howard  v.  Chesapeake  &  O.  Ry. 
Co.,  11  App.  D.  C.  300 

95.  Strasburger  v.  Barber,  38  Mo. 
103.  See  Bradford  v.  Hanscom,  68 
Me.  103;  Spencer  v.  St.  Paul  R.,  22 
Minn.  29. 

96.  Fowles  v.  Hayden,  130  Mich. 
47,  89  N.  W.  571,  8  Det.  Leg.  N.  1159. 

97.  Leseh  v.  Great  Northern  Ry.  Co., 
97  Minn.  503,  106  N.  W.  955,  7  L.  R. 
A.   (N.  S.),  93. 

98.  Wagoner  v.  Silva,  139  Cal.  559, 
73  P.  433  ;  Harlow  v.  Standard  Imp. 
Co.,  145  Cal.  477,  78  P.  1045. 

99.  Mewhirter  v.  Hatten,  42  Iowa, 
288. 

1.  Even  though  it  afterwards  cause 
her  death.  Cross  v.  Guthery,  2  Root 
(Conn.),  90;  Hyatt  v.  Adams,  16 
Mich.  180. 

2.  Dashiell  v.  Griffith,  84  Md.  363, 
35  A.  1094. 

8.  Pillow  V.  BuBhnell,  5  Barb.  (N. 
Y.)   156. 


§  662  HUSBAND  AND  WIFE.  686 

recover  in  her  own  name  for  an  assault  and  battery  committed  on 
her  by  a  third  person,  though  she  lives  with  her  husband.* 

§  660.  Ejectment  and  Forcible  Detainer. 

In  States  tending  to  the  feme  sole  doctrine  in  legislation,  th« 
wife  may  accordingly,  without  joining  her  husband,  not  only  sue 
in  actions  of  contract,  but  bring  ejectment,^  and  may,  as  against  all 
persons  except  her  husiband  sue  alone  for  the  possession  of  their 
estate  by  the  entirety.*  In  Minnesota  she  may  maintain  forcible 
entry  and  detainer  without  joining  her  husband.'^ 

§  661.  Replevin. 

She  may  maintain  replevin  without  joining  her  husband.'  In 
the  same  State  a  joint  action  of  replevin  to  recover  property  all  of 
which  is  owned  severally,  in  part  by  each  spouse,  cannot  be  main- 
tained.* 

§  662.  Personal  Injuries  to  Wife. 

So  far  as  the  husband  is  injured,  his  right  of  action  is  sole; 
but  where  the  wife  is  the  meritorious  cause  of  action,  the  spouses 
join  as  plaintiffs. 

For  injuries  to  the  person  or  character  of  the  wife,  therefore, 
the  husband  and  wife  at  the  common  law  should  sue  together.*** 
Also  for  injuries  sustained  by  her  through  the  negligence  of  a  com- 
mon carrier,"  and,  indeed,  not  only  with  reference  to  separate 
estate  or  business,  but  as  to  injuries  to  her  person  or  character 
generally.*^  A  married  woman  has,  also,  been  permitted  to  sue 
a  railroad  company  for  personal  injuries  caused  by  the  carrier's 
negligence."     Under  some  Married  Women's  Acts  a  wife  may 

4.  Casteel  v.  Broolcs  (Okla.),  148  10.  Donoghue  v.  Consolidated  Trac- 
P.  158.  Long  V.  McWilliams,  11  Okla.  tion  Co.,  201  Pa.  181,  50  A.  952; 
562,  69  P.  882;  Coulter  v.  Hermitage  Moody  v.  Southern  Pae.  Co.,  167  Cal. 
Cotton  Mills  (S.  C),  98  S.  E.  846.  786,  141  P.  388 ;  Bing.  Inf.  &  Cov.  247, 

5.  "Wood  V,  Wood,  18  Hun  (N.  Y.),  Am.  ed.,  and  cases  cited;  Lindsay  v. 
S50;  Betz  V.  Mullin,  62  Ala.  365.  But  Oregon  Short  Line  E.  Co.,  13  Idaho, 
cf.,  as  to  action  by  husband  and  wife,  477,  90  P.  984 ;  Basler  v.  Sacramento 
Westcott  V.  Miller,  42  Wis.  454.  Gas  &  Electric  Co.,  158  Cal.  514,  111 

6.  Holmes  v.  Kansas  City  209  Me.  P.  ."530. 

513,  108  S.  W.  9  (reh.  den.,  108  S.  W,  11.  Heirn   v.   McCaughan,  32   Miss. 

1134).  17, 

7.  Twitchcll  V.  Cummings,  123  12.  Townsdin  v.  Nutt,  19  Kan.  282 ; 
Minn.  270,  143  N.  W.  785.  Omaha  Horse  R.  v.  Doolittle,  7  Neb. 

8.  Montgomery  v.  Hickman,  62  Ind.       481. 

598;  Dickson  v.  Randal,  19  Kan.  212.  13.  Tuttle  v.  Chicago  R.,  42  Iowa, 

9.  Gowan  v.  Stevens,  83  Vt.  358,  518;  Chicago  E.  v.  Dickson,  67  IlL 
76  A.  147.  122. 


687  ACTIONS.  §  662 

maintain  an  action  for  personal  injuries  without  joining  her 
husband/*  even  when  living  with  him,"  whether  the  injury  be 
the  result  of  force  or  n^ligence/*  Where  injury  to  her  unborn 
child  is  deemed  an  injury  to  her  person,  both  spouses  have  a 
cause  of  action,  and  both  must  join  in  a  release/'  In  Massachu- 
setts the  wife  of  a  tenant,  as  such  and  as  a  member  of  the  tenant's 
family,  may  maintain  an  action  against  the  landlord  for  injurieti 
sustained  by  reason  of  the  unsafe  condition  of  the  common  prem- 
ises of  the  tenement  building."  Under  the  Washington  statute 
providing  that  both  spouses  may  join  in  actions  for  personal  in- 
juries to  either,  a  wife  is  a  proper  party  in  an  action  for  per- 
sonal injuries  sustained  by  the  hu^band.^*  In  Louisiana,  where  the 
husband  sues  to  recover  damages  for  the  personal  injury  to  his 
wife,  without  objection  seasonably  made,  a  judgment  for  him  is 
proper,  but  the  damages  will  be  the  property  of  the  wife.^°  A 
married  woman  who  is  in  a  buggy  when  it  is  hit  by  an  automo- 
bile and  suffers  a  miscarriage  as  a  consequence  although  she  is 
not  thrown  out  can  recover  as  her  injuries  are  not  caused  by 
fright  alone.^^  In  Louisiana  the  wife  may  bring  action  for  her 
personal  injuries  without  the  authorization  of  the  husband  as 
damages  for  such  injuries  do  not  form  part  of  the  community  but 
always  remain  the  separate  property  of  the  wife,  recoverable  by 
herself  alone.  Bills  for  doctors  and  nurses  and  hospital  attend- 
ance cannot  be  recovered  in  such  suit  as  they  are  expenses  of  the 

14.  Hains  v.  Parkersburg,  M.  &  I.  15.  City  of  Athens  v.  Smith,  111  Qa. 

Ry.  Co.  (W.  Va.),  84  S.  E.  923 ;  Knox-  870,  36  S.  E.  955. 

ville   Ey.   &   Light   Co.   v.   Vangilder  16.  Hey  v.  Prime  197  Mass.  474,  84 

(Tenn.),  178  S.  W.  1117;    Michigan  N.  E.  141. 

Cent.  R.  Co.  V.  Coleman,  28  Mich.  440;  17.   Kirk  v.   Middlebrook,  201   Mo. 

Capital   Traction  Co.  v.  Rockwell,  17  245,  100  S.  W.  450. 

App.  D.  C.  369;   Hatton  v.  Wilming-  18.    Crudo   v.   Milton    (Mass.),   124 

ton  City  Ry.  Co.,  3  Pennewill  (Del.),  N.  E.  30. 

159,  50  A.  633;   Texas  &  P.  Ry.  Co.  19.  Apker  v.  City  of  Hoquiam,  51 

V.  Humble,  97  F.  837,  38  C.  C.  A.  502  "Wash.  567,  99  P.  746. 

(affd.,  181  U.  S.  57,  21  S.  Ct.  526,  45  20.  Harkness  v.  Louisiana  &  N.  W. 

L.  Ed.  747)  ;   Chicago  &  M.  Electric  R.  Co.,  110  La.  822,  34  So.  791;  Cart- 

Ry.  Co.  V.  Krempel,  116  m.  App.  253;  wright  v.  Puissigur,  125  La.  700,   51 

Magean   v.   Great  Northern  Ry.  Co.,  So.  692. 

103  Mnnn.  290,  115  N.  W.  651,  15  L.  21.  Easton  v.  United  Trade  School 

R.   A.    (N.    S.)    511    (reh.    den.,   103  Contracting  Co.  (Cal.),  159  Pac.  597, 

Minn.  290,  115  N.  W.  946,  15  L.  R.  L.  R.  A.  1917A,  394. 
A.    fN.   S.l    511);   Elliott  v.  Kansas 
City,  210  Me.  576,  103  S.  W.  627. 


§  664 


HUSBAND    AND    WIFE. 


688 


community  for  which,  the  hushand  alone  is  responsihle  and  he 
alone  can  recover  therefor. ^^ 

§  663.  Fraud  and  Deceit. 

The  spouses  must  sue  jointly  for  frauds  upon  the  wife,  as  in 
case  of  an  action  qui  tarn  to  recover  penalties  for  a  fraudulent  con- 
veyance.^^ In  Kentucky  a  wife  may  maintain  an  action  of  deceit 
without  joining  her  husiband.^*  In  Michigan  a  wife  may  sue  for 
fraud  in  a  conveyance  to  her  though  the  consideration  of  the  con- 
veyance did  not  pertain  to  her  separate  estate.^'^  Under  the  Okla- 
homa statute,  a  wife  may  sue  alone  for  fraud  in  oibtaining  title 
to  land  owned  by  her.^" 

§  664.  Libel  or  Slander. 

On  these  principles  it  is  held  that  husband  and  wife  must  sue 
together  for  libel  or  slanderous  words  spoken  against  the  latter,'^ 
It  should  be  observed  that,  wherever  husband  and  wife  are  both 
injured,  they  have  two  distinct  and  separate  causes  of  action,  which 
must  not  be  confounded.  Thus,  for  libel  against  husband  and 
wife,  the  husband  must  sue  alone  for  libel  against  him,  and  hus- 
band and  wife  jointly  for  the  libel  against  her;  they  cannot  sue 
together  for  the  libel  against  both.^*  But  actions  are  sometimes 
consolidated  in  practice.^^  She  may  now  sue  alone  for  slander.'" 
Under  the  District  of  Columbia  statute  enabling  a  wife  to  trade 
and  providing  that  her  earnings  shall  be  her  separate  estate,  she 
has  been  held  enabled  to  maintain  an  action  for  libel  concerning 


22.  Shield  v.  F.  Johnson  &  Co.,  132 
La.  773,  61  So.  787,  47  L.  R.  A.  (N. 
S.)  1080. 

23.  Fowler  v.  Frisbie,  3  Conn.  320. 
But  see  Crump  v.  McKay,  8  Jones 
(N.  C.)  32,  as  to  negligence  "  sound- 
ing in  contract,"  not  admitted  to  be 
cause  of  action. 

24.  Kiee  v.  Porter,  22  Ky.  Law, 
1704 ;  Work  v.  Campbell,  164  Cal.  343, 
12S  P.  943. 

25.  Bissell  v.  Taylor,  41  Mich.  702, 
3  N.  W.  194. 

26.  Wesley  v.  Diamond,  26  Okla. 
170,  lOff  P.  524. 

27.  Smalley  v.  Anderson,  2  Mon. 
(Ky.)  56;  Davies  v.  Solomon,  L.  R. 
7  Q.  B.  112;  Throgmorton  v.  Davis,  3 
Blackf.  (Ind.)  383.  These  words  must 
be  actionable  per  se.     See  Beach  v. 


Ranney,  2  Hill  (N.  Y.)  309;  Saville 
V.  Sweeney,  4  B.  &  Ad.  514;  Ryan  v. 
Madden,  12  Vt.  51.  As  to  slander  of 
wife  charging  her  with  "adultery," 
see  Shafer  v.  Ahalt,  48  Md.  171.  Spe- 
cial damage  should  be  shown  in  order 
to  sustain  the  action.  J6.;  Allsop  v. 
Allsop,  2  L.  T.  (N.  S.)  290.  Words 
charging  her,  while  unmarried,  with 
fornication,  are  actionable.  Gibson  v. 
Gibson,  43  Wis.  23, 

28.  Gazynski  v.  Colburn,  11  Cush. 
(Mass.)  10;  Ebersoll  v.  King,  3  Binn. 
(Pa.)  555;  Newton  v.  Hatter,  2  Ld. 
Raym.  1208. 

29.  Hemstead  v.  Gas  Light  Co.,  3 
Hurl.  &  C.  745. 

30.  Martin  v.  Robson,  65  111.  129; 
Kovacs  V.  Mayoras,  175  Mich.  582, 
141  N.  W,  662. 


689  ACTIONS.  §  666 

her  with  reference  to  her  business  without  joining  her  husband.^' 
In  Kentucky  spouses  may  sue  separately  for  a  slander  spoken  of 
both,  but  a  verdict  and  judgment  in  favor  of  one  are  not  compe- 
tent evidence  in  the  action  by  the  other.^'  The  Lousisiana  statute 
providing  that  damages  from  the  "  personal  injuries  "  of  the  wife 
shall  be  her  separate  property  has  been  held  to  enable  her  to  main- 
tain an  action  for  a  libel  affecting  herself,^^  as  well  as  for  abuse 
and  slander.^*  In  Missouri  the  husband  must  be  joined  in  the 
wife's  action  for  slander.'^  In  Texas  such  an  action  bv  the  wife 
without  joining  her  husband  may  be  maintained  without  evi- 
dence from  which  the  jury  may  infer  that  if  she  had  not  brought 
it  alone  it  would  not  have  been  brought.'® 

§  665.  Malicious  Prosecution. 

The  spouses  must  sue  jointly  for  malicious  prosecution  of  the 
wife."  Since  under  the  California  statute  a  husband  must  be 
joined  in  the  wife's  action,  with  certain  exceptions  not  including 
an  action  of  malicious  prosecution,  the  complaint  in  such  an  action 
is  not  demurrable  because  it  both  seeks  to  recover  for  her  loss  of 
time  and  for  the  arrest  of  both  spouses,  which  is  a  joint  action.^' 

§  666.  Injury  to  Wife's  Personal  Property. 

Where  the  right  of  action  for  damages  is  founded  on  the  prior 
possession  of  personal  property,  the  husband  must  sue  alone,  since 
Ms  possession  is  the  possession  of  both.^*  And  the  joinder  of  the 
wife  in  actions  relating  to  personal  property,  where  the  injury  was 
committed  after  marriage,  is  good  ground  of  demurrer,  or  motion 
to  arrest,  or  even  of  error  after  judgment.*"  Whether  the  same 
principle  applies  to  property  of  the  wife  parted  with  before  mar- 
riage is  not  so  clear.  This  is  the  rule,  however,  when  the  action  is 
for  a  wrong,  which  before  the  marriage  was  committed  in  respect 
to  such  property.*^     Where  household  goods  belonging  in  part  to 

81.  Wills  V.  Jones,  13  App.  D.  C.  Magnuson    v.    O'Dea     (Wash.),    135 

482.  Pae.   640,  48  L.  R.  A.    (N.  S.)    327; 

32.  Alcorn  v.  Powell,  22  Ky.  Law,  Magnuson    v   O'Dea,    75    Wash.    574, 

1353,  60  S.  W.  520.  135  P.  640. 

88.  Times-Democrat     Pub.     Co.     v.  38.  Williams  v.  Casebeer,  126  Cal. 

Mozee,  136  F.  761,  69  C.  C.  A.  418.  77,  58  P.  380. 

84.  Martin  v.  Derenbecker,  116  La.  39.  Heyman  v.  Heyman,  19  Ga.  App. 
495,  40  So.  849.  634,  92   S.  E.   25;   Bing.   Inf.  &  Gov. 

85.  Adams  v.  Hannon,  3  Mo.  222.       253,  and  cases  cited;  Cro.  Eliz.  133; 
36.  Davis  v.  Davis  (Tex.),  186  8.  W.       1  Chit.  PI.  93:  1  Salk.  114. 

775.  40.   Rawlins  v.  Rounds,   27  Vt.   17. 

87.  Laughlin  v.  Eaton,  54  Me.  156;  41.   3    Rob.   Pract.    188;    Milner  v. 

44 


§  667 


HUSBAND    AND    WIFE. 


690 


each  spouse  is  consigned  to  the  husband,  he  may  sue  alone  for  in- 
jury to  the  shipment."  Where  spouses  bring  a  joint  action  for 
personal  property  levied  on  as  the  husband's,  no  cognizance  can 
be  taken  of  the  wife's  secret  trusts  or  equities.*'  In  Arizona  where 
a  husband  sold  hay  cut  from  his  wife's  land  under  an  agreement 
that  the  buyer  should  pay  part  of  the  proceeds  to  creditors  of 
the  spouses  jointly,  it  was  held  that  an  action  to  compel  the  buyer 
to  account  was  maintainable  only  in  the  joint  names  of  the 
spouses.'**  In  Florida  a  husband  may  ordinarily  recover  his  wife's 
personalty  which  has  been  detained  unlawfully.*"  In  Michigan 
it  is  held  that  a  passenger  traveling  with  his  wife  is  entitled  to 
recover  from  the  railroad  in  an  action  of  contract  for  the  loss 
of  his  wife's  jewelry.**  In  New  York  and  Washington  an  action 
for  the  recovery  of  damages  to  the  wife's  personal  property  should 
be  brought  in  her  name,*^  and  she  may  now  sue  for  her  baggage, 
lost  through  like  negligence.'* 


48 


§  667.  Trover. 

Where  the  trover  is  laid  before  the  marriage  and  the  conversion 
afterwards,  there  has  been  some  controversy,  the  result  of  which 
seems  to  be  that  the  action  is  well  brought,  either  with  or  with- 
out joining  the  wife,  though  the  better  course  doubtless  is  to  join 
the  wife.*®  The  principle  sought  is  whether  such  a  suit  amounts 
to  a  disaffirmance  of  the  husband's  constructive  title  to  the  goods 
on  the  marriage.^"    The  spouses  may  maintain  a  joint  action  for 


Milnes,  3  T.  R.  627 ;  Fewell  v.  Collins, 
1  Const.  207. 

42.  Walter  v.  Alabama  Great  South- 
ern R.  Co.,  142  Ala.  474,  39   So.  87. 

48.   Pawley  v.   Vogel,   42   Mo.   291. 

44.  Ives  V.  Sanguinetti  (Ariz.),  85 
P.  480. 

45.  McNeil  v.  Williams,  64  Fla.  97, 
59  So.  562. 

46.  Withey  v.  Pere  Marquette  R. 
Co.,  141  Mich.  412,  104  N.  W.  773, 
12  Det.  Leg.  N.  511,  113  Am.  St.  E. 
533,  1  L.  R.  A.  (N.  S.)  352. 

47.  Sherlock  v.  Denny,  28  Wash. 
170,  68  P.  452;  Gilligan  v.  Consoli- 
dated Gas  Co.  of  New  York,  47  Misc. 
658,  94  N.  Y.  S.  273;  Schoenfeld  v. 
Globe  Storage  &  Carpet  Cleaning  Co., 
121  N.  Y.  S.  332;  Holtzclaw  v.  Gassa- 
way,  52  S.  C.  551,  30  S.  E.  399. 


48.  Pierson  v.  Smith,  9  Ohio  St.  98. 

49.  Powes  V.  Marshal,  1  Sid.  172; 
Ayling  v.  Whicher,  6  Ad.  &  El.  259; 
Blackborne  v.  Haigh,  2  Lev.  107;  3 
Rob.  Pract.,  supra.  There  is  some  un- 
certainty on  this  point,  however.  See 
Bac.  Abr.  Baron  &  Feme  (K.) ; 
contra,  Brown  v.  Fifield,  4  Mich.  322; 
Wellborn  v.  Weaver,  17  Ga.  267.  Hus-  • 
band  and  wife  cannot  sue  for  ma- 
licious replevin  of  his  household  furni- 
ture with  intent  to  injure  her,  and 
resulting  in  the  actual  injury  of  her 
by  the  officer,  if  they  begin  it  pending 
the  action  in  replevin.  O'Brien  ▼. 
Barry,  100  Mass.  300. 

50.  As  to  injuries  to  the  wife's  real 
estate,  see  swpra,  §  191. 


691: 


ACTiorrs. 


§  668 


conversion  of  cottown  grown  on  land  owned  bj  them  jointly."* 
Under  the  New  York  Married  Women's  Act  a  wife  may  maintain 
an  action  of  tort  for  conversion  without  showing  that  she  has  a  sepa- 
rate estate/^  The  Georgia  statute  providing  that  her  possession 
of  property  shall  give  a  right  of  action  for  interference  therewith 
does  not  enable  a  husband  who  has  possession  of  his  wife's  per- 
sonalty as  agent  to  maintain  an  action  for  its  conversion,  as  the 
statute  contemplates  a  possession  accompanied  by  either  general  or 
special  property.^'  In  the  same  State  he  is  not  a  necessary  party 
to  her  action  for  conversion/* 

§  668.  For  Loss  of  Husband's  Consortium  and  Services. 

The  wife  was  never  permitted  to  sue  for  the  loss  of  her  hus- 
band's society  and  services.^^ 

A  statute  providing  that  the  wife  shall  retain  after  marriage  all 
the  civil  and  property  rights  of  a  single  woman  and  may  sue  in 
her  own  name  without  joining  her  husband  for  any  injury  to  her 
reputation,  person  or  property,  gives  the  wife  the  right  to  sue 
for  loss  of  consortium  caused  by  sales  of  drugs  to  the  husband  by 
the  defendant  contrary  to  law.^*  It  is  generally  held  that  the  wife 
cannot  maintain  an  action  for  consequential  damages  resulting 
from  h-er  husband's  injury,  if  it  is  the  result  of  negligence,"^  or 


61,  Cedartown  Supply  Co.  v. 
Hooper,  13  Ga.  App.  29,  78  S.  E.  686. 

52.  Lumley  v.  Torsielle,  69  App. 
Div.  76,  74  N.  Y.  S.  567. 

63.  Mitchell  v.  Georgia  &  A.  Ey. 
Co.,  Ill  Ga.  760,  36  S.  E.  971,  51 
L.  R.  A.  622. 

54-  Bondy  v.  American  Transfer 
Co.,  15  Cal.  App.  746,  115  P.  965. 

65.  2  Kent,  Com.  182 ;  Tuttle  v.  Chi- 
cago R.,  42  Iowa,  518;  Carey  v.  Berk- 
shire R.,  1  Cush.  (Mass.)  475.  An 
action  cannot  in  general  be  main- 
tained by  the  wife,  there  being  no 
misfeasance  towards  her  independently 
of  a  contract  with  the  husband  alone. 
Longmeid  v.  Holliday,  6  Exch.  761 ; 
Bernhardt  v.  Perry  (Mo.),  208  S.  W. 
462;  Goldman  v.  Cohen,  30  Misc.  (N. 
Y.)  336;  Brown  v.  Kistleman,  177 
Tnd.  692;  Emerson  v.  Taylor,  104  Atl. 
(Md.)  538;  Kosciolek  v.  Portland 
Ry.,  Light  &  Power  Co.,  81  Ore.  517: 
Smith  V.  Nicholas  Bldg.  Co.,  93  Ohio 


St.  101;  Patelski  v.  Snyder,  179  111. 
App.  24;  Stout  V.  Kansas  City  Ter- 
minal Ry.  Co.,  172  Mo.  App.  113; 
Feneff  v.  N.  Y.  C.  &  H.  R.  R.,  203 
Mass.  278;  Goldman  v.  Cohen,  30 
Misc.  366,  63  N.  Y.  S.  459;  Feneff  v. 
New  York  C.  &  H.  R.  R.,  203  Mass. 
278,  89  N.  E.  436,  24  L.  R.  A.  (N.  S.) 
1024  Brown  v.  Kistleman,  177  Ind. 
692,  9«  N.  E.  631,  40  L.  R.  A.  (N.  S.) 
236;  Stout  V.  Kansas  City  Terminal 
R.  Co.,  172  Mo.  App.  113,  157  S.  W. 
1019;  Patelski  v.  Snyder,  179  IlL 
App.  24;  Smith  v.  Nicholas  Building 
Co.  (Ohio),  112  N.  E.  204,  L.  R.  A, 
1916E  700. 

56.  Moberg  v.  Scott  (S.  D.),  161 
N.  W.  998,  L.  R.  A.  1917D  732. 

57.  Patelski  v.  Snyder,  179  111.  App. 
24;  Emerson  v.  Taylor  (Md.),  104 
A.  538;  Kosciolek  v.  Portland  Ry., 
Light  &  Power  Co.,  81  Ore.  517,  160 
P.  132;  Smith  v.  Nicholas  Bldg.  Co., 
93  Ohio  St.  101,  112  N.  E.  204 ;  Gold- 


§  671 


HUSBAND    AND    WIFE. 


692 


for  the  salary  he  might  have  earned  but  for  his  injury,"^*  even 
though  it  entails  suffering  and  anxiety,  and  imposes  on  her  heavy 
and  arduous  duties  which  she  did  not  have  before  the  injury,'* 
or  where  it  results  in  diminished  power  to  support  her.°°  Such 
damages  can  be  recovered  by  the  wife  only  for  wrongs  which  di- 
rectly tend  to  deprive  her  of  consortium.®^  In  such  case  the  tort 
must  be  intentional.®^  In  Ohio  it  is  held  that  she  may  maintain 
an  action  for  loss  of  the  society  and  companionship  of  her  hue- 
band  against  a  druggist  who  sells  morphine  to  her  husband,  a  drug 
addict,  in  such  quantities  as  to  incapacitate  him.®^ 
§  669.  For  Death  of  Husband. 

A  wife,  of  course,  could  not  sue  for  the  death  of  her  husband." 
§  670.  Pleading. 

In  a  joint  action  for  personal  wrong  to  the  wife,  the  declaration 
should  conclude  "  to  their  damage."®^  And  it  is  a  well  recognized 
principle,  both  in  England  and  America,  that  whenever  the  wife 
is  the  meritorious  cause  of  action,  her  interest  must  appear  on 
the  face  of  the  pleadings,  or  the  omission  will  be  considered  fatal." 
Under  the  California  statute  the  spouses  may  incorporate  in  one 
cause  of  action  a  statement  of  the  injuries  suffered  by  the  wife, 
and  of  the  consequential  damages  sustained  by  the  husband.®^  A 
much  similar  statute  exists  in  New  Jersey.'* 

§  671.  Defences  to  Action  by  Wife. 

!N'either  fraud  nor  negligence  on  the  husband's  part  can  bar  the 
wife's  right  of  action,  she  being  the  injured  party.®'  He  cannot 
interfere  vdth  her  right  to  claim  damages,  nor  extinguish  or  release 


man  v.  Cohen,  30  Misc.  336,  63  N.  Y. 
S.  459;  Bernhardt  v.  Perry  (Mo.), 
208  S.  W.  462. 

58.  Glenn  v.  Western  Union  Tele- 
graph Co.,  1  Ga.  App,  821,  58  S.  E.  83. 

59.  Feneff  v.  New  York  Cent.  & 
H.  E.  E.  Co.,  203  Mass.  278,  89  N.  E. 
436. 

GO.  Brown  v.  Kistleman,  177  Ind. 
€92,  98  N.  E.  631. 

61.  Stout  V.  Kansas  City  Terminal 
Ey.  Co.,  172  Mo.  App.  113,  157  S.  W. 
1019.  See  Clark  v.  Hill,  69  Mo.  App. 
541. 

62.  Gambino  v.  Manufacturers '  Coal 
&  Coke  Co.,  175  Mo.  App.  653,  158 
8.  W.  77. 


63.  Flandermeyer  v.  Cooper,  85  Ohio 
St.  327,  98  N.  E.  102. 

64.  2  Kent,  Com.  182;  Carey  ▼. 
Berkshire  R.,  1  Cush.   (Mass.)   475. 

65.  Horton  v.  Eyles,  1  Sid.  387; 
Smalley  v.  Anderson,  2  Mon.  (Ky.) 
56. 

66.  Staley  v.  Barhite,  2  Caines  (N. 
Y.)  221;  Serres  v.  Dodd,  5  B.  &  P. 
405;  Thome  v.  Dillingham,  1  Denio, 
(N.  Y.),  254;  Pickering  v.  De  Boch©- 
mont,  45  N.  H.  67. 

67.  Meek  v.  Pacific  Electric  Ey.  Co. 
(Cal.),  164  P.  1117. 

68.  Davis  v.  Public  Service  Corp., 
77  N.  J.  Law,  275,  72  A.  82,  83. 

69.  Moore  v.  Foote,  34  Mich.  443; 


693 


ACTIONS. 


§  672 


it,  nor  lessen  the  amount  bj  his  sole  compromise.^"  In  the  hus- 
band's st?parate  suit  for  consequential  injuries/^  as  to  loss  of  his 
wife's  services,  there  is  some  uncertainty ;  '^'^  but  as  he  is  usually 
bound  still  to  afford  medical  attendance,  his  claim  is  favorably 
regarded  in  that  respect  at  least."  An  action  by  the  wife  for  her 
sole  damages,  even  though  the  husband  be  made  a  nominal  co- 
plaintiff  under  the  statute,  will  not,  if  withdrawn  in  her  behalf, 
bar  his  separate  action  for  his  own  expenses  and  damages  from 
the  same  injury,  but  this  he  may  bring  and  conduct  at  his  own 
discretion.^* 

§  672.  Damages. 

Impairment  of  a  wife's  capacity  to  earn  may  be  an  element  of 
her  damages  in  a  personal  injury  action,^^  where  the  statute  gives 
her  the  right  to  her  earnings,^®  or  where  it  appears  that  she  has  an 
employment  apart  from  her  husband,^^  or  that  her  earnings  are 


Flori  V.  St.  Louis,  3  Mo.  App.  231; 
Knoxville  R.  &  L.  Co.  v.  Vangilder 
(Tenn.),  178  S.  W.  1117,  L.  E.  A. 
1916A  1111. 

70.  Martin  v.  Robson,  65  111.  129; 
Chicago   R.    v.   Dickson,    67    111.    122. 

71.  See  supra,  §  668. 

72.  The  husband  cannot  here  recover 
for  money  expended  that  belonged  to 
his  wife.  Walden  v.  Calrk,  50  Vt.  383. 
The  test  seems  to  be,  as  to  services 
and  earnings,  whether  the  husband  is 
still  entitled  to  his  wife 's  services,  and 
not  she  to  her  separate  earnings. 
Klein  v.  Jewett,  26  N.  J.  Eq.  474; 
Brooks  v.  Schwerin,  54  N.  Y.  343. 

73.  Tuttle  V.  Chicago  R.,  42  Iowa, 
518.  Unless  estopped  by  allowing  his 
wife  to  recover  such  expenses.  Neu- 
meister  v.  Dubuque,  47  Iowa,  465. 

74.  Stepanck  v.  Kula,  36  Iowa,  563; 
Smith  v.  St.  Joseph,  55  Mo.  456;  Me- 
whirter  v.  Hatten,  42  Iowa,  288. 

75.  Warth  v.  Jackson  County  Court, 
71  W.  Va.  184,  76  S.  E.  420;  Colo- 
rado Springs  &  Interurban  Ry.  Co.  v. 
Nichols,  41  Colo.  272,  92  P.  691; 
Withey  V.  Fowler,  164  Iowa,  377,  145 
N.  W.  923;  Texas  &  P.  Ey  Co.  v. 
Humble,  181  U.  S.  57,  21  S.  Ct.  526, 
45  L.  Ed.  747;  Libaire  v.  Minneapolis 


&  St.  L.  R.  Co.,  113  Minn.  517,  130 
N.  W.  8 ;  Kirkpatrick  v.  Metropolitan 
St.  Ry.  Co.,  129  Mo.  App.  524,  107 
S.  W.  1025;  Hendricks  v.  St.  Louia 
Transit  Co.,  124  Mo.  App.  157,  101  S. 
W.  675;  Wrightsville  &  T.  R.  Co.  v. 
Vaughan,  9  Ga.  App.  371,  71  S.  E. 
681;  Schmelzer  v.  Chester  Traction 
Co.,  218  Pa.  29,  66  A.  1005. 

76.  Snickles  v.  City  of  St.  Joseph, 
155  Mo.  App.  308,  136  S.  W.  752; 
Price  V.  Charlotte  Electric  Ry.  Co., 
160  N.  C.  450,  76  S.  E.  502;  West 
Chicago  St.  Ry.  Co.  v.  Carr,  170  111. 

478,  48  N.  E.  992;  South,  Covington 
&  C.  St.  Ry.  Co.  V.  Bolt,  22  Ky.  Law, 
906,  59  S.  W.  26;  Enid  City  Ry.  Co. 
V.  Reynolds,  34  Okla.  405,  126  P.  193. 

77.  Denton  v.  Ordway,  108  Iowa, 
487,  79  N.  W.  271;  Elenz  v.  Conrad, 
115  Iowa,  183,  88  N.  W.  337;  Perrigo 
V.  City  of  St.  Louis,  185  Mo.  274,  84 
S.  W.  30;  Riley  v.  Lidtke,  49  Neb. 
139,  68  N.  W.  356;  Central  City  ▼. 
Engle,  65  Neb.  885,  91  N.  W.  849; 
Worez  V.  Des  Moines  City  Ry.  Co., 
175  Iowa,  1,  156  N.  W.  867;  Corbin 
V.    City    of   Huntington,    74    W.    Va. 

479,  82  S.  E.  323;  Niemeyer  v.  Chi- 
cago, B.  &  Q.  Ry.  Co.,  143  Iowa,  129, 
121  N.  W.  521. 


§  672 


HUSBAND    AND    "WIFE. 


694 


kept  apart  as  lier  separate  estate,"  or  that  she  was  a  free  trader," 
or  where  the  husband  files  a  disclaimer  of  her  services,'"  or  where 
she  lives  apart  from  him,**  even  though  there  is  no  evidence  that 
she  ever  earned  any  money ,*^  and  even  though  she  was  married 
after  the  accident/^  She  may  also  recover  for  pain  and  anguish 
of  mind,**  and  inability  to  perform  her  necessary  affairs  and 
business,*^  as  well  as  medical  expenses  caused  by  the  injury, 
whether  paid  or  not,  if  charged  against  her,**  or  if  she  has  paid 
them,*^  if  not  paid  with  money  loaned  to  her  by  him,**  and  unless 
she  is  equally  liable  with  her  husband  for  such  expenses.*'  She 
cannot  i'ecover  for  loss  of  services  rendered  in  household  duties,** 


78.  Brown  v.  Third  Ave.  E.  Co.,  19 
Misc.  504,  43  N.  Y.  S.  1094. 

79.  Norfolk  Ey.  &  Light  Co.  v. 
Williar,   104   Va.    679,   52   S.   E.   380. 

80.  Smith  v.  Borough  of  East 
Mauch  Chunk,  3  Pa.  Super.  495. 

81.  WrightsviDe  &  T.  E.  Co.  v. 
Vaughan,  9  Ga.  App.  371,  71  S.  E. 
691. 

82.  Louisville  &  N.  E,  Co.  v.  Dick, 
25  Ky.  Law,  1831,  78  S.  W.  914.  But 
863,  contra,  Becker  v.  Lincoln  Eeal  Es- 
tate &  Building  Co.,  118  Mo.  App.  74, 
93  S.  W.  291;  Kroner  v.  St.  Louis 
Transit  Co.,  107  Mo.  App.  41,  80  S. 
W.  915. 

83.  Georgia  Northern  Ey.  Co.  v. 
Sharp,  19  Ga.  App.  503,  91  S.  E. 
1045;  Booth  v.  Baltimore  &  O.  E. 
Co.  (Ind.),  87  S.  E.  84;  Wrightsville 
&  T.  E,  Co.  V.  Vaughan,  9  Ga.  App. 
371,  71  S.  E.  691. 

84.  McGovern  v.  Interurban  Ey.  Co., 
136   Iowa,   13,   111   N.   W,   412;    Ohio 

6  M.  Ey.  Co.  V.  Cosby,  107  Ind.  32, 

7  N.  E.  373;  Kimmel  v.  Interurban 
St.  Ey.  Co.,  87  N.  T.  S.  466;  Cincin- 
nati, L.  &  A.  St.  E.  Co.  V.  Cook,  45 
Ind.  App.  401,  90  N.  E.  1052. 

85.  Normile  v.  Wheeling  Traction 
Co.,  57  W.  Va.  132,  49  S.  E.  1030,  68 
L.  E.  A.  901. 

86.  Adams  Exp.  Co.  v.  Aldridge,  20 
Colo.  App.  74,  77  P.  6;  Allen  v.  Lizer, 
9  Kan.  App.  548,  58  P.  238;  Rickey 
▼.  Welch,  91  Mo.  App.  4;   Ashby  v. 


Elsberry  &  N.  H,  Gravel  Eoad  Co^ 
111  Mo.  App.  79,  85  S.  W.  957; 
Pomerine  Co.  v.  White,  70  Neb.  177, 
98  N.  W.  1040;  City  of  Toledo  v- 
Duffy,  13  Ohio  Cir.  Ct.  482,  7  O.  C.  D. 
113;  Town  of  Elba  v,  Bullard,  152 
Ala.  237,  44  So.  412  Indianapolia 
Traction  &  Terminal  Co.  v.  Kidd,  167 
Ind.  402,  79  N.  E.  347,  7  L.  E.  A. 
(N.  S.)  143. 

87.  McLean  v.  City  of  Kansas  City^ 

81  Mo.  App.  72 ;  Atlantic  &  D.  E.  Co. 
V.  Ironmonger,  95  Va.  625,  29  8.  R 
319;  Krisinger  v.  City  of  Creston,  141 
Iowa,  154,  119  N.  W.  526;  Winnett  v. 
Detroit  United  Ey.,  171  Mich.  629, 
137  N.  W.  539;  Tinkle  v.  St.  Louis  A 
S.  F.  E.  Co.,  212  Mo.  445,  110  S.  W. 
1086. 

88.  Barker  v.  Ehode  Island  Co.,  35 
E.  I.  406,  87  A.  174. 

89.  Kellar  v.  Lewis,  116  Iowa,  369, 
89  N.  W.  1102. 

90.  Norfolk  Ey.  &  Light  Co.  v.  Wil- 
liar, 104  Va.  679,  52  S.  E.  380;  Den- 
ver  &  E.  G.  Co.  v.  Young,  30  Colo. 
349,  70  P.  688;  City  of  Holton  v. 
Hicks,  9  Kan.  App.  179,  58  P.  998; 
Plummer  v.  City  of  Milan,  70  Mo. 
App.  5?8 ;  Wallis  v.  City  of  Westjwrt, 

82  Mo.  App.  522;  Green  v.  To^vn  of 
Nebagamain,  113  Wis.  508,  89  N.  W, 
520;  Flintjer  v.  Kansas  City  (Mo.), 
204  S.  W.  951 ;  Felker  v.  BaneroT  Ey. 
&  Electric  Co.,  112  Me.  255,  91  A. 
980;  Earl  v.  Tupper,  45  Vt,  275. 


696  ACTIONS.  §  673 

or  for  the  amount  paid  bj  her  for  the  services  of  a  domestic  during 
her  disability.'^ 

A  wife  whose  husband  is  not  a  resident  of  Michigan,  and  who 
has  not  lived  with  her  for  six  or  seven  years,  during  which  she  has 
supported  herself,  may,  in  an  action  for  personal  injuries,  recover 
for  a  doctor's  bill,  though  she  has  not  paid  it.'^  Damages  for 
separation  from  her  husband  and  from  her  home  cannot  be  recov- 
ered by  the  wife  in  an  action  against  her  husiband  for  assault  and 
battery." 

§  673.  Abatement  and  Survival  of  Action. 

The  damages  allowed  as  compensation  for  the  frauds  and  inju- 
ries sustained  by  the  wife  go  to  the  husiband,  as  well  as  the  rest  of 
her  personal  property,  if  recovered  during  his  lifetime.  But  such 
suite  survive  to  her  where  she  is  the  meritorious  cause  of  action; 
and  on  the  death  of  the  husband,  pending  legal  proceedings,  the 
wife  may  accordingly  proceed  to  judgment  and  collect  the  damages 
for  herself;  or  if  her  husband  had  never  brought  an  action,  she 
may  then  do  so  in  her  own  right.'*  The  husband,  on  the  other 
hand,  has  no  such  interest  in  the  suit  at  common  law  that  he  may 
prosecute  it  in  his  own  name  after  his  wife's  death.  His  joinder 
in  the  first  place  was  only  because  of  the  marriage  relation.  He 
may,  however,  under  some  statutes,  be  let  in  as  her  administrator, 
and  in  such  capacity  prosecute  the  suit  to  its  conclusion.'^  If  the 
wife  dies  after  judgment,  the  husband  surviving  may  take  the 
benefits  of  the  suit;  for  a  judgment  debt  takes  the  place  of  the 
original  cause  of  action.  The  death  of  the  wife,  pending  suit  for 
her  personal  tort,  put  an  end  to  the  action  altogether  by  the  old 
law."^  But  where  the  so-called  tort  is  referable  rather  to  some 
breach  of  contract,  it  might  survive.''' 

Under  such  a  policy,  contrary  to  the  common  law,  it  is  held 

91.  Frohs  V.  City  of  Dubuque,  109  derson  v.  Anderson,  11  Bush  (Ky.), 
Iowa,  219,  80  N.  W.  341.  327. 

92.  Lammiman  v.  Detroit  Citizens  95.  Chitty  PI.  74;  Norcross  v.  Stu- 
8t.  Ey.  Co.,  112  Mich.  602,  71  N.  W.  art  50  Me.  87;  Pattee  v.  Harrington, 
153,  4  Det.  Leg.  N.  134.  11     Pick.     (Mass.)     221;     Cozier     v. 

93.  Johnson  v.  Johnson  (Ala.),  77  Bryant,  4  Bibb  (Ky.),  174;  Salt- 
So.  335.  marsh  v.  Candia.  51  N.  H.  71. 

94.  Bing.  Inf.  &  Cov.  247,  248 ;  New.  96.  Bac.  Abr.  Baron  &  Feme  (K.)  ; 
ton  V.  Hatter,  2  Ld.  Raym.  1208;  An-  Mocse  v.  Fond  du  Lac,  48  Wis.  323. 

97.  Long  V.  Morrison,  14  Ind.  595. 


§  676 


HUSBAND    AND    WIFE. 


696 


that  an  action  in  the  name  of  husband  and  wife  for  injuries  to  the 
latter  will  survive  to  her  administrator.®^ 

§  674.  Husband's  Rights. 

It  would  appear  that  the  husband  may  release  the  damages  for 
his  wife's  injuries,  and  then  recover  for  the  loss  arising  to  himself 
alone;  he  may  certainly  release  or  compromise.*®  Where  the 
husband  is  alone  entitled  to  the  damages,  and  in  case  of  his  death 
they  would  go  to  his  representatives,  he  must  sue  alone ;  ^  and  his 
sole  suit  will  not  be  defeated  by  his  wife's  death  before  action 
brought." 

A  husband  cannot  recover  for  consequential  injuries  to  his  wife 
from  negligence  unless  his  wife  can  recover  for  personal  injuries 
received.^  He  can  recover  nothing  unless  the  wife  recovers  for 
her  injuries,*  nor  where  the  tort  was  committed  on  the  wife  prior 
to  marriage  with  him,^  nor  where  no  appreciable  time  elapses  be- 
tween the  wife's  injury  and  her  death.® 

§  675.  For  Mental  Anguish  Suffered  by  Wife. 

The  husband  cannot  recover  for  the  wife's  mental  anguish  or 
other  damages  incidental  to  the  joint  suit  in  his  sole  suit  for 
damages/ 

§  676.  Seduction  of  Wife. 

Somewhat  akin  to  this  is  his  action  for  his  wife's  seduction, 
founded  on  the  same  general  marital  rights.  But  the  common  law 
still  keeps  up  its  legal  fiction  of  the  wife's  civil  incapacity,  and 
treats  the  seducer  as  guilty  of  trespass  by  force  of  arms,  whether 


98.  Earl  v.  Tupper,  45  Vt.  275.  As 
to  survivorship  of  husband's  right  of 
action  for  consequential  injuries,  see 
Cregin  v.  Brooklyn  R.,  83  N.  Y,  5<r5. 

99.  Southworth  v.  Packard,  7  Mass. 
95;  Anderson  v.  Anderson,  11  Bush 
(Ky.),  327,  One  who  knowingly  as- 
sists a  wife  in  violating  her  duty,  as 
by  selling  her  laudanum,  may  be  sued 
by  the  husband  for  the  injury  he  sus- 
tains thereby.  Hoard  v.  Peck,  56 
Barb  (N.  Y.),  202. 

1.  Wheeling  v.  Trowbridge,  5  W. 
Va.  353. 

2.  lb. 

3.  Jackson  v.   Boston   Elevated  B. 


Co.,  217  Mass.  515,  105  N.  E.  379,  51 
L.  R.  A.  (N.  S.)  1152. 

4.  Jackson  v.  Boston  Elevated  Ry. 
Co.,  217  Mass.  515,  105  N.  E.  379, 
51  L.  R.  A.  (N.  S.)  1152;  Savage  v. 
New  York,  N.  &  H.  S.  S.  Co.,  185 
F.  778,  107  C.  C.  A.  648;  Gardner  v. 
Boston  Elevated  Ry.  Co.,  204  Mass. 
213,  90  N.  E.  534. 

5.  Mead  v.  Baum,  76  N.  J.  Law, 
337,  69  A.  962. 

6.  Rogers  v.  Fancy  Farm  Telephone 
Co.,  160  Ky.  841,  170  S.  W.  178. 

7.  Hooper  v.  Haskell,  56  Me.  251; 
Adams  v.  Brosius  (Ore.),  139  Pac. 
729,  51  L.  R.  A.  (N.  S.)  37. 


697  ACTIONS.  §  677 

the  wife  actually  consent  to  the  guilt  or  not.*  The  damages  which 
the  husband  may  here  recover  in  his  own  right  are  not  affected  by 
the  social  rank  or  condition  of  the  parties ;  ^  nor  by  his  own  char- 
acter, save  his  character  as  a  husband ;  ^°  but  they  may  be  mate- 
rially influenced  by  the  wife's  previous  character  for  chastity ;  " 
while  if  the  husband  be  privy  to  the  crime  or  consenting  thereto, 
the  law  treats  him  as  the  seducer,  and  gives  him  no  damages." 
But  the  earlier  cases  seem  to  have  regarded  this  last  circumstance 
as  tending  only  to  reduce  his  compensation." 
§  677.  For  Loss  of  Consortium  and  Medical  Expenses. 

Since  the  husband  is  at  the  common  law  entitled  to  the  society 
and  services  of  his  wife,  two  separate  causes  of  action  may  arise 
from  injuries  inflicted  upon  her  person.  One,  in  the  name  of 
both  for  her  own  injuries,  we  have  just  considered ;  the  other  is 
in  the  name  of  the  husband  alone  per  quod  consortium  amisit.^* 
Thus,  if  the  wife  be  wantonly  bruised  and  maltreated,  her  husband 
may  bring  his  special  action  per  quod  for  the  loss  of  her  society 
and  his  medical  expenses.  But  there  can  be  no  special  damage 
recovered  by  the  husband  by  way  of  aggravation  in  the  joint  suit 
for  his  wife's  injuries,  which  is  founded  in  her  meritorious  claim. 
Thus,  in  the  joint  action  for  an  assault  on  the  wife,  the  surgeon's 
bill  cannot  be  recovered;  if  for  slander  of  the  wife,  the  loss  of 
wages  cannot  be  claimed ;    there  the  sole  right  of  the  husband 

8.  3  Bl.  Com.  139,  140.  An  action  11.  3  Bl.  Com.  140;  Bull.  N.  P. 
on  the  case  is  allowable,  though  not  296.  Blackstone  (tb.)  adds  the  con- 
nsual.  Chamberlain  v.  Hazlewood,  5  sideration  of  the  husband 's  obligation, 
M.  &  W.  517.  See  Morris  v.  Miller,  by  settlement  or  otherwise,  to  provide 
4  Burr.  2057 ;  Birt  v.  Barlow,  Doug.  for  those  children  which  he  cannot 
171;   Freelaconey  v.  Coleman,  1  B.  &  but  suspect  to  be  spurious. 

Aid.  90;  Canefield  v.  Chamber,  6  East,  12.  1  Greenl.  Evid.,  §  578;  Duberly 
244;  Tone  v.  Sumners,  2  Nott  &  Mc-  v.  Gunning,  4  T.  R.  651,  per  Lord  Ken- 
Cord  (S.  C),  267;  Forney  v.  Hallaker,  yon;  Eea  v.  Tucker,  51  111.  110;  Reeve 
8  S.  &  R.  159.  See  Yundt  v.  Hart-  Dom.  Rel.  64;  Train  v.  Bayer,  24 
runft,  41  111.  9,  as  to  the  damages  Barb.  (N.  T.),  614,  and  cases  cited, 
allowable  in  such  cases.  A  broad  See  Lord  Alvanley,  in  Bromley  v. 
rule  13  here  announced  in  the  hus-  Wallace,  4  Esp.  237. 
band's  favor.  13.  Selw.  N.  P.,  Adultery;  Bull.  N. 

9.  Norton  v.  Warner,  9  Conn.  172 ;  P.  27. 

per  Cheves,  J.,  in  Buford  v.  McLung,  14.  3  Bl.  Com.  140;  Cro.  Jac.  501; 

1  Nott  &  McCord   (S.  C),  268,  277;  ib.,    538;     Mewhirter    v.    Ratten,    42 

otherwise,    according    to    Blackstone.  Iowa,  288;  Brockbank  v.  Whitehaven 

See  3  Bl.  Com.  140.  Junction  R.  R.  Co.,  7  Hurl.  &  Nor. 

10.  Norton  v.  Warner,  9  Conn.  172.  834;  Whitcomb  v.  Barre,  37  Vt.  148; 
And  see  Bromley  v.  Wallace,  4  Esp.  Kavanaugh  v.  Janesville,  24  Wis.  618; 
237.  Hooper  v.  Haskell,  56  Me.  251, 


677 


HUSBAND    AND    WIFE. 


698 


should  be  sued  on  in  his  name.^"  A  hus-band  who  lives  apart  from 
his  wife,  under  articles  of  separation  or  a  decree  of  divorce  from 
bed  and  board,  cannot  maintain  a  suit  for  damages  per  quod, 
since  he  has  suffered  no  loss  of  her  society/^ 

Instantaneous  death  of  the  husband  or  wife,  at  the  common  law, 
gave  no  right  of  action  to  the  survivor.  Nor  could  the  husband, 
whose  wife  was  thus  killed  by  another's  carelessness,  sue  per  quod, 
because  he  could  not  be  said  to  have  lost  her  society  during  any 
portion  of  her  life.^^  And  wherever  by  special  statute  some  right 
of  action  for  damages  is  given  (as  against  a  town  for  a  defective 
highway),  some  of  our  courts  seem  disposed  to  allow  the  husband's 
medical  expenses  by  way  of  aggravation,  in  the  joint  suit  of  hus- 
band and  wife,  even  though  he  may  not  be  empowered  to  bring  a 
suit  in  his  own  name  to  recover  for  them  as  damages  per  quod}* 
In  some  of  these  statutory  cases,  however,  the  husband  may  bring 
his  separate  suit  per  quod  as  before,  in  addition  to  the  suit  for  the 
wife's  injury.^^  Where  the  action  is  brought  in  assumpsit,  as 
upon  a  carrier's  contract  to  carry  safely,  the  considerations  are 
those  of  contract,  not  tort.' 


20 


15.  Dengate  v.  Gardiner,  4  M.  & 
W.  6;  Kavanaugh  v.  Janesville,  24 
Wis.  618;  King  v.  Thompson,  87  Pa. 
365.  See  Lewis  v.  Babcock,  18  Johns. 
(N.  Y.)  443. 

16.  Eeeve  Dom.  Eel.  64;  Pry  v. 
Derstler,  2  Yeates  (Pa.),  278.  The 
husband  may  discharge  the  cause  of 
action,  so  as  to  bar  the  wife's  rem- 
edy, even  though  they  are  living  apart 
through  his  fault.  Ballard  v.  Russell, 
33  Me.  196.  Concerning  the  effect  of 
a  separation  pending  a  suit  brought 
in  the  joint  names  of  husband  and 
wife,  for  injuries  inflicted  upon  the 
latter,  see  Burger  v.  Belsley,  45  HI. 
72. 

17.  Yelv.  89,  90 ;  Baker  v.  Bolton,  1 
Camp.  493 ;  Green  v.  Hudson  R.  R. 
Co.,  28  Barb.  (N.  Y.)  ff;  Hallenbeck 
V.  Berkshire  R.  R.  Co.,  9  Cush.  109. 
See  Georgia  R.  R.  Co.  v.  Wynn,  42 
Ga.  331,  which  considers  a  statute  pro- 
viding only  for  a  wife 's  suit  by  rea- 
son of  her  husband's  death  by  rail- 
road   accident,    and    not    for    a   hus- 


band's suit  by  reason  of  his  wife's 
death. 

18.  Harwood  v.  Lowell,  4  Cnsh. 
(Mass.)  310;  Sanford  v.  Augusta,  32 
Me.  536;  Hunt  v.  Winfield,  36  Wis, 
154;  Fuller  v.  Naugatuck  R.  E.  Co., 
21  Conn.  557.  See  Carlisle  v.  Town 
of  Sheldon,  38  Vt.  440,  as  to  right  to 
recover  for  damages  on  a  highway, 
defeated  by  husband's  own  careless- 
ness. 

19.  Klein  v.  Jewett,  26  N.  J.  Eq. 
474 ;  Kavanaugh  v.  Janesville,  24  Wis. 
618;   Whitcomb  v.  Barre,  37  Vt.  148. 

Where  husband  and  wife  were  in- 
jured simultaneously  and  both  died, 
the  husband  a  little  before  the  wife,  it 
was  held  that  the  right  of  action  vested 
al'-hough  they  are  living  apart  through 
his  fault.  Ballard  v.  Russell,  33  Me. 
196.  Concerning  the  effect  of  a  sepa- 
ration pending  a  suit  brought  in  the 
joint  names  of  husband  and  wife,  for 
injuries  inflicted  on  the  latter,  see 
Burger  v.  Belsley,  45  HI.  72. 

20.  See  Pollard  v.  New  Jersey  B., 
101  TJ.  S.  223. 


699 


ACTIONS. 


§  677 


A  husband  may  recover  for  loss  of  the  wife's  services  and  con- 
sortium as  a  result  of  her  injury  by  negligence/^  or  as  the  result 

21.  Duffee  v.  Boston  Elevated  Ry. 
Co.,  191  MaS3.  563,  77  N.  E.  1036; 
Cullar  V.  Missouri  K.  &  T.  Ry.  Co., 

84  Mo.  App.  340;  Schaupp  v.  Turner, 
177  N.  Y.  S.  132 ;  Chicago  &  M.  Elec- 
tric Ry.  Co.  V.  Krempel,  116  111.  App. 
253;  Morrison  v.  Clark,  196  Ala. 
670,  72  So.  305;  Southern  Ry.  Co.  v. 
Crowder,  135  Ala.  417,  33  So.  335; 
Denver  Consol.  Tramway  Co.  v.  Riley, 
14  Colo.  App.  59  P.  476;  Chicago  & 
M,  Electric  Ry.  Co.  v.  Krempel,  116 
IlL  App.  253 ;  Southern  Kansas  Ry. 
Co.  V.  Pavey,  57  Kan.  521,  46  P.  9-69; 
Kelley  v.  New  York,  N.  H.  &  H.  R, 
Co.,  168  Mass.  308,  46  N.  E.  1063, 
60  Am.  St.  R.  397,  38  L.  R.  A.  631; 
Lorf  V.  City  of  Detroit,  145  Mich. 
265,  108  N.  W.  661,  13  Det.  Leg.  N. 
502;  Cullar  v.  Missouri  K.  &  T.  Ry. 
Co.,  84  Mo.  App.  347;  Booth  v.  Man- 
cheater  St.  Ry.,  73  N.  H.  529,  63  A. 
578;  Lyons  v.  New  York  City  Ry. 
Co.,  49  Misc.  517,  97  N.  Y.  S.  1033; 
Baltimore  &  O.  R.  Co.  v.  Glenn,  66 
Ohio  St.  395,  64  N.  E.  438;  Reagan 
V.  Harlan,  24  Pa.  Super.  27;  San 
Antonio  &  A.  P.  Ry.  Co.  v.  Belt,  24 
Tex.  Civ.  281,  59  S.  W.  607;  Neville 
V.  Mitchell,  28  Tex.  Civ.  89,  66  S.  W. 
57?;  Howells  v.  North  American 
Tamsportation  &  Trading  Co.,  24 
Wash.  689,  64  P.  786;  Blair  v.  Bloom- 
ington  &  N.  Ry.,  Electric  &  Heating 
Co.,  130  ni.  App.  400;  Guevin  v. 
Manchester  St.  Ry.  (N.  H.),  99  A. 
298;  Bourland  v.  Louisville  &  N.  R. 
Co.,  199  111.  App.  126;  Reeves  v. 
Lntz,  179  Mo.  App.  61,  162  S.  W.  280; 
Garside  v.  New  York  Transp.  Co.,  146 
F.   588;    Elling  v.  Blake-McFall  Co., 

85  Ore.  91,  166  P.  57;  City  of  Chat- 
tanooga v.  Carter,  132  Tenn.  609,  179 
8.  W.  127;  People's  Home  Telephone 
Co.  v.  Cockrum,  182  Ala.  547,  62  So, 
86;  Hey  v.  Prime,  197  Mass.  474,  84 
N.  E.  141 ;  Zolawenski  v.  Aberdeen, 
72  Wash.  95,  129  P.  1090;  Indian- 
apolis Traction  &  Terminal  Co.  v. 
Menze,    173   Ind.   31,   89"  N.   E.   370; 


McCauley  v.  Detroit  United  Ry.,  167 
Mich.  297,  133  N.  W.  11;  Louisville, 
etc.,  R.  Co.  V.  Kinman  (Ky.),  206  S. 
W.  880;  Bruce  v.  United  Rys.  Co., 
175  Mo.  App.  568,  158  S.  W.  102; 
Berrien  County  v.  Allen,  13  Ga.  App. 
777,  79  S.  E.  1129;  Indianapolis  &  M. 
Rapid  Transit  Co.  v.  Reeder,  42  Ind. 
App.  520,  85  N.  E.  1042. 

The  word  "services,"  in  the  rule 
allowing  a  husband  to  sue  for  per- 
sonal injuries  to  his  wife,  included  any 
pecuniary  injury  suffered  from  the 
loss  of  her  aid,  society,  and  compan- 
ionship; and,  while  the  damages  from 
the  loss  of  services,  society,  and  com- 
panionship are  not  susceptible  of  di- 
rect proof,  yet,  when  the  facts  are 
shown,  the  assessment  of  compensa- 
tion must  be  left  to  the  sound  dis- 
cretion of  the  jury.  Indianapolis 
Traction  &  Terminal  Co.  v.  Menze 
(Ind.),  88  N.  E.  929  (reh.  den.,  173 
Ind.  31,  89  N.  E.  370)  ;  Lagergren 
V.  National  Coke  &  Coal  Co.,  117  N. 
Y.  92;  Townsend  v.  Wilmington  City 
Ry.  Co.,  7  Penn.  (Del.)  255;  McDevitt 
City  of  St.  Paul,  66  Minn.  14;  May 
V.  Western  Union  Telegraph  Co.,  157 
N.  C.  416;  Elling  v.  Blake-McFall 
Co.,  85  Ore.  91 ;  Guevin  v.  Manchester 
St.  Ry.  (N.  H.),  99  Atl.  298;  Morri- 
son v.  Clark  (Ala.),  72  So.  305 ;  City  of 
Chattanooga  v.  Carter,  132  Tenn.  609 ; 
Little  Rock  Gas  &  Fuel  Co.  v.  Cop- 
pedge,  116  Ark.  334;  Mageau  v. 
Great  Northern  Ry.  Co.,  103  Minn. 
290. 

In  its  original  application  the  term 
"consortium"  was  used  to  designate 
a  right  which  the  law  recognized  in 
a  husband,  growing  out  of  the  marital 
union,  to  have  performance  by  the 
wife  of  all  duties  and  obligations  in 
respect  to  him  which  she  took  on  her- 
self when  she  entered  into  it,  and  as 
thus  employed  it  includes  the  right  to 
society,  companionship,  conjugal  af- 
fection, and  service.  Marri  v.  Stam- 
ford  St.   R.    Co.,   84   Conn.    9,   78   A. 


§  677 


HUSBAND    AND    WIFE. 


700 


of  an  assault  on  her,"  or  of  a  defect  in  a  highwaj,^^  or  sidewalk,^* 
or  of  a  nuisance,"  or  of  the  negligent  escape  of  gas,^*  or  of  her 
illness  as  the  result  of  a  slander,^^  or  of  eating  unwholesome  pork,^* 
or  of  sale  of  opium  to  the  wife,  resulting  in  her  becoming  a  drug 
addict,^^  or  of  a  cold  caught  at  a  hospital  through  negligence,  re- 
sulting in  her  death,^"  especially  where  her  injuries  prevent  sexual 
intercourse.^^ 

The  services  recovered  for  may  include  services  rendered  by  her 
in  his  business,  where  she  is  so  engaged  when  injured,  without 
intent  on  the  part  of  the  husband  to  pay  for  them,^^  and  special 
services,  other  than  those  of  a  servant,  which  a  wife  can,  and  which 
the  wife  in  question  was  accustomed  to  render  to  him.^^  He  may 
also  recover  for  her  diminished  capacity  to  labor  in  the  future,  if 
her  injuries  are  permanent,^*  as  well  as  for  medical  and  other 
expenses,^^  even  where  the  statute  makes  family  expense  a  charge 


582;  Blair  v.  Seitner  Dry  Goods  Co. 
(Mich.),  151  N.  W.  724. 

22.  Baer  v.  Hepfinger,  152  Wis.  558, 
140  N.  W.  345. 

23.  Larisa  v.  Tiffany  (E.  I.),  105 
A.  739;  South  v.  West  Windsor  Tp. 
(N.  J.),  82  A.  852;  Bean  v.  City  of 
Portland,  lO^  Me.  467,  84  A.  981. 

24.  Wright  v.  City  of  Omaha,  78 
Neb.  124,  110  N.  W.  754;  McDevitt 
V.  City  of  St.  Paul,  66  Minn.  14,  68 
N.  W.  178,  33  L.  E.  A,  601. 

25.  Adams  Hotel  Co.  v.  Cobb,  3 
Ind.  T.   50,  53   S.  W.  478. 

26.  Little  Eock  Gas  &  Fuel  Co.  v. 
Coppedge  (Ark.),  172  S.  W.  885. 

27.  Garrison  v.  Sun  Printing  &  Pub- 
lishing Co.,  207  N.  y.  1,  100  N.  E. 
430. 

28.  Gearing  v.  Berkson,  223  Mass. 
257,  111  N.  E.  785. 

29.  Holleman  v.  Harvard,  119  N.  C. 
150,  25  S.  E.  972,  56  Am.  St.  E.  672, 
34  L.  E.  A.  803. 

30.  Bailey  v.  Long,  172  N.  C.  661, 
90  S.  E.  809. 

31.  City  of  Dallas  v.  Jones  (Tex.), 
54  S.  W.  606  (injury  to  spine). 

32.  Georgia  E.  &  Banking  Co.  v. 
Tice,  124  Ga.  459,  52  S.  E.  916; 
Standen  v.  Pennsylvania  E.  Co.,  214 
Pa.  189,  63  A.  467 ;  Missouri,  K.  &  T. 


Ey.  Co.  V.  Vance  (Tex.),  41  S.  W. 
167.  But  see  Kirkpatrick  v.  Metro- 
politan St.  Ey.  Co.,  129  Mo.  App.  524, 
107  S.  W.  1025. 

33.  Selleck  v.  City  of  Janesville, 
104  Wis.  570,  80  N.  W,  944,  76  Am. 
St.  E.  892,  47  L.  E.  A.  691. 

34.  May  v.  Western  Union  Tele- 
graph Co.,  157  N.  C.  416,  72  S.  E. 
1059 ;  Kirkpatrick  v.  Metropolitan 
St.  Ey.  Co.,  129  Mo.  App.  524,  107 
S.  W.  1025;  Townsend  v.  Wilmingtoa 
City  Ey.  Co.  (Del.),  78  A.  635. 

35.  Indiana  Union  Traction  Co.  T. 
McKinney,  36  Ind.  App.  86,  78  N.  E. 
203;  Otto  v.  Milwaukee  Northern  Ey. 
Co.,  148  Wis.  54,  134  N.  W.  157; 
Washington  &  G.  E.  Co.  v.  Hickey, 
12  App.  D.  C.  269  ;  Birmingham  South- 
ern Ey.  Co.  V.  Lintner,  141  Ala.  420,. 

38  So.  363,  109  Am.  St.  E.  40;  Louth 
V.  Thompson,  1  PennewiU  (Del.),  149, 

39  A.  1100;  Indiana  Union  Traction 
Co.  V.  McKinney,  39  Ind.  App.  86; 
State  V.  City  of  Detroit,  113  Mich,  643, 
72  N.  W.  8,  4  Det.  Leg,  N.  431; 
Brickson  v.  Buckley  (Mass.),  120  N. 
E.  126;  Lagergren  v.  National  Coke 
&  Coal  Co.,  117  N.  Y.  S.  92;  Twedell 
V.  City  of  St.  Joseph,  167  Mo.  App. 
547,  152  S.  W,  432. 


701  ACTIONS.  §  677 

on  both  spouses,^®  and  even  where  the  wife  paid  the  bills,  on  his 
promise  to  repay  her/^  and  for  impairment  of  her  ability  to  per- 
form wifely  duties,^*  and  for  loss  of  her  earnings,  where  he  is 
entitled  to  them,^^  and  for  her  funeral  expenses,  where  she  id 
killed/^ 

In  his  action  for  his  o\vn  personal  injuries  he  may  recover  the 
reasonable  value  of  extra  services  rendered  by  her  in  nursing  him.'*^ 
He  cannot  recover  for  the  expense  of  a  servant  employed  during  her 
incapacity,*^ 

A  man  cannot  recover  for  the  loss  of  consortium  of  his  wife 
caused  by  the  defendant's  negligence  where  no  appreciable  length 
of  time  inter\^ened  between  the  negligent  act  complained  of  and 
the  death  during  which  he  might  have  enjoyed  her  society ;  ** 
and  in  case  of  her  death,  he  can  recover  for  loss  of  services  and 
consortium  only  to  the  time  of  such  death.** 

The  husband's  right  to  recover  for  damages  to  his  right  to  the 
society  and  services  of  his  wife  on  account  of  the  negligence  of  a 
third  person  seems  by  the  great  weight  of  authority  not  to  be 
affected  by  recent  legislation  putting  the  husband  and  wife  on  an 
equality.*^ 

In  some  jurisdictions,  however,  it  is  held  that  this  legislation 
has  wiped  out  the  right  to  sue  for  loss  of  consortium  due  to  negli- 
gence, as  the  view  is  held  that  this  right  depends  on  the  husband's 

36.  West    Chicago    St.    Ey.    Co.    v.  42.  Hertzberg  v.  Pittsburgh  Taxicab 
Carr,    170    111.    478,    48    N.    E.    992;  Co.,  243  Pa.  540,  90  A.  344. 
Lifschitz  V.  City  of  Chicago,  194  111,  43.  Eogers  v.  Fancy  Farm  Telephone 
App.  488.  Co.,  160  Ky.  841,  170  S.  W.   178,  L. 

37.  Laskowski  v.  People's  Ice  Co.  R.  A.  1916D,  186. 

(Mich.),  168  N.  W.  940.  44.  Indianapolis  &  M.  Eapid  Transit 

38.  Gregory  v.  Oakland  Motor  Car  Co.  v.  Keeder,  51  Ind.  App.  533,  100 
Co.,  181  Mich.  101,  147  X.  W.  614;  N.  E.  101;  Lane  v.  Steiniger  (Iowa), 
Kimberly  v.  Howland,  143  N.  C.  398,  156  N.  W.  375. 

55  S.  E.  778,  7  L.  E.  A.  (N.  S.)   545.  45.  Birmingham  Southern  E.  Co.  v. 

39.  Eobinson  v.  Metropolitan  St.  Lintner,  141  Ala.  420,  38  So.  363; 
Ey.  Co.,  34  Misc.  795,  69  N.  Y.  S.  Blair  v.  Bloomington  &  N.  E.  Elec- 
891;  The  O'Brien  Brothers,  253  F.  trie,  etc.,  Co.,  130  HI.  App.  400; 
855.  ?.Iewhirter  v.  Hatten,   42   Iowa,  288; 

40.  Cincinnati,  H.  &  D.  Ey.  v.  Tay-  Partello  v.  Missouri,  P.  E.  Co.,  141 
lor,  27  Ohio  Cir.  Ct.  757.  Mo.  App.  162,  107  S.  W.  473;  Booth 

41.  Missouri,  K.  &  T.  Ey.  Co.  v.  v.  Manchester  Street  E.  Co.,  73  N.  H. 
Holman,  15  Tex.  Civ.  16,  39  S.  W.  529,  63  Atl.  578;  Baltimore  &  Ohio 
130;  Crouse  v.  Chicago  &  N.  W.  Ey.  E.  Co.  v.  Glenn,  66  Ohio  St.  395,  64 
Co.,  102  Wis.  196,  78  N.  W.  446;  N.  E.  438;  McMeekin  v.  Pittsburg 
Chicago,  D.  &  G.  B.  Transit  Co.  v.  E.  Co.,  229  Pa.  572,  79  Atl.  133. 
Moore,  259  F.  490. 


§  677  HUSBAND  AKD  WIFE.  702 

right  to  menial  and  domestic  services  round  the  house  rather  than 
on  his  right  to  her  affection  and  loyalty,  and  as  the  former  right 
has  been  extinguished  by  law  no  right  of  action  for  damage  to  such 
a  right  can  remain.'*® 

An  action  by  a  husband  for  loss  of  consortium  of  the  wife  due  to 
a  marine  accident  is  cognizable  in  admiralty.  The  relation  of 
husband  and  wife  and  parent  and  child  are  not  maritime  relations; 
but  such  relations  or  the  implied  contracts  or  rights  growing  out  of 
suck  relations  do  not  constitute  the  real  ground  of  action,  when  a 
husband,  wife,  parent  or  child  invoke  admiralty  relief  for  injury 
sustained  by  a  maritime  tort.  In  such  cases  the  thing  in  action  is 
not  the  relationship  but  the  tort.  The  relationship  is  a  mere  step 
or  incident  to  support  the  action.*^ 

It  has  been  held  in  Massachusetts  that  where  a  husband,  as 
administrator,  recovered  for  the  death  and  conscious  suffering  of 
his  wife,  he  could  not  recover  separately  for  loss  of  consortium,** 
nor  where  she  has  recovered  full  damages  for  all  injuries  sustained 
by  her." 

Michigan  has  recently  followed  the  Massachusetts  rule  that 
under  the  Married  Women's  Acts  a  man  cannot  recover  for  the  loss 
of  consortium  of  his  wife  in  case  of  her  personal  injury  throu^ 
negligence. 

In  this  case  it  appeared  that  the  wife  suffered  so  that  her  com- 
panionship was  less  pleasant  than  before.  The  court  held  that 
where  there  is  no  intentional  wrong  the  ordinary  rule  of  damages 
goes  no  farther  than  to  allow  pecuniary  compensation  for  the 
impairment  or  injury  directly  done,  and  the  courts  cannot  put  a 
pecuniary  value  on  domestic  duties  and  labor  performed  in  and 
about  the  family. 

If  the  husband  has  in  fact,  on  account  of  his  wife's  injury,  loet 
a  service  which  she  habitually  rendered,  then  as  sen-ice  and  accord- 
ing to  the  pecuniary  value  of  it  he  ought  to  be  permitted  to  recover. 
Recovery  ought  to  be  according  to  the  fact.  For  loss  of  con- 
sortium of  the  undefined  and  indefinable  influence  of  either  spouse 

46.  Marri  v.  Stamford  Street  R.  Co.  Co.  v.   Johnson,   195   F.   740,   115  C. 
(Conn.),  78  Atl.  582,  33  L.  R.  A.  (N.  C.  A.  540,  42  L.  E.  A.   (N.  S.)   640. 
8.)  1042;  Feneff  v.  New  TorkC.  &H.  48.  Bolger  v.  Boston  Elevated  By. 
R.   R.   Co,   203   Mass.   278,   89   N.   E.  Co.,  205  Mass.  420,  91  N.  E.  389. 
436,  24  L.  R.  A.  (N.  S.)  1024.  49.  Wliiteomb  v.  New  York,  N.  H. 

47.  New  York  &  Long  Branch  S.       &  H.  R.  Co.,  215  Mass.  440,  102  N.  H. 

663. 


703  ACTIONS.  §  677 

in  the  family  relationship  and  the  pleasure  of  the  relationship 
neither  may  recover.®" 

A  husband  may  recover  for  loss  of  consortum  due  to  the  defend- 
ant's sale  of  laudanum  to  the  plaintiff's  wafe."^ 

A  husband  can  recover  for  loss  of  services  and  consortium  of 
his  wife  who  contracted  pneumonia  in  a  hospital  through  the  negli- 
gence of  the  attendants  and  died.  The  rule  that  at  common  law 
there  can  be  no  recovery  for  death  does  not  apply  to  those  who 
stand  in  the  relation  of  master,  parent  or  husband  to  the  deceased, 
for  loss  of  services  or  society.''^ 

The  term  "  consortium,"  as  used  at  the  common  law  to  describe 
the  huSiband's  marital  rights,  included  three  elements, —  service, 
society,  and  sexual  intercourse.  It  is  conceded  everywhere  that 
any  injury  to  or  detention  of  the  wife  which  interfered  with  the 
first  of  these  rights  gave  the  husband  a  cause  of  action,  as  did  the 
infringement  of  the  last  by  the  debauchment  of  the  wife.  Until 
within  recent  years  all  American  courts  have  assumed "'  and  held 
that  injuries  to  the  second  element  were  also  entitled  to  protection. 
The  great  weight  of  authority  is  still  the  same  way,  although  in 
Massachusetts  and  some  other  States  it  has  been  held  that  the 
recent  Married  Women's  Acts  have  cut  off  this  right  of  action."* 

The  better  view  is  that  the  Married  Women's  Acts  giving  her  a 
right  to  her  own  separate  property  and  earnings,  and  the  right  to 
sue  and  be  sued  as  if  unmarried,  do  not  mean  that  she  has  been 
devested  of  all  marital  duties  and  obligations  either  legally  or 
morally,  but  the  husband  is  still  entitled  to  the  whole  of  his  wife's 
marital  affection,  and  to  the  whole  of  such  society  and  comfort  as 
her  physical  state  and  mental  attitude  render  her  capable  of  afford- 
ing him.  He  who  steals  any  substantial  part  of  that  affection,  or 
disables  her  physically  or  mentally  from  rendering  such  aid  and 
comfort,  is  guilty  of  an  infringement  of  the  husband's  rights,  and 
should  be  required  to  make  restitution. 

50.  Blair  v.  Seitner  Dry  Goods  Co.  Co.  (N.  H.),  99  Atl.  298,  L.  B.  A. 
(Mich.),   151   N.   W.   724,   L.   R.   A.       1917C,  410 

1915D,   524.  54.  FenefF  v.   New   York,  C.  &  H. 

51.  Hoard  v.  Peck,  56  Barb.  (N.  Y.)  R.  Co.,  203  Mass.  278,  89  N.  E.  436, 
202;  Holleman  v.  Harward,  119  N.C.  133  Am.  St.  Rep.  291,  24  L.  R.  A. 
150,  25  S,  E.  972,  34  L.  R.  A.  803.  (N.    S.)     1024;    Marri    v.    Stamford 

62.  Bailey  v.  Long  (N.  C),  90  S.  E.  Street  R.  Co.,  84  Conn.  9,  78  Atl.  582, 
809,  L.  R.  A.  1917B,  708.  Ann  Cas.   1912B,  1120,  33  L.  R.  A. 

53.  Guevin  v.  Manchester  Street  R.       (N.  8.)  1042. 


§    679  HUSBAND    AND    WIFE.  704: 

So  where  a  married  woman  is  injured  through  negligence  her 
husband  may  maintain  an  action  for  loss  of  consortium.'** 

§  678.  For  Loss  of  Services. 

Although  a  husband  may  not  maintain  an  action  for  a  personal 
injury  to  his  wife,  he  may  maintain  such  an  action  for  the  conse- 
quences to  himself  of  such  an  injury,  such  as  the  loss  of  her 
servdces.^^ 

The  husband  may  recover  for  loss  of  services  of  his  wife  due 
to  the  publication  of  a  malicious  libel  against  her  which  caused 
her  illness.  Although  in  an  action  for  negligence  injuries  due  to 
mental  distress  may  not  be  recovered  in  all  cases,  still,  where  the 
natural  result  of  the  libel  is  mental  distress,  such  mental  disturb- 
ance and  its  consequences  even  in  the  shape  of  resulting  sickness 
are  fairly  to  be  apprehended.  Furthermore,  where  the  act  is  wil- 
ful and  malicious  the  wrongdoer  will  be  responsible  for  the  inju- 
ries which  he  has  caused  even  though  they  may  lie  beyond  the 
limits  of  natural  and  apprehended  results.'^^ 

There  can  be  but  one  action  for  one  tort,  so  where  an  action  is 
brought  for  personal  injuries  and  for  loss  of  services  of  the  wife 
of  the  plaintiff,  and  the  counts  for  personal  injuries  are  dismissed, 
this  is  a  bar  to  a  new  action  for  them.^* 

The  statute  creating  liability  for  wrongful  death  should  be  dis- 
tinguished from  the  action  for  negligence,  as  the  death  statute 
makes  earning  capacity  the  test,  and  in  that  respect  differs  from 
the  common  law,  and  therefore  the  fact  that  the  husband  has  no 
right  of  recovery  for  death  of  the  wife  is  no  reason  why  he  should 
not  recover  for  her  injury. 


69 


§  679.  For  Death  of  Wife. 

Where  the  wife  dies  in  consequence  of  one's  carelessness,  as  in 
case  of  malpractice,  the  husband  may  recover  damages  for  the 
injury  accruing  to  himself  before,  but  not  for  the  injury  in  conse- 
quence of,  the  death.*"     Modem  legislation  has  supplied  many 

55.  Guevin  v.  Machester  Street  E.  58.  Smith  v.  Cincinnati,  New  Or- 
Co.  (N.  H.),  99  Atl.  298,  L.  E.  A.  leans,  etc.,  E.  Co.,  136  Tenn.  282,  189 
1917C,  410.  S.  W.  367,  L.  E.  A.  1917C,  543. 

56.  United  States  Smelting  Co.  v.  59.  Guevin  v.  Manchester  Street  E. 
Sisam,  191  Fed.  293,  112  C.  C.  A.  37,  Co.  (N.  H.),  99  Atl.  298,  L.  E.  A. 
37  L.  E.  A.   (N.  S.)   976.  1917C,  410. 

57.  Garrison  v.  Sun  Printing  &  Pub-  60.  Hyatt  v.  Adams,  16  Mich.  180; 
lishing  Ass.,  207  N.  T.  1,  100  N.  E.  Long  v.  Morrison,  14  Ind.  595. 

430,  45  L.  E.  A.  (N.  S.)  766. 


705 


ACTIONS. 


§  680 


new  remedies  much  needed  in  these  classes  of  cases,  particularly 
with  reference  to  injuries  and  loss  of  life  occasioned  through  the 
carelessness  of  railroad  companies  and  other  common  carriers.®^ 

§  680.  Necessity  of  Joinder  of  Wife. 

A  wife  is  not  a  necessary  party  to  an  action  for  foreclosure  of 
a  purchase-money  mortgage  in  which  she  did  not  join/^  nor  to  a 
suit  by  her  husband's  vendor  of  land  to  enforce  a  vendor's  lien," 
or  to  foreclose  his  rights  under  an  executory  contract  for  the  sale 
of  land,^*  nor  in  his  suit  for  specific  performance  merely  because 
she  joined  with  him  in  the  contract  for  sale  of  his  property  and  in 
a  deed  tendered  in  performance  by  him,®^  nor  to  an  action  against 
the  husband  for  necessaries  furnished  to  her,"®  nor  to  anv  action 
affecting  land  wherein  she  has  only  an  inchoate  right  of  dower,'^ 
or  to  an  action  on  a  contract  to  which  she  is  not  a  party,"*  nor,  in 
Texas,  to  an  action  on  a  joint  contract  of  the  spouses,  where  it  does 
not  appear  that  it  was  made  for  the  benefit  of  or  that  the  money 
to  be  paid  thereunder  was  her  separate  estate."' 

She  is  a  necessary  party  to  an  action  wherein  her  husband's 
creditor  seeks  to  subject  to  his  debt  her  husband's  property  in  her 
possession,^"  and  in  ejectment  against  her  husband  to  try  the  title 
to  a  homestead  conveyed  to  her,^^  and  to  a  suit  to  remove  a  levy 
made  on  their  estate  by  the  entirety  in  an  action  against  the 
husbandj"  as  well  as  to  any  action  affecting  land  of  which  the 
record  title  is  in  her." 

In  California  it  is  proper  to  join  the  wife  in  an  action  against 


61.  Dickens  v.  N.  Y.  Central  R.  R. 
Co.,  28  Barb.  (N.  Y.)  41;  Stat.  9  & 
10  Vict.,  ch.  93 ;  Mass.  Gen.  Stats.,  eh. 
63,  §  97. 

62.  Harrow  v.  Grogan,  219  111.  288, 
76  N.  E.  350. 

63.  Sarrer  v.  Clarkson,  156  Ind.  316, 
59  N.  E.  933;  Brightman  v.  Ytj,  17 
Tex.  Civ.  531,  43  S.  W.  60;  Jackson 
T.  Bradsha-n-,  28  Tex.  Civ.  394. 

64.  Schaefer  v.  Purviance,  160  Ind. 
63,  66  N.  E.  154;  Fowler  v.  Bracy, 
124  Mich.  250,  82  N.  W.  892,  7  Bet. 
Leg.  N.  176  (aff.  reh.,  124  Mich.  250, 
83  N.  W.  374,  7  Det.  Leg.  N.  332). 

65.  Edmison  v.  Zborowski,  9  S.  D. 
40,  68  N.  W.  288. 

45 


«6.  Marshall  v.  Hill,  59  Pa.  Super. 
481. 

67.  Eiddick  v.  Walsh,  15  Mo.  519; 
Herberger  v.  Zion,  129  Minn.  217,  152 
N.  W.  268. 

68.  Loutzenhiser  v.  Peck,  89  Wash. 
435,  154  P.  814. 

69.  Burke  v.  Purifoy,  21  Tex.  Civ. 
202,  50  S.  W.  1039. 

70.  Franck  v.  Franck,  107  Ky.  362, 
21  Ky.  Law,  1093.  54  S.  W.  195. 

71.  Hobson  v.  Van  Fossen,  26  Mich. 
68. 

72.  Wight  V.  Roethlisberger,  116 
Mich.  241,  74  N.  W.  474. 

73.  Williamson  v.  Conner,  92  Tex. 
681,  50  S.  W.  697. 


§  683 


HUSBAND    A:ND    wife. 


706 


the  husband  for  necessaries  where  it  is  sought  to  subject  her 
separate  estate  to  the  payment  of  the  debt.'* 

§  681.  Actions  Against  Wife  in  General. 

At  common  law  a  wife  could  not  be  sued  alone.'^^  In  California 
and  Texas  the  common-law  rule  still  prevails.^®  Under  the  Maine 
statute  a  wife  may  sue  on  her  contract  as  though  sole  and  is  per- 
sonally liable  thereon."^^  And  where  a  married  woman  receives 
money  on  a  parol  contract  for  the  sale  of  her  lands,  but  fails  to 
convey,  a  personal  action  cannot  be  maintained  against  her  to 
recover  the  money  so  paid,  nor  can  it  be  made  a  matter  of  set-off  in 
an  action  on  a  promissory  note  brought  by  her  against  the  party 
who  has  paid  such  money."® 

§  682.  Under  Married  Women's  Acts. 

Under  some  Married  Women's  Acts  he  is  now  not  a  necessary 
party  to  an  action  against  her,^®  especially  where  the  contract  con- 
cerns her  separate  estate,  though  both  spouses  join  in  negotiating 
it,^°  or  where  she  is  divorced.®^  In  Missouri  he  is  not  a  necessary 
party  to  a  partition  suit  against  the  wife.^^  He  is  still  a  proper 
party  where  the  liability  is  joint,  or  joint  and  several.*^  Under 
the  Alabama  Married  Women's  Act  coverture  is  no  longer  a 
defence  to  an  action  on  a  wife's  contract.®* 

§  683.  Trover. 

A  wife  is  not  liable  in  trover  for  refusing  to  surrender  a  gas 
machine  which  the  husband  has  caused  to  be  affixed  to  her  land  in 
such  manner  as  to  make  it  part  of  the  land  as  a  fixture,®^  nor  for 


74.  Evans  v.  Noonan,  20  Cal.  App. 
288,  128  P.  794. 

75.  Salisbury  v.  Spofford,  22  Ida. 
393,  126  P.  400;  Farmers'  State  Bank 
of  Ada.  V.  Keen  (Okla.)  167  P.  207; 
Stockton  V.  Farley,  10  W.  Va.  171, 
27  Am.  R.  566;  Eeyman  v.  Heyman, 
19  Ga.  App.  634,  92  S.  E.  25. 

76.  Lemons  v,  Biddy  (Tex.),  149 
S.  W.  1065;  Horsburgh  v.  Murasky, 
169  Cal.  500,  147  P.  147. 

77.  Perkins  v.  Blethen,  107  Me.  443, 
78  A.  574. 

78.  Sanford  v.  Wood,  49  Ind.  165. 

79.  Black  v.  Clements,  2  Pennewill 
(Del.),     499:     Arkansas    Stables    v. 


Samstag,  78  Ark.  517,  94  S.  W.  699; 
Jones  V.  Gutman,  88  Md.  355,  41  A. 
792 ;  Dobbins  v.  Thomas,  26  App.  D. 
C.  157. 

80.  Miller  v.   Kullesowicz,   41   Pa. 
Super.  39. 

81.  Swain  v.   Hunt,   52   Ind.  App. 
626,  99  N.  E.  529. 

82.  Estes  V.  Nell,  140  Mo.  639,  41 
S.  W.  940. 

83.  Stanley   v.   Whitlow,    181   Mo. 
App.  461,  168  S.  W.  840. 

84.  Moore  v.  Price,  116  Ala.  247,  22 
So.  531. 

85.  Morrison  v.  Berry,  42  Mich.  38?, 
4  N.  W.  731,  36  Am.  E.  449. 


707  ACTIO^•s.  §  684 

rents  of  her  separate  property  collected  by  him  after  the  property 
has  been  sequestrated/ 


86 


I 


§  684.  Actions  Against  Wife. 

Under  the  Wisconsin  Married  Women's  Act  the  only  contracts 
which  can  be  enforced  against  the  wife  at  law  are  those  affecting 
her  separate  estate.®' 

Under  the  Illinois  statute  making  the  spouses  jointly  liable  for 
family  expenses,  a  wife  cannot  be  made  liable  for  rent  under  a 
written  lease  to  which  she  is  not  a  party,  though  she  occupied  the 
premises  with  her  husband  as  a  home,  since  the  statute  is  not 
merely  remedial,  but  creates  a  liability  independent  of  the  relation 
of  landlord  and  tenant.^®  Under  the  same  statute  a  creditor  may 
recover  against  the  wife  after  the  action  against  the  husband  has 
been  dismissed,  the  statute  creating  a  joint  and  several  liability.*' 

The  Maryland  statute  providing  that  a  wife  may  be  sued  jointly 
with  her  husband  on  notes,  bills,  contracts  and  agreements  applies 
only  to  contracts  wholly  in  writing  and  signed  by  both.^°  This 
statute  has  been  held  applicable  to  a  joint  note,  payable  to  his 
order,  when  indorsed  bv  him.®^ 

In  Xew  Jersey  it  has  been  held  that  where  a  husband  gave  his 
wife's  void  notes  in  part  payment  for  property,  he  continuing 
liable  for  that  part  of  the  debt,  her  mortgage  to  secure  such  notes 
might  be  enforced.®^ 

In  Nebraska,  in  order  to  bind  a  wife  on  her  note,  it  must  appear 
ihat  the  note  was  given  in  reference  to  and  on  the  credit  of  and 
with  intent  to  charge  her  separate  estate.®^  In  the  same  State  it 
is  held  that  since  the  wife's  note  given  to  secure  the  debt  of  a  third 
person  is  void,  because  in  violation  of  statute,  it  could  not  be 
enforced  at  law,  but  might  be  enforced  in  equity  where  the  wife 
received  a  consideration  for  her  contract.** 

In  Greorgia,  where  a  wife's  note  is  in  part  for  her  own  debt  and 

86.  Grayson  County  Xat.  Bank  v.  jamin,  84  Md.  333,  35  A.  930,  57 
TVandelohr,  105  Tex.  226,  146  S.  W.       Am.  St.  E.  402. 

1186,  91.    Taylor   v.    Welslager,    90    Md. 

87.  Mueller  v.  Wiese,  95  "Wis.  381,       409,  45  A.  476. 

TO  N.  W.  485.  92.  Colonial  Building  &  Loan  Ass'n 

88.  Houghteling  v.  Walker,  100  F.  v.  Griffin,  85  N.  J.  Eq.  455,  96  A. 
253    (affd.,   107   F.   619,  46  C.  C.  A.       901. 

512).  93.  Stenger  Benev.  Ass'n  v.  Stenger, 

89.  Richardson  v.  W.  L.  Robinson       54  Neb.  427,  74  N.  "W.  846. 

real  Co.,  95  111.  App.  2S3.  94.  Hollister  v.  Bell,  107  Wis.  198, 

90.  Harvard  Publishing  Co.  v.  Ben-       83  N.  W.  297. 


§    684:  HUSBAND    AND    WIPE.  708 

in  part  for  the  debt  of  the  husband,  the  payee  may  recover  against 
her  that  part  which  the  evidence  shows  is  her  own  debt.®^  In  the 
same  State  she  is  not  liable  where  her  note  and  mortgage  given  to 
secure  a  loan  are  colorable  and  intended  to  subject  her  estate  to 
her  husband's  debt,  if  the  lender  knows  of  the  collusion.®® 

Under  the  District  of  Columbia  Married  Women's  Act  a  wife 
may  indorse  her  husiband's  note  to  a  third  person  even  where  it  is 
payable  to  her,  and  such  third  person  may  maintain  an  action 
against  the  husband  thereon.*^ 

95.  Jones  v.  Harrell,  110  Ga.  373,  97.  Bronson  v,  Brady,  28  App.  D. 
35  S.  E.  690.                                                   C.   250;    Deusenberry  v.   Deuaenberry 

96.  Summers  v.  Lee,  10  Ga.  App.       (W.  Va.),  95  S.  E.  665. 
441,  73  S.  E.  602. 


PART.  III. 

PAEENT    AND    CHILD. 


CHAPTER   I. 
THE  RELATION   IN   GENERAL,. 

Section  685.  Definitions. 

686.  Stepchildren. 

687.  One  Standing  in  Loco  Parentis. 

688.  Gifts  between  Parent  and  Child. 

689.  Clothing,  Money,  etc.,  given  to  the  Child;  Right  to  Insure. 

690.  Contracts  between  Parent  and  Child. 

691.  Suits  between  Child  and  Parents. 

692.  Privileged  Communication  to  Parent. 

693.  Constitutional  Eight  of  Legislature  to  Interfere  with  Parent. 

§  685.  Definitions. 

A  parent  is  one  who  has  generated  a  child  and  is  a  father  or 
mother,®*  and  a  "  child  "  means  a  legitimate  child  in  law." 

§  686.  Stepchildren. 

It  is  well  settled  that  in  the  absence  of  statutes  a  person  is  not 
entitled  to  the  custody  and  earnings  of  stepchildren,  nor  bound  by 
law  to  maintain  them.^     At  common  law  a  husband  is  not  bound 

98.  Ellis  V.  Hewitt,  15  Ga.  App.  693,  fies  as  guardian  of  the  stepchild,  and, 
84  S.  E.  185;  7»  re  Tombo,  149  N.  T.  never  having  assumed  the  latter 's 
S.  219,  86  Misc.  361  (or.  rev.,  14?  N.  care  and  support,  charges  for  neces- 
y.  S.  688,  164  App.  Div.  392).  saries   in   her   accounts,   he   does   not 

99.  Champion  v.  McCarthy,  228  111.  stand  in  loco  parentis.  Gerber  v. 
87,  81  N.  E.  808,  11  L.  R.  A.  (N.  S.)  Bauerline,  17  Ore.  115.  So,  too, 
1052 ;  Landry  v.  American  Creosote  where  he  contracts  ivith  the  child 's 
Works,  119  La.  231,  43  So.  1016,  11  guardian  for  its  support  upon  recom- 
L.  R.  A.  (N.  S.)  387;  Batchelder  v.  pense.  Ackerman,  Ee,  116  N.  Y.  654. 
Walworth,  82  A.  7;  Mutual  Life  Ins.  The  child's  right  to  the  beneficial  use- 
Co.  of  New  York  v.  Good,  25  Colo.  of  his  own  property,  inclusive  cf  a 
204    136  P.  821.  farm    on    which    his    stepfather   lives 

1.  Tubb  V.  Harrison,  4  T.  R.  118 ;  with  his  mother,  is  regarded  on  a  mu- 

2   Kent   Com.   192 ;    Freto   v.   Brown,  tual  accounting  in  such  capes.   Spring- 

4  Mass.  675;  Worcester  v.  Marchant,  field  v.  Bethel,  Q-Q  Ky.  593;  Capek  v. 

14  Pick.  510;  supra,  §  237;  Attridge  Kropik,  129  111.  509.     As  to  an  adult 

V.  BiUings,  57  111.  489;   McMahill  v.  stepdaughter's    claim    founded    upon 

McMahill,  113  111.  461;  Besondy,  Ee,  expres  contract,  see  Ellis  v.  Carey,  74 

32  Minn.  385.     If  a  stepfather  quali-  Wis.  176. 

709 


§  686 


PARENT    AND    CHILD. 


'10 


to  support  the  children  of  his  Avife  by  a  former  marriage,^  and  a 
widow  is  not  bound  legally  to  support  her  stepchildren.^ 

Yet  if  a  stepfather  voluntarily  assumes  the  care  and  support  of 
a  stepchild,  he  stands  in  loco  parentis  for  the  time  being ;  and  the 
presumption  then  is,  that  they  deal  with  each  other  as  parent  and 
child,  and  not  as  master  and  servant ;  in  which  case  the  ordinary 
rules  of  parent  and  child  will  be  held  to  apply ;  and  consequently 
neither  compensation  for  board  is  presumed  on  the  one  hand,  nor 
for  services  on  the  other/  and  he  cannot  recover  for  their  support,^ 


2.  Kempson  v.  Goss,  69  Ark.  451,  6-t 
S.  W.  224;  Freeman  v.  Freeman,  11 
Ky.  Law,  822,  13  S.  W.  246;  Living- 
ston V.  Hammond,  162  Mass.  375,  38 
N,  E.  968;  White  v.  McDowell,  74 
Wash.  44,  132  P.  734. 

3.  Staal  V.  Grand  Eapids  &  I.  E. 
Co.,  57  Mich.  239,  23  N.  W.  795;  Pope- 
joy  V.  Hydraulic  Press  Brick  Co.,  193 
Mo.  App.  612,  186  S.  W.  1133. 

4.  Cooper  v.  Martin,  4  East,  77; 
Williams  v.  Hutchinson,  3  Comst.  312; 
Sharp  V.  Cropsey,  11  Barb.  224;  Mur- 
dock  V.  Murdock,  7  Cal.  511;  Gillett 
V.  Camp,  27  Mo.  541;  Hussee  v. 
Eoundtree,  Busbee,  110;  Lantz  v. 
Frey,  14  Penn.  St.  201;  Davis  v. 
Goodenow,  27  Vt.  715;  Brush  v. 
Blanchard,  18  111.  46;  St.  Ferdinand 
Academy  v.  Bobb,  52  Mo.  357;  Smith 
V.  Eogers,  24  Kan.  140;  Mowbry  v. 
Mowbry,  64  111.  383;  Livingston  v. 
Hammond  (1894),  Mass.;  149  111.  195. 
Homestead  rights  are  thus  acquired 
by  a  stepfather.  HoUoway  v.  Hollo- 
way,  86  Ga.  576.  As  to  a  stepchild 
remaining  after  attaining  majority, 
see  Wells  v.  Perkins,  43  Wis.  160; 
Harris  v.  Smith,  79  Mich.  54.  For 
claims  upon  the  estate  of  a  deceased 
stepson,  see  Gayle  v.  Hayes,  79  Va. 
642 ;  Chicago  Manual  Training  School 
Ass'n  V.  Scott,  159  111.  App.  350  (duty 
to  support) ;  Burba  v.  Eichardson,  14 
Ky.  Law,  233;  Coakley  v.  Coakley, 
216  Mass.  71,  102  N.  E.  930;  State 
ex  rel.  Deckard  v.  Macom,  —  Mo. 
App.  — ,  186  S.  W.  1157. 

The  stepdaughter  may  recover  for 
necessaries     furnished     her     imbecile 


stepfather  who  was  brought  to  her 
house  by  those  having  charge  of  his 
property.  Bell  v.  Eice,  50  Neb.  547, 
70  N.  W.  25. 

Where  the  stepson  has  reached  his 
majority  and  lives  separately  from  the 
stepfather  the  latter  does  not  stand 
in  loco  parentis.  Davis  v.  Gallagher, 
55  N.  Y.  S.  1060,  37  App.  Div.  626. 

5.  In  re  Harris,  16  Ariz.  1,  140  P. 
825;    Grossman    v.    Lauber,    29    Ind. 
618;  Huber  v.  Eoth,  91  Kan.  134,136 
P.    794;    Dixon    v.    Hosick,    101    Ky. 
231,  41  S.  W.  282,  19  Ky.  Law,  387 
Swetman  v.  Swetman,  8  Ky.  Law,  266 
Hickman  v.  Tudor,  8  Ky.  Law,  424 
Eowland  v.  Manons,  8  Ky.  Law,  618 
Dawson  v.  Harper,  12  Ky.  Law,  142 
Keubler  v.  Taylor,  15  Ky.  Law,  334. 

Where  the  stepfather  is  needy  and 
becomes  the  legal  guardian  of  his  step- 
children the  court  may  in  equity  allow 
him  for  their  support  out  of  their  es- 
tate. Hill  V.  Moore,  8  Ky.  Law,  538 ; 
Livingston  v.  Hammond,  162  Mass. 
375,  38  N,  E.  968. 

Where  the  mother's  children  are 
provided  for  hy  hoth  mother  and  step- 
father there  is  no  presumption  that 
319 — 5840-Bender-Domestic  Eolations 
the  stepfather's  support  is  gratuitous. 
Eiken  v.  Eiken,  79  Minn.  360,  82  N. 
W.  667;  Daniel  v.  Tolon  (Okla.),  157 
P.  756. 

See  Kempson  v.  Goss,  69  Ark.  235, 
62  S.  W.  582  (where  the  parent  had 
assumed  to  support  the  stepchildren 
only  with  their  means  on  their  farm, 
he  may  be  allowed  for  support  he  fur- 
nishes them). 


711 


IN    GENERAL. 


687 


and  can  recover  for  injury  to  them  as  if  they  were  his  own  chil- 
dren where  there  is  loss  of  services.® 

The  children  are  not  liable  for  contracts  made  by  the  stepparent 
in  the  absence  of  authority.'^  The  fact  that  the  stepchild  is  taken 
into  the  family  does  not  prevent  his  recovery  against  the  step- 
father of  money  loaned  by  the  stepchild  to  the  stepfather.^  As  to 
third  parties,  the  usual  test  is  whether  one  has  held  out  the  child 
as  a  member  of  his  own  family.® 

§  687.  One  Standing  in  Loco  Parentis. 

One  who  accepts  the  gift  of  a  child  from  the  parents  stands  in 
loco  parentis/'^  and  has  the  same  rights  and  duties  as  the  regular 


6.  Kirchgassner  v.  Rodiek,  170  Mass 
543,  49  N,  E.  1015;  Eickhoff  v.  Se 
dalia,  W.  &  S.  W,  Ry.  Co.,  106  Mo 
App.  541,  80  S.  W.  966;  Wessel  v, 
Gerken,  73  N.  Y.  S.  192,  36  Misc.  221 

7.  Butler  v.  Stark,  25  Ky.  Law 
1886,  79  S.  W.  204;  Stone  v.  Pulsi 
pher,  16  Vt.  428. 

8.  Youngblood  v.  Hoeffle,  Tex.  Civ. 
App.  201  S,  W.  1057. 

9.  St.  Ferdinand  Academy  v.  Bobb, 
52  Mo.  357;  Whitaker  v.  Warren,  60 
N  H.  20. 

For  an  adopted  child  the  doctrine 
in  loco  parentis  is  applied  as  to  ser- 
vices and  wages  in  Brown  v.  Welsh,  27 
N.  J.  Eq.  429.  See  supra,  §  232.  In 
the  case  of  distant  relatives  and 
strangers,  any  presumption  that  one 
goes  to  live  in  the  household  on  the 
footing  of  member  of  the  family  in- 
stead of  servant  is  less  strong  than 
where  one  is  a  child;  and  such  pre- 
sumption is  more  readily  overcome  by 
circumstantial  evidence.  Thornton  v. 
Grange,  66  Barb.  (N.  Y.)  507;  Tyler 
v.  Burrington,  39  Wis.  376;  Neal  v. 
Gilmore,  79  Pa.  421.  And  as  to  in- 
ferring a  claim  for  a  young  child's 
support  against  the  child's  own  par- 
ent, see  Carroll  v.  McCoy,  40  la.  38; 
Thorp  V.  Bateman,  37  Mich.  68.  As 
to  strangers,  indeed,  when  the  child 
is  old  enough  to  perform  valuable  ser- 
vice beyond  the  worth  of  support,  the 
presumption  is  rather  that  of  a  con- 


tract relation  for  compensation.  In 
general,  the  estate  of  one  who  has  con- 
tracted for  services  to  be  rendered  to 
the  family  is  liable  for  the  same  per- 
formed after  his  deatl..  Toland  v. 
Stevenson,  59  Ind.  485;  Frost  v.  Tarr, 
53  Ind.  390;  Hauser  v.  Sain,  74  N. 
C.  552;  Shakespeare  v.  Markham,  17 
N,  Y.  Super.  311;  Schouler,  Execu- 
tors, §  432.     But  cf.  §  474, 

10.  City  of  Albany  v.  Lindsey,  11 
Ga.  App.  573,  75  S.  E.  Q^ll;  In  re 
Korte,  139  N.  Y.  S.  444,  78  Misc.  276; 
Hudson  V.  Lutz,  5  Jones,  217;  Butler 
V.  Slam,  50  Pa.  456;  Sehrimpf  v. 
Settegast,  36  Tex.  296;  Hays  v.  Mc- 
Connell,  42  Ind.  285;  Bixler  v.  Sell- 
man,  77  Md.  494;  Windland  v.  Deeds, 
44  la.  98.  But  the  presumption,  as 
between  son-in-law  and  father-in-law, 
is  that  they  deal  on  the  mutual  footing 
of  debtor  and  creditor.  Wright  v. 
Donnell,  34  Tex.  291;  Schoch  v.  Gar- 
rett, 69  Pa.  144;  Rogers  v.  Millard, 
44  la.  466.  But  cf.  supra,  Hus.  & 
Wife,  §  71.  All  this  is  matter  of  evi- 
dence upon  the  facts.  Coe  v.  Wager, 
42  Mich.  49;  Dissenger's  Case,  39  N. 
J.  Eq.  227;  Norton  v.  Ailor,  11  Lea, 
563 ;  Ela  v.  Brand,  63  N.  H.  14. 

Where  the  parent  by  his  will  leaves 
to  A  a  devise  or  legacy  to  support  and 
educate  his  child,  acceptance  by  A  of 
the  gift  obligates  him  to  perform  ac- 
cordingly. Watt  V.  Pittman,  125  Ind. 
168. 


§  688 


PARENT    AND   CHILD. 


Y12 


parent/^  and  is  bound  for  its  maintenance  and  support,^^  and  is 
not  responsible  for  reasonable  punishment  given  the  child. ^^  One 
standing  in  loco  parentis  can  claim  allowance  for  support  onlj 
where  there  was  an  intention  at  the  time  to  make  such  charge." 

§  688.  Gifts  Between  Parent  and  Child. 

Gifts  between  members  of  the  same  family  are  not  greatly  to  be 
favored;  and  as  to  the  father's  alleged  gift  to  his  child,  the  pre- 
sumption must  be  strongly  in  favor  of  the  father's  continued 
possession  as  head  of  the  family.  Yet  where  there  is  sufficient 
proof  of  a  gift  from  father  to  child,  fully  executed  by  delivery, 
it  will  be  upheld  as  irrevocable.^^  Such  a  gift  should  be  perfected 
in  order  to  be  sustained  afterwards  against  him,  and  if  by  parol 
it  should  be  direct,  positive,  and  clear.  The  parent's  promise  to 
give  cannot  be  enforced  on  the  child's  behalf,  against  him  or  his 
estate,  on  a  mere  consideration  of  love  and  affection.  But  the 
parent  in  equity  may  settle  property  on  his  children  as  well  as  his 
wife,^^  and  a  gift  by  a  parent  to  a  child  will  be  supported  and 
there  is  no  presumption  of  law  against  its  validity,^'  and  a  con- 


11.  Kelly  V.  Illinois  Cent.  R.  Co., 
125  Ky.  1,  100  S.  W.  239,  30  Ky.  Law, 
1062;  Saunders  v.  Alvido  &  Laserre, 
52  Tex.  Civ.  App.  356,  113  S.  W.  992. 

12.  Howard  v.  Randolph,  134  Ga. 
691,  68  S.  E.  586. 

13.  Fortinberry  v.  Holmes,  89  Miss. 
373,  42  So.  rgg'  (although  mother 
stated  child  not  to  be  whipped)  ;  Dix 
V.  Martin,  171  Mo.  App.  266,  157  S. 
W.  133. 

14.  Smith  V.  Plew,  171  111.  App. 
222;  In  re  Tucker,  74  Mo.  App.  131; 
State  ex  rel.  Deckard  v.  Macom,  — 
Mo.  App.  — ,  186  S.  W.  1157. 

15.  Kellogg  V.  Adams,  51  Wis.  138. 
Ordinarily  a  beneficial  deed  of  real 
estate,  taken  by  the  father  in  the 
name  of  his  child,  is  presumed  to  be  a 
gift  to  the  child.  Francis  v.  Wilkin- 
son, 147  111.  370.  Even  though  the 
father  keeps  possession  of  the  deed. 
Hayes  v.  Boylan,  141  111.  400;  Davis 
V.  Garrett,  91  Tenn.  147.  And  if  the 
deed  reserves  express  rights  to  the 
parents,  and  is  recorded,  this  presump- 
tion becomes  the  stronger.  Compton 
v.  White,  86  Mich.  33.     But  with  no 


apparent  intent  to  deliver  and  no 
record,  the  case  may  be  otherwise. 
Cazassa  v.  Cazassa,  92  Tenn.  573.  See 
also  Yeakel  v,  McAtee,  156  Pa.  600; 
Harrison  v.  Harrison,  36  W.  Va.  556. 
A  note  given  by  the  father  to  the 
child  may  be  shown  to  be  a  gift.  Rey- 
nolds V.  Reynolds,  92  Ky.  556. 

16.  Bourquin  v.  Bourquin,  110  Ga. 
440,  35  S.  E.  710;  Bunnell  v.  Bunnell, 
111  Ky.  566,  64  S.  W.  420,  23  Ky. 
Law,  800,  111  Ky.  566,  65  S.  W.  607, 
23  Ky.  Law,  1101. 

Possession  by  a  son  of  his  father's 
farm  does  not  show  a  contract  of  sale 
but  was  entirely  consistent  with  a 
license  to  use  it  merely.  Hubbard  v. 
Hubbard,  140  Mo.  300,  41  S.  W.  749; 
James  v.  Aller,  66  N.  J.  Eq.  52,  57  A. 
476,  68  N.  J.  Eq.  666,  62  A.  427,  111 
Am.  St.  R.  654;  Powers  v.  Powers,  46 
Ore.  479,  80  P.  1058. 

17.  Kennedy  v.  McCann,  101  Md. 
643,  61  A.  625  (although  the  gift 
prevents  the  parent  from  making  simi- 
lar gifts  to  other  children)  ;  Jenning 
V.  Rohde,  9^  Minn.  335,  109  N.  W. 
597 ;  James  v.  Aller,  68  N.  J.  Eq.  666, 


713 


IN    GENERAI.. 


§  688 


veyance  hj  a  parent  lo  minor  children  will  be  presumed  to  be  a 
gift,^®  and  a  deed  by  a  parent  to  a  child  on  account  of  love  and 
affection  may  be  sustained  in  the  absence  of  evidence  of  undue 
influence,"  and  acceptance  of  a  deed  recorded  executed  by  a  father 
to  his  children  will  be  presumed,^"  as  it  is  always  presumed  that 
in  transactions  between  them  the  parent  dominates  and  is  free 
from  undue  influence,^^  but  this  presumption  may  be  rebutted,  as 
where  the  parent  is  senile.^" 

All  family  arrangements  of  the  filial  kind,  whether  child  or 
parent  be  the  weaker  party,  should,  in  order  to  stand  firmly,  be 
free  from  fraud  or  undue  influence  on  either  side,  and  made  in 
good  faith;  or  equity  will  readily  set  them  aside.^^  And  if  a 
valuable  consideration  be  interposed,  the  settlement  is  supported 
more  firmly ;  and  specific  performance  of  an  executory  promise  to 
transfer  may  be  in  some  instances  decreed,^* 

On  the  other  hand,  while  an  adult  child  may  make  a  binding 
transfer  or  conveyance  of  property  to  the  parent,  any  such  transfer 
by  way  of  gift  or  improvident  contract,  made  just  after  attaining 
majority,  or  while  in  general  under  undue  parental  control  and 


62  A.  427,  111  Am.  St.  R.  654  (re- 
versing 66  N.  J.  Eq.  52,  57  A.  476 
[although  of  substantially  all  the  par- 
ents property] )  ;  Turner  v.  Turner,  31 
Okla.  272,  121  P.  616  j  Burns  &  Bell 
V,  Lowe  (Tex.  Civ.  App.),  161  S. 
W.  942;  Brewer  v.  Lohr,  35  Pa.  Super. 
Ct.  461  (parol  gift  of  land). 

18.  Eeeves  v.  Simpson,  (Tex.  Civ. 
App.),  144  S.  W.   361. 

19.  Becker  v.  Schwerdtle,  6  Cal.  App. 
462,  92  P.  398;  In  re  Acken's  Estate, 
144  Ala.  519,  123  N.  W.  187. 

20.  Mullins  v.  Mullins,  120  Ky.  643, 
87  S.  W.  764,  27  Ky.  Law,  1048;  Jen- 
ning  V.  Ehode,  99  Minn.  335,  109  N. 
W.  597. 

21.  Neal  v.  Neal,  155  Ala.  604,  47 
So.  66;  Hawthorne  v.  Jenkins,  182 
Ala.  255,  62  So.  505;  Sanders  v.  Gur- 
ley,  153  Ala.  459,  44  So.  1022;  Betz  v. 
Lovell  (Ala.),  72  So.  500;  Dolberry 
V.  Dolberry,  153  Ala.  434,  44  So, 
1018 ;  Vaughn  v.  Vaughn,  217  Pa.  496, 
66  A.  745. 

22.  Dolberry  v.  Dolberry,  153 
Ala.  434,  44  So.  1018 ;  Nobles  v.  Hut- 


ton,  7  Cal.  App.  14,  93  P.  289 ;  In  re 
Hoffman's  Estate,  32  Pa.  Super.  Ct. 
646. 

23.  Pevehouse  v.  Adams,  153  P.  65; 
Taylor  v.  Staples,  8  R.  I.  170;  Van 
Donge  V.  Van  Donge,  23  Mich.  321; 
Rider  v.  Kelso,  53  la.  367;  Miller  v. 
Simonds,  72  Mo.  669 ;  Jacox  v.  Jacox, 
40  Mich.  473;  Mackall  v.  Mackall, 
135  U.  S.  167.  Cf.  Francis  v.  Wilkin- 
son, 147  II.  370.  See  Ellis  v.  Hogan, 
147  Gas.  609,  95  S.  E.  4  (relation  be- 
tween stepmother  and  stepchild  is  not 
confidential). 

24.  As  where  a  writing  declared  a 
valuable  consideration  for  the  promise 
to  convey  land,  and  actual  entry  and 
improvement  had  taken  place  upon  the 
faith  of  the  contract.  Hagar  v.  Hagar, 
71  Mo.  610.  And  see  Haitt  v.  Wil- 
liams, 72  Mo.  214 ;  Kurtz  v.  Hibner, 
55  111.  514.  As  to  raising  an  equity 
by  reason  of  a  meritorious,  but  not 
valuable  consideration,  for  enforcing 
an  incomplete  gift,  see  Landon  v. 
Hutton,  50  N.  J.  Eq.  500. 


§    688  PAEE^'T    AND    CHILD.  714: 

influence,  will  be  jealously  regarded  by  courts  of  equity.'^  The 
principle  of  equity  is,  that  if  there  be  a  pecuniary  transaction 
between  parent  and  child,  just  after  the  child  attains  the  age  of 
twenty-one  years,  and  prior  to  what  may  be  called  a  complete 
emancipation,  without  any  benefit  moving  to  the  child,  the  pre- 
sumption is,  that  an  undue  influence  has  been  exercised  to  procure 
that  liability  on  the  part  of  the  child ;  and  that  it  is  the  business 
and  the  duty  of  the  party  who  endeavors  to  maintain  such  a  trans- 
action, to  show  that  such  presumption  is  adequately  rebutted ;  but 
that  the  presumption  may  always  be  removed.^® 

On  the  other  hand,  in  transactions  between  members  of  the  same 
family,  even  though  that  relation  subsists  between  them,  from 
whence  the  court  will  infer  the  moral  certainty  of  the  existence  of 
considerable  influence,  and  the  probability  of  its  having  been  exer- 
cised, yet  if  the  transaction  be  one  that  tends  to  the  peace  or 
security  of  the  family,  to  the  avoiding  of  family  disputes  and 
litigation,  or  to  the  preservation  of  the  family  property,  the  prin- 
ciples by  which  such  transactions  must  be  tried  are  not  those 
applicable  to  dealings  between  strangers,  but  such  as  on  the  most 
comprehensive  experience  have  been  found  to  be  most  for  the 
interest  of  families."^  And  even  a  deed  of  land  from  a  parent  to 
a  child  for  the  consideration  of  love  and  affection  is  not  absolutely 
void  as  against  creditors.  The  want  of  a  valuable  consideration 
may  be  a  badge  of  fraud ;  but  if  so,  it  is  only  presumptive,  not 
conclusive,  evidence  of  it,  and  may  be  met  and  rebutted  by  oppos- 
ing evidence.^^     This  is  the  American  rule;    though,  as  we  have 

25.  Cooley  v.  Stringfellow,  164  Ala.  quit  served  by  delivery  to  one  of  them 
460,  51  So.  321  (deed  sustained) ;  in  such  a  manner  as  to  entitle  the 
Giers  v.  Hudson,  102  Ark.  232,  143  S.  the  landlord  to  maintain  ejectment 
W.  916;  Savery  v.  King,  35  E.  L.  &  against  the  father,  to  whom  the  notice 
Eq.  100.  And  see  Baker  v.  Bradley,  had  been  addressed.  Tanham  v. 
Ih.  449;  Wright  v.  Vanderplank,  39  Nicholson,  L.  E.  5  H.  L.  561.  Mort- 
E.  L.  &  Eq.  147 ;  Turner  v,  Collins,  L.  gage  by  emancipated  children  over 
E.  7  Ch.  329.  age,  to  secure  a  debt  of  their  father, 

26.  Archer  v.  Hudson,  7  Beav.  551,  upheld  in  favor  of  the  mortgagee,  but 
per  Lord  Langdale.  See  Houghton  v.  not  in  favor  of  the  father.  Bain- 
Houghton,  11  E.  L.  &  Eq.  134;  s.  c,  15  bridge  v.  Brown,  50  L.  J.  Ch.  522. 
Beav.  278,  where  this  subject  is  fully  28.  Hinde's  Lessee  v.  Longworth,  11 
discussed.  See  also  American  case  of  "Wheat.  213;  Seward  v.  Jackson,  8 
Bergen  v.  Udall,  31  Barb.  (N.  Y.)  9.  Cow.   406;    Haines  v.  Haines,  6  Md. 

27.  Master  of  Eolls  in  Houghton  v.  435;  Kain  v.  Larkin,  131  X.  T.  300; 
Houghton,  supra.  Lord   v.    Locke,    62    N.    H.    566.      A 

An  imbecile  father  living  with  his  father  may  serve  gratuitously  as  trus- 
grown  children  may  have  a  notice  to      tee  or  guardian  for  his  child,  and  his 


715 


IN    GENERAL. 


§    G89 


seen,  the  statutes  of  Elizabeth  with  reference  to  voluntary  settle- 
ments do  not  receive  a  uniform  interpretation  in  our  State  courts. 
There  are  doubtless  circumstances  under  which  a  father's  volun- 
tary settlement,  whether  upon  minor  or  adult  children,  would  be 
set  aside  as  a  fraud  upon  subsequent  and  still  more  upon  existing 
creditors.^' 

§  689.  Clothing,   Money,   &c..   Given  to  the  Child;    Right  to 
.  Insure. 

Where  a  father  furnishes  his  minor  child  with  clothing,  such 
clothing  is  the  property  of  the  father,  and  he  may  maintain  an 
action  for  the  loss  and  injury  thereof;  but  where  he  intrusts  the 
child  with  a  sum  of  money  for  general  purposes,  without  specific 
directions  to  its  appropriation,  and  the  child  buys  clothing  with  it, 
such  clothing  is  not  the  property  of  the  father.^" 

The  parent  may  give  articles  by  parol  to  his  child,  and  after- 
wards resume  them,  there  being  no  consideration.^^  If  a  young 
child  makes  foolish  and  unnecessary  outlay,  the  parent  may  repu- 
diate the  transaction ;  but  he  should  do  so  at  once,  and  make 
restitution,  rather  than  benefit  by  the  transaction.^ 


32 


creditors  cannot  compel  him  to  charge 
the  trust  for  their  benefit.  Ten  Broeck 
V.  Fidelity  Trust  &  Safety  Vault  Co., 
88  Ky.  242. 

29.  See  Carter  v,  Grimshaw,  49  N. 
H,  100 ;  Wilson  v.  Kohlheim,  46  Miss. 
346;  Kayo  v.  Crawford,  22  Wis.  320; 
Monell  V.  Scherrick,  54  111.  269 ;  Gard- 
ner V.  Schooley,  25  N.  J.  Eq.  150; 
Guffin  V.  First  Nat.  Bank,  74  111.  259'. 
No  express  contract  need  be  proved  to 
enable  a  son  to  recover  from  his  fa- 
ther's  estate  for  a  house  built  by  the 
eon  on  the  father's  land  in  the  life- 
time of  the  latter  with  the  latter 's 
knowledge  and  consent.  Byers  v. 
Thompson,  66  111,  421;  Kortz  v. 
Hibner,  55  111.  514;  Hillebranda  v. 
Nibbelink,  44  Mich.  413.  Listing  the 
father's  personal  property  for  taxa- 
tion in  the  son 's  name  affords  no  pre- 
sumption of  a  gift  which  may  not  be 
disputed  by  evidence.  Saunders  and 
Wife  V.  Greever,  85  Va.  252. 

30.  Dickinson  v.  Winchester,  4  Cush. 
114^  Parmlee  v.   Smith,  21   111.   620; 


Prentice  v.  Decker,  49'  Barb.  21. 

31.  Cranz  v.  Kroger,  22  111.  74;  Sto- 
vall  V.  Johnson,  17  Ala.  14. 

32.  See  Sequin  v.  Peterson,  45  Vt. 
255,  and  cases  cited.  Here  the  child, 
eleven  years  old,  having  bought  cigar- 
holders,  pipes,  &c.,  of  a  shopkeeper, 
the  father  was  allowed  to  recover  the 
money  in  his  own  name,  upon  prompt- 
ly repudiating  the  contract  and  mak- 
ing his  demand.  Money  intrusted  to 
a  minor  son  for  a  specific  purpose,  and 
applied  by  him  without  his  father's 
assent  in  compounding  his  own  crime, 
may  be  recovered  by  the  father  from 
the  receiver  upon  a  similar  principle. 
Burnham  v.  Holt,  14  N.  H.  367. 
Aliter,  if  the  father  assented  to  the 
payment,  or  if  the  money  was  paid 
solely  as  civil  damages  in  settlement 
of  a  trespass.  Ih.  In  Condon  v. 
Hughes,  92  Mich.  367,  the  father  was 
not  allowed  to  repudiate,  even  with 
restitution,  where  he  used  a  colt  for 
some  months  which  the  son  purchased 


§  690  PARENT  AND  CHILD.  716 

A  father  has  a  pecuniary  interest  in  the  life  of  a  minor  child, 
and  an  insurance  of  the  life  of  such  child  is  not  within  the  rule  of 
law  by  which  wager  policies  are  declared  void.^^  On  the  other 
hand,  a  minor  child  has  an  interest  in  an  insurance  policy  on  the 
father's  life  which  has  been  taken  out  for  his  benefit,  and  of  this 
interest  he  cannot  be  deprived  by  arbitrary  acts  in  favor  of 
another.^*  Where  a  father  takes  out  a  policy  of  life  insurance 
on  his  own  life  for  the  benefit  of  his  children  an  irrevocable  trust 
is  created,  and  the  father  cannot,  in  the  absence  of  some  power 
reserved,  surrender  the  policy.  The  fact  that  the  father  by  statute 
is  made  the  natural  guardian  of  his  minor  children  gives  him  no 
right  to  surrender  such  a  policy,  as  such  statute  will  be  construed 
to  give  the  father  only  the  rights  he  had  at  common  law,  and  by 
that  law  guardianship  by  nature  extends  only  to  the  custody  of 
the  person.  It  gives  the  father  no  right  or  control  over  the  infant's 
property,  real  or  personal.^^ 

§  690.  Contracts  Between  Parent  and  Child. 

Contracts  between  parents  and  children  are  to  be  carefully 
scrutinized  by  the  courts  as  being  between  fiduciaries  when  the 
child  is  the  dominant  party,^®  but  may  be  binding,^^  and  agree- 
ments for  sale  between  them  will  be  sustained  if  sufiicient  in  law." 

A  contract  between  parent  and  child  by  which  the  parent  trans- 
fers property  to  the  child  in  consideration  of  support  will  be 
upheld  if  fair.^^ 

To  support  a  general  contract  between  a  parent  and  his  adult 
child,  as  against  strangers,   a  slight  consideration  is  often  held 

out  of  hia  own  earnings.     See  also  §  Baker's  Adm'rs,   13   Ky.  Law,   876; 

241.  Tucker  v.  Tucker,  27  Mich.  204   (par- 

33.  Mitchell  v.  Union,  &c.,  Ins  Co.,  ent  must  be  reasonable  in  executing 
45  Me.  104.  But  -see  Worthington  v.  indefinite  contract).  See  Wamsley  v. 
Curtis,  1  Ch.  D.  419.  Wamsley,  62  N.  Y.  S.  954,  48  App. 

34.  Kicker  v.  Charter  Oak  Ins.  Co.  Div.  330. 

27  Minn.   193;   Martin  v.  Aetna  Ins.  38.  Brooks  v.  Buie,  71  Ark.  44,  70 

Co.,  73  Me.  25  (an  adopted  child).  S.    W.    464    (oral    agreement    insuffi- 

35.  Ferguson  v.  Phoenix  Mutual  cient) ;  Hodgson  v.  Macy,  8  Ind.  121. 
Life  Ins.  Co.  (Vt.),  79  Atl.  997,  35  39.  Sanders  v.  Gurley,  153  Ala.  459, 
L.  E.  A.  (N.  S.)  844.  44   So.    1022;    Carter   v.   McNeal,   86 

36.  Allen  v.  La  Vaud,  107  N.  E.  570,       Ark.  150,  110  S.  W.  222. 

213  N.  T.  322  (rev.  judg.,  144  N.  Y.  Where    the    mother   lives   with   the 

S.   1103,  159  App.  Div.  914).  daughter    under    such    circumstances 

37.  Williams  v.  Canary,  161  C.  C.  A.  that  no  agreement  to  pay  for  her  ser- 
352,  249  F.  344;  Epps  v.  Story,  109  vices  can  be  implied,  there  is  no  con- 
Ga.  302,  34  S.  E.  662;  Lee  v.  Page,  8  sideration  for  the  mother's  transfer 
Ky.  Law,  602,  2  S.  W.  503 ;  Means  v.  of  property   to   the   daughter  in   the 


717 


IN    GENERAL. 


§  691 


sufficient.  And  a  deed  of  personal  property  from  parent  to  child, 
the  parent  not  being  indebted  at  the  time,  by  which  it  is  agreed 
that  the  parent  shall  keep  possession  during  life,  is  not  considered 
void.*"  So  it  is  held  that  a  bond  executed  by  a  son  to  his  parent 
for  $500,  with  interest  semi-annually  if  demanded,  is  upon  valu- 
able consideration,  sufficient  to  sustain  a  conveyance  of  land  as  a 
purchase.*^ 

Where  a  son  purchases  and  stocks  a  farm  as  a  home  for  an 
indigent  father,  who  resides  and  labors  thereon,  the  products  are 
not  subject  to  attachment  as  the  son's  property.*"  On  the  other 
hand,  where  a  parent  permits  the  child  to  receive  and  invest  his 
earnings,  the  benefit  of  the  investment  belongs  to  the  child,  espe- 
cially as  against  creditors  of  the  father.*^  And  in  some  States,  a 
minor  child  who  improves  and  settles  a  tract  of  land  with  the 
father's  permission  may  acquire  a  title  by  making  valuable  im- 
provements as  effectually  as  if  he  were  of  age.** 

§  691.  Suits  Between  Child  and  Parents. 

It  is  intimated  in  a  recent  case  that,  while  one  occupying  the 
qiuisi  parental  relation  towards  a  minor  stranger  by  blood  may 
claim  that  the  child's  services  are  offset  by  the  maintenance,  care, 
and  education  he  has  bestowed  upon  him,  the  failure  to  provide 
properly  while  the  child  rendered  services  raises  a  liability  for 
those  services  which  the  child,  on  attaining  majority,  may  enforce.*^ 
The  question,  moreover,  is  sometimes  raised  in  these  days,  whether 
a  young  son  or  daughter  occupying  the  filial  relation  may  not,  on 
becoming  of  age,  sue  the  parent  or  quasi  parent  for  alleged  mal- 
treatment or  other  injury.*®     A  minor  cannot,  however,  sue  his 


absence  of  express  contract.  Fenni- 
more  v.  Wagner,  N.  J.  Ch.  1906,  64  A. 
698, 

40.  Bohn  V.  Headley,  7  Har.  &  J. 
257;  Shepherd  v.  Bevin,  9  Gill,  32. 

41.  Jackson  v.  Peck,  4  Wend.  300. 

42.  Brov.n  v.  Scott,  7  Vt.  57. 

43.  Campbell  v.  Campbell,  3  Stockt. 
268;  StoTall  v.  Johnson,  17  Ala.  14; 
Wilson  V.  McMillan,  62  Ga.  16;  §  268. 

44.  Galbraith  v.  Black,  4  S.  &  R. 
207.  See  Jenison  v.  Graves,  2  Blackf. 
441.  But  see  Bell  v.  Hallenback, 
Wright,  751;  Fonda  v.  Van  Home,  15 
Wend.  €31 ;  Brown  v.  McDonald,  1 
Hill  Ch.  297. 


45.  Schrimpf  v.  Settegast,  36  Tex. 
296.  And  in  strong  cases  the  child's 
right  of  action  lies  during  minority. 
Watt  V.  Pittman,  125  Ind.  168. 

46.  The  writer  is  informed  of  a  nisi 
prius  Maine  case  tried  about  the  close 
of  1880  (French  v.  Allen),  where  a 
daughter,  aged  twenty-three,  joined 
with  her  husband  in  an  action  for  an 
alleged  assault  committed  upon  her 
by  her  parent  when  she  was  eleven 
years  old.  The  trial  resulted  in  a  ver- 
dict for  the  defendant,  and  the  plain- 
tiffs did  not  proceed  farther;  conse- 
quently the  case  is  not  reported. 


691 


PARENT    AND    CHILD. 


718 


father  for  a  tort  unless  he  has  been  emancipated/'^  and  a  minor 
child  cannot  recover  against  his  father  for  injuries  inflicted  on 
him  by  his  stepmother/* 

With  reference  to  a  blood  parent,  however,  all  such  litigation 
seems  abhorrent  to  the  idea  of  family  discipline  which  all  nations, 
Tude  or  civilized,  have  so  steadily  inculcated,  and  the  privacy  and 
mutual  confidence  which  should  obtain  in  the  household.  An 
nniind  and  cruel  parent  may  and  should  be  punished  at  the  time 
of  the  offence,  if  an  offender  at  all,  by  forfeiting  custody  and  suf- 
fering criminal  penalties,  if  need  be ;  but  for  the  minor  child  who 
continues,  it  may  be  for  long  years,  at  home  and  unemancipated, 
to  bring  a  suit,  when  arrived  at  majority,  free  from  parental  con- 
trol and  under  counter-influences,  against  his  own  parent,  either 
for  services  accruing  during  infancy  or  to  recover  damages  for 
some  stale  injury,  real  or  imagined,  referable  to  that  period,  ap- 
pears quite  contrary  to  good  policy.  The  courts  should  discourage 
such  litigation;  and  so  upon  corresponding  grounds  the  parent's 
suit  as  to  any  cause  of  action  referable  to  the  period  and  relation 
of  tender  childhood.*^ 


47.  Taubert  v.  Taubert,  103  Minn. 
247,  114  N.  W.  763. 

48.  McKelvey  v.  McKelvey,  111 
Tenn.  388,  77  S,  W.  664,  64  L.  E.  A. 
991,  102  Am.  St.  K.  787. 

49.  Clear  precedents  are  wanting  on 
these  points;  but  the  policy  of  the 
common  law  appears  to  be  hostile  to 
permitting  such  suits.  And  so  is  the 
late  case  of  Hewlett  v.  Ragsdale,  68 
Miss.  703;  Parent  and  child  do  not 
stand  strictly  as  sui  juris  regarding 
the  world  or  one  another;  but  infancy 
is  usually  taken  to  be  a  relation  analo- 
gous at  common  law  to  that  of  cover- 
ture. Now,  as  to  coverture,  it  is  clear 
that  from  regard  to  the  peace  of  so- 
ciety the  common  law  forbade  husband 
and  wife  to  sue  one  another  in  dam- 
ages for  breach  of  the  marital  rights; 
though  conceding  that  the  breach  of 
obligation  on  one  side  might  release 
from  obligation  on  the  other;  that 
there  might  be  indirect  redress,  sepa- 
ration, &c.  See  Schouler,  Hus.  &  Wife, 
§  72.     Even  after  a  divorce  it  is  re- 


cently held  that  the  sanctity  of  the 
marriage  union  shall  not  be  disturbed 
by  such  litigation  between  the  divorced 
sopuses.  Ih.,  §  561;  Abbott  v.  Abbott, 
67  Me.  304.  Of  course  one  spouse 
might  be  held  criminally  responsible 
at  the  time  for  a  personal  wrong 
against  the  other.  Equity  with  ref- 
erence to  property  and  adverse  inter- 
ests therein,  regards  married  parties 
as  subject,  moreover,  to  litigation; 
but  that  is  something  quite  different 
so  far  as  public  policy  and  the  inter- 
ests of  society  are  concerned.  It 
seems  to  us  that  these  analogies  have 
a  close  application  to  the  filial  rela- 
tion. And  suits  on  an  injured  in- 
fant's behalf  ought,  if  allowable  at 
all,  to  be  allowed  at  or  about  the  time 
of  the  parental  breach,  only  to  the  in- 
fant suing  by  next  friend.  And  the 
more  essential  point  is  to  get  rid  of 
the  cruel  custodian;  as  a  child,  under 
fit  circumstances,  may.  See,  as  to  ac- 
tions by  or  against  infants,  post,  Part 
v.,  eh.  6,  §  10155  et  seq. 


719  IN    GENEKAL.  §    693 

Equity,  however,  regards  the  rights  of  parent  and  child,  as  well 
as  of  husband  and  wife,  and  separates  their  property  interests.*"^ 
'An  oppressive  contract  relative  to  property  extorted  by  a  parent 
from,  the  child,  or  by  an  adult  child  from  the  parent,  may  doubtless 
be  relieved  against.^^ 

§  692,  Privileged  Communication  to  Parent. 

Communications  made  to  or  in  the  presence  of  a  parent  of  a 
minor  touching  the  minor's  conduct,  by  reason  of  the  parent's 
interest  are  qualifiedly  privileged,  if  made  fairly  and  in  good 
faith.  This  is  especially  true  if  the  interview  is  sought  by  the 
parent.  The  same  rule  has  been  applied  where  the  child,  though  ' 
an  adult,  is  a  female  living  with  and  under  the  care  and  protection 
of  the  parent.  In  other  cases,  except  where  the  communication 
"was  invited  or  acquiesced  in  by  the  traduced  person  himself,  it  is 
"no  more  privileged  when  made  to  parents  or  other  kindred  than  if 
made  to  strangers. 

But  where  the  interview  in  the  presence  of  others  was  either 
invited  or  consented  to  by  the  person  claiming  to  have  been  de- 
famed, the  occasion  is  qualifiedly  privileged,  whether  such  persons 
be  strangers  or  kindred.  Whether  the  privilege  of  the  occasion 
was  exceeded  depends  upon  the  good  faith  of  the  charges  made. 
If  charges  of  theft  were  then  made  under  an  honest  suspicion  the 
privilege  of  the  occasion  was  not  exceeded ;  but  if  they  were  made 
to  coerce  payment  by  the  father  or  with  any  other  sinister  purpose, 
the  privilege  was  exceeded.^ 


52 


§  693.  Constitutional    Right   of   Legislature   to   Interfere   with 
Parent. 

The  rights  of  parents  in  relation  to  the  custody  and  services  of 
their  children  may  be  enlarged,  restrained,  and  limited,  as  wisdom 
or  policy  may  dictate,  unless  the  legislative  power  is  limited  by 
some  constitutional  prohibition.^^  But  it  is  held  that  the  State 
has  no  constitutional  right  to  interfere  with  the  parent  and  take 
charge  of  a  child's  education  and  custody,  on  the  mere  allegation 
that  he  is  "  destitute  of  proper  parental  care,  and  is  growing  up  in 
mendicancy,  ignorance,  idleness,  and  vice."  ^*     On  the  other  hand, 

50.  Post,  Part  V.,  ch,  6.  53.  United  States  v.  Bainbridge,  1 

51.  Bowe  V.  Bowe,  42  Mich.  195.  Mason,  71,  per  Story,  J.;   Bennet  v. 

52.  Ecuyer  v.  New  York  Life  Ins.  Bennet,  2  Beasl.  114;  State  v.  Clottu, 
Co.   (Wash.),  172  Pac.  359,  L.  E.  A.  33  Ind.  409. 

1918E,  536.  54.  People  v.  Turner,  53  111.  2S0. 


§  693 


PAIlE^^T    AND    CHILD. 


720 


a  statute  not  penal  in  character,  by  whicti  the  State,  as  parens 
patricB,  assumes  the  care  and  custody  of  neglected  children  so  as  to 
supply  to  them  the  parental  custody  they  have  lost,  is  pronounced 
constitutional.^^  'Not  as  to  such  children  do  American  courts  yield 
greatly  to  considerations  of  the  parental  religion  as  binding  their 
discretion  for  the  child's  welfare.'® 


"Sunday  laws"  of  Vermont  do  not 
prevent  a  father  from  journeying  to 
see  his  children,  who  are  properly  ab- 
sent from  home.  McCrary  v.  Lowell, 
44  Vt.  116. 

55.  Famham  v.  Pierce,  141  Mass. 
203;  Whalen  v.  Olmstead,  61  Conn. 
263 ;  In  re  N.  P.  P.  B.  M.  v.  Ah  Wan, 
18  Ore.  339;  Ware's  Petitioner,  161 
Mass.  70. 

56.  Whalen  v.  Olmstead,  61  Conn. 
263 ;  In  re  N.  P.  P.  B.  M.  v.  Ah  Wan, 
18  Ore.  339.    Where  a  statute  gives  to 


a  board  of  public  institutions  the 
power  to  control  the  custody  and  edu- 
cation of  children  committed  to  them, 
its  discretion  will  be  favored.  Ware's 
Petitioner,  161  Mass.  70.  But  in  a 
temporary  commitment  the  parent  who 
can  show  that  the  object  of  the  com- 
mitment has  been  accomplished  and 
that  the  child's  welfare  would  be  pro- 
moted by  a  restoration  of  custody  is 
entitled  to  be  heard.  Kelley,  Peti- 
tioner, 152  Mass.  432. 


721  LEGITIMATE    CHILDREN.  §    694 


CHAPTER  11. 

OF  LEGITIMATE  CIIILDEEN  IN  GENERAL. 

Section  694.  Parent  and  Child  in  General;  Children  Legitimate  and  Illegiti- 
mate. 

695.  Legitimate  Children  in  General. 

696.  Presumption  of  Legitimacy. 

697.  Legitimation  of  Illicit  Offspring  by  Subsequent  Marriage. 

698.  Legitimation  by  Subsequent  Marriage  not  Favored  in  England. 

699.  Legitimacy  of  Offspring  Born   after  Divorce. 

700.  Legitimacy  Marriages  Null  but  Bona  Fide  Contracted. 

701.  Legitimation  by  the  State  or  Sovereign. 

702.  Domicile  of  Children ;  Citizenship,  &c. 

703.  Conflict  of  Laws  as  to  Domicile  and  Legitimacy. 

§  694.  Parent  and  Child  in  General;    Children  Legitimate  and 
Illegitimate. 

The  second  of  the  domestic  relations  is  that  of  Parent  and 
Child;  a  relation  which  results  from  marriage,  and  is,  as  Black- 
stone  terms  it,  the  most  universal  relation  in  nature.°^  Both 
natural  and  politic  law,  morality,  and  the  precepts  of  revealed 
religion  alike  demand  the  preservation  of  this  relation  in  its  full 
strength  and  purity.  In  the  first  period  of  their  existence,  children 
are  a  common  object  of  affection  to  the  parents,  and  draw  closer 
the  ties  of  their  mutual  affection ;  then  comes  the  education  of  the 
child,  in  which  the  parents  have  a  common  care,  which  further 
identifies  their  sympathies  and  objects;  the  brothers  and  sisters 
of  the  child,  when  they  come,  bring  with  them  new  bonds  of  affec- 
tion, new  sympathies,  new  common  objects ;  and  the  habits  of  a 
family  take  the  place  of  the  wishes  of  an  individual.  Thus  do 
children  give  rise  to  affections  which  still  further  tend  to  bind 
together  the  community  by  links  of  iron.^^ 

Children  are  divided  into  two  classes,  legitimate  and  illegiti- 
mate. The  law  prescribes  different  rights  and  duties  for  these 
classes."*  It  becomes  proper,  then,  to  consider  them  in  order. 
First,  then,  as  to  legitimate  children,  to  which  topic  alone  the 
relation  of  parent  and  child  in  strictness  applies ;  this  will  occupy 
several  chapters.'" 


67.  1  Bl.  Com.  447.  60.  The   words    "child"    or   "chil- 

58.  Whewell,  Elements  of  Morality,  dren "  in  a  statute  are  construed  as 
100;  2  Kent  Com.  189.  embracing    only    legitimate    children. 

59.  Bl.  Com.  447.  Orthwein  v.  Thomas,  127  111.  554. 

46 


§  696  PARENT  AND  CHILD.  722 

§  695.  Legitimate  Children  in  General. 

A  legitimate  child  is  one  who  is  born  in  lawful  wedlock,  or  is 
properly  brought  within  the  influence  of  a  valid  marriage  by 
reason  of  the  time  of  birth.  Legitimacy,  as  the  word  imports, 
will  require  that  the  child  be  born  in  a  manner  approved  of  by  the 
law.  If  he  is  begotten  during  marriage  and  born  afterwards,  it  is 
enough ;  ^^  and  so,  too,  if  he  was  begotten  before  marriage  but 
bom  in  lawful  wedlock.  We  have  seen  that  in  some  States  the 
loose  "  contract "  or  "  common-law  "  marriage  is  held  valid,  with 
the  same  legal  consequences  as  a  ceremonial  marriage.®^  Cohab- 
itation and  common  repute  raise  the  presumption  of  lawful  wed- 
lock sufficiently  to  dispense,  ordinarily,  with  positive  proof  of  a 
marriage.®^ 

§  696.  Presumption  of  Legitimacy. 

The  maxim  of  the  civil  law  is  Pater  est  quern  nuptice  demon- 
strant;  a  rule  frequently  cited  with  approval  by  common-law 
authorities,  though,  as  we  shall  soon  see,  differently  applied  in 
some  respects.^*  A  distinguished  Scotch  jurist  pronounces  this 
^'  a  plain  and  sensible  maxim,  which  is  the  comer-stone,  the  very 
foundation  on  which  rests  the  whole  fabric  of  human  society."  ®^ 
Boullenois,  a  civil-law  writer,  likewise  commends  it  as  "  a  maxim 
recognized  by  all  nations,  which  is  the  peace  and  tranquillity  of 
States  and  families."  ^®  This  maxim  implies  that  it  is  always 
sufficient  for  a  child  to  show  that  he  is  bom  during  the  marriage. 
The  law  draws  from  this  circumstance  the  necessary  presumption 
that  he  is  legitimate.  Every  child  born  in  wedlock  is  presumed  to 
be  legitimate,  and  the  child's  paternity  is  provable  by  reputation. 
Hence  the  burden  to  show  illegitimacy  is  cast  on  those  who  allege 
it  in  such  cases. 

Strong,  however,  as  this  presumption  may  be,  it  is  not  conclusive 
at  law.  For  there  may  be  other  circumstances:  such  as  long- 
continued  separation  of  the  parents ;  the  impotence  of  the  father ; 
also,  if  the  offspring  be  posthumous,  the  length  of  period  which 

61.  1  Bl.  Com.  447 ;  Fraser,  Parent  &  ent  &  Child,  1,  2,  and  authorities 
Child,  1;  1  Burge,  Col.  &  For.  Laws,  cited;  1  Burge,  Col.  &  For.  Laws,  59. 
59.  65.  Ld.  Pres.  Blair,  in  Eoutledge  v. 

62.  §§  25-29.  Carruthers,    19    May,    1812,   cited   by 

63.  §  29;  Orthwein  v.  Thomas,  127  Fraser,  supra. 

III.  554.  66.    Boullenois,   Traite    des   Status, 

64.  1  Bl.  Com.  447;  Stair,  III.  3,  tome  1,  p.  62,  also  cited  by  Fraser, 
42;  2  Kent  Com.  212,  n.;  Fraser,  Par-       supra. 


723  LEGITIMATE    CHILDREN.  §    69G 

has  elapsed  since  the  father's  death.  Such  circumstances  might 
render  it  physically  and  morally  impossible  that  the  child  was  born 
and  begotten  in  lawful  wedlock.  The  civil  law,  therefore,  ad- 
mitted four  exceptions  to  the  general  maxim:  first,  the  absolute 
and  permanent  impotence  of  the  husband;  second,  his  accidental 
impotence  or  bodily  disability;  third,  his  absence  from  his  wife 
during  that  period  of  time  in  which,  to  have  been  the  father  of  the 
child,  he  must  have  had  sexual  intercourse  with  her;  fourth,  the 
intervention  of  sickness,  vel  alia  causa.^'^  These  concluding  words 
admit  the  classification  to  be  imperfect.  The  common-law  rule, 
which  subsisted  from  the  time  of  the  Year  Books  down  to  the  early 
part  of  the  last  century,  declared  the  issue  of  every  married  woman 
to  be  legitimate,  except  in  the  two  special  cases  of  the  impotency 
of  the  husband  and  his  absence  from  the  realm.^*  But  in  Pendrell 
V.  Pendrell  the  absurd  doctrine  of  making  legitimacy  rest  conclu- 
sively upon  the  fact  of  the  husband  being  infra  quatuor  niaria  was 
exploded.^®  Some  Scotch  jurists  resolve  the  grounds  upon  which 
the  presumption  of  legitimacy  may  be  overthrown  into  two :  first, 
that  the  husband  could  not  have  had  sexual  intercourse  with  his 
wife  by  reason  of  his  impotency;  and  second,  that,  having  the 
power,  he  had  in  fact  no  sexual  intercourse  with  her  at  the  time 
of  the  conception.'^*^  This  seems  to  mean,  first,  that  the  husband 
physically  could  not ;  second,  that  he  actually  did  not ;  but  does 
not  the  second  exception  swallow  the  first  ?  Perhaps  the  safer 
course  is  to  abandon  all  attempts  to  classify;  and  to  hold,  with 
Chancellor  Kent,  that  the  question  of  the  legitimacy  or  illegitimacy 
of  the  child  of  a  married  woman  is  one  of  fact,  resting  on  decided 
proof  as  to  the  non-access  of  the  husband,  and  that  these  facts  must 
generally  be  left  to  a  jury  for  determination.''^ 

From  the  peculiarities  attending  the  case  of  access  or  non-access, 
legitimacy  or  illegitimacy,  great  indulgence  is  to  be  shown  by  the 
courts.  Said  Lord  Erskine :  "  The  law  of  England  has  been  more 
scrupulous  upon  the  subject  of  legitimacy  than  any  other,  to  the 
extent  even  of  disturbing  the  rules  of  reason."  ^"  Still  later  was 
it  asserted  in  English  chancery  that  the  ancient  policy  of  the  law 

67.  Dig.  lib.  1 ;  tit.  6,  1.  6 ;  1  Burge,  70.  Fraser,  Parent  &  Child,  4. 

Col.  &  For.  Laws,  60.  71.   2   Kent  Com.  211;    3   P.  Wms. 

68.  2  Kent  Com.  210;  Co.  Litt.  244,  275,  276;  Harg.  n.  193  to  Co.  Litt.  lib. 
a;  1  Roll  Abr.  358.  2;  Rex  v.  Luffe,  8  East,  ID'S.    And  to 

69.  Stra.  Rep.  925;  2  Kent  Com.  the  same  effect,  see  Blackburn  v. 
211,  and  cases  cited;  Shelley  v.  Crawfords,  3  Wall.  175. 

(1806),  13  Ves.  56.  72.  Shelley  v. ,  13  Ves.  56. 


§  696 


PABENT    A'SB   CHILD. 


724 


remained  unaltered ;  and  that  a  child  bom  of  a  married  woman 
was  to  be  presumed  to  be  the  child  of  the  husband,  unless  there 
was  evidence,  beyond  all  doubt,  that  the  husband  could  not  be  the 
father."  And  it  is  at  this  day  admitted  that  the  presumption  thus 
established  by  law  is  not  to  be  rebutted  by  circumstances  which 
only  create  doubt  and  suspicion ;  but  that  the  evidence  against  it 
ought  to  be  strong,  distinct,  satisfactory,  and  conclusive;  '*  that 
mere  rumor  is  insufficient  to  bastardize  issue  or  to  require  positive 
proof  either  of  legitimacy  or  wedlock.'^^ 

So  far,  indeed,  is  Intimacy  favored  at  law,  that  neither  hus- 
band nor  wife  can  be  a  witness  to  prove  access  or  non-access,  while 
they  lived  together.  This  is  clearly  established  in  England ;  " 
and  it  is  understood  to  be  the  law  likewise  in  this  country,  though 
the  decided  cases  seem  to  turn  upon  the  admissibility  of  the  wife's 
testimony,  and  the  modem  legislation  of  any  State  may  affect  the 
question.'^^  Such  evidence  is  treated  as  contra  honos  mores.  Yet 
the  wife  is  an  admissible  witness  to  prove  her  own  adultery,  and 
in  questions  of  pedigree;   and  husband  and  wife  may  prove  facts, 


73.  Head  v.  Head,  1  Sim.  &  Stu. 
150  (1823);  Banbury  Peerage  Case, 
lb.  153 ;  Pendrell  v.  Pendrell,  2  Stra. 
925. 

74.  Hargrave  v.  Hargrave,  9  Beav. 
552;  Archley  v.  Sprigg,  33  L.  J.  Ch. 
345;  Plowes  v.  Bossey,  8  Jur.  (N.  S.) 
352;  10  W.  K.  332;  Fox  v.  Burke,  31 
Minn.  319;  Watts  v.  Owens,  62  Wis. 
512. 

75.  Ortwein  v.  Thomas,  127  111.  554. 
76  Eex  V.  Inhabitants  of  Sourton,  5 

Ad.  &  El.  188;  Patchett  v.  Holgate,  3 
E.  L.  &  Eq.  100;  15  Jur.  308;  In  re 
Eideout's  Trusts,  L.  R.  10  Eq.  41. 

77.  2  Stark.  Evid.,  §  404 ;  1  Greenl. 
Evid.,  §  344;  Phillips  v.  Allen,  2  Allen 
(Mass.),  453;  People  v.  Overseers,  15 
Barb.  (N.  Y.)  286;  Parker  v.  Way, 
15  N.  H.  45;  Dennison  v.  Paige,  29 
Pa.  420.  The  father's  declarations 
as  to  a  son's  illegitimacy  are  compe- 
tent. Bamum  v.  Bamum,  42  Md. 
251.  A  mother  may  testify  that  she 
■was  always  true  to  the  reputed  father, 
her  husband,  and  that  no  other  man 
could  have  been  the  father  of  the 
child.     Warlick   v.   White,   76   N.   C. 


175.    Semhle,  such  mother's  truthful- 
ness may  be  impeached,  but  not  her 
general   character    for    chastity.     Tb. 
The  declarations  of  deceased  parents 
are  admissible  against  third  parties  to 
prove  the  legitimacy  of  their  childreiu 
Jackson  v.  Jackson  (1894) ,  Md.    While 
inadmissible    witnesses   as   to   non-ac- 
cess, husband   and  wife   may   testify 
in  cases  between  third  parties  as  to 
the   time  of  their  own  marriage,  the 
time  of  a  child 's  birth,  and  any  other 
independent   facts  affecting  the  issue 
of  legitimacy.    Janes 's  Estate,  147  Pa. 
527.      The   wife's   adultery   is   insuffi- 
cient to  repel  the  paternity  presump- 
tion, where  her  husband  had  contem- 
poraneous  access.      Goss   v.    Froman, 
89   Ky.   318;    Scott  v.   Hillenberg,  85 
Ya.  245;  Grant  v.  Mitchell,  83  Me.  23; 
Shuman  v.  Shuman,  83  Wis.  250.   And 
so  is  the   adulterer's   own   admission. 
Grant  v.   Mitchell,   83   Me.  23.     The 
husband   cannot  on  this  issue   testify 
as  to  his  o^Ti  non-access  while  living 
with  his  wife,  though  he  had  done  so 
in  his  divorce  suit  and  gained  it.   Sha- 
man V.  Shuman,  83  Wis.  250. 


725 


LEGITIMATE    CHILDREN. 


§    69G 


such  as  marriage  and  date  of  the  child's  birth ;  these  may  be  con- 
clusive as  to  illegitimacy/®  Much  testimony,  extremely  delicate, 
is  also  taken  in  bastardy  and  divorce  proceedings.  When,  there- 
fore, the  courts  shut  their  eyes  so  tightly  against  this  proof  of 
access  or  non-access,  perhaps  it  is  not  because  they  are  shocked,  but 
lest  they  should  see  illegitimacy  established. 

To  carry  the  presumption  of  legitimacy  so  far  as  to  disturb  the 
rules  of  reason  is  unjust;  for  no  man  should  be  saddled  with  the 
obligations  of  children  which  clearly  do  not  belong  to  him.  And 
the  rule  of  evidence  in  the  English  courts  which  required  extrane- 
ous proof  of  impotency  of  the  husband,  or  his  absence  from  the 
realm,  has  been  severely  and  justly  criticised,  not  without  some 
good  results."  The  decision  of  the  House  of  Lords  in  the  cele- 
brated Banbury  Peerage  Case  proceeded  upon  the  reasonable 
assumption  that  moral  as  well  as  physical  impossibilities  may 
affect  the  rule  of  legitimacy.  Here  husband  and  wife  occupied 
the  same  house  at  the  very  time  the  child  must  have  been  begotten, 
and  no  case  of  impotency  was  made  out,  and  yet  that  child  was 
held  not  to  be  the  child  of  the  husband;  for  the  testimony  by 
collateral  proof  as  to  a  moral  impossibility  was  sufficiently  strong 
notwithstanding.***  This  case  was  confirmed  by  another,  where 
husband  and  wife  had  voluntarily  separated,  but  the  husband 
resided  at  a  distance  of  only  fifteen  miles,  and  sometimes  visited 
his  wife;  and  the  wife  was  delivered  of  a  child,  which  was  pro- 
nounced a  bastard,  from  evidence  of  the  conduct  of  the  wife  and 
her  paramour.  Here  it  was  said,  "  The  case,  therefore,  comes 
back  to  the  question  of  fact."  ®^  Still  later  cases  strengthen  the 
same  doctrine.*^     Impotency  of  the  husband,  and  his  absence  from 


78.  See  1  Greenl.  Evid.,  §§  343,  344; 
Caujolle  V.  Ferrie,  23  N.  Y.  90.  And 
see  Sale  v.  Crutchfield,  8  Bush,  636 ; 
Dean  v.  State,  29  Ind.  483. 

79.  2  Kent  Com.  211,  n. ;  Fraser, 
Parent  &  Child,  7. 

80.  1  Sim.  &  Stu.  153.  See  Nicolas 
on  Adulterine  Bastardy,  181,  a  volume 
written  to  show  that  this  case  over- 
turns the  old  law  of  England. 

81.  Morris  v.  Davis,  5  CI.  &  Fin. 
463.  And  see  Barony  of  Saye  &  Sele, 
1  CI.  &  Fin.  (N.  S.)  507;  Sibbett  v. 
Ainsley,  3  L.  T.  (N.  S.)  507;  Sibbett 
V.  Ainsley,  3  L.  T.  (N.  S.)  583,Q.B.; 
Fraser,   Parent  &  Child,   8 ;    King  v. 


Luffe,  8  East,  19^;  also  Hitchins  v. 
Eardley,  L.  E.  2  P.  &  D.  248,  as  to 
admitting  declarations  of  the  person 
whose  legitimacy  is  at  issue. 

82.  Bosvile  v.  Attorney-General,  12 
P.  D.  177.  Here  a  child  had  been 
bom  two  hundred  and  seventy-six  days 
after  the  last  opportunity  of  inter- 
course between  the  husband  and  wife, 
or  within  a  very  few  days  later  than 
the  usual  period  of  gestation;  and 
there  was  evidence  tending  to  show 
that  the  wife  regarded  the  child  as  the 
offspring  of  her  paramour.  A  still 
stronger  case  is  Bumaby  v.  Bailee,  42 
Ch.  D.  282. 


§  696 


PARENT    AND    CHILD. 


726 


the  realm,  suggest  then  but  two  classes  of  cases,  and  those  not  the 
only  ones,  where  children  may  now  be  pronounced  bastards.^^ 

In  this  country,  cases  have  not  unfrequently  arisen  which  involve 
the  legitimacy  of  offspring;  and  the  more  reasonable  doctrine 
favors  legitimacy  to  about  the  same  extent  as  the  later  English 
decisions.®*  The  presumption  of  legitimacy  is  strongly  carried, 
as  the  cases  below  cited  indicate ;  though  not  so  far  as  to  exclude 
proof  of  non-acecss  of  the  husband  or  such  other  rational  facts  as 
might  rebut  this  presumption,  and  show  that  the  child  of  a  married 
woman  was  in  reality  a  bastard.*^     Doubt  and  suspicion  or  un- 


83.  Hargrave  v.  Hargrave,  9  Beav. 
552.  "I  apprehend,"  said  Lord 
Langdale,  "that  evidence  of  every 
kind,  direct  or  presumptive,  may  be 
adduced,  for  the  purpose  of  showing 
the  absence  of  sexual  intercourse 
"ohich,  in  cases  where  there  has  been 
some  society,  intercourse,  or  access, 
has  been  called  non -generating  access. 
We  have,  therefore,  to  attend  to  the 
conduct  and  the  feelings,  as  evidenced 
by  the  conduct  of  the  parties  towards 
each  other  and  the  offspring,  and  even 
to  the  declarations  accompanying  acts, 
which  are  properly  evidence.  Such 
circumstances  are  of  no  avail  against 
proper  evidence  of  generating  access; 
but  they  may  have  weight,  when  the 
effect  of  that  evidence  is  doubtful.  If 
the  W(  ight  is  not  such  as  to  convince 
the  minds  of  those  who  have  to  deter- 
mine the  matter,  the  effect  may  only 
tend  to  shake,  without  removing,  the 
presumption  of  legitimacy,  which  in 
such  a  case  must  prevail." 

84.  Patterson  v.  Gaines,  6  How.  (U. 
S.)  582;  2  Kent  Com.  211,  and  cases 
cited ;  Hemmenway  v.  Towner,  1  Allen, 
209;  Van  Aernam  v.  Van  Aernam, 
1  Barb.  Ch,  375;  Wright  v.  Hicks, 
15   Ga.   160. 

85.  See  Van  Aernam  v.  Van  Aernam, 

1  Barb.  Ch.  (N.  T.)  375;  Kleinert  v. 
Ehlers,  38  Pa.  439;  Phillips  v.  Allen, 

2  Allen  (Mass.),  453;  Hemmenway  v. 
Towner,  1  Allen  (Mass.),  209  State 
V.  Herman,  13  Ire.  502 ;  Tate  v. 
Pene,  19  Martin,  548;  Cannon  v.  Can- 
non, 7  Humph.  410;   State  v.  Shum- 


pert,  1  S.  C.  (N.  S.)  85;  Strode  v. 
Magowan,  2  Bush  (Ky,),  621;  State 
v,  Lavin,  80  la.  555;  Blackburn  v. 
Crawfords,  3  Wall.  175;  Wilson  v. 
Babb.  18  S.  C.  59.  Collateral  proof  of 
legitimacy  is  not  to  be  favored.  See 
Kearney  v.  Denn,  15  Wall.  51.  But 
under  suitable  circumstances  the  grant 
of  letters  of  administration  may  be 
conclusive  in  other  courts.  CajoUe  v. 
Ferrie,  13  Wall.  465.    See  cases,  §  225. 

Formerly,  in  portions  of  the  United 
States,  slave  marriages  were  deemed 
unlawful,  and  the  offspring  illegiti- 
mate. Timmins  v.  Lacy,  30  Tex.  115. 
But  slavery  no  longer  exists,  and  the 
tendency  of  our  legislation  is  now  to 
uphold  as  far  as  possible  former  mar- 
riages of  colored  persons,  and  the 
legitimacy  of  their  offspring,  cohabi- 
tation continuing.  See  White  v.  Ross, 
40  Ga.  339;  Allen  v.  Allen,  8  Bush 
(Ky.),  490;  Gregley  v.  Jackson,  38 
Ark.  487;  34  La  Ann.  265;  Clements 
V.  Crawford,  42  Tex,  601;  Daniel  v. 
Sams,  17  Fla.  487 ;  supra,  §  17. 

To  impugn  a  child 's  paternity,  repu- 
tation of  the  mother  for  unchastity  is 
admissible,  if  at  all,  only  as  to  unchas- 
tity prior  to  connection  with  the  re- 
puted father.  Morris  v.  Swaney,  7 
Heisk.  591;  Warlick  v.  White,  76  N. 
C.  175.  If  the  son  was  colored  and 
the  mother  an  Indian,  the  color  will  be 
presumed  to  have  been  derived  from 
he  mother  rather  than  disturb  the  pre- 
sumption of  legitimacy.  Illinois  Land 
Co.  V.  Bonner,  75  111.  315.  But  other- 
wise where  a  mulatto  child  is  born  of 


727 


LEGITIMATE    CHILDREN". 


§  69T 


favorable  rumor  furnish  no  sufficient  ground  for  adjudging  illegit- 
imacy. In  short,  the  presumption  in  favor  of  the  legitimacy  of  a 
child  bom  in  wedlock  is  not  to  be  taken  as  a  presumption  of  law, 
but  a  presumption  which  may  be  rebutted  by  evidence  clear  and 
conclusive,  though  not  resting  merely  on  a  balance  of  probabilities 


86 


§  697.  Legitimation  of  Illicit  Offspring  by  Subsequent  Marriage. 

In  respect  of  the  legitimation  of  offspring  by  the  subsequent 
marriage  of  their  parents,  the  civil  and  common-law  systems 
widely  differ.  By  the  civil  and  canon  laws,  two  persons  who  had 
a  child  as  the  fruit  of  their  illicit  intercourse  might  afterwards 
marry,  and  thus  place  their  child  to  all  intents  and  purposes  on  the 
same  footing  as  their  subsequent  offspring,  bom  in  lawful  wed- 
lock.^^  But  the  common  law,  though  not  so  strict  as  to  require 
that  the  child  should  be  begotten  of  the  marriage,  rendered  it 
indispensable  that  the  birth  should  be  after  the  ceremony.^*  Let 
us  notice  this  point  of  difference  at  some  length. 

It  appears  that  the  law  of  legitimation  per  subsequens  matri- 
monium  is  of  Roman  origin ;  introduced  and  promulgated  by  the 
first  Christian  Emperor,  Constantine,  as  history  alleges,  at  the 
instigation  of  the  clergy.  This  was  an  innovation  upon  the  earlier 
Roman  system;  and  the  object  of  its  introduction  was  to  put  down 
that  matrimonial  concubinage  which  had  become  so  universal  in 
the  Empire.*^  Justinian  afterwards  made  this  law  perpetual.®^ 
Its  first  appearance  in  the  canon  law  is  found  in  two  rescripts  of 
Pope  Alexander  III.,  preserved  in  the  Decretals  of  Gregory,  and 


a  white  •woman  whose  husband  is 
white;  and  here  expert  medical  testi- 
mony is  proper  as  to  the  natural  im- 
possibility of  white  parentage  on  both 
sides.  Bullock  v.  Knox,  96  Ala.  195. 
Where  parents  and  other  members  of 
the  family  have  long  and  consistently 
treated  a  child  as  legitimate,  this  af- 
fords strong  presumption  of  legiti- 
macy in  any  case.  Illinois  Land  & 
Loan  Co.  v.  Bonner,  75  111.  315; 
Gaines  v.  Mining  Co.,  32  N.  J.  Eq. 
86.  But  not  proof  indisputable.  Bus- 
som  V.  Forsyth,  32  N.  J.  Eq.  277. 

And  as  to  proof  of  marriage,  see 
also  Schouler,  Hus.  &  Wife,  §§  38,  39. 

86.  See  12  App.  Cas.  312;  §  277. 


87.  2  Kent  Com.  208 ;  1  Burge,  Col. 
&  For.  Laws,  92;  (1894)  App.  C.  165. 

88.  1  Bl,  Com.  454.  If  the  child  be 
born  after  the  ceremony,  even  though 
it  be  but  a  few  weeks  later,  the  pre- 
sumption of  paternity  against  the  hus- 
band is  almost  irrestible,  and  the 
burden  is  on  him  to  show  affirmatively 
to  the  contrary,  in  order  to  establish 
the  child's  status  as  illegitimate. 
Gardner  v.  Gardner,  2  App.  Cas.  723. 
Cf.  In  re  Corlass,  1  Ch.  D.  460. 

89.  "Licita  consuetude  semimatri- 
monium."     Cod.  lib.  6,  tit.  57. 

90.  Taylor's  Civil  Law,  272;  Fraser, 
Parent  &  Child,  32;  1  Burge,  Col.  & 
For.  Laws,  92,  93. 


§  697 


PARENT    AND    CHILD. 


728 


issued  in  1180  and  1172.®^  These  extended  the  benefits  of  the 
miarriage  to  the  offspring  of  carnal  love,  and  not  merely  to  the 
issue  of  systematic  concubinage.  This  law  of  legitimation  wad 
introduced  into  Scotland  within  the  range  of  authentic  hitsory."* 
It  is  also  admitted,  with  different  modifications,  into  the  codes  of 
France,  Spain,  Germany,  and  most  other  countries  in  Europe.®^ 

The  principle  to  which  the  law  of  legitimation  per  subseqv£iis 
matrimonium  is  to  be  referred  has  been  a  subject  of  controversy. 
The  canonists  based  the  law  not  on  general  views  of  expediency 
and  justice,  but  upon  a  fiction  which  they  adopted  in  order  to 
reconcile  the  new  law  with  established  rules ;  for,  assuming  that, 
as  a  general  rule,  children  are  not  legitimate  unless  born  in  lawful 
wedlock,  they  declared  that,  by  a  fiction  of  law,  the  parents  were 
married  when  the  child  was  born.  Such  reasoning,  by  no  means 
uncommon  in  days  when  the  wise  saw  more  clearly  what  was  right 
than  why  it  was  so,  has  not  stood  the  test  of  modem  logic;  and 
the  Scotch  courts  have  placed  the  rule  once  more  where  its  im- 
perial founders  left  it;  namely,  on  the  ground  of  general  policy 
and  justice.  "  Legitimation  is  thought  to  be  recommended  by 
these  considerations  of  equity  and  justice,  that  it  tends  to  encour- 
age what  is  at  first  irregular  and  injurious  to  society,  into  the 
honorable  relation  of  lawful  matrimony;  and  that  it  prevents 
those  unseembly  disorderis  in  families  which  are  produced  where 
the  elder-bom  children  of  the  same  parents  are  left  under  the  stain 
of  bastardy,  and  the  younger  enjoy  the  status  of  legitimacy."  ®* 

This  doctrine  of  the  civil  law  has  found  great  favor  in  the 
United  States.  It  has  prevailed  for  many  years  in  the  States 
of  Vermont,  Maryland,  Virginia,  Georgia,  Alabama,  Mississippi, 
Louisiana,  Kentucky,  Missouri,  Indiana,  and  Ohio.®^  So  in 
Massachusetts  bastards  are  to  be  considered  legitimate  after  the 
intermarriage  of  their  parents  and  recognition  by  the  father.'* 
And  similar  statutes  are  to  be  found  in  Maine,  ISTew  Hampshire, 


91.  Deer.  IV.  17,  1 ;  IV.  17,  6,  cited 
in  Fraser,  Parent  &  Child,  33.  "Tanta 
est  enim  vis  sacramenti  (matrimonii) 
ut  qui  antea  sunt  geniti  post  con- 
tractum  matrimonium  habeantur  le- 
gitimi. ' ' 

92.  Fraser,  Parent  &  Child,  32,  33. 

93.  1  Purge,  Col.  &  For.  Laws,  101. 

94.  Fraser,    Parent    &    Child,    35; 


Munro  v.  Munro,  1  Kob.  H.  L.  Scotch 
App.  492. 

95.  Griffith's  Law  Regis,  passim;  1 
Purge,  Col.  &  For.  Laws,  101.  This 
provision  protects  the  offspring  of  an 
adulterous  connection  as  well  as  that 
of  parents  who  were  free  to  contract 
marriage  when  the  children  were  born, 
Hawbecker  v.  Hawbeeker,  43  Md.  516. 

96.  Mass.  Gen.  Sts.  1860,  eh.  91. 


729  LEGITIMATE    CHILDREN.  §    60S 

Pennsylvania,  Vermont,  Tennessee,  and  elsewhere.^^  There  is, 
however,  no  legal  presumption  that 'a  man  who  marries  the  mother 
of  a  bajjtard  child  was  its  actual  father;  ®*  and  some  recognition 
of  paternity  or  else  an  adoption  is  a  usual  element  in  intermar- 
riages of  this  sort.^ 


99 


§  698.  Legitimation  by  Subsequent  Marriage  Not  Favored  in 
England. 
On  the  other  hand,  the  English  law  has  very  strongly  opposed 
the  whole  doctrine  of  legitimation  per  subsequens  matrimonium. 
Even  so  far  back  as  the  reign  of  Henry  III.  is  found  a  memorable 
instance  where  the  peers  refused  to  change  the  law  in  this  respect, 
when  urged  to  do  so  by  the  English  bishops ;  declaring  with  one 
voice,  quod  nolunt  leges  Anglice  mutare,  quce  hue  usque  usitatce 
sunt  et  approbatoe.^  Jealousy  of  canonical  influence  may  partially 
account  for  this  conduct,  if  not  prejudice  against  the  civil  law 
generally.  Certain  it  is  that  most  English  jurists  have  ever  since 
stubbornly  maintained  the  superiority  of  their  own  maxims,  which 
place  the  immutability  of  the  marriage  relation  above  all  the 
tender  promptings  of  humanity  towards  innocent  sufferers.  Even 
Blackstone  vigorously  assails  the  civil-law  doctrine,  urging  against 
it  several  rather  artificial  objections,  in  the  apparent  belief  that 
legal  consistency  is  better  than  natural  justice.^  But  on  the  other 
hand,  Selden  mentions  that  the  children  of  John  of  Gaunt,  Duke 
of  Lancaster,  were  legitimated  by  an  act  of  Parliament,  in  the 

97.  Maine  Laws,  1852,  ch.  266;  Pa.  might  be  called  legitimation  by  public 

Laws,    1857,    May    14;    Vermont,    R.  or  judicial  record  after  intermarriage 

S.   1863,  ch.  56 ;   Stimson,  Stat.  Law,  of  parents.     See  Lingen  v.  Lingen,  45 

§§  6631-6634;  Ind.  E.  S.  1862,  ch.  46.  Ala.  410,  414;   Pina  v.  Peck,  31  Cal. 

And   see   Graham   v.   Bennett,  2   Cal.  359;   Talbot  v.  Hunt,  28  La.  Ann.  3. 

503;   Starr  v.  Peck,  1   Hill   (N.  Y.),  Recognition  of  a  less  formal  character 

270;    Sleigh  v.  Strider,   5  Call,  439;  suffices  for  purposes  of  inheritance  in 

Danelli     v.     Danelli,     4     Bush,     51;  Iowa.     Crane  v.  Crane,  31  la.  296. 

Adams  V.  Adams,  36  Ga.  236;  Morgan  98.    Jane's    Estate,    147    Pa.    527; 

V.   Perry,    51   N.    H.    559;    Brown   v.  Brewer  v.  Hamor,  83  Me.  251;  In  re 

Belmarde,    4    Kan.    41 ;    Williams    v.  Jessup,  81  Cal.  408. 

Williams,  11  Lea,  652;  Brock  v.  State,  99.  If  the  subsequent  marriage  was 

85    Ind.    397.      In    some    States    still  not   a   valid  one,  the   child   continues 

another  mode  of  legitimation,  for  in-  bastardized.      Adams   v.   Adams,    154 

heritance,  if  not   for   all    other   pur-  Mass.  290. 

poses,  is  permitted  by  law  as  to  such  1.    Stat    of   Merton,    20    Hen.    ITT. 

offspring;    namely,    by    the    father's  ch.  9;  2  Kent  Com.  209;   1  Bl.  Com. 

formal   declaration,   or    that   of   both  456. 

parents,    properly    attested,    which    is  2.  1  Bl.  Com.  454,  455. 
filed    in    court    and    recorded.      This 


f  699 


PAKENT    AND   CHILD. 


730 


reign   of   Richard   II.,    founded   on   some   obscure   common-law 
custom.^ 

Upon  sucli  principles  it  has  been  decided  by  the  House  of  Lords, 
that  where  a  marriage  is  in  its  inception  unlawful,  being  at  a  time 
when  the  woman's  first  husband  must  have  been  alive,  children 
bom  even  after  the  time  when  it  was  presumed  that  the  first  hus- 
band had  died,  must  be  pronounced  illegitimate;  the  mere  con- 
tinuance of  the  cohabitation  after  that  event  being  insufficient, 
without  celebration,  to  change  the  character  of  the  connection.* 
I^or  will  an  absolute  presumption  of  law  be  raised  as  to  the  con- 
tinuance of  life  to  support  such  legitimacy;  for  in  every  instance 
the  circumstances  of  the  case  must  be  considered.^  And  so  strict 
is  the  rule,  that  where  a  person,  bom  a  bastard,  becomes,  by  the 
subsequent  marriage  of  his  parents,  legitimate  according  to  the 
laws  of  the  country  in  which  he  was  born,  he  is  still  a  bastard,  so 
far  as  regards  the  inheritance  of  lands  in  England.^  But  testa- 
mentary provisions  for  illegitimate  offspring  as  "  children  "  receive 
an  increasing  favor  in  the  English  courts;  and  this  disability  of 
bastards  to  "  inherit  "  English  lands,  notwithstanding  a  subsequent 
marriage,  is  now  confined,  moreover,  to  descents  upon  intestacy.^ 

§  699.  Legitimacy  of  Offspring  Born  After  Divorce. 

As  to  the  status  of  children  born  after  divorce,  partial  or  com- 
plete, little  can  be  stated  from  the  books ;  for  such  divorces  hardly 
existed  at  the  common  law.*  They  are  probably  illegitimate 
prima  facie,  if  bom  of  the  divorced  mother  within  an  unreason- 
able time  after  separation.*  A  remarriage  by  a  divorced  party  in 
a  state  or  country  where  such  marriages  are  not  prohibited  will 


3.  Selden  on  Fleta,  ch.  9,  §  2.  And 
see  Barrington,  p.  38;  2  Kent,  Com. 
209. 

4.  Lapsley  v.  Grierson  (1848),  1  CI. 
&  Fin.  (N,  S.)  498;  Cunningham  v. 
Cunningham,  2  Dow,  482. 

5.  Lapsey  v.  Grierson,  /&.,  explain- 
ing Rex  V.  Twyning,  2  B.  &  A.  386. 

6.  Doe  d.  Birtwhistle  v.  Vardill,  6 
Bing.  N.  C.  385;  7  CI.  &  Fin.  895. 
And  see  ch.  6,  post. 

The  only  exception  permitted  by 
the  common  law  under  this  general 
head  was  that  where  the  child  whose 
parents  subsequently  married  entered 
into  possession  of  his  father's  lands 


after  his  father 's  death,  and  kept  pos- 
session until  his  own  death,  so  that 
they  descended  to  his  own  issuej  no 
disturbance  of  title  was  permitted  on 
the  plea  of  such  child's  illegitimacy. 
Bussom  T.  Forsyth,  32  N,  J.  Eq.  277. 

7.  Grey  v.  Earl  of  Stamford  (1892), 
3  Ch.  88,  §  231. 

8.  See  Husband  &  Wife,  supra,  %  22 ; 
2  Bishop,  Mar.  &  Div.,  5th  ed.,  §  559; 
^Montgomery  v.  Montgomery,  3  Barb. 
(X.  Y.)  Ch.  132. 

9.  St.  George  v.  St.  Margaret,  1 
Salk.  123;  2  Bishop,  Mar.  &  Div.,  § 
740. 


T31 


LEGITIMATE    CHILDKEN. 


§  702 


make  the  offspring  of  such  remarriage  legitimate  in  spit«  of  local 
prohibitions  where  the  divorce  was  decreed.^" 

§  700.  Legitimacy  in  Marriages  Null  but  Bona  Fide  Contracted. 
The  issue  of  marriages  rendered  null  and  void  are  on  general 
principles  necessarily  illegitimate.  Opposed  to  this  is  the  civil- 
law  doctrine  of  putative  marriages,  first  introduced  into  the  canon 
law  bj  Pope  Innocent  III. ;  which  upholds  the  legitimacy  of  the 
children  in  cases  where  the  parties,  or  either  of  them,  bona  fide 
believins;  that  thev  could  marrv,  had  entered  into  the  contract 
while  there  was  some  unknown  impediment  existing.^^  This  sub- 
ject is  regulated  by  statute  to  a  great  extent  in  this  country;  and 
here  again  our  system  conforms  to  the  civil  rather  than  the  common 
law." 

§  701.  Legitimation  by  the  State  or  Sovereign. 

Legitimation  by  rescript  of  the  Emperor  appears  in  the  Institutes 
of  Justinian.^^  Still  later  did  the  Pope  assume  the  power  to  grant 
the  status  of  legitimacy ;  and  in  many  of  the  canonical  dispensa- 
tions occur  clauses  of  this  sort.^*  The  effect  of  these  high-sounding 
clauses  is  now  of  little  consequence.^^  The  English  Parliament, 
by  virtue  of  its  transcendent  power,  may  render  a  bastard  legiti- 
mate and  capable  of  inheriting.^®  This  same  power  has  been 
claimed  for  the  legislatures  of  the  United  States.^^  And  except  so 
far  as  legislative  acts  may  come  under  constitutional  restraints 
against  impairing  the  obligation  of  contracts,  there  seems  no  reason 
why  they  should  not  be  uniformly  upheld. 

§  702.  Domicile  of  Children;   Citizenship,  &c. 

The  domicile  of  a  child's  origin,  or  the  domicile  at  any  time  of 
his  minority,  is  to  be  determined  by  the  domicile  of  his  parents; 


10.  Moore  v.  Hegeman,  92  N.  Y. 
521. 

11.  Fraser,  Parent  &  Child,  22  et 
seq.;  1  Burge,  Col.  &  For.  Laws,  96. 
See  Lapsley  v.  Grierson,  1  CI.  &  Fin. 
(X.  S.)  498,  cited  supra. 

12.  See  supra,  §  22.  And  sec  Gra- 
ham V.  Bennett,  2  Cal.  503.  Yet  there 
is  a  case,  that  of  Sir  Ealph  Sadher, 
where  Parliament  gave  relief.  See 
Nicolas.  Adult  Bast.  61-63;  Fraser, 
Parent  &  Child,   24;    Burnett's  His- 


tory, book  1,  ch.  19;   Riddell,  Peer  & 
Cons.  Law,  421. 

13.  Xov.  74,  chs.  1,  2  ;  and  89,  ch.  9. 

14.  See  Fraser,  Parent  &  Child,  43. 

15.  lb. 

16.  1  Bl.  Com.  459.  And  see  Stat.  6, 
Will.  TV.,  ch.  22 

17.  Beall  v.  Beall,  8  Ga.  210;  Yidal 
V.  Commajere,  13  La.  Ann.  516.  It 
will  he  presumed  that  a  statute  of 
this  kind  confers  legitimacy  only  so 
far  as  to  give  the  capacity  to  inherit. 
Gnibb's  Appeal,  53  Penn.  St.  55. 


§  702 


PAKENT    AND    CHILD. 


732 


or,  to  speak  more  strictly,  of  his  father,  if  the  latter  be  alive  and 
not  legally  deprived  of  his  paternal  rights.  We  speak  at  this  time 
only  of  legitimate  or  of  legitimated  or  adopted  children.^*  The 
domicile  of  origin  remains  until  another  is  lawfully  acquired. 
And  since  minors  are  not  sui  juris,  they  may  not  change  their 
domicile  during  their  minority,  though  they  may  when  of  full  age; 
hence  they  retain  during  infancy  the  domicile  of  their  parents ; 
if  the  parents  change  their  domicile,  that  of  the  infant  children 
follows  it ;  and  if  th©  father  dies,  his  last  domicile  is  that  of  the 
infant  children.^' 

The  mother  has  authority  to  change  the  domicile  of  her 
minor  children,  provided  she  do  so  without  fraudulent  views 
to  the  succession  of  their  estate;  though  it  would  appear  that  she 
cannot  change  it  after  her  remarriage.^"  In  general,  dwelling  at 
a  certain  place  is  prima  facie  proof  that  a  person  is  domiciled 
there ;  and  the  home  of  a  husband,  reasonably  chosen  in  his  right- 
ful discretion,  is  the  legal  domicile  of  wife  and  young  children, 
wherever  he  may  choose  to  fix  it.^^  This  question  of  domicile  may 
be  of  importance  in  determining  the  grant  of  administration  on  a 
deceased  infant's  estate,  or  if  the  child  be  alive,  of  his  guardian's 
appointment. 

Prima  facie,  the  infant's  residence  or  domicile  is  that  of  his 
parent,  and  such  it  will  remain  during  minority,  in  spite  of  his 
temporary  absence  at  school  or  elsewhere.     Nor  can  he  of  his  own 


18.  The  rule  for  natural-born  chil- 
dren of  wedlock  applies  to  children 
legally  adopted,  except  that  the 
child's  domicile  in  this  latter  case  is 
that  of  the  adopting  parent  at  the 
time  of  adoption.  Van  Matre  v. 
Sankey,  148  111.  536;  Woodward  v. 
Woodward,  87  Tenn.  644 

19.  Story,  Confl.  Laws,  §§  45,  46, 
and  cases  cited;  1  Burge,  Col.  &  For. 
Laws,  33;  Abington  v.  North  Bridge- 
water,  23  Pick.  170;  Taylor  v.  Jeter, 
33  Ga.  195;  Dajiiel  v.  Hill,  52  Ala. 
4-30;  Wharton,  Confl.,  §  41.  But  see 
lahan  v.  Gibbons,  1  Bradf.  Sur.  70; 
Somerville  v.  Somerville,  5  Ves.  750. 

20.  Potinger  v.  Wightman,  3  Mer. 
€7;  1  Burge,  Col.  &  For.  Laws,  39; 
Brown  v.  Lynch,  2  Bradf.  Sur.  214; 
Carlisle  v.  Tuttle,  30  Ala.  613.     The 


widow's  removal  from  the  homestead 
must  not  prejudice  the  children's 
claim  thereto.  Showers  v.  Eobinson, 
43  Mich.  502.  After  the  mother  re- 
marries, the  domicile  of  the  child 
ceases  to  change,  and  does  not  follow 
that  of  the  stepfather.  Eyall  v.  Ken- 
nedy, 40  N.  Y.  Super.  347.  A  female 
infant  cannot  change  her  own  domi- 
cile, even  for  the  purpose  of  annul- 
ling her  marriage.  Blumenthal  v.  Tan- 
nenholz,  31  N.  J.  Eq.  194. 

Following  the  usual  rule,  however, 
the  real  estate,  even  of  children,  de- 
scends according  to  the  law  of  situs, 
and  the  personal  according  to  the 
domicile. 

21.  Supra,  §§  40,  41;  Luck  v.  Luck, 
92  Cal.  653. 


733  LEGITIMATE  CHILDREN.  §  703 


22 


motion  acquire  a  new  domicile,  since  he  is  not  a  person  sui  juris. 
But  his  domicile  may  be  changed  by  his  father,  if  he  has  one; 
otherwise,  according  to  the  best  modern  authorities,  by  the  surviv- 
ing mother  until  her  remarriage ;  and  perhaps  even  by  the  guardian 
himself,  although  not  a  relative,  provided  he  act  in  good  faith.^* 
The  intent  of  the  parent  or  guardian  in  such  cases  is  always  mate- 
rial; but  this  intent  is  to  be  determined  by  facts.  The  original 
domicile  of  an  infant  is  that  of  his  parents  at  the  time  of  his  birth."* 
And  even  an  emancipated  minor  is  not  usually  in  a  position  to 
acquire  a  legal  domicile  while  his  minority  lasts.^'  The  rule  of  a 
minor's  citizenship  corresponds ;  and  where  the  parent  removes  to 
another  State  or  country,  the  minor  child's  citizenship  changes, 
though  he  be  temporarily  left  in  the  former  jurisdiction.^^ 

Where  the  parent  surrenders  the  care  and  custody  of  his  minor 
child  to  one  who  agrees  to  assume  the  parent's  duty  during  the 
entire  remaining  period  of  minority,  the  child  acquires  the  domicile 
of  the  person  who  assumes  this  responsibility.^^ 

§  703.  Conflict  of  Laws  as  to  Domicile  and  Legitimacy. 

Some  writers  have  said  that,  when  the  laws  of  two  countries  are 
in-  conflict,  the  legitimacy  or  illegitimacy  of  children  is  to  be  deter- 
mined by  the  domicile  of  origin.'^  Others,  again,  that  it  is  depend- 
ent upon  the  lex  loci  of  marriage.^'  Between  these  writers  there  is 
no  real  discrepancy ;  for  in  every  such  case  two  inquiries  are  in- 
volved, the  one  whether  the  marriage  was  in  itself  lawful,  the  other 
whether  the  child  was  legitimate  by  the  marriage.  Of  the  conflict 
of  laws  regarding  marriage  we  have  already  spoken.^"  That  in- 
volving the  status  of  legitimacy  demands  further  consideration. 

A  conflict  manifestly  arises  between  the  laws  of  domicile  of  origin 
and  subsequent  marriage,  and  the  laws  of  the  actual  domicile  or 
situs  of  property,  where  those  of  the  one  country  admit  legitimation 

22.  Macphers  Inf.  579;  Brown  v.  choate  citizenship  gained  under  the 
Lynch,  2  Bradf.  215;  Story,  Confl.  father's  declared  intention,  see  Boyd 
Laws,  §  46.  V.  Nebraska,  143  U.  S.  135. 

23.  Potinger  v.  Wightman,  3  Mer.  27.  Allgood  v.  Williams,  92  Ala. 
67;  2  Kent,  Com.  227,  430;  1  Burge,  551;  Delaware,  L.  &  W.  R.  R.  Co.  v. 
Col.  &  For.  Laws,  39;  Brown  v.  Lynch,  Petrowsky,  250  Fed.  554,  38  Sup.  Ct. 
2  Bradf.  214.  Rep.   427. 

24.  See,  further,  post,  Part  IV.,  ch.  28.  1  Burge,  Col.  &  For.  Laws,  111 ; 
5.  as  to  Guardian  and  "Ward.  Fraser,  Parent  &  Child,  45. 

25.  North  Yarmouth  v.  Portland,  73  29.  Story,  Confl.  Laws,  §  105 ;  Whar- 
Me.  108.    See  7b.  583;  §  267.  ton,  Confl.,  §§  35,  41, 

26.  Dresser  v.  Edison  Illuminating  30.  See  §   33. 
Co.,  49  Fed.  R.   257.      As  to  the  in- 


iiH 


§    703  PARENT    AXD    CHILD.  734r 

per  subsequens  matrimonium,  and  those  of  the  other  do  not.  As, 
for  instance,  where  children  are  horn,  and  their  parents  after- 
wards intermarry  in  certain  of  the  United  States  or  in  Scotland, 
and  then  remove  with  their  children  to  England;  or  where  such 
children  are  deemed  to  have  acquired  property  rights  in  the  last- 
named  country.  On  this  point  there  is  much  diversity  of  opinion. 
And  the  English  courts  long  maintained  their  distinctive  policy 
with  considerable  zeal  in  all  doubtful  cases.  Thus  particularly 
was  this  done  in  the  case  of  Birtivhistle  v.  Vardill,  where  a  child, 
legitimate  to  all  purposes  in  Scotland,  was  sternly  denied  the  full 
rights  of  a  lawful  child  as  to  inheritance  in  England.^^  Yet  the 
law  of  foreign  countries  as  to  legitimacy  is  so  far  respected  in 
England  that  a  person  illegitimate  by  the  law  of  his  domicile  of 
birth  will  be  held  illegitimate  in  England.^^  The  latest  English 
cases,  however,  so  far  recede  from  this  sturdy  doctrine  as  to  confine 
the  application  of  Birtwhistle  y.Vardill  to  claims  of  intestate  suc- 
cession to  real  property  in  England ;  ^^  and  on  the  other  hand,  a 
bequest  of  pensonalty  in  an  English  will  to  the  children  of  a  for- 
eigner is  now  construed  to  mean  to  his  legitimate  children, —  that 
is  to  say,  on  international  principle,  treating  all  children  as  legiti- 
mate whose  legitimacy  is  established  by  the  law  of  their  father's 
domicile.^*  Our  recent  American  cases  have  repudiated  the  illib- 
eral English  doctrine  with  little  care  to  discriminate  between  the 
kinds  of  property.' 


35 


31.  7  CI.  &  Fin.  895;  4  Jur.  1076;  Stoltz  v.  Daering,  112  111.  234.  And 
Ih.  5  B.  &  C.  438;  Story,  Confl.  LaAvg,  this,  notwithstanding  the  child  was  be- 
§  93  et  seq.,  where  the  doctrine  of  gotten  in  the  State  where  the  ques- 
Birtwhistle  v.  Vardill  is  strongly  com-  tion  of  inheritance  afterwards  arose, 
bated.    See  Boyes  v.  Bedale,  12  W.  E.  Lingen  v.  Lingen,  45  Ala.  410. 

232,  before  Wood,  V.  C. ;  Story,  Confl.  33.  Grey     v.     Earl     of     Stamford 

Laws,  6th  ed.,  §  93  w.,  n.  by  Redfield.  (1892),  3  Cfa.  88. 

And  see  Goodman  v.  Goodman,  3  Gif.  34.   Andros   v.   Andros,   24   Ch.   D. 

643.  637 ;  Goodman 's  Trusts,  17  Ch.  D.  266. 

32.  Munro    v.    Saunders,    6    Bligh,  35.  When  an  illegitimate  child  has, 
I  468 ;  cases  cited  in  Birtwhistle  v.  Var-  by    the    subsequent    marriage    of    his 

dill,  9  Bligh,  52.  But  a  foreign  le-  parents,  become  legitimate  by  the 
gitimation  was  so  far  respected  in  a  laws  of  the  State  or  country  where 
late  case  that  a  succession  tax  wa?  not  such  marriage  took  place,  and  the  par- 
laid  upon  the  child  as  a  stranger  in  ents  were  domiciled,  he  is  thereafter 
blood.  Skottowe  v.  Young,  L.  R.  11  legitimate  everywhere,  and  entitled  to 
Eq.  474.  all  the  rights  flowing  from  that  status, 
In  this  country  the  doctrine  of  Birt-  including  the  right  to  inherit  real  or 
whistle  V.  Vardill  is  sometimes,  though  personal  estate.  Miller  v.  Miller,  91 
rarely,  followed  in  matters  of  inherit-  N.  T.  315.  The  same  rule  applies  to 
ance.   Smith  v.  Derr,  34  Penn.  St.  126;  a  legally  "adopted"  child  under  the 


735  LEGITIMATE    CHILDKEN.  §    703 

The  doctrine  of  general  writers  is  that  the  status  of  legitimacy 
or  illegitimacy,  or  the  capacity  to  become  legitimate  per  subsequens 
matrimonium,  is  governed  by  the  law  of  the  domicile  of  the  child's 
origin.^®  And  since  the  domicile  of  origin  is  that  of  the  father, 
the  great  leading  fact  to  be  ascertained  in  such  inquiries  will  be 
generally  the  domicile  of  the  father.^^  A  person  born  before  wed- 
lock, who  in  the  country  of  his  birth  is  considered  illegitimate,  will 
not  by  a  subsequent  marriage  of  his  parents  in  another  country,  by 
whose  laws  such  a  marriage  would  make  him  legitimate,  cease  to 
be  illegitimate  in  the  country  of  his  birth.^^  On  the  other  hand, 
without  a  subsequent  marriage  of  his  parents,  lawful  by  the  laws 
of  the  land  where  celebrated,  it  is  clear  that  anv  child  must  remain 
illegitimate,  whatever  be  the  domicile  of  his  origin. 

local  statute  in  the  State  or  country  to   conflict  of   la'ws   in  adoption,  see 

of  domicile,  even  though  the  child  was  §  232,  note. 

an    illegitimate    one    thereby    legiti-  37.  Fraser,  Parent  &  Child,  45. 

mated.    Blythe  v.  Ayres,  96  Cal.  533.  38.  Story,  Confl,  Laws,  §  106.     See 

36.  1  Burge,  Col.  &  For.  Laws,  111.  Sucession  of  Caballero,  24  La.  Ann. 

And  see  Skottowe  v.  Young,  su-pra.  As  573. 


§  704  PAKENT  AND  CHILD.  736 


CHAPTER  III. 

ILLEGITIMATE    CHILDREN. 

Section  704,  Illegitimate  Children;  Their   Peculiar   Footing. 

705.  Who  are  Bastards. 

706.  Presumption  of  Legitimacy. 

707.  Custody  under  English  Law. 

708.  Custody  uuder  American  Law, 

709.  Maintenance. 

710.  What  Law  Governs  Property  Eights. 

711.  Disability  of  Inheritance  at  Common  Law, 

712.  Inheritance  by  Bastards  under  Modern  Statutes. 

713.  Inheritance  from  Bastards. 

714.  Bequests  and  Gifts  to  Illegitimate  Children. 

715.  Effect  of  Eecognition. 

716.  Persons  in  Loco  Parentis;  Distant  Eelatives,  &c. 

717.  Guardianship  of  an  Illegitimate  Child. 

§  704.  Illegitimate  Children;   Their  Peculiar  Footing. 

Illegitimate  children,  or  bastards,  stand  upon  a  different  footing 
from  Intimate  children.  We  have  already  seen  that  bastards 
may  be  legitimated  in  many  of  the  United  States,  by  the  subse- 
quent marriage  of  their  parents  or  otherwise.  The  rights  and 
disabilities  of  bastards,  as  such,  and  while  continuing  illegitimate, 
require  our  present  attention. 

The  rights  of  a  bastard  are  very  few  at  the  common  law ;  chil- 
dren bom  out  of  a  legal  marriage  having  been  from  the  earliest 
times  stigmatized  with  shame,  and  made  to  suffer  through  life  the 
reproach  which  was  rightfully  visited  upon  those  who  brought 
them  into  being.  The  dramatist  depicts  the  bastard  as  a  social 
Ishmaelite,  ever  bent  upon  schemes  for  the  ruin  of  others,  fully 
determined  to  prove  a  villain ;  thus  fitly  indicating  the  public  esti- 
mate of  such  characters  centuries  ago  in  England.  The  law-writ- 
ers, too,  pronounce  the  bastard  to  be  one  whose  only  rights  are  such 
as  he  can  acquire ;  going  so  far  as  to  demonstrate,  by  cruelly 
irresistible  logic,  that  an  illegitimate  child  cannot  possibly  inherit, 
because  he  is  the  son  of  nobody;  sometimes  called  filius  nulUus, 
and  sometimes  filius  populi.^^  Coke  seemed  to  concede  a  favor  in 
admitting  that  the  bastard  might  gain  a  surname  by  reputation 

39.  Fort,  de  LI.,  ch.  40;  1  Bl.  Com,  458. 


737 


ILLEGITIMATE    CHILDREN. 


§  705 


though  none  by  inheritance.***     Statutes  for  the  benefit  of  bastards 
are  remedial  in  nature.*^ 


§  70S.  Who  Are  Bastards. 

A  bastard  at  common  law  is  a  child  not  bom  in  wedlock  or 
under  circumstances  such  that  the  husband  of  the  mother  could 
not  be  the  father,*'  or  where  the  marriage  of  its  supposed  parents 
was  void.**  The  children  of  a  putative  marriage  are  legitimate,** 
and  a  child  is  legitimate  when  bom  after  the  marriage  of  its 
parents  though  begotten  before.*^ 

Curative  statutes  designed  to  make  issue  of  void  marriages  legit- 
imate do  not  apply  to  the  children  of  persons  who  lived  together 
without  any  marriage  of  any  kind.**  An  interlocutory  decree  of 
divorce  does  not  affect  the  status  of  children  begotten  after  its 
rendition  as  they  are  not  parties  to  it.*^ 

The  status  of  a  child  is  determined  by  the  law  in  force  at  the 
time  of  its  birth,  in  the  place  of  its  birth  and  of  the  domicile  of 
the  parents.*® 


40.  Co,  Litt.  3.  The  very  term ' '  bas- 
tard,"  said  to  be  derived  from  the 
Saxon  words  ' '  base  start, ' '  expresses 
contempt.  See  Fraser,  Parent  &  Child, 
119.  A  legitimacy  declaration  act  in 
foreign  marriages  is  a  feature  of  mod- 
em English  law. 

41.  "Wilson  V.  Bass,  —  Ind.  App. 
— ,  118  N.  E.  379.  See  Wasmund  v. 
Wasmund,  90  Wash.  274,  156  P.  3 
(such  laws  are  remedial,  permitting 
beneficiary  to  take  advantage  of  exist- 
ing remedies). 

42.  Briggs  v.  McLaughlin,  134  La. 
133,  63  So.  851;  Parker  v.  Nothomb, 
65  Neb.  308,  91  N.  D.  395,  93  N.  W. 
851,  60  L.  R.  A.  699;  Rohwer  v.  Dis- 
trict Court  of  First  Judicial  Dist., 
—  Utah,  — ,  125  P.  671.  The  child 
of  a  married  woman  by  one  not  her 
husband  is  a  bastard.  McLoud  v. 
State,  122  Ga.  393,  50  S.  E.  145. 

43.  Baylis  v.  Baylis,  207  N.  Y.  446, 
101  N.  E.  176,  affirming  judgment 
131  N.  T.  S.  671,  146  App.  Div.  517 
(where   prior    divorce   relied   on   was 

47 


void) ;  In  re  Grande 's  Estate,  141  N. 
Y.  S.  535,  80  Misc.  Bep.  450;  Mans- 
field V.  Neff,  43  Utah,  258,  134  P. 
1160.  See  Evatt  v.  Mier,  114  Ark. 
84,  169  S.  W.  817.  See  Cooper  v.  Mc- 
Coy, 116  Ark.  501,  173  S.  W.  412.  See 
In  re  Shipp's  Estate,  168  Cal.  640, 
144  P.  143  (ceremonial  marriage  with- 
out license  renders  children  legiti- 
mate). 

44.  Succession  of  Benton,  106  La. 
494,  31  So.  123,  59  L,  E.  A.  135. 

45.  Doyle  v.  State,  61  Ind.  324. 

46.  In  re  Walker's  Estate,  5  Ariz. 
70,  46  P.  67;  Keen  v.  Keen,  184  Mo. 
358,  83  S.  W.  526,  201  U.  S.  319,  25 
Sup.  Ct.  494,  50  L.  Ed.  772. 

47.  In  re  Walker 's  Estate,  176  Cal. 
402,  168  P.  689. 

48.  Ferrie  v.  Public  Administrator, 
3  Bradf.  Sur.  151 ;  Holmes  v.  Adams, 
110  Me.  167,  85  A.  492;  Green  v.  Kel- 
ley,  228  Mass.  602,  118  N.  E.  235 
(law  of  domicile  governs).  See  Mc- 
Goodwin  v.  Shelby  (Ky.),  206  S. 
W.  625  (mulatto). 


'06 


PARENT    AND    CHILD. 


73S 


§  706.  Presumption  of  Legitimacy. 

The  legitimacy  of  children  of  persons  who  lived  openly  as  hus- 
band and  wife  will  be  presumed."  The  presumption  of  the  legit- 
imacy of  a  child  born  in  lawful  wedlock  is  very  strong  and  can 
only  be  rebutted  by  evidence  showing  that  the  child  could  not  have 
been  begotten  by  the  father,^"  and  the  presumption  will  even  apply 


49.  In  re  Campbell's  Estate,  12 
Cal.  App.  707,  108  P.  669  (reh.  den. 
[Sup.],  12  Cal.  App.  707,  108  P. 
676;  MeGoodwin  v.  Shelby  (Ky.), 
206  S.  W.  625;  Adkins  v.  Bentley,  177 
Ky.  616,  197  S.  W.  1086;  Skidmore 
T.  Harris,  157  Ky.  756,  164  S.  W.  98; 
Nelson  v.  Jones,  245  Mo.  579,  151  S. 
W.  80;  In  re  Hall,  70  N.  Y.  S.  406, 
61  App.  Div.  266;  Locust  v.  Caruthers, 
23  Okla.  373,  100  P.  520. 

Troof  tJuit  couple  had  lived  to- 
getlier  in  tbe  same  house  and  tilled 
the  same  land  for  30  years,  and  that 
they  had  six  children  born  to  them, 
■which  bore  their  name,  held  to  give 
rise  to  presumption  of  such  chil- 
dren's legitimacy.  Cave  v.  Cave,  101 
S.  C.  40,  85  S.  E.  244. 

50.   Bunel  v.   O'Day,  U.   S.  C.  C. 
Mo.  1903,  125  F.  303;  Adger  v.  Ack- 
erman,  52  C.  C.  A.  568,  115  F.  124; 
Lay  V.  Fuller,  178  Ala,  375,  59  So. 
609;    Sims   v.   Birden,   197   Ala.   690, 
73  So.  379,  744;  Harkrader  v.  Beed, 
5  Alaska,  668;  Kennedy  v.  State,  117 
Ark.   113,   173   S.  W.   842;   Ex  parte 
Madaline,  174  Cal.  693,  164  P.  343; 
In  re  Mills'  Estate,  137  Cal.  298,  70 
P.  91,  92  Am.  St.  Eep.  175;  Jones  v. 
State,  11  Ga.  App.  760,  76  S.  E.  72; 
Smith   V.    Henline,    174    111.    184,    51 
X.  E.  227;  In  re  Henry's  Estate,  167 
Iowa,  557,  149  N.  W.  605;  In  re  Os- 
bom's  Estate   (low.),  168  N.W.  288; 
Bethany  Hospital  Co.  v.  Hale,  64  Kan. 
367,   67   P.   848    (denial   of  paternity 
by  husband  Tvill  not  rebut  presump- 
tion) ;  Bethany  Hospital  Co.  v.  Hale, 
64    Kan.    367,    67    P.    848;    Dunn    v. 
Garnett,  129  Ky.  728,  112  S.  W.  841; 
Wilson  V.  Wilson,   174   Ky.   771,   193 
S.  W.  7;  Buekner';?  Adm'rs  v.  Buck- 
ner,   120  Ky.   596,  87  S.  W.   776,  27 


Ky.    Law    Eep.    1032;     Vanover    v. 
Steele,  173  Ky.  114,  190  S.  W.  667; 
Bowman  v.   Little,   101  Md.   273,  61 
A.    223,    657;    Phillips   v.    Allen,    84 
Mass.  453 ;  Sullivan  v.  Kelly,  85  Mass. 
148;   Egbert  v.  Greenwalt,  44  Mich. 
245,  6  N.  W.  654,  38  Am.  Eep.  260; 
Jackson  v.  Phalen,  237  Mo.  142,  140 
S.  W.  879;  Same  v.  Phelan,  237  Mo. 
153,    140    S.    W.    882;    Lincecum    v. 
Lincecum,  3  Mo.  441 ;  Boyer  v.  Dively, 
58  Mo.  510   (where  parents  and  chil- 
dren are  dead) ;  Town  of  Canaan  v. 
Avery,  72  N.  H.  591,  58  A.  509  (evi- 
dence that  wife  is  guilty  of  adultery 
will   not    rebut   presumption) ;    Vree- 
land  v.  Vreeland,  78  N.  J.  Eq.  256,79 
A.  336;  Wallace  v.  Wallace,  73  N.  J. 
Eq.  403,  67  A.  612;  Grates  v.  Garcia, 
20  N.  M.  158,  148  P.  493;   Ferrie  v. 
Public  Administrator,  4  Bradf.  Sur. 
(X.  T.)   28;  In  re  Grande's  Estate, 
141  N.  Y.  S.  535,  80  Misc.  Eep.  450. 
It  is  the  policy  of  law  and  the  duty 
of  the  court  to  preserve  the  legitimacy 
of  children,  where  it  can  be  done  con- 
sistently with  the  law  and  the  facta. 
In  re  Stanton,  123  N.  Y.  S.  458 ;  Flint 
v.  Pierce   136  N.  Y.  S.  1056;   In  re 
Kelly's  Estate,  95   N.  Y.   S.   57,   46 
Misc.     541;     In     re     Kennedy,     143 
N.  Y.  S.   404,   82   Misc.   214;    In   re 
Leslie's  Estate,  161  N.  Y.  S.,  790,  175 
App.  Div.  108;  s.  c,  156  N.  Y.  S.  346, 
92  Misc.  663;  Powell  v.  State,  84  Ohio 
St.    165,   95    N.    E.    660;    Ossman   v. 
Schmitz,    24    Ohio    Cir.    Ct.    E.    709 
(brothers  and  sisters  are  presumed  to 
be   legitimate)  ;    Bell  v.    Territory,   8 
Okla.  75,  56  P.  853;  O'Hern  v.  State, 
12  Okla.  Cr.  App.   505,  159   P.   938; 
McAllen  v.  Alonzo,  46  Tex.  Civ.  App. 
449,  102  S.  W.  475;   Scott  v.  Hillen- 
berg,  85  Va.  245,   1  S.  E.  377    (cir- 


739 


ILLEGITIMATE    CHILDREN. 


§  T06 


where  the  child  is  born  so  soon  after  the  marriage  took  place  that 
it  must  have  been  begotten  before,^ ^  and  the  presumption  will  be 
extended  even  to  children  born  before  marriage  of  the  parents.^^ 

Where  the  husband  and  wife  live  apart,  non-access  may  be  shown 
by  the  facts  and  circumstances,^^  and  this  evidence  need  not  go  to 
the  extent  of  showing  it  impossible  that  the  husband  could  have 
been  the  father  of  the  child,  but  the  rule  seems  to  be  that  the 
evidence  of  non-access  must  be  such  as  to  satisfy  the  jury  beyond 
a  reasonable  doubt.^* 

Evidence  that  the  former  spouse  of  one  of  the  parties  is  still 
living  is  insufficient  to  rebut  the  presumption  of  legitimacy,"'  and 
although  the  presumption  cannot  be  rebutted  by  evidence  of  non- 
access  by  the  husband,  still  it  may  be  shown  by  admissions  show- 
ing the  child  to  be  illegitimate.^® 

There  is  no  presumption  of  legitimacy  where  there  is  no  evidence 
of  a  marriage,^^  or  where  the  husband  was  impotent,"^  and  where 
it  appears  beyond  a  reasonable  doubt  that  the  husband  had  no 
possibility  of  access  to  the  wife  at  the  time  of  conception  the 
children  will  be  found  illegitimate/'     On  an  issue  of  heirship 


cumstances   showing    doubt   and    sus- 
f'icion  are  not  enough). 

51.  Grant  v.  Stimpson,  79  Conn.  617, 
66  A.  166;  Hall  v.  Gabbert,  213  111. 
208,  72  N.  E.  806. 

Where  a  child  is  horn  20  dnys  after 
ihe  mother  was  divorced  from  one 
husband  and  15  days  after  her  mar- 
riage to  another  man  -who  recognized 
the  child  as  his,  and  the  •whereabouts 
of  the  first  husband  did  not  appear, 
the  child  will  be  presumed  as  the  le- 
gitimate child  of  the  second  husband. 
Zachmann  v.  Zachmann,  201  111.  380, 
66  N.  E.  256,  94  Am.  St.  Eep.  180; 
Wallace  v.  Wallace,  137  Iowa,  37,  114 
X.  W.  527;  Gibbins'  Ex'rs  v.  Gibbins' 
Guardian,  13  Ky.  Law  Rep.  300; 
?.:cRae  V.  State,  61  So.  977;  Jackson 
V.  Thornton,  133  Tenn.  36,  179  S.  W. 
384. 

52.  Stein's  Adm'r  v.  Stein,  32  Ky. 
Law  Eep.  664,  106  S.  W.  860  Davis 
T.  Davis,  59  N.  Y.  S.  223,  27  Misc. 
4.-,  5. 

L3.  Be  Matthews,  153  N.  Y.  443, 
-ir   X.   E.   901;    Wright   v.   Hicks,   12 


Ga.  160,  60  Am.  Dec.  687;  Orthwein 
V.  Thomas,  127  111.  554,  21  N.  E.  430, 
4  L.  R.  A.  434. 

54.  State  v.  Shaw  (Vt.),  94  Atl. 
434,  L.  R.  A.  1015F,  1087. 

55.  Nelson  v.  Jones,  245  Mo.  579, 
151  S.  W.  80;  Barker  v.  Barker,  156 
N.  Y.  S.  19'4,  92  Misc.  390  (judg- 
ment mod.,  158  N.  Y.  S.  413) ;  In  re 
Biersack,  159  N.  Y.  S.  519,  96  Misc. 
161;  Barker  v.  Barker,  158  N.  Y. 
S.  413,  172  App,  Div.  244;  s.  c,  156 
N.  Y.  S.  194,  92  Misc.  390. 

56.  Wallace  v.  Wallace,  137  Iowa, 
37,  114  N.  W.  527  (child  conceived 
before  wedlock)  ;  Vulgamore  v.  Un- 
known Heirs  of  Vulgamore,  7  Ohio 
App.  374.  See  People  v.  Case,  171 
Mich.  282,  137  N.  W.  55. 

57.  Mace  v.  Mace,  48  N.  Y.  S.  831, 
24  App.  Div.  291. 

58.  In  re  Walker's  Estate,  176  Cal. 
402,  168  P.  689;  People  v.  Woodson, 
29  Cal.  App.  531,  156  P.  378;  West 
V.  Redmond,  171  N.  C.  742,  88  S.  E. 
341. 

59.  In  re  McXamara's  Case  (Cal.), 


§  707  PARENT  AND  CHILD.      .  740 

there  is  no  presumption  that  the  alleged  heirs  are  the  legitimate 
descendants  of  the  ancestor.*" 

Burden  of  Proof. —  The  burden  of  proof  is  on  one  attempting 
to  show  the  illegitimacy  of  a  child  bom  in  lawful  wedlock.*^  But 
the  burden  is  on  those  claiming  as  heirs  to  show  the  actual  mar- 
riage of  their  mother  to  decedent,*^  and  the  burden  is  on  an  illegit- 
imate child  to  prove  legitimation  by  recognition.®* 

§  707.  Custody  under  English  Law. 

The  doctrine  that  a  natural  tie  connects  the  illegitimate  child 
peculiarly  with  his  mother  was  recognized  at  the  civil  law;  for, 
under  the  ordinance  of  Justinian,  the  bastard  might  to  a  certain 
extent  inherit  from  his  mother.®*  So  at  the  common  law  have 
the  obligations  of  consanguinity  between  the  mother  and  her  il- 
legitimate offspring  been  applied  in  several  instances ;  and  it  is 
usually  the  mother  who  is  known  and  who  admits  herself  to  be 
the  child's  parent,  though  the  father  remain  unknown.  But  as 
concerns  any  exclusive  privilege  on  behalf  of  the  mother,  this 
does  not  seem  very  clear ;  for  in  a  case  which  was  decided  in  1786, 
the  rights  of  the  putative  father  seemed  to  be  placed  on  much  the 
same  footing  as  in  other  cases ;  and  his  consent  was  deemed  prima 
facie  essential  under  the  Marriage  Act  of  26  Geo.  L;  so  was  his 
right  apparently  admitted  to  take  his  illegitimate  child  out  of  the 
parish.®^ 

There  are,  to  be  sure,  occasional  dicta  to  the  effect  that  the  puta- 
tive father  has  no  common-law  right  to  the  custody  of  the  child  as 

183  Pac.  552  In  re  Walker's  Estate,  1354,    78    S.     W.    122;    Jackson    v. 

176  Cal.   402,   168   P.   689;    Eobinson  Phalen,  237  Mo.  142,  140  S.  W.  879; 

V.   Euprecht,   191    111.   424,   61   N.   E.  Same  v.  Phelan,  237  Mo.  153,  140  S. 

631;  Craig  v.  Shea  (Neb.),  168  N.  W.  W.  882;  In  re  Matthews'  Estate,  153 

135;    West   v.    Kedmond,    171    N.    C.  N.  Y.  443,  47  N.  E.  901,  37  N.  Y.  S. 

742,   88   S.   E.   341;    Ewell   v.   Ewell,  308,   1   App.  Div.  231;   In  re  Wile's 

163  N.  C.  233,  79  S.  E.  509 ;  Timmann  Estate,  6  Pa.  Super.  Ct.  435,  41  W.  N. 

V.  Timmann,  142  N.  Y.  S.  298;  State  C.  572.    See  In  re  Diwers'  Estate,  22 

V.   Shaw,   89   Vt.   121,   94   A.   434,  L.  Pa.    Super.    Ct.    436     (separation    of 

E.   A.   19'15F,   1087    (must   be   proof  parties  will  rebut  presumption), 

beyond  a   reasonable  doubt  to  rebut  62.  In  re  Fuller's  Estate,  250  Pa. 

the  presumption).  78,  95  A.  382. 

60.  Osborne  v.  McDonald,  159  F.  63.  Trier  v.  Singmaster  (Iowa),  167 
791.  N.  W.  538. 

61.  Lay  v.  Fuller,  178  Ala.  375,  64.  Code,  lib.  6,  57.  See  2  Kent, 
59   So.   609;    Sergent  v.   North  Cum-  Com.  214. 

berland    Mfg.   Co.,    112    Ky.    888,    66  65.   King  v.   Hodnett,  1   T,  E.   96, 

S.  W.  1036,  23  Ky.  Law  Eep.  222;       and    cases    cited    passim;    Macphers. 
Lewis  V.  Sizemore,  25  Ky.  Law  Eep.       Inf.  67. 


741  ILLEGITIMATE    CHILDREN.  §    70T 

against  the  mother,  and  that  certainly  within  the  age  of  nurture, 
that  is,  under  the  age  of  seven,  the  mother  has  the  exclusive  right 
to  the  custody.  The  more  correct  statement,  however,  is  that 
pauper  children,  whether  legitimate  or  not,  are  under  the  English 
system  made  inseparable  from  the  mother  within  the  years  of 
nurture;  and  that  at  common  law  neither  the  putative  father  nor 
the  mother  of  an  illegitimate  child  had  any  exclusive  right  of 
guardianship.®"  The  common-law  cases  cited  in  the  mother's  favor 
are  only  to  the  effect  that  where  a  bastard  child  within  the  period 
of  nurture  is  in  the  peaceable  possession  of  the  mother,  and  if 
the  putative  father  gets  possession  of  the  child  by  force  or  fraud, 
the  court  will  interfere  to  put  matters  in  the  same  situation  as 
before.*^  Both  Lord  Kenyon  and  Lord  Ellenborough  —  the  latter 
as  late  as  1806  —  expressed  doubts  as  to  whether  the  court  would 
take  away  the  custody  of  an  illegitimate  child  from  the  father  who 
had  fairly  obtained  possession,  and  award  it  to  the  mother.^*  !N^or 
do  the  later  English  cases  aid  greatly  in  clearing  up  the  doubt  on 
this  point.  Lord  Mansfield  regarded  the  law  as  doubtful  in  his 
day,  while  himself  inclining  strongly  to  the  opinion  that  the  puta- 
tive father  had  no  right  to  his  child's  custody.®^  In  1841  a  case 
came  before  the  Court  of  Common  Pleas,  on  a  writ  of  habeas 
corpus,  applied  for  by  the  mother,  the  child  being  then  between 
eleven  and  twelve  years  of  age,  and  in  the  custody  of  her  putative 
father.  But  the  child  was  deemed  old  enough  to  exercise  her  own 
discretion  as  to  where  she  would  go ;  and  as  she  appeared  unwill- 
ing to  go  with  her  mother,  the  court  would  not  permit  the  mother 
to  take  her  by  force.'° 

The  chancery  courts  have  in  several  instances  favored  the  father 
of  an  illegitimate  child  to  the  exclusion  of  his  mother.  Thus, 
while  the  practice  is  not  to  appoint  the  putative  father  guardian 
of  his  illegitimate  child  having  no  property,  unless  he  makes  a 
settlement  upon  him ;  yet,  if  he  does  so,  his  appointment  is  favor- 
ably regarded.     No  special  regard  seems  to  have  been  paid  to  the 

66.  Macphers.  Inf.  67.  Taunt.  498.      And  see  Pope  v.  Sale, 

67.  Kex  V.  Soper,  5  T.  K.  278;  Eex       7  Bing.  477. 

V.  Hopkins,  7  East,  579;  Kex  v.  Mose-  70.  In  re  Lloyd,  3  Man.  &  Gr.  547. 

ley,  5  East,  223.  Comparing  all  the  dicta  in  the  fore- 

68.  Per  Lord  Kenyon,  Eex  v.  Mose-  going  cases  carefully  together,  it  will 
\ev,  supra  (1798)  ;  per  Lord  Ellenbor-  be  seen  that  they  art  not  decidedly 
ough,  Rex  V.  Hopkins,  supra.  against  the  putative  father's  rights  of 

69.  Straugeways    v.    Robinson,    4       custody. 


§  TOS  PARENT  AXD  CHILD.  742 

mother  of  such  children.'^  And  while  the  committee  of  a  lunatic 
might  petition  for  an  allowance  for  his  bastard  offspring,  their 
mother  might  not.'"  As  against  strangers,  at  all  events,  or  those 
even  with  whom  the  mother  has  temporarily  placed  her  spurious 
child,  the  maternal  right  to  determine  the  child's  permanent  cus- 
tody has  been  strongly  upheld  in  the  latest  instance ;  for  a  mother, 
though  a  kept  mistress,  was  permitted  to  transfer  the  custody  of 
her  young  illegitimate  daughter  to  respectable  persons  of  her  own 
choice,  from  those  to  whom  she  had  first  committed  the  child  and 
who  resisted  her  right.'^ 

§  708.  Custody  under  American  Law. 

The  custody  of  an  illegitimate  child  which  has  not  been  legit- 
imated belongs  to  the  mother,'*  and  the  mother  of  a  bastard  being 
bound  to  maintain  it  is  entitled  to  recover  from  a  third  person  the 
value  of  its  services,"  but  the  father  may  be  entitled  to  it  after 
the  death  of  the  mother  if  able  to  support  it."  And  the  Eoman, 
Spanish,  and  French  laws  all  deny  the  power  of  the  putative  father 
over  the  illegitimate  child;  this  principle  being  likewise  trans- 
ferred to  Louisiana  and  other  States,  once  under  the  civil  law; 
though,  in  Texas  at  least,  the  putative  father  is  allowed  the  guard- 
ianship of  such  child  after  the  mother's  death.'' 

The  mother  does  not  forfeit  her  right  to  the  child  by  allowing 
someone  else  to  have  custody  of  it  for  a  time,"  but  will  lose  her 
rights  by  renouncing  them."     In  some  States,  we  may  add,  the 

71.  Macphers.  Inf.   110.  See  Baylis  v.  Baylis,  101  K  E.  176, 

72.  Ee  Jones,  5  Euss.  154.  207  N.  Y.   446    (affirming  judgment, 

73.  Queen  t.  Nash,  10  Q.  B.  D.  131  N.  Y.  S.  671,  146  App.  Div.  517, 
454.  The  court  laid  some  stress  upon  where  prior  divorce  relied  on  was  in 
the  fact  that  this  new  arrangement  fact  void).  People  v.  Kliug,  6  Barb, 
appeared  to  be  for  the  child's  inter-  366;  Eobalina  v.  Armstrong,  15  Barb, 
est,  and  held,  too,  that  the  child,  be-  247. 

ing    only    seven    years    old,    was    too  75.  Illinois  Cent.  E.  Co.  v.  Sanders, 

young   for  its  preferences   to  be  re-  61  So.  309. 

gar<3ed.  76.   Aycock  v.   Hampton,   84   Miss. 

74.  Lipsey  v.  Battle,  80  Ark.  287,  204,  36  So.  245,  65  L.  E.  A.  689,  105 
97  S.  W.  49;  Perry  v.  State,  113  Ga.  Am.  St.  Eep.  424. 

936,  39  S.  E.   315;   Dehler  v.  State,  77.  Acosta  v.  Eobin,  19  Martin,  337 

22  Ind.  App.  383,  53  N.  E.  850;  Pratt  Barela  v.  Eoberts,  34  Tex.  554. 

V.    Nitz,    48    Iowa,    33;    Purinton    v.  78.  Lipsey  v.  Battle,   80  Ark.   287, 

Jamrock,    195    Mass,    187,    80    N.   E.  97  S.  W.  49;  Hesselman  v.  Haas,  N. 

802;  In  re  Penny,  194  Mo.  App.  698,  J.  Ch.  1906,  64  A.  165. 

189   S.   W.    1192;    In   re  Moore,   132  79.  7n  re  Shapiro,  92  N.  Y.  S,  1027, 

N.    Y.    S.    249,    72    Misc.    644;     Ex  103   App.   Div.    303. 

parte  Byron,  83  Vt.  108,  74  A.  488. 


743 


ILLEGITIMATE    CHILDREN. 


709 


superior  rights  of  the  mother  in  binding  out  her  illegitimate  child 
are  favorably  regarded ;  ®°  and  her  superior  right  to  custody  has 
been  held  to  carry  a  right  of  transfer ;  ^^  but  the  child's  welfare  is 
considered  paramount.^"  The  mother  may  make  a  transfer  to  the 
father  of  her  rights  to  custody,  which  transfer  will  be  good  as  to 
her  though  not  as  regards  the  child  if  the  interests  of  the  child  so 
require,*^  or  the  court  may  place  the  child  in  the  custody  of 
another  if  the  mother  is  not  a  fit  person  to  have  the  child  and  if 
the  best  interests  of  the  child  so  require.^*  Stratagem  and  force  on 
the  part  of  the  putative  father  always  furnish  good  grounds  for 
restoration  of  the  child  to  the  mother.*'* 

§  709.  Maintenance. 

Illegitimate  children  are  not  favored  in  law  and  liave  only  such 
rights  as  are  expressly  granted  by  statute.^®  The  common-law 
rule,  in  absence  of  statutes,  is  that  the  putative  father  is  under  no 
legal  liability  to  support  his  illegitimate  offspring,*^  and  a  statute 
providing  for  punishment  of  any  person  who  shall  neglect  his 
child  has  no  application  to  illegitimate  children,®*  but  the  mother 
generally  will  be  bound  to  support  it,*^  and  it  is  sometimes  said 


80.  Alfred  v.  McKay,  36  Ga.  440; 
McGunigal  v.  Mong,  5  Penn.  St.  263; 
Pratt  V.  Xitz,  48  Iowa,  33 ;  106  Penn. 
St.  574.  But  a  putative  father  who 
has  paid  a  judgment  against  himself 
for  breach  of  a  bond  to  the  town  for 
the  child's  support,  and  has  received 
the  child  with  authority  from  the  se- 
lectmen, has  a  right  to  the  child's 
control  and  custody.  Adams  v. 
Adams,  50  Vt.  158.  As  to  the  guard- 
ian's right  of  custady  to  an  illegiti- 
mate orphan  child,  see  Johns  v.  Em- 
mert,  62  Ind.  533.  And  where  the 
child  has  ben  abandoned  and  appren- 
ticed out  by  an  asylum,  see  Copeland 
V.  State,  60  Ind.  394. 

81.  Marshall  v.  Reams,  32  Fla.  499. 

82.  lUd. 

83.  Ousset  V.  Euvrard  (N.  J.  Ch. 
1902),  52  A.  1110. 

84.  In  re  Hope,  19  R.  I.  486,  34  A. 
994. 

85.  Commonwealth  v.  Fee,  6  S.  A 
R.  255. 

86.  Bell  V.  Terry  &  Tench  Co.,  163 
N.  Y.  S.  733,  177  App.  Div.  123. 


87.  People  v.  Green,  19  Cal.  App. 
109,  124  P.  871;  Moss  v.  United 
States,  29  App.  D.  C.  188;  Beckett  v. 
State,  4  Ind.  App.  136,  30  N.  E.  536; 
State  V.  Byron  (N.  H.),  104  A.  401; 
People  ex  rel.  Lawton  v.  Snell,  216 
N.  Y.  527,  111  N.  E.  50  (reversing 
order,  153  N.  Y.  S.  30,  168  App.  Div. 
410)  ;  Bissell  v.  Myton,  145  N.  Y.  S. 
591,  160  App.  Div.  263 ;  State  v.  Mil- 
ler, 3  Pennewill  (Del.),  518,  52  A. 
262;  State  v.  Tieman,  32  Wash.  294, 
73  P.  375,  98  Am.  St.  Rep.  854. 

88.  Moss  V.  United  States,  29  App. 

D.  C.   188;   State  v.  Byron    (X.  H.), 
104  A.  401. 

89.  People  v.  Chamberlain,  106  N. 
Y.  S.  149;  Ex  parte  Gambetta,  169 
Cal.  100,  145  P.  1005;  Wamsley  v. 
People  (Colo.),  173  P.  425;  Common- 
wealth V.  Callaghan,  223  Mass.  150, 
111  N.  E.  773  (although  husband  of 
mother  has  supported  it) ;  Craig  v. 
Shea  (Xeb.),  168  X.  W.  135.  Se3 
Creisar  v.  State,  97  Ohio,  16,  119  X. 

E.  128;    Hooper   v.    Hooper,   135   P. 
205,  67  Ore.  1S7,  135  P.  525. 


§  709  PAREKT  AND  CHILD.  744 

that  it  is  the  natural  and  moral  duty  of  the  parents  to  support 
even  illegitimate  children.*" 

Moreover,  upon  the  strength  of  the  natural  or  moral  obligation 
arising  out  of  the  relation  of  the  putative  father  to  his  child,  an 
action  at  common  law  lies  for  its  maintenance  and  support  upon 
an  express  promise ;  and  where  one  admits  himself  to  be  the  father 
and  adopts  (so  to  speak),  while  such  adoption  continues,  a  promise 
may  be  implied  in  favor  of  the  party  providing  for  it.  He  may 
renounce  such  adoption,  and  terminate  this  implied  assumpsit,  in 
which  case  there  is  no  remedy  to  be  pursued  unless  under  a  statute. 
The  father  can  only  be  charged  then  upon  his  contract.'^  But 
upon  his  promise  to  third  persons,  he  may  be  held  liable;  and  a 
promise  by  the  putative  father  to  pay  the  stepfather  for  the  child's 
support,  past  and  future,  if  he  will  continue  to  support  it,  is  bind- 
ing." Indeed,  where  the  putative  father  has  expressly  agreed  to 
pay  the  child's  relatives  for  its  support  during  minority,  and  to 
make  provision  by  will  for  that  purpose,  the  child  has  been  allowed 
to  bring  action  against  the  father's  estate  to  recover  for  such 
support  where  the  father  died  without  making  the  provision 
promised.^^ 

The  statutes,  however,  which  relate  to  the  maintenance  of  bastard 
children,  supply  the  want  of  adequate  common-law  remedies ;  the 
main  element  in  such  legislation  being  public  indemnity  against 
the  support  of  such  persons.  Under  the  old  poor-laws  of  England, 
the  mother  had  a  compulsory  remedy  against  the  putative  father; 
but  this  was  taken  away  by  the  act  of  4  &  5  Will.  lY.,  c.  76.  By 
the  statute  of  7  &  8  Vict.,  c.  101,  however,  the  mother  is  afforded 
relief  once  more,  and  the  father  may  be  summoned  before  the  petty 
sessions  and  ordered  to  pay  a  weekly  sum  for  the  child's  main- 
tenance, and  the  costs  of  obtaining  the  order ;  maintenance  to  last 
until  the  child  is  thirteen  years  of  age.     The  money  is  to  be  paid 

90.  Best  V.  House,  —  Ky.  — ,  113  Moncrief  v.  Ely,  19  Wend  405.  Claims 
S.  W.  849  (greater  than  duty  to  col-  for  maintenance  upon  the  estate  of  a 
lateral  kin).  There  is  a  natural  olU-  deceased  putative  father  are  not  fa- 
gation  to  support  even  illegitimate  vored,  -n-here  no  express  and  binding 
children,  -n-hich  the  law  will  enforce.  contract  to  support  can  be  established, 
Sanders  v.  Sanders,  167  N,  C.  319,  83  nor  are  verbal  declarations  readily 
S.  E.  490;  State  v.  Eucker,  86  S.  C.  available  to  show  such  a  contract. 
66,  68  S.  E.  133.  Duncan  v.  Pope,  47  Ga.  445;  Nine  v. 

91.  Hesketh  v.  Gowing,  5  Esp.  131;  Starr,  8  Ore.  49;  Dalton  v.  Halpin, 
Nichols  V.  Allen,  3  Car.  &  P.  36;  Fur-  27  La.  Ann.  382. 

rillio  V.  Crowther,  7  Dowl.  &  Py.  612;  92.  Wiggins  v.  Keizer,  6  Ind.  252. 

Cameron  v.  Baker,  1  Car.  &  P.  258;  93.  Todd  v.  Weber,  95  N.  Y.   181. 


745 


ILLEGITIMATE    CHILDREN. 


§    709 


to  the  mother,  and  may  be  recovered  by  distress  and  imprison- 
ment.'* The  provisions  of  law  in  force  in  most  of  the  United 
States  are  borrowed  from  the  older  English  statutes,  our  courts 
being  very  generally  invested  with  plenary  jurisdiction  over  such 
matters;  and  at  the  instance  of  the  mother  the  father  may  be 
coerced  by  arrest  and  imprisonment,  if  need  be,  into  giving  bonds 
and  furnishing  maintenance  for  his  illegitimate  child ;  thus  reliev- 
ing the  mother  to  some  extent  of  the  burden  to  which  his  criminal 
misconduct  has  chiefly  contributed,  and  indemnifying  the  public 
against  the  support  of  the  penniless  and  unfortunate.'^ 

Past  seduction  has  been  held  sufficient  to  support  a  deed.  There 
is  an  old  English  case,  where  equity  compelled  the  specific  perform- 
ance of  a  deed-poll,  made  by  a  man  who  had  seduced  a  woman  and 
had  a  child  by  her;  the  writing  promising  to  pay  £2,000  after  his 
death  for  the  purchase  of  an  annuity  for  the  mother  and  her  child 
for  their  lives.  Both  the  man  and  the  child  had  died  before  the 
suit  was  brought.^^  In  Pennsylvania,  the  same  principle  is 
pushed  even  farther;  for  it  isi  ruled  that  seduction  of  a  female 
and  begetting  a  bastard  is  sufiicient  consideration  to  support  a 
man's  promise  to  give  bonds  for  a  sum  of  money.*''     Statutory  lia- 


94.  And  see  2  &  3  Vict,,  ch.  85;  8 
&  9  Vict.,  ch.  101.  The  order  may  be 
obtained  by  a  married  woman,  mother 
of  the  bastard.  Regina  v.  CoUing- 
wood,  12  Q.  B.  681.  And  see  Follit 
V.  Koetzow,  24  Jur.  651.  In  case  of 
death  or  incapacity  of  the  mother,  so 
that  the  child  becomes  chargeable  to 
the  parish,  the  order  may  be  enforced 
by  the  guardians  or  overseers  of  the 
parish. 

95.  2  Kent,  Com.  215,  and  cases 
cited;  State  v.  Beatty,  66  N.  C.  648; 
Musser  v.  Stewart,  21  Ohio  St.  353; 
Marlett  v.  Wilson,  30  Ind.  240;  Bar- 
ber V.  State,  24  Md.  383;  Wheelwright 
V.  Greer,  10  Allen,  383:  See  Bishop 
and  other  writers  on  statutory  crimes. 
In  some  States  certain  persons  are  au- 
thorized to  make  complaint  against 
the  father  for  maintenance  of  the 
bastard,  where  the  mother  refuses  or 
neglects  to  do  so.  /&.  The  main  pur- 
purpose  of  these  bastard  acts  is  to 
indemnify  the  public  against  support 
of  the  child,  and  they  appear  to  be  in 


the  nature  of  civil  proceedings.  Some 
codes  permit  a  prosecution  while  the 
woman  is  pregnant  and  regardless  of 
the  future  birth  of  the  child.  128  Ind. 
397.  A  man  who  marries  a  woman 
known  by  him  to  be  pregnant,  be- 
comes liable  for  the  support  of  the 
child,  and  an  action  of  bastardy  will 
not  lie  against  the  natural  father. 
State  V.  Shoemaker,  62  Iowa,  343. 
See  §  23, 

96.  Marchioness  of  Annandale  v. 
Harris,  2  P.  Wms.  433.  And  see 
Turner  v.  Vaughan,  2  Wils.  339. 

97.  Shenk  v.  Mingle,  13  S.  &  R,  29. 
And  see  Phillippi  v.  Commonwealth, 
18  Penn.  St.  116;  Knye  v.  Moore,  1 
Sim.  &  Stu.  161.  The  undertaking  of 
a  putative  father  to  pay  the  mother 
money  for  the  support  of  the  child 
is  not  illegal.  Hook  v.  Pratt,  78  N.  Y, 
371.  A  negotiable  bill  might  thus  be 
given.    lb. 

A  mother  may  sue  for  injuries  done 
her,  notwithstanding  a  bastardy  act. 
Sutfin  V.  People,  43  Mich.  37. 


§  710  PARENT  AND  CHILD.  746 

bilitj  of  a  father  to  support  his  bastard  child  will  sufficiently 
support  his  promise  to  do  so.^*  But  there  must  be  nothing  oppres- 
sive or  unfair  in  such  transactions."  Nor  ought  agreements  as  to 
the  wages  of  sin  to  be  favored.^ 

Whatever  may  be  the  mother's  legal  responsibility  for  the  main- 
tenance of  her  bastard  child  while  she  lives,  it  appears  that  an 
action  cannot  be  maintained  against  the  administrator  of  her 
estate  for  the  child's  maintenance  subsequently  to  her  death.* 

§  710.  What  Law  Governs  Property  Rights. 

The  rights  of  the  parents  of  bastards  are  regulated  to  a  great 
extent  in  the  United  States  by  statute;  and  our  policy  is  in 
general  more  favorable  than  that  of  England  as  to  the  mother's 
rights.  An  illegitimate  child  follows  the  settlement  of  his  mother 
in  New  York  and  some  other  States.^  But  in  Connecticut  the  rule 
is  that  a  bastard  is  settled  where  born,  like  any  other  child,  and 
that  his  settlement  follows  that  of  the  putative  father.* 

An  illegitimate  child  which  becomes  legitimate  under  the  law 
of  the  domicile  of  the  parents  thereby  becomes  legitimate  every- 
where,^ while  the  right  of  a  bastard  to  inherit  land  depends  on  the 
law  of  the  State  where  the  land  lies ;  ^  but  where  by  State  law 
bastards  may  inherit  where  openly  recognized,  they  may  inherit 
although  such  recognition  took  place  in  another  State  where  bas- 
tards are  allowed  to  inherit.''  The  court  may  apply  the  law  of  the 
forum  even  to  a  foreigner,  and  if  he  is  entitled  by  the  law  of  the 
forum  may  allow  him  to  inherit  even  though  by  the  law  of  his  own 
country  he  is  illegitimate.* 

98.  53  Ark.  5.  See  Yearteau  v.  298.  And  see  Smith  v.  State,  1  Houst. 
Bacon,  65  Vt.  516.  C.  C.  107. 

99.  It  seems  that  a  contract  made  5.  Moore  v,  Saxton,  90  Conn.  164, 
to  avoid  a  threatened  prosecution  for  96  A.  960;  Batea  v.  Virolet,  53  N. 
bastardy  will  stand.  Kohrheimer  v.  Y.  S.  893,  33  App,  Div.  436;  s.  c. 
Winters,  126  Penn.  St.  253;  Merritt  54  N.  Y.  S.  475,  34  App.  Div.  629; 
T.  Fleming,  42  Ala.  234.  Finley  v.  Brown,  122  Tenn.  316,  123 

1.  See  Binnington  v.  Wallis,  4  B.  &      S.  W.  359. 

Aid.  650.  6.  Hall  v.  Gabbert,  213  111.  208,  72 

2.  Ruttinger  v.  Temple,  4  B.  &  S.  N.  E.  806;  Franklin  v.  Lee,  30  Ind. 
491;  Druet  v.  Druet,  26  La.  Ann.  323.  App.  31,  62  N,  E.  78;  Ives  v.  Nicoll, 

3.  See  2  Kent,  Com.  214;  Canajo-  12  Ohio  Cir.  Ct.  R.  297,  5  O.  C.  D. 
harie  v.  Johnson,  17  Johns.  41;  Peter-  555. 

eham  v.  Dana,  12  Mass.  429;  Lower  7.    Van    Horn    v.    Van    Horn,    107 

Augusta  V.  Salinsgrove,  64  Penn.  St.  Iowa,  247,  77  N.  W.  846,  45  L.  B.  A. 

166;  Stimson,  §§  6635-6638.  g'S. 

4.  Bethlem   v.    Roxbury,    20    Conn.  8.  Wolf  v.  Gall,  32  Cal.  App.  286^ 

163  P.  346.   350. 


747  ILLEGITIMATE    CHILDKEN.  §    711 

The  property  rights  of  bastards  to  inherit  depend  on  the  law 
in  force  at  the  date  of  the  death  of  the  decedent,®  and  the  right  to 
inherit  from  a  bastard  depends  on  the  law  in  force  at  his  death/" 
and  the  law  applicable  where  one  attempts  to  inherit  through  a 
deceased  bastard  depends  on  the  law  in  force  at  his  death  and  the 
State  cannot  endow  a  deceased  bastard  with  heritable  blood.^^ 

§  711.  Disability  of  Inheritance  at  Common  Law. 

The  most  important  disability  of  an  illegitimate  child  at  the 
common  law  is  that  he  has  no  inheritable  blood;  that  he  is  in- 
capable of  becoming  heir,  either  to  his  putative  father  or  to  his 
mother,  or  to  any  one  else ;  that  he  can  have  no  heirs  but  those  of 
his  own  body.^^  This  was  likewise  the  doctrine  of  the  civil  law ; 
the  language  of  the  Institutes  as  to  spurious  offspring,  patreni 
habere  non  intelliguntur,  dealing  rather  more  gently  with  a  fact  so 
extremely  delicate  and  painful. ^^  At  the  old  canon  law  a  bastard 
was  treated  as  also  disqualified  from  holding  dignities  in  the 
church;  but  this  doctrine  became  exploded  long  ago.  "And 
really,"  adds  Blackstone,  with  warmth,  as  if  to  atone  for  a  long 
and  fallacious  argument  against  legitimation  by  a  subsequent 
marriage,  "  any  other  distinction  but  that  of  not  inheriting,  which 
civil  policy  renders  necessary,  would,  with  regard  to  the  innocent 
offspring  of  his  parents'  crimes,  be  odious,  unjust,  and  cruel  to 
the  last  degree."  " 

^\jid  so  might  the  commentator  of  the  commentaries  stigmatize 
the  efforts  of  those  who  have  nothing  better  to  urge  against  human 
rights  than  the  importance  of  preserving  the  symmetry  of  the  law 
unimpaired. 

The  civil  law,  while  offering  in  certain  cases  a  hope  of  legitima- 
tion, made  a  distinction  between  spurious  offspring  born  of  an 
,  unfettered  promiscuous  intercourse,  and  such  as  were  conceived 
>  or  born  during  the  marriage  of  one  of  the  natural  parents,  or  were 
otherwise  the  product  of  a  complex,  nefarious,  or  incestuous  com- 
merce;  presuming  that  while  the  former  might  be  rendered  legit- 

9.  In  re  Loyd's  Estate,  170  Cal.  85,       v.  Mayes,   121    Tenn.   45,   114   S.   W. 
148    P.    522;    Trout   v.    Burnette,    99       478. 

S.  C.  276,  83  S.  E.  684.  12.  2  Kent,  Com.   212;   1  Bl.  Com. 

10.  Goughnour    v.    Zimmerman,    85       459. 

A.  874,  237  Pa.   599.  13.   Inst.   1,   10,   12;    2   Kent,  Com. 

11.  ]\rcCamey     v.     Cumminps,     130       212. 

Tenn.  494,  172  S.  W.  311;   Turnmire  14.  1  Bl.  Com.  459. 


§  712  PARENT  AND  CHILD.  748 

imate,  the  latter  never  could  become  &o/°  And  the  rule  was  more 
severe  with  the  one  class  than  the  other.  Natural  children  of  the 
former  kind  were  to  be  legitimated  per  rescriptum  principis,  on  the 
requisition  of  the  father  in  certain  special  circumstances,  as  matter 
of  legal  right ;  but  the  sovereign  rescript  was  extended  to  children 
of  the  other  sort  only  occasionally  as  an  exercise  of  sovereign  grace 
and  subject  to  the  sovereign  conditions.^^  This  principle  is  to  be 
traced  in  the  provisions  of  the  Louisiana  Code;  children  whose 
father  is  unknown,  and  adulterous  or  incestuous  children  having 
no  right  of  inheritance,  while  other  natural  or  illegitimate  children 
succeed  to  the  estate  of  their  mother  in  default  of  lawful  children 
or  descendants,  and  under  certain  conditions  to  the  estate  of  the 
father  who  has  acknowledged  them." 

§  712.  Inheritance  by  Bastards  under  Modem  Statutes. 

In  General. —  The  well-settled  American  rule,  however,  differs 
considerably  from  that  of  both  civil  and  common  law.  We  have 
already  noticed  that  legitimation  by  subsequent  marriage  is  a  prin- 
ciple admitted  very  generally  in  the  legislation  of  the  different 
States.^®  So,  too,  are  there  various  statutes  which  permit  even 
bastard  children  to  inherit  from  the  father  under  certain  restric- 
tions ;  and  legitimation  by  some  public  act  of  patei-nal  recognition 
or  adoption  is  applied  by  some  codes  aside  from  marriage ;  ^'  while 
the  generally  recognized  doctrine  is  partus  sequitur  ventrem,  and 
that  the  illegitimate  child  and  his  mother  shall  mutually  inherit 
from  each  other ;  and  while,  of  course,  if  the  bastard  leaves  lawful 
issue,   such  issue   inherit  like   any  other  legitimate   offspring."* 

15.  1  Dig.  5,  23;  Fraser,  Parent  &  18.  A  child  born  out  of  wedlock, 
Child,  119;  supra,  §§  226,  229.  but  afterwards  legitimized  by  subs©- 

16.  See  Gera  v.  Ciantar,  12  App.  quent  marriage,  is  an  heir  and  dis- 
ss?. Justinian's  Nov.  89  is  specific  tributee  like  the  other  children,  and 
on  this  matter  of  legitimation  per  has  all  the  rights  of  a  legitimate  child, 
rescriptum  principis  with  this  dis-  so  far  as  the  local  legislation  in  favor 
crimination  against  offspring  of  ne-  of  such  legitimacy  can  give  it  this 
farious  commerce.  By  the  later  civil  universal  effect.  Miller  v.  MUler,  91 
law,  after  the  dissolution  of  the  Ro-  N.  Y.  315;  Williams  v.  Williams,  11 
man  Empire,  children  of  parents  free  Lea,  652. 

to  marry  at  the  time  of  their  concep-  19.  Supra;  44  Kan.  12, 

tion  and  birth  could  long  be  legiti-  20.  Stimson's  Statute  Law,  §§  3151- 

mated  as  matter  of  right;   but  chil-  3154;    Grundy  v.  Hadfield,  16  N.  J. 

dren   of   the   other   class  only  at  the  579;  Lewis  v.  Eutsler,  4  Ohio  St.  354; 

discretion    of   the    ruling   power,   and  Opydyke's  Appeal,  49^  Penn.  St.  373; 

subject  to  its  conditions.     And  see  §  Hawkins  v.   Jones,    19   Ohio   St.   22; 

229.  Riley  v.  Byrd,  3  Head,  20;  Miller  v. 

17.  See  2  Kent,  Com.  213.  Stewart,  8  Gill,  128;  Earle  v.  Dawes, 


749 


ILLEGITIMATE    CHILDREN. 


§  712 


More  than  sixty  years  ago,  Kent  instanced  twelve  States  where 
bastards  could  inherit  from,  and  transmit  to,  their  mothers,  real 
and  personal  estate,  under  some  modifications;  while  in  New 
York,  the  mother  and  her  kindred  could  inherit  from  her  bastard 
offspring.^^  There  is  scarcely  a  State  in  the  Union  which  has  not 
departed  widely  from  the  policy  of  the  English  common  law; 
and  statutes,  which  happily  have  required  as  yet  very  little  judicial 
interpretation,  perpetuate  the  record  of  our  liberal  and  generouB 
public  policy  towards  a  class  of  beings  who  were  once  compelled 
to  bear  the  iniquities  of  the  parents.^^ 

The  right  of  a  bastard  to  inherit  is  statutory  purely,  as  no  such 
right  existed  at  common  law.^^     Statutes  as  to  the  inheritance  of 


3  Md.  Ch.  230;  Bates  v.  Elder,  118 
111.  436;  127  111.  425,  But  cf.  Jackson 
V.  Jackaon,  78  Ky.  390.  As  to  con- 
flict of  laws,  in  inheriting  land  from 
father,  etc.,  see  §  — ;  112  111.  234. 
21.  See  2  Kent,  Com.  11th  ed.,  212, 
213,  and  notes;  Keeler  v.  Dawson,  73 
Mich.  600;  Stimson,  §§  3151-3154. 
And  as  to  inheritance  from  the  father, 

see  supra,  §  .     These  statutes  of 

inheritance  are  not  generally  to  be  ex- 
tended by  construction  so  as  to  apply 
to  grandchildren  and  grandparents,  in 
a  case  of  illegitimacy.  See  Steckel's 
Appeal,  64  Pa.  St.  493;  Berry  v. 
Owens,  5  Bush,  452.  For  construction 
of  the  word  ' '  illegitimate, ' '  see  Miller 
V.  Miller,  25  N.  Y.  Supr.  507.  An 
illegitimate  chid  can  administer  on  his 
father's  estate  as  against  the  father's 
brother.  Ee  Pico,  52  Cal.  84.  See 
Magee's  Estate,  63  Cal.  414.  As  to 
an  illegitimate  child  unintentionally 
omitted  from  its  mother's  will,  see  57 
Cal.  484.  And  see  Iowa  code  making 
illegitimate  children  capable  of  in- 
heriting. 24  Fed.  R.  15.  In  general, 
an  illegitimate  child,  where  there  was 
no  subsequent  marriage  of  the  par- 
ents, nor  adoption,  cannot  inherit  from 
the  putative  father.  As  to  such  acts 
of  inheritance,  a  child  is  rendered  le- 
gitimate only  sui  modo.  Neil 's  Ap- 
peal, 92  Penn.  St.  193.  An  adopted 
illegjtimntf^  child  died,  having  in- 
herited land  from  its  adopted  mother ; 


and  its  natural  mother  was  allowed  to 
inherit  on  the  child's  death  without 
issue.  Krug  v.  Davis,  87  Ind.  5?0. 
Adoption  codes  in  some  States  would 
receive  a  different  construction.     See 

§ . 

A  child  begotten  of  a  mother  who 
had  married  in  good  faith,  not  know- 
ing that  a  legal  impediment  to  the 
marriage  existed,  is  treated  with  favor. 
Harrintgon  v.  Barfield,  30  La,  Ann. 
297.  By  local  statutes  the  legitimacy 
of  such  offspring  is  preserved  in  an- 
nulling such  marriages;  as  we  have 
see  supra,  Part  II.,  ch.  1.  And  see 
Watts  V.  Owens,  62  Wis.  512. 

22.  In  States  which  permit  illegiti- 
mate children  "recognized"  by  the 
father  to  inherit  from  him,  such  chil- 
dren are  "heirs"  under  a  statutory 
description.  152  U.  S.  65;  44  Kan. 
12. 

23,  In  re  Lindsay's  Estate,  176  Cal. 
238,  168  P.  113  (bastards  included 
under  "heirs");  Wolf  v.  Gall,  32 
Cal.  App.  286,  163  P.  346,  350;  Jack- 
son V.  Hocke,  171  Ind.  371,  84  N.  E. 
830;  Truelove  v.  Truelove,  86  N.  E. 
1018,  transferred  from  Appellate 
Court,  43  Ind.  App.  734,  86  N.  E. 
1000.  Mandate  modified,  88  N.  E. 
516;  L.  T.  Dickason  Coal  Co.  v.  Lid- 
dil,  49  Ind.  App.  40,  9A  N.  E.  411; 
Kotzke  V.  Kotzke's  Estate  (Mich.), 
171  N.  W.  442;  State  v.  McDonald, 
59  Ore.  520,  117  P.  281;  Eutledge  v. 


§  T12 


PAKENT    AND   CHILD. 


750 


bastards  should  be  construed  with  the  other  statutes  of  descent 
and  distribution,^*  and  the  word  "  child  "  and  similar  words  in 
statutes  of  descent  mean  legitimate  children  onlj,^^  although  bas- 
tards may  be  included  under  the  term  "  children/'  ^®  and  "  next  of 
kin  of  the  mother  "  may  include  her  illegitimate  children.^' 

Inheritance  from  Father. —  A  bastard  cannot  inherit  from  the 
father,'^  except  under  special  statute/®  as  where  a  man  not  the 
father  of  a  bastard  married  the  mother  and  acknowledged  the  child, 
it  could  inherit  as  his  heir.^° 

Statutes  providing  that  a  child  omitted  from  the  father's  will 
can  claim  his  distributive  share  of  his  estate  under  certain  circum- 
stances include  illegitimate  children  when  recognized.*^ 

Inheritance  from  Mother. —  Under  various  statutes  a  bastard 
can  inherit  from  his  mother/-  but  not  from  an  ancestor  of  his 


Tunno,  69  S.  C.  400,  48  S.  E.  297; 
Turnmire  v.  Mayes,  121  Tenn.  ^5,  114 
S.  W.  478;  Berry  v.  Powell,  47  Tex. 
Civ.  App.  599,  105  S.  W,  345;  Mans- 
field V.  Neff,  43  Utah,  258,  134  P. 
1160;  Eohwer  v.  District  Court  of 
First  Judicial  Dist.,  41  Utah,  279,  125 
P.  671. 

24.  See  Foster  v.  Lee,  172  Ala.  32, 
55  So.  125. 

25.  Williams  v.  Witherspoon,  171 
Ala.  559,  55  So.  132;  Jackson  v. 
Hocke,  171  Ind.  371,  84  N,  E.  830; 
Truelove  v.  Truelove,  86  N.  E.  1018, 
transferred  from  Appellate  Court,  43 
Ind.  App.  734,  86  N.  E.  1000  (man- 
date modified,  88  N.  E.  516)  ;  Wilson 
V,  Bass   (Ind.  App.),  118  N.  E.  379. 

26.  Rogers  v.  Weller  (111.),  5  Biss. 
166. 

27.  Eogers  v.  Weller,  Fed.  Cas.  No. 
12022   (5  Biss.  166). 

28.  Pair  v.  Pair,  147  Ga.  754,  95 
S.  E,  295;  Moore  v.  Moore,  30  Ky, 
Law  Rep.  383,  98  S.  W.  1027  (chil- 
dren of  void  marriage  between  negro 
and  white  woman)  ;  Goss  v.  Froman, 
89  Ky.  318,  12  S.  W.  387,  11  Ky.  Law 
Rep,  631,  8  L.  R.  A.  102;  Houghton 
V.  Dickinson,  196  Mass.  389,  82  N.  E. 
481 ;  Banks  v.  Galbraith,  149  Mo.  529, 
51  S.  W.  105;  In  re  Sollinger's  Es- 
tate, 40  Pa.  Super.  Ct.  5,  7 ;  Hayworth 
V.  Williams,  102  Tex.  308,  116  S.  W. 


43;    Lee   v.   Bolden,    Tex,    Civ.   App. 
1905,  85  S.  W.  1027. 

29.  Wolf  v.  GaU,  32  Cal.  App.  286, 
163  P.  346,  350  (where  legitimates 
may  inherit  from  mother  of  deceased 
father)  ;  Borroughs  v.  Adams,  78  Ind. 
160  (where  property  would  otherwise 
escheat) ;  Cooley  v.  Powers,  63  Ind. 
App.  59,  113  X.  E.  382  (an  adopted 
child  is  a  "legitimate"  child  bar- 
ring inheritance  by  bastards  under  the 
statute) ;  Bates  v.  Meade,  174  Ky. 
545,  192  S.  W.  666  (although  mar- 
riage void  and  children  born  before 
marriage)  ;  Davis  v.  Milford,  85  S.  C. 
504,   67   S.   E.   744. 

30.  Tieben  v.  Hapner,  111  N.  E. 
644  (reh.  den.,  62  Ind.  App.  650,  113 
N.  E.  310). 

31.  'Re  Wardell,  57  Cal,  484;  Bunce 
V.  Bunce,  14  N.  Y.  S.  659.  Contra, 
Kent  V.  Barker,  2  Gray  (Mass.),  535 
(holding  that  the  word  child  in  the 
statute  for  the  relief  of  children  un- 
intentionally omitted  from  a  will  ap- 
plies only  to  legitimate  children). 

82.  Moore  v.  Saxton,  90  Conn.  164, 
96  A.  9G0;  Eaton  v.  Eaton,  88  Conn. 
26?,  91  A.  191;  Smith  v.  Garber,  286 
111.  67,  121  N.  E.  173 ;  White  v.  Cur- 
tis, 78  Mass.  (12  Gray)  54;  Hahn  v. 
Hammerstein,  272  Mo.  248,  198  S.  W. 
833. 

If  a  legitimate  child  of  an  illegiti- 


*r  K 


751 


ILLEGITIMATE    CniLDREN. 


§  T12 


mother  who  survives  her,*^  but  where  the  statute  make3  the  child 
the  heir  of  his  mother  he  may  inherit  from  his  maternal  grand- 
parents.^* 

A  bastard  will  not  inherit  from  the  mother's  collateral  kindred,'' 
unless  it  is  provided  that  thev  may  inherit  as  if  legitimate,''  but 
may  by  statute  take  equally  with  legitimate  brothers  and  sisters.*^ 
Bastard  children  of  the  same  mother  can  inherit  from  each  other." 

From  Collaterals. —  A  statute  making  a  bastard  the  heir  of  its 
mother  does  not  suffice  to  allow  him  to  take  from  the  estate  of 
the  mother's  relative  as  the  representative  of  the  deceased  mother,^' 
but  a  statute  allowing  a  bastard  to  inherit  from  and  through  his 
mother  will  allow  him  to  inherit  from  an  illegitimate  brother.*" 

A  child  born  out  of  wedlock  after  the  divorce  of  his  parents  is 
not  of  kin  to  the  children  of  his  father  and  his  second  wife  within 
the  meaning  of  the  Federal  Employers  Liability  Act  and  there- 


mate  mother  can  inherit  from  the 
mother's  legitimate  half-brother  and 
sister,  he  takes  through  his  mother, 
and  not  directly.  Turnmire  v. 
Mayes,  121  Tenn.  45,  114  S.  "W.  478; 
Tigert  V.  Wells,  134  Tenn.  144,  183 
S.  W.  737  (statute  applies  to  shares). 

The  right  to  inherit  "from  and 
through"  the  mother  includes  inherit- 
ance directly  from  her  and  indirectly 
from  any  one  to  whom  or  from  whom 
kinship  can  be  traced  through  her, 
either  in  ascending  or  descending  line. 
Berry  v.  Powell,  47  Tex.  Civ.  App. 
599,  105  S.  W.  345;  Lee  v.  Frater,  — 
Tex.  Civ.  App.  — ,  185  S.  W.  325  (bas- 
tard inherits  mother's  share  of  com- 
munity property)  ;  Overton  v.  Over- 
ton, 29  Ky.  Law,  736,  96  S.  W.  469 
(capacity  to  inherit  from  or  to  mo- 
ther gives  no  right  to  inherit  from 
legitimate  half-brother  where  mother 
is  dead). 

The  child  of  a  marri-age  prohibited 
by  law  cannot  inherit.  Succession  of 
Davis,  126  La.  178,  52  So.  266  (white 
man  and  slave). 

38.  Thigpen  v.  Thigpen,  136  Ga. 
541,  71  S.  E.  790;  Hogan  v.  Hogan,  19 
Ky.  Law,  1960,  44  S.  W.  953;  Voor- 


hees  V.  Sharp,  63  X.  J.  Eq.  216,  49  A. 
722. 

34.  Lawton  v.  Lane,  92  Me.  170,  42 
A.  352.  Contra,  Holmes  v,  Adams, 
110  Me.  167,  85  A.  4?2. 

35.  Holmes  v.  Adams,  110  Me.  167, 
85  A.  492;  Reynolds  v.  Hitchcock,  72 
X.  H.  340,  56  A,  745;  In  re  Lauer'a 
Estate,  136  X.  Y.  S.  325,  76  Misc.  117. 

36.  Chambers  v.  Chambers,  249  111. 
126,  94  X.  E.  108;  Barron  v.  Zim- 
merman, 117  Md.  296,  83  A.  258; 
Davidson  v.  Brownlee,  114  Miss.  398, 
75  So.  140;  Moore  v.  Moore,  169  Mo. 
432,  69  S.  W.  278,  58  L.  R.  A.  451 
(from  brother  of  mother) ;  Dennis  v. 
Dennis,  105  Tenn.  86,  58  S.  W.  284 
(bastard  takes  as  "issue"). 

37.  Laughlin  v.  Johnson,  102  Tenn. 
455,  52  S.  W.  816  (bastard  shares  in 
estate  of  legitimate  brother).  See 
contra,  Jackson  v.  Hoeke,  171  Ind. 
371,  84  X.  E.  830. 

88.  Berry  v.  Tullis,  105  S.  W.  348. 

39.  Chambers  v.  Chambers,  249  111. 
126,  34  X.  E.  lOS. 

40.  Berry  v.  Powell,  101  Tex.  55, 
104  S.  W.  1044;  Berry  v.  Powell,  47 
Tex.  Civ.  App.  599.  105  S.  W.  345 
(kinship  created  on  mother 's  side  and 
not  on  father's). 


713 


PARENT    AND    CHILD. 


752 


fore  such  children  cannot  recover  for  his  wrongful  death  although 
he  had  contributed  to  their  support.*^ 

§  713.  Inheritance  from  Bastards. 

Putative  Father. —  A  statute  providing  certain  rights  of  inherit- 
ance to  the  father  of  ar^  infant  does  not  give  the  putative  father  of 
a  bastard  any  rights.*^ 

Mother. —  The  mother  of  a  bastard  child  is  commonly  made  by 
statute  his  heir*^  and  under  a  statute  providing  that  bastards  may 
inherit  from  and  to  their  mother  the  entire  estate  of  a  bastard 
passes  to  the  mother  to  the  exclusion  of  the  father.'** 

Heirs  of  Mother. —  A  statute  providing  for  inheritance  to  the 
mother  of  a  bastard  does  not  authorize  the  heirs  of  a  deceased 
mother  to  inherit*^  and  a  statute  providing  for  descent  from  a 
bastard  to  his  mother  or  her  heirs  does  not  authorize  descent  to  the 
father  or  his  heirs.'** 

Husband  and  Wife. —  Where  the  law  provides  for  the  descent  of 
the  estate  of  bastards  leaving  no  "  relatives  "  the  word  relatives 
is  used  in  its  ordinary  sense  and  includes  the  husband  or  wife  of 
the  bastard.'*^ 

Children  of  Bastard. —  At  common  law  a  bastard  could  not  have 
heirs  except  of  his  own  body/®  and  under  a  statute  making  a 
bastard  child  the  heir  of  his  mother  she  has  no  rights  in  his 
estate  as  against  his  children,*®  but  the  legitimate  children  and 
grandchildren  of  a  bastard  can  inherit  from  the  mother."*" 


41.  Cincinnati,  New  Orleans,  &c.,  R. 
Co.  V.  Stephens,  157  Ky.  460,  163  S. 
W,  493,  51  L.  R.  A.  (N.  S.)  308. 

42.  Blankenship  v.  Ross,  95  Ky.  306, 
25  S.  W.  268,  15  Ky.  Law,  708.  As 
to  rights  of  father,  see  further  ante. 

43.  Succession  of  Lacosst,  142  La. 
673,  77  So.  497  (only  if  child  was  ac- 
knowledged) ;  Reese  v.  Starner,  106 
Md.  50,  66  A.  443  (mother  and  widow 
of  bastard  share  his  estate). 

44.  Ford  v.  Boone,  32  Tex.  Civ.  App. 
550,  75  S.  W,  353. 

45.  McCully  v.  Warrick,  61  N.  J. 
Eq,  606,  46  A.  949;  In  re  Belcher's 
Estate,  149  N.  Y.  S.  479 ;  Osborne  v. 
McDonald,  159  P.  791.  See  Carolina 
V.  Markham,  174  N.  C.  338,  93  S.  E. 
845.  See  Waiker  v.  Johnston,  70  N. 
C.  576. 


46.  Sanford  v.  Marsh,  180  Mass. 
210,  62  N.  E.  268. 

47.  Lewis  v.  Mynatt,  105  Tenn.  508, 
58  S.  W.  857;  Heller  v.  Teale,  216 
P.  387  ("relatives"  of  bastard  held 
to  include  descendants  of  brother  of 
mother). 

48.  State  v.  McDonald,  59  Ore.  520, 
117  P.  281 ;  Rohwer  v.  District  Court 
of  First  Judicial  Dist.,  41  Utah,  279, 
125  P.  671;  L.  T.  Dickason  Coal  Co. 
V.  Liddil,  49'  Ind.  A.  40,  94  N.  E.  411. 

49.  Goodell  v.  Yezerski,  170  Mich. 
578,  136  N.  W.  451. 

50.  Foster  v.  Lee,  172  Ala.  32,  55 
So.  125;  McKellar  v.  Harkins  (la.), 
166  N.  W.  1061.  Sele  Cooley  v. 
Powers,  63  Ind.  App.  59,  113  N.  E. 
382  (children  of  deceased  bastard  do 
not  inherit  from  the  putative  father). 


753 


rLLEGITIMATE    CHILDREN. 


714 


Brothers  and  Sisters. —  Bastard  cliildreii  of  the  same  mother 
may  inherit  from  each  other  by  statute,"  and  where  the  statute 
provides  that  a  mother  and  her  heirs  may  inherit  from  a  bastard 
child  her  other  illegitimate  children  may  inherit  from  a  bastard 
ehild  on  her  death  before  him,"  although  descent  by  statute  to  the 
brothers  or  sisters  of  the  deceased  bastard  may  include  the  legiti- 
mate half  brothers  and  sisters,^^  and  provision  for  the  descendants 
of  brothers  and  sisters  of  a  bastard  means  only  legitimate  descend- 
ants.^* A  provision  that  in  case  of  the  death  of  a  bastard  without 
issue  his  estate  shall  descend  as  if  all  the  childre  were  legitimate 
includes  brothers  and  sisters  only  and  has  no  application  to  col- 
laterals." 

Collaterals. —  "Where  the  statute  provides  that  collateral  rela- 
tives shall  inherit  only  where  the  bastard  dies  without  a  widow 
the  existence  of  a  widow  prevents  them  from  inheriting  at  all 
although  the  widow  releases  her  rights  or  is  barred  to  assert 
them.^®  A  statute  providing  that  the  estate  of  a  bastard  shall 
descend  to  his  widow  and  children  confers  no  rights  on  collaterals.'^ 

What  Property  Passes. —  Statutes  governing  succession  in  the 
property  of  a  bastard  apply  only  to  his  separate  property  and  not 
his  community  property.^^ 

Escheat  to  State. —  Where  the  bastard  can  transmit  his  property 
to  no  surviring  relatives  his  share  will  escheat  to  the  State."* 

§  714.  Bequests  and  Gifts  to  Illegitimate  Children. 

Bequests  to  illegitimate  children,  since  they  are  not  considered 
as  relatives,  are  not  favored  in  English  law.     There  have  been,  it 


51.  Curlew  v.  Jones  (Ga.),  91  S.  E. 
15;  Huddleston  v.  Henderson,  181  111. 
App.  176;  Ashe  v.  Camp  Mfg.  Co., 
154  N.  C.  241,  70  S.  E.  295  (although 
one  of  the  father 's  was  a  negro  whose 
marriage  to  a  white  woman  was  pro- 
hibited by  law)  ;  Yates  v.  Craddock, 
—  Tex.  Civ.  App.  — ,  184  S.  W.  276. 

52.  In  re  De  Cigaran's  Estate,  150 
Cal.  682,  89  P.  833  (not  to  surviving 
husband).  Contra,  Eaton  v.  Eaton, 
88  Conn.  269,  91  A.  191;  Brown  v. 
Alexander  (Miss.),  79  So.  842;  An- 
onymous, 158  N.  Y.  S.  51;  In  re  Mc- 
Cully's  Estate,  12  Pa.  Super.  Ct.  78. 

5S.  Ward  v.  Mathews,  122  Ala.  188, 
25  So.  50. 

48 


54.  Giles  v.  Wilhoit,  Tenn.  Ch.  App. 
(1898),  48  S.  W.  268. 

55.  Bettis  v.  Avery,  140  N.  C.  184, 
52  S.  E.  584. 

56.  Hudnall  v.  Ham,  183  111.  4S6, 
56  N.  E.  183,  48  L.  R.  A.  557,  75 
Am.  St.  R.  124  (affirming,  172  111. 
76,  49  N.  E.  985). 

57.  Hudnall  v.  Ham,  183  111.  486, 
56  N.  E.  172,  48  L.  R.  A.  557,  75  Am. 
Dec.  124  (affirming,  172  111.  76,  49  N. 
E.   985). 

58.  In  re  De  Cigaran's  Estate,  150 
Cal.  682,  89  P.  833. 

59.  McSurley  v.  Venters,  31  Ky. 
Law,  963,  104  S.  W.  365;  Succession 
of  Gravier,  125  La.  733,  51  So.  704; 


§  714  PARENT  a:^d  child.  75-i 

is  true,  certain  dicta  to  the  contrary;  but  Lord  Eldon  was  of  the 
opinion  that  there  must  be  something  to  show  that  the  testator 
put  himself  in  loco  parentis;  and  it  has  since  been  decided  that  an 
illegitimate  child  is  not  merely,  as  such,  within  the  rule,  for  he  is 
"  a  stranger  to  the  testator."  ®**  On  the  ground  of  uncertainty 
in  the  person,  a  bequest  to  an  unborn  legitimate  child  was  long 
considered  objectionable;  but  Lord  Eldon  and  others  maintained 
that  legacies  given  to  the  unborn  illegitimate  child  of  a  particular 
woman  then  pregnant  would  be  good,  because  the  uncertainty  of 
description  could  here  be  obviated.^^  But  it  isi  now  well  settled 
in  England  that  a  devise  or  bequest  in  favor  of  other  future  illegit- 
imate children  generally  is  void,®"  and  a  bequest  by  a  testator  to 
"  any  other  male  child  by  Mary  Ann  "  his  mistress,  is  void  al- 
though there  was  a  male  child  en  ventre  at  the  testator's  death.®^ 
Illegitimate  children  may  undoubtedly  take  by  purchase  as  per- 
sons designated,  if  siiificiently  described.®*  The  question  in  cases 
of  this  sort  is  really  one  of  intention.  Prima  facie,  the  term 
"  children  "  in  a  will,  however,  is  intended  to  mean  legitimate 
children ;  and  if  there  are  legitimate  children,  or  if  it  be  possible 
that  there  should  be  legitimate  children  of  the  person  named,  the 
English  rule  is  that  no  illegitimate  child  can  take  under  the  de- 
scription of  children.®^  Yet,  if  they  have  acquired  the  reputation 
of  being  the  children  of  a  particular  person,  or  if  the  will  shows 
a  clear  intention  to  provide  for  such  persons,  they  are  capable 
of  taking  under  the  description  of  "  children,"  or  ^'daughters."" 

Bent's  Adm'r  v.   St.  Vrain,  30  Mo.  E.  6  Eq.  278;  Crook  t.  Hill,  L.  E.  6 

268.  Ch.  311. 

60.  Lowndes  v.  Lowndes,  15  Ves.  65.  Gill  v.  Shelley,  2  Euss.  &  My. 
304;  Perry  v.  Whitehead,  6  Ves.  547;  336;  In  re  Wells's  Estate,  L.  E.  6  Eq. 
contra,  per  Lord  Alvanley,  Cricket  v.  5?9;  Paul  v.  Children,  L.  E.  12  Eq. 
Dolby,  3  Ves.  30;  Macphers.  Inf.  238.  16;  Dorin  v.  Dorin,  L.  E.  7  H,  L.  568. 

61.  Macphers.  Inf.  570,  and  cases  See  as  to  "nephews,"  35  Ch.  D.  551. 
cited;  Gordon  v.  Gordon,  1  Mer.  141;  66.  Peachey,  Mar.  Settl.  885,  n.,  and 
Dawson  v.  Dawson,  6  Madd.  292.  cases  cited;  Evans  v.  Davis,  7  Hare, 

62.  Beachcroft  v.  Beachcroft,  1  501;  Owen  v.  Bryant,  2  De  G.,  M.  & 
Madd.  430;  Knye  v.  Moore,  1  Sim,  &  G.  697;  Hartley  v.  Tribber,  16  Beav. 
Stu.  61;  Wilkinson  v.  Wilkinson,  1  510;  Leigh  v.  Byron,  1  Sm.  &  Gif. 
You.  &  Coll.  657;  Medworth  v.  Pope,  486;  Tugwell  v.  Scott,  24  Beav.  141; 
27  Beav.  71.  Worts  v.  Cubitt,  19  Beav,  421.     And 

63.  In  re  Homer,  115  L.  T.  E.  703;  see  Williamson  v.  Codrington,  1  Ves. 
see  note  at  30  Harvard  Law  Eeview,  Sen.  511.  Where  legitimate  children 
652.  alone   answer   to   the    description    in- 

64.  Blodwell  v.  Edwards,  Cro.  Elii.  tended,  or  are  sufficiently  designated, 
509 ;  Co.  Litt.  36 ;  Peachey,  Mar.  they  will  take  under  the  will.  Hill  v. 
Settl.  885,  n.;  Clifton  v.  Goodbun,  L.  Crook,  L.  E.  6  H,  L,  265.     And  the 


755 


ILLEGITIMATE    CHILDREN. 


§  714 


In  Medworth  v.  Pope,  tlie  rule  was  concisely  stated  to  be,  that  an 
illegitimate  child  in  esse  or  en  ventre  sa  mere  may,  if  properly 
described,  take  the  benefit  of  a  devise  or  bequest,  and  the  court 
will  not  inquire  as  to  his  parentage  or  origin ;  but  that  in  respect 
of  future  illegitimate  children,  the  law  will  not  let  them  take 
under  any  description  whatever.  "  The  reason  why  the  English 
law  so  holds  is  that  it  considers  such  a  provision  for  future  illegit- 
imate children  as  contra  honos  mores."  *^  But  the  English  chan- 
cery still  wavers  in  applying  this  rule,  in  the  absence  of  a  final 
exposition  on  last  appeal;  for  it  is  lately  laid  down  and  affirmed 
that  a  gift  by  will  to  any  illegitimate  children  of  a  testator  in 
effect  who  may  be  in  esse  before  the  testator's  own  death  is  a 
valid  gift."* 

In  this  country,  the  tendency  seems  to  be  so  far  favorable  to 
illegitimate  children  as  to  regard  wills  made  in  their  favor  with 
the  same,  or  nearly  the  same,  consideration  as  all  others.  And 
our  courts  regard  bastards  as  having  strong  claims  to  equitable 
protection,  notwithstanding  the  criminal  indulgence  of  their  par- 
ents. In  several  important  cases,  specific  performance  of  volun- 
tary settlements  made  by  the  father  in  their  favor  have  been  de- 
creed.*® And  a  devise,  in  specific  terms,  to  an  unborn  natural 
child  of  a  woman  then  pregnant,  is  sustained  here  as  in  England 


TO 


ultimate  right  of  the  crown  in  case  of 
illegitimacy  cannot  be  evaded  by  the 
terms  of  a  trust.  Be  "Wilcock's  Set- 
tlement, L.  E.  1  Ch.  D.  229. 

67.  Per  M.  K.,  in  Medworth  v.  Pope, 
27  Beav.  71.  A  child  en  ventre  sa 
m.ere  at  date  of  the  will,  though  not 
born  until  after  testator's  death,  may 
take  a  bequest.  Crook  v.  Hill,  3  Ch. 
D.  773.  And  see  L.  R.  6  H.  L.  265, 
Further  important  illustrations  of  the 
equity  doctrine  may  be  seen  in  the 
modern  cases  of  Lambe  v.  Eames,  L. 
R.  6  Ch.  597;  Holt  v.  Sindrey,  L.  R. 
7  Eq.  170;  Savage  v.  Robertson,  L. 
R.  7  Eq.  176.  And  as  to  the  applica- 
tion of  27  Eliz.,  ch.  4,  to  marriage 
settlements  for  bastards,  dee  Clarke  v. 
Wright,  6  Hurl.  &  Nor.  849.  As  to 
legacies  and  devises,  see  Beachcroft 
V.  Beachcroft,  1  Madd.  430,  and  cases 
cited;  Durrant  v.  Friend,  11  E.  L.  ft 
Eq.   2;   Owen  v.  Bryant,  13  E.  L.  ft 


Eq.  217;  4  Kent  Com.  414;  Bagley  v. 
Mollard,  1  Euss.  &  My.  581. 

68.  Occleston  v.  Fullalove,  L.  R.  9 
Ch.  147,  Lord  Selborne  dis.;  Hastie's 
Trusts,  35  Ch.  D.  728, 

69.  Gardner  v,  Heyer,  2  Paige,  11; 
Bunn  V.  Winthrop,  1  Johns.  Ch.  338; 
Harten  v.  Gibson,  4  Desaus,  139;  2 
Kent  Com.  216;  Shearman  v.  Angel, 
Bail.  Eq.  351;  Collins  v,  Hoxie,  9 
Paige,  88.  Illegitimate  children  can- 
not take  under  a  trust  limited  to 
"lawfully  begotten  children."  Ed- 
wards's Appeal,  108  Pa.  238.  But 
"heirs"  limited  to  "children"  may 
include  illegitimate  children  under  a 
fair  construction,  Howell  v.  Tyler, 
91  N.  C.  207,  See  also  King  v.  Davis, 
Ih.  142. 

70.  Knye  v.  Moore,  5  Harr.  &  Johns. 
10.  As  to  legacies  and  devises  to  ille- 
gitimate children  under  American 
laws,  see  4  Kent  Com.   413,  414,  and 


§  715 


PARENT    AND    CHILD. 


756 


But  whether  our  tribunals  would  sanction  a  bequest  to  other  un- 
born illegitimate  children  generally  may  admit  of  doubt,  pro- 
vided such  child  were  never  legitimated  by  subsequent  marriage 
or  adoption.  For,  after  all,  there  must  be  some  discrimination 
made  against  criminal  intercourse.'^ 

A  deed  by  a  father  to  his  bastard  son  may  be  valid,"  although 
in  some  States  there  are  laws  nullifying  donations  by  fathers  to 
their  illegitimate  children,'^  and  it  is  held  that  the  bastards  have 
the  burden  of  proof  to  show  that  gifts  to  them  were  made  for  a 
valuable  consideration/*  and  the  acknowledgement  is  to  produce 
evidence  of  paternity  and  may  be  made  even  before  the  passage 
of  the  statute." 


§  715.  Effect  of  Recognition. 

Laws  have  been  passed  in  many  States  providing  for  the  legiti- 
mation of  bastard  children  by  their  recognition  by  the  father." 

Acknowledgment  by  the  father  will  by  statute  frequently  legiti- 
mate bastards.'^'  The  recognition  is  enough  if  only  the  father 
recognizes  the  bastard  as  his  child  and  he  need  not  recognize  his 
right  to  inherit.'®     General  and  notorious  recognition  may  be  re- 


cases  cited;  Hughes  v,  Knowlton,  37 
Conn,  429. 

71.  A  general  limitation  to  a  wo- 
man's future  illegitimate  is3ue  is 
against  good  morals  and  public  policy. 
Kingsley  v.  Broward,  19  Fla.  722. 

72.  Hall  V.  Hall,  26  Ky.  Law,  610, 
82  S.  W,  300, 

73.  Succession  of  Vance,  110  La. 
760,  34  So.  767  (gifts  causa  mortis 
to  bastard  are  null) ;  Delancy  v,  Beale, 
1  La,  495;  O'Hara  v.  Conrad,  10  La. 
Ann.  638;  Tedder  v.  Tedder  (S.  C), 
96  S.  E.  157, 

74.  Tedder  v.  Tedder,  108  S,  C,  271, 
94  S,  E,  19, 

75.  Townsend  v,  Meneley,  37  Ind, 
App.  127,  76  N.  E.  321, 

76.  Daggy  v.  Wells,  38  Ind.  App. 
27,  76  N.  E.  524;  Tieben  v.  Hapner, 
111  N.  E,  644  (reh,  den.,  62  Ind, 
App.  650,  113  N,  E.  310) ;  Townsend 
V.  Meneley,  37  Ind.  App.  127,  74  N. 
E.  274,  76  N.  E.  321;   In  re  Barrin- 


ger'3  Estate,  61  N.  Y.  S.  1090,  29 
Misc.  457.  See  Lewis  v.  Mynatt,  105 
Tenn.  508,  58  S.  "W.  857. 

77.  Miller  v.   Pennington,   218   111. 
220,  75  N.   E.   919,  1  L.  E,   A,   773; 
I>aggy  V,  Wells,  38  Ind.  App.  27,  76 
N.  E.  524;  Brown  v.  Iowa  Legion  of 
Honor,  107  la.  329,  78  N.  W.  73  (let- 
ter saying  "kiss  our  boys  for  me" 
enough) ;  Robertson  v.  Campbell,  147 
N.  W.  301  (reh.  den.,  149  N.  W.  885) 
(acknowledgment  need  not  be  univer 
sal  where  open  to  friends  of  father) 
Eecord  v.  Ellis,  97  Kan.  754,  156  P 
712;    Succession    of   Fortier,    51    La 
Ann,  1562,  26  So.   554;   In  re  Eich 
mond's  Estate,   189  N,  W.   435    (ac 
knowledgment  in  application  for  pen 
sion  enough). 

78.  Alston  V.  Alston,  114  la.  29,  86 
N.  W.  55;  Thomas  v,  Thomas's  Es- 
tate, 64  Neb,  581,  90  N.  W.  630;  In 
re  Rohrer,  2  Wash.  151,  60  P,  122,  59 
L,  E,  A.  350. 


757 


ILLEGITIMATE    CHILDKEN. 


§  715 


quired/*  or  recognition  in  writing,*"  or  it  may  take  place  by 
adoption  into  the  family,*^  but  adoption  of  an  illegitimae  child 
does  not  deprive  it  of  its  right  to  inherit  as  a  bastard/^  The  bur- 
den of  proof  to  show  recognition  rests  on  the  bastard.** 

Where  a  bastard  child  is  legitimated  he  will  inherit  as  if  legiti- 
mate,** and  others  may  inherit  from  him  as  if  legitimate,*^  and  his 
descendants  may  inherit,*®  or  her  may  take  as  a  '*  child"  under  the 
statute.*'     However,  a  statute  providing  only  that  a  bastard  recog- 


79.  Van  Horn  v.  Van  Horn,  107  la. 
247,  77  N.  W.  846,  45  L,  B.  A.  93; 
Markey  v.  Markey,  108  la.  373,  79  N. 
W.  258;  Johnson  v.  Bodine,  108  la. 
59^4,  79  N.  W.  348;  McCorkendale  v. 
McCorkendale,  111  la.  314,  82  N.  W. 
754;  Allston  v.  AUston,  114  la.  29,  86 
N.  W.  55;  Duffy  v.  Duffy,  114  la.  581, 
87  N.  W.  500;  Britt  v.  Hall,  116  la. 
564,  90  N.  W.  340  (declarations  ad- 
mitting paternity  by  the  father  are 
admissible  as  against  interest,  but 
declarations  denying  paternity  are  not 
admissible) ;  Murphy  v.  Murphy,  146 
la.  255,  125  N.  W.  191  (common  re- 
port in  neighborhood  is  not  sufficient 
to  prove  general  recognition) ;  Tout 
T.  Woodin,  157  la.  518,  137  N.  W. 
1001   (need  not  be  universal). 

Where  the  statute  requires  general 
and  notorious  recognition  of  an  ille- 
gitimate child  to  allow  him  to  take  as 
heir  this  is  not  shown  by  occasional 
acts  of  recognition  to  a  few  old 
friends  and  acquaintances  in  the  town 
where  he  used  to  live  where  none  knew 
of  the  affair  in  the  State  to  which  he 
removed  and  where  he  married.  Ke- 
cord  V.  Ellis,  97  Kan.  754,  156  P. 
712,  L.  E.  A.  1916E,  654. 

80.  McKellar  v.  Harkins  (la.),  166 
N.  W.  1061  (signing  adoption)  ;  Wat- 
son V.  Richardson,  110  la.  673,  80  N. 
W.  407  (lost  contract  insufficient) ; 
Lind  V.  Burke,  56  Neb.  785,  77  N.  W. 
444  (letter  by  father  and  speaking  of 
bastard  as  ' '  my  son ' '  is  insufficient) ; 
Rentie  v.  Rentie  (Okla.),  172  P.  1083; 
Moen  V.  Moen,  16  S.  D.  210,  92  N.  W. 
13. 


81.  Morton's  Estate  v.  Morton,  62 
Neb.  420,  87  N.  W.  182. 

82.  McKellar  v.  Harkins  (la.),  166 
N.  W.  1061. 

83.  Watson  v.  Richardson,  110  la. 
673,  80  N.  W.  407. 

84.  Wolf  V.  Gall,  32  Cal.  App.  286, 
163  P.  346,  350  (as  representative  of 
deceased  father) ;  Hall  v.  Gabbert,  213 
ni.  208,  72  N.  E.  806;  Haddon  v. 
Crawford,  49  Ind.  App.  551,  97  N.  E. 
811;  Luce  v.  Tompkins,  177  la.  168, 
158  N.  W.  535;  Haggard  v.  Mason, 
154  S.  W.  907,  153  Ky.  113;  Bourri- 
aque  v.  Charles,  107  La.  217,  31  So. 
757;  Copeland  v.  Copeland  (Okla.), 
175  P.  764;  Templeman  v.  Bruner, 
138  P.  152  (judgment  affd.  on  reh., 
42  Okla.  6,  139  P.  993)  (child  still 
regarded  as  illegitimate  where  the 
rights  of  the  mother  are  involved)  ; 
In  re  Oliver's  Estate,  184  Pa.  306,  39 
A.  72,  28  Pittsb.  Leg.  J.  164;  Scott 
V.  Wilson,  110  Tenn.  175,  75  S.  W. 
1091;  Mansfield  v.  Neff,  43  Utah,  258, 
134  P.  1160;  Stewart  v.  Wells,  47 
Ind.  App.  228,  94  N.  E.  235.  See 
Kotzke  V.  Kotzke's  Estate  (Mich.), 
171  N.  W.  442  (as  to  civil  law). 

85.  Shelton  v.  Wright,  25  Ga.  636 
(brother  and  children)  ;  Succession  of 
Gravier,  125  La.  733,  51  So.  704 
(brothers  and  sisters  of  bastard). 

86.  Morin  v.  Holliday,  39  Ind.  App. 
201,  77  N.  E.  861;  In  re  Garr's  Es- 
tate, 31  Utah,  57,  86  P.  757  (children 
of  bastard  after  his  acknowledgment 
take  as  heirs  of  father  where  bastard 
dies  before  his  father). 

87.  In  re  Gorkow's  Estate,  20  Wash. 
563,   56   P.   385. 


§    715  PAREJSfT    AND    CHILD.  758 

nized  may  inherit  from  the  father  does  not  make  the  bastard  legiti- 
mate and  does  not  entitle  him  to  take  under  a  will  devising  to  the 
"  lawful  issue  "  of  the  father.*^  And  a  statute  providing  that  an 
illegitimate  child  shall  inherit  from  the  father  when  recognized 
means  only  that  lie  shall  have  the  same  rights  as  a  legitimate  child 
and  does  not  prevent  the  father  from  disinheriting  him  by  will.** 

"Where  an  illegitimate  child  is  recognized  the  will  of  the  father 
may  be  revoked  by  its  birth  ^°  or  by  his  marriage  with  the  mother  '^ 
under  statutes  giving  illegitimates  equal  rights  when  recognized. 

Where  the  law  makes  the  mother  of  a  bastard  child  the  heir  of 
its  mother  its  legitimation  does  not  render  the  father  an  heir/' 
but  the  rights  of  a  legitimated  child  to  inherit  from  the  father  is 
not  weakened  by  the  fact  that  the  mother  has  a  right  superior  to  the 
father  to  the  child's  person.'^ 

Where  the  statute  renders  marriage  of  the  father  and  mother 
suflScient  to  legitimate  a  child  this  only  applies  where  the  father 
died  after  the  enactment  of  the  statute  but  death  after  the  passage 
of  the  statute  will  be  presumed  in  the  absence  of  evidence.'*  Where 
a  child  of  a  common-law  marriage  is  illegitimate  as  born  before  the 
death  of  the  first  wife  it  becomes  legitimate  where  the  parents 
continue  their  cohabitation  after  the  death  of  the  first  wife.*' 

Legitimation  of  children  of  a  slave  marriage  did  not  make  a 
second  marriage  void  and  the  children  of  the  second  marriage 
illegitimate.^^  The  recognition  of  the  issue  of  a  polygamous 
marriage  will  not,  however,  be  allowed  to  legitimate  such  issue 
even  though  the  polygamous  marriage  was  made  in  a  foreign 
country  where  such  marriages  were  legal."^  An  illegitimate  sister 
of  the  full  blood  will  take  to  the  exclusion  of  legitimate  brothers 
and  sisters  even  though  the  bastard  had  been  legally  adopted  by  the 
father.«« 

88.  Brisbin  v.  Huntington,  128  la.  93.  Baker  v.  Miller,  137  Tenn.  55, 
166,  103  N.  W.   144.  191  S.  W.   527. 

89.  Lepper  v.  Knox  (la.),  161  N.  94.  Wissel  v.  Ott,  54  N.  T.  S.  605, 
W.  454,  L.  K.  A.  1918A,  43;  Be  Gor-  34   App.   Div.   159. 

kow,  20  Wash.  563,  56  P.  385.  95.  In  re  Schmidt,  87  N.  T.  S.  428, 

90.  Milburn  v.  Milburn,  60  la.  411,  42  Misc.  463,  15  N.  Y.  Ann.  Caa.  1. 
14  N.  W.  204.  96.  Irving  v.  Ford,  179  Mass.  216, 

91.  Caballero's  Succession,   24  La.  60  N.  E.  49'1. 

Ann.   573.  97.  In  re  Look  Wong,  4  Haw.  568. 

92.  Scott  V.  Wilson,  110  Tenn.  175,  See  note  in  31  Harvard  Law  Eeview, 
75  S.  W.  1091  (property  inherited  by  892,  doubting  the  result  reached  in 
bastard  from  his  father  goes  to  his  this  case. 

mother  and  not  to  heirs  of  his  father).  98.  In  re  Lutz's  Estate,  88  N.  T.  S» 

556,  43  Misc.  230. 


'J'59  ILLEGITIMATE    CHILDREN.  §    717 

§  716.  Persons  in  Loco  Parentis;  Distant  Relatives,  &c. 

A  person  standing  in  loco  parentis  may  sue  per  quod  servitium 
for  the  abduction  of  his  daughter's  illegitimate  child."  But  a 
perent  is  not  bound  to  support  the  illegitimate  offspring  of  his 
children.^  Eelatives  more  distant  than  parents  do  not,  on  the 
whole,  seem  to  have  much  consideration  in  matters  relating  to  a 
bastard ;  and  it  is  even  likely  that  the  assumption  of  a  family  name 
by  an  illegitimate  member  is  a  grievance  for  which  the  offended 
relatives  have  no  redress.^ 

§  717.  Guardianship  of  an  Xllegitimate  Child. 

Testamentary  guardianship,  of  which  we  are  to  speak  in  an- 
other connection,  is  of  such  a  nature  that  a  father  cannot  by  his 
will  appoint  a  guardian  for  his  illegitimate  children,  unless  the 
statute  so  directs ;  *  but  this  does  not  prevent  a  court  from  adopt- 
ing such  a  nomination,  where  no  superior  claimant  petitions  for 
the  trust.*  The  putative  father  of  a  bastard  child  has  been  con- 
sidered a  proper  person  to  petition  for  a  probate  guardian,  as  against 
all  except  the  mother.^ 

99,   Moritz   v,   Garnhart,   7   Watts,  on  occasion  for  illegitimate  minors,  as 

302.  for  instance  in  case  such  a  child  has 

1.  Hillsborough  v.  Deering,  4  N.  H.  a  legacy.     Johns  t.  Emmett,  62  Ind. 
86.  533.     Or  becomes  an  orphan.     46  N. 

2.  Du  Boulay  v.  Du  Boulay,  L.  R.  2  J.  Eq.  521. 

P.  C.  430.     See  Vane  v.  Vane,  L.  R.  4.  Eamsay  v.  Thompson,  71  Md.  315. 

S  Ch.  383.     A  -widowed  mother  may  Where  "a.  testamentary  guardian  "is 

in  a  certain  sense  place  herself  in  loco  simply   a   trustee    for    some   purpose, 

parentis  to  her  illegitimate  child.     91  appointment  has  been  made.     147  Pa. 

Ga.  564.  85. 

3.  Sleeman  v.  Wilson,  L.  R.  13  Eq.  5.  Pete's  Appeal,  106  Pa.  574. 
36.  Guardians  are  of  course  appointed 


§  719 


PARENT    AND    CHILD. 


760 


Section  718. 
719. 
720. 
721. 
722. 
723. 
724. 
725. 
726. 
727. 
728. 
729". 
730. 
731. 
782. 
733. 

734. 
735. 


CHAPTER  IV. 

ADOPTED  CIIILDBEN. 

Definitions. 

History. 

Statutes  Permitting  Adoption. 

Contracts  to  Adopt. 

Consent  of  Parents. 

Adoption  by  Deed  or  by  Judicial  Act. 

Parties. 

Evidence. 

Effect  of  Adoption. 

Child's  Eights  of  Inheritance  from  Parents. 

Child's  Eights  of  Inheritance  from  Kindred  of  Parents. 

Child's  Eights  of  Inheritance  by  Contract. 

Adoption  as  Eevocation  of  Will  of  Adopting  Parent. 

Eights  of  Inheritance  by  Parents. 

Inheritance  by  Children  of  Adopted  Child. 

Effect   of   Adoption    on   Inheritance   by   Widow   of    Adopting 

Parent. 
Eevocation  of  Adoption. 
Conflict  of  Laws    Eelating  to  Adoption. 


I 


§718.  Definitions. 

By  adoption  a  quasi  parental  relation  was  sometimes  constituted 
at  tte  civil  law.  Adoption  is  the  taking  or  choosing  of  another's 
child  as  one's  own,*  and  is  the  act  of  the  person  taking  and  re- 
ceiving the  child.'  The  mere  fact  that  one  cares  for  an  abandoned 
child  does  not  constitute  an  adoption.*  An  adopted  child  may 
come  within  the  designation  of  a  "  child,"*  but  not  of  "  bodily 
heirs."^" 

§719.  History. 

Adoption  exists  only  by  statute  being  unknown  to  the  common, 


11 


6.  Inst.  I.  11,  1;  Bouvier,  Law  Diet. 
"Adoption."  In  re  Landers'  Estate, 
166  N.  Y.  S.  1036,  100  Misc.  635. 

7.  Smith  V.  Allen,  53  N.  T.  S.  114, 
32  App.  Div.  374. 

8.  Non-she-po  v.  Wa-win-ta,  37  Ore. 
213,  62  P.  15,  82  Am.  St.  E.  749'. 

9.  Virgin  v.  Marwick,  97  Me.  578, 
55  A.  520;  U.  S.  Trust  Co.  v.  Hoyt, 
135  N.  Y.  S.  849,  150  App.  Div.  621. 

10.  Ealch  V.  Johnson,  106  Tenn.  249, 
61  S.  W.  289. 


11.  In  re  Darling's  Estate  (Cal.), 
159  P.  606;  In  re  Jobson's  Ejtate,  164 
Cal.  312,  128  P.  g'SS;  Eahn  v.  Hamil- 
ton, 144  Ga.  644,  87  S.  E.  1061;  Mor- 
rison V.  Session's  Estate,  70  Mich. 
297,  38  N.  W.  249,  14  Am.  St.  E.  500 
(change  of  name  only  an  incident)  ; 
Beach  v.  Bryan,  155  Mo.  App.  33,  133 
S.  W.  635;  In  re  Book's  Will  (N.  J. 
Prerog.),  105  A.  878;  In  re  Thome's 
Estate,  155  N.  Y.  140,  49  N.  E.  661 
(affirming  48  N.  Y,  S.  1116,  23  App. 


761  ADOPTED  CHILDREN.  §  719 

although  recognized  under  the  civil  law,"  and  in  this  country,  in 
States  whose  jurisprudence  is  based  exclusively  on  the  common 
law,  it  exists  only  by  statute.^'  It  has,  however,  been  recognized 
by  the  civil  law  from  the  earliest  days  of  its  existence,  and  on 
the  provisions  of  that  law  the  statutes  of  adoption  in  the  different 
States  of  the  Union  have  been  founded. 

By  the  civil  law  before  the  time  of  Justinian,  the  effect  of 
adoption  was  to  place  the  person  adopted  in  the  same  position 
he  would  have  held  had  he  been  born  a  son  of  the  adopter.  All 
the  property  of  the  adopted  son  belonged  to  the  adoptive  father. 
The  adoptive  son  was  heir  to  his  adoptive  father,  if  intestate, 
bore  his  name,  etc.,  and  shared  the  sacred  rites  of  the  family  he 
entered.  It  sometimes  happened  under  this  law  that  a  son  lost 
the  succession  to  his  own  father  by  being  adopted,  and  to  his 
adopted  father  by  a  subsequent  adoption.  To  remedy  this,  Justin- 
ian provided  that  the  son  given  in  adoption  to  a  stranger  should  be 
in  the  same  position  to  his  own  father  as  before,  but  gained  by 
adoption  the  succession  to  his  adoptive  father  if  he  die  intestate.^* 

There  are  various  States  in  which  adoption  is  now  permitted, 
and  the  rights  of  the  parent  by  adoption  are  treated  substantially 
as  those  of  a  natural  parent.^^  But  our  local  legislation  has  some- 
times discountenanced  the  adoption  of  a  stranger  as  co-heir  with 
one's  own  child. ^' 

Div.  624) ;  In  re  Huyck'a  Estate,  99  12.  Hockaday  v.  Lynn,  200  Mo.  456, 

N.   T.   S.    502,   49   Misc.    391;    U.   S.  98  S.  W.   585;   Ex  parte  Livingston, 

Trust  Co.  V.  Hoyt,  135  N.  Y.  S.  849,  135  N.  Y.  S.  328,  151  App.  Div.  1  (re- 

150  App.  Div.  621;  In  re  Ziegler,  143  versing  order  In  re  Livingston,  134  N. 

N.  Y.  S.   562,  82  Misc.   346;   Anony-  Y.   S.    148,   74   Misc.   494);    State   v. 

mous,  141  N.  Y.  S.  700,  80  Misc.  10;  Yturria  (Tex.),  189  S.  W.  291,  204  S. 

Long  V.  Dufur,  58  Ore.  162,  113  P.  W.  315. 

59.  13.  Eoss  V.  Ross,  129  Mass.  243,  37 

Adoption,  being  a  creation  of  sta-  Am.  R.  321;  Morrison  v.  Sessions,  70 

lute  unknown  to  the  common  law,  is  Mich.  297,  38  N.  W.  249;  Fe  Thome, 

not    a    contractual   relation,    and    the  155  N.  Y.  140,  49  N.  E.  661. 

laws  of  the  place  where  it  occurred  do  14.    Sandars'    Justinian,    113,    115, 

not  become  part  of  the  contract  so  as  119. 

to   govern   all   the   rights,  which   the  15.    Vidal    v.    Commajere,    13    La. 

parties  may  have  as  an  incident  to  the  Ann.    516;    Sewall    v.    Roberts,    115 

relation,  as  the  right  of  inheritance  Mass.    262;    Rives   v.    Sneed,   25   Ga. 

in  land  situated  without  the  place  of  612;   Lunay  v.  Vantyne,   40  Vt.   501. 

adoption.     Calhoun  v.  Bryant,  28   S.  16.  Teal  v.  Sevier,  26  Tex.  516.   See 

D.  266,  133  N.  W.  266;  In  re  Knott  Johnson's  Appeal,  88  Pa.  346;  Wag- 

(Tenn.),   197   S.   W.   1097;    Harle   v.  ner  v.  Varner,  50  la.  532.   An  adopted 

Harle      (Tex.     Civ.     App.),     166     S.  child  usually  inherits  from  the  adopt- 

W.  674;   Thompson  v.  Waits,  159  S.  ing  parent,  and  r^tr^- trrsa,  the  natural 

W.  82.  parent  being  excluded  in  preference. 


§  720 


PARENT    A^'D    CHILD. 


'62 


Under  the  Koman  civil  law  consanguinity  was  not,  as  our  Eng- 
lish common  law  regards  it,  an  essential  basis  to  the  filial  relation; 
for.  infants  were  exposed  to  death,  and  indifference  to  blood  off- 
spring, as  well  as  to  the  ties  of  lawful  wedlock,  characterized  the 
law  of  family  in  the  decaying  age  of  the  Empire.  Adoption  was 
a  convenience,  however,  even  thus,  for  the  transmission  of  wealth 
and  titles;  and  by  adoption,  moreover,  we  find  an  unfruitful 
couple  at  the  present  day,  and  in  our  own  country,  grafting  the 
tree,  in  obedience  to  the  best  parental  instincts." 

§  720.  Statutes  Permitting  Adoption. 

Statutes  are  constitutional  authorizing  the  adoption  of  children 
without  notice  or  the  consent  of  the  natural  parents,^*  and  con- 
stitutional inhibitions  against  impairment  of  contracts  are  not  ap- 
plicable as  the  relation  of  parent  and  child  is  a  status  and  not  a 
contract.^®  As  statutes  for  adoption  are  in  derogation  of  the  com- 
mon law  it  is  usually  held  that  they  should  be  strictly  construed,*" 


Davis  V.  Krug,  95  Ind.  1 ;  Humphries 
T.  Davis,  100  Ind.  274,  369,  422.  In 
Wisconsin  the  adopted  child's  real 
estate  follows  the  general  rule  of  de- 
scent. Hole  V.  Eobbins,  53  Wis.  514. 
An  insurance  policy  in  favor  of  ' '  chil- 
dren" will  include  an  adopted  child. 
Martin  v.  ^tna  Ins.  Co.,  73  Me.  25. 
Such  child  may  inherit  under  a  trust 
to  one's  "issue,"  though  not  where 
"heir  of  body"  is  the  expression. 
Sewall  v.  Roberts,  115  Mass.  262.  And 
see  Ingram  v.  Soutten,  L.  E.  7  H.  L. 
408.  The  rights  of  an  adopted  heir, 
under  the  Texas  statute,  are  co-equal 
with  the  rights  of  the  other  heirs.  In 
this  respect  the  old  Spanish  law  is 
modified.  Eekford  v.  Knox,  67  Tex. 
200.  The  adopting  parent  should  sup- 
port and  is  entitled  to  the  minor 
child's  custody  and  services.  Tilley 
V.  Harrison,  91  Ala.  295;  Cofer  v. 
Scroggins,  98  Ala.  342.  Unless  a  con- 
tract of  adoption  expressly  provides 
otherwise,  the  adopting  parent  retains 
the  usual  right  of  disposing  by  wiU, 
as  in  the  case  of  natural  offspring. 
Davis  V.  Hendricks,  99  Mo.  478.  An 
adopted  child  who  is  also  grandson  of 
the  adopting  parent  cannot  inherit  in 
a  twofold  capacity;  though  ordinarily 


the  adopted  child's  right  to  inherit 
from  his  natural  parent  is  recognized 
by  statute.  Delano  v.  Bruerton,  143 
Mass.  619.  An  adopted  child's  domi- 
cile changes  during  minority  with 
that  of  the  adopting  parent  on  the 
usual  principle.  Woodward  v.  Wood- 
ward, 3  Pickle,  644. 

17.  The  adoption  of  illegitimate  off- 
spring was  one  method  of  legitimating 
subsequently  at  the  civil  law,  thus  dis- 
pensing with  the  parental  marriage. 
Blythe  v.  Ayres,  96  Cal.  533.  Public 
acknowledgment  by  the  parent  was 
another;  and  both  modes  prevail  in 
parts  of  this  country.  Stimson,  §§ 
6632,  6633;  p.  353,  notes. 

18.  Purinton  v.  Jamrock,  195  Mass. 
187,  80  N.  E.  802;  In  re  Beers,  78 
Wash.   576,  139  P.  629. 

19.  In  re  Ziegler,  143  N.  Y.  S.  562, 
82  Misc.  346. 

20.  In.  re  Cozza,  163  Cal.  514,  125 
P.  161;  In  re  Kelly,  25  Cal.  App.  651, 
145  P.  156;  Appeal  of  Woodward,  81 
Conn.  152,  70  A.  453;  Bresser  v.  Saar- 
man,  112  la.  720,  84  N.  W.  920:  Pur- 
inton V.  Jamrock,  195  Mass.  187,  SO 
N,  E.  802;  Hockaday  v.  Lynn,  200 
Mo.  456,  gs  S.  W.  585;  Sarazin  v. 
Fnion  R.  Co.,  55  S.  W.  92,  153  Mo. 


763 


ADOPTED    CHILDREX. 


§  721 


and  it  must  be  shown  that  every  essential  requirement  of  the 
statute  has  been  complied  with,-^  but  it  is  often  held  that  the 
intent  of  such  statutes  being  paternal  in  nature  should  be  carried 
out  by  a  liberal  construction,--  and  by  giving  the  words  used  their 
ordinary  meaning.'^ 

An  act  conferring  the  right  of  inheritance  on  adopted  children 
may  be  construed  retrospectively  to  apply  to  children  already 
adopted,"*  but  a  change  in  the  statutes  of  distribution  will  not 
alter  rights  to  inherit  expressly  granted  to  adopted  children.*' 

§  721.  Contracts  to  Adopt. 

A  contract  to  adopt  another  is  valid,"®  and  may,  in  the  absence 


479 ;  Thomas  v.  Malone,  142  Mo.  App. 
193,  126  S.  W.  522;  7?!  re  Book's 
Will  (N.  J.  Prerog.),  105  A.  8T8;  In 
re  Ziegler,  143  N.  Y.  S.  562,  82  Misc. 
346;  Long  v.  Dufur,  58  Ore.  162,  113 
P.  59;  In  re  Knott  (Tenn.),  197  S. 
W.  1097.  See  Succession  of  Caldwell, 
114  La.  195,  38  So.  140,  108  Am.  St. 
E.  (act  as  to  adoption  of  minors  does 
not  repeal  prior  act  as  to  adoption  of 
adults).  See  Succession  of  Dupre,  116 
La.  1090,  41  So.  324  (later  act  super- 
seding earlier). 

21.  In  re  Sharon's  Estate  (Cal.), 
177  P.  283. 

22.  People  v.  Wethel,  202  111.  App. 
77;  Seibert  v.  Siebert,  170  la.  561, 
153  X.  W.  160;  Ferguson  v.  Herr,  64 
Neb.  649,  94  N.  W.  542;  Eansom  v. 
New  York,  C.  &  St.  L.  Ry.  Co.,  93  Ohio 
St.  223,  112  N.  E.  586;  hi  re  Brown's 
Adoption,  25  Pa.  Super  Ct.  259. 

23.  Appeal  of  Woodward,  81  Conn. 
152,  70  A.  453  (not  controlled  by  an- 
alogy of  Eoman  adoption)  ;  7?!  re 
Evans'  Estate,  47  Pa.  Super.  Ct.  196; 
Harle  v.  Harle  (Tex.  Civ.  App.), 
166  S.  W.  674. 

24.  7ft  re  Easmussen  's  Estate,  114 
Minn.  324,  131  N.  W.  325;  Dodin  v. 
Dodin,  162  N.  Y.  635,  57  N.  E.  1108, 
44  N.  Y.  S.  800,  10  App.  Div.  42;  7ft 
re  Havsgord's  Estate,  34  S.  D.  131, 
147  X.  W.  378.  See  7ft  re  Bowdoin  's 
Estate  (N.  J.),  98  A.  514,  100  A. 
1069.  Pee  Von  Bock  v.  Thomsen,  167 
N.  Y.  601,  60  N.  E.  1121,  00  X.  Y.  S. 


1094,  44  App.  Div.  373,  7  N.  Y,  Ann. 
Cas.  33  (where  child  abandoned  prior 
to  enactment  of  statute,  consent  of 
parent  required  by  statute  is  not 
necessary). 

25.  Eiley  v.  Day,  88  Kan,  503,  129 
P.  524. 

26.  7ft  re  Herrick's  Estate,  124 
Minn.  85,  144  X.  Y.  455  (enforced 
under  laws  of  forum)  ;  Barney  v. 
Hutchinson  (X.  M.),  177  P.  890. 

A  father,  unable  to  provide  for  his 
infant  child,  may  transfer  the  custody, 
control,  and  right  to  the  services 
thereof  to  another,  subject  to  the 
right  of  a  court  of  equity  to  inter- 
fere in  the  interest  of  the  child. 
Judgment  (1907)  105  N.  Y.  S.  1131, 
120  App.  Div.  903  (affd.,  Middle- 
worth  V.  Ordway,  191  X.  Y.  404,  84 
N.  E.  291;  Middleworth  v.  Ordway, 
&8  N.  Y.  S.  10,  49  Misc.  74). 

An  affreem-ent  hy  a  father  to  pay 
for  support  of  a  minor  child  in  an 
orphanage  asylum  and  on  failure  to 
relinquish  all  control  of  the  child  is 
unilateral  and  unenforcable,  so  as  to 
deprive  the  father  of  custody.  Cleve- 
land Christian  Orphanage  v.  Barcus, 
35  Ohio,  Cir.  Ct.  E.  151;  In  re  Evans' 
Estate,  47  Pa.  Super.  Ct.  196;  Clark 
V.  West,  96  Tex.  437,  73  S.  W.  797. 

Avoiding  contract.  Harrison  v. 
Harkcr,  44  Utah,  541,  142  P.  716. 
See  Mulaney  v.  Cameron,  98  Kan.  620, 
159  P.  19',  99  Kan.  70,  424,  161  P. 
1180,  99  Kan.  677.  162  P.  1172   (con- 


§  721 


PARENT    AND    CHILD. 


Y64: 


of  statutory  restriction  be  oral,^^  wlien  siiown  by  clear  and  con- 
vincing proof,"^  but  mere  statements  of  a  deceased  person  and 
surrender  of  children  to  him  may  not  be  enough  to  satisfy  the 
statute,^'  and  evidence  of  adoption  may  not  be  enough  to  show  a 
contract  that  the  adopted  child  should  inherit  as  an  heir."* 

An  oral  contract  of  adoption  may  be  enforced  in  equity  although 
the  statute  on  the  subject  is  not  complied  with  where  the  contract 
is  partially  executed  by  taking  the  child  and  treating  her  as  a 
natural  child  and  where  the  child  performs  the  usual  duties  of  a 
child.^^  So  a  contract  of  adoption  made  by  the  adopting  parent 
with  the  grandmother  of  the  child  and  ratified  by  the  mother  may 
be  enforced  at  suit  of  the  child  as  the  party  for  whose  benefit  the 
contract  was  made.^^  The  plaintiff  in  an  action  to  enforce  a  con- 
tract of  adoption  is  not  barred  by  his  laches  where  he  brought  suit 
within  a  few  months  of  the  death  of  the  defendant  although  the 
plaintiff  was  thirty  years  old  at  the  time,  where  the  contract  to 


sent  of  court  required  for  legal  adop- 
tion). See  Bowins  v.  English,  138 
Mich.  178,  101  N.  W.  204,  11  Det. 
Leg.  N.  517. 

27.  Odenbreit  v.  XJtheim,  131  Minn. 
56,  154  N.  W.  741 ;  McElvain  v.  Mc- 
Elvain,  171  Mo.  244,  71  S.  W.  143 
(contract  performed  by  child  will  be 
enforced  in  equity) ;  Martin  v.  Mar- 
tin, 250  Mo.  539,  157  S.  W.  575;  Sig- 
naigo  V.  Signaigo  (Mo.),  205  S.  W. 
23;  Lindsley  v.  Patterson,  177  S.  W. 
826,  L.  E.  A.  1915F,  680;  Thomas  v. 
Malone,  142  Mo.  App.  193,  126  S.  W. 
522;  Buck  V.  Meyer,  —  Mo.  App.  — , 
190  S.  W.  997  (enforceable  in  equity) ; 
In  re  Carroll's  Estate,  219  Pa.  440, 
68  A.  1038;  Appeal  of  Jaquay,  Id. 
See  In  re  Thome's  Estate,  155  N.  Y. 
140,  49  N.  E.  661.  See  Smith  v.  Allen, 
161  N.  Y.  478,  55  N.  E.  1056  (affg. 
54  N.  Y.  S.  1116,  34  App.  Div.  624) 
(private  agreements  void  under  sta- 
tute). See  Benson  v.  Nicholas,  254 
Pa.  55,  98  A.  775. 

28.  A  defective  adoption  paper  is 
competent  evidence  of  a  contract  to 
adopt.  Prince  v.  Prince,  194  Ala. 
455,  69  So.  906;  Fisher  v.  Davidson 
(Mo,),  19Z  S,  W.  1024  (living  with 
another    as   his   child).    Granthem   v. 


Gossett,  182  Mo.  651,  81  S.  W.  895; 
In  re  Lind's  Estate,  90  "Wash.  10,  155 
P.  159. 

29.  Eahn  v.  Hamilton,  144  Ga.  644, 
87  S.  E.  1061;  Heath  v.  Cuppel,  163 
Wis.  62,  157  N.  W.  527. 

30.  Felon  v.  Felon,  95  Neb.  322,  145 
N.  W.  634. 

An  agreement  to  adopt  a  child  ' '  as 
our  own"  and  provide  for  and  rear 
him  accordingly,  though  an  agreement 
to  make  him  an  heir,  could  not  pre- 
vent a  free  disposal  of  the  property 
by  deed  or  will.  Pemberton  v.  Perrin, 
94  Neb.  718,  144  N.  W.  164;  Dopp- 
mann  v.  Doppmann,  114  N.  Y.  S.  620, 
137  App.  Div.  82  (judg.  affd.,  Same 
V.  Muller  (1910),  122  N.  Y.  S.  1126, 
137  App.  Div.  82) ;  Masterson  v.  Har- 
ris, 179'  S.  W.  284  (conforming  to 
answer  to  certified  questions),  Sup. 
174  S.  W.  570,;  Winke  v.  Olson,  164 
Wis.  427,  160  N.  W.  164. 

31.  Malaney  v.  Cameron,  98  Kan. 
620,  159  P.  21;  Fisher  v.  Davidson 
(Mo.),  195  S.  W.  1024,  L.  E.  A. 
1917F,  692. 

32.  Crawford  v.  Wilson,  139  Ga. 
654,  78  S.  E.  30,  44  L.  E.  A.  (N.  S.) 
773. 


765  ADOPTED  CHILDREN.  §  722 

adopt  had  never  been  repudiated  and  the  plaintiff  never  knew  the 
identity  of  her  mother  until  the  death  of  the  defendant.^' 

An  oral  contract  of  adoption  may  be  enforced  in  the  State 
where  the  parents  live  although  the  contract  was  made  in  another 
State  where  the  statutes  require  formal  proceedings  which  have 
never  been  complied  with  where  in  both  States  an  oral  contract 
of  this  nature  may  be  enforced  in  equity.^* 

Where  one  treats  another  as  his  child  on  the  parent's  making 
this  a  condition  of  taking  the  child  this  shows  an  executed  agree- 
ment to  adopt  the  child  which  is  binding  in  the  absence  of  a  deed 
of  adoption. ^^  A  father  may  be  bound  by  a  contract  to  adopt 
although  his  wife,  who  does  not  join  in  the  contract,  will  not  be 
barred  of  her  rights  of  inheritance  by  the  adoption,^®  but  an  unex- 
ecuted contract  to  adopt  cannot  be  enforced  by  giving  the  child 
rights  in  the  estate  of  the  son  of  the  adoptive  parent.  The  equi- 
table relation  resulting  from  the  contract  makes  the  child  for  some 
purposes  the  child  of  the  adoptive  parent,  but  cannot  give  any 
rights  against  the  property  of  the  relatives  of  the  parent.^^ 

It  is  a  sufficient  consideration  for  an  agreement  to  adopt  that 
the  child  left  his  parents  and  lived  with  the  foster  parents,^*  but 
after  a  divorce  awarding  custody  of  a  child  to  the  mother,  any 
agreement  by  the  father  to  allow  the  child  to  be  adopted  by  another 
is  void  for  lack  of  consideration,  as  the  father  has  no  control  over 
such  child." 

The  measure  of  damages  for  breach  of  a  contract  to  adopt  is  not 
the  value  of  the  share  of  the  estate  which  the  plaintiff  would  have 
inherited  if  adopted,  but  is  the  value  of  the  services  rendered  or 
outlay  incurred  on  the  faith  of  the  promise.*"* 

§  722.  Consent  of  Parents. 

Unless  required  by  statute  consent  of  the  natural  parents  in  not 

necessary  to  adoption,*^  but  the  consent  of  both  the  natural  parents 

83.    Crawford    v.    Wilson,    139    Ga.  87.    Mulanev    v.    Cameron    (Kan.), 

654    78  S.  E.  30,  44  L.  E.  A.  (N.  S.)  161  Pac.  1180. 

773.  88.    Lee    v.    Bermingham,    199    111. 

34.  Fisher  v.  Davidson    (Mo.),  ig'S  App.  497. 

S.  W.  1024,  L.  E.  A.  1917F,  692.  39.  Fngate  v.  Allen,   119  Mo.   183, 

35.  Crawford    v.    Wilson,    139    Ga.       95  S.  W.  980. 

654,  78  S.  E.  30;  Lynn  v.  Hockaday,  40.  Sandham  v.  Grounds,  36  C.  C.  A. 

162  Mo.   Ill,  61  S.  W,  885,  85  Am.  103,  94  F.  83. 

St.  E.  480.  41.  Clarkson  v.  Hatton,  143  Mo.  47, 

36.  Middleworth  v.  Ordway,  191  N.  54,  44  S.  W.  761.  39  L.  E.  A.  748,  65 
T.  404,  84  N.  E,  291.  Am.  St.  E.  635;  Haworth  v.  Haworth, 

123  Mo.  App.  303,  100  S.  W.  531. 


722 


PARENT    AND    CHILD. 


76S 


is  usually  required/'  unless  the  child  is  a  foundling  or  abandoned,*' 
when  the  consent  of  the  charitable  institution  having  control  of  the 
foundling  may  be  required.**  An  adoption  may  be  sustained 
where  the  natural  parents  are  present  in  court  at  the  time  and 
consent  to  it,  although  no  formal  written  consent  to  the  adoption 
was  made  by  them.*^  A  consent  obtained  by  duress  is  not  binding 
and  may  be  set  aside,*®  and  a  decree  of  divorce  giving  one  parent 


42.  In  re  Sharon's  Estate  (Cal.), 
177  P.  283;  In  re  Cozza,  163  Cal.  514, 

126  P.  161;  Mock  v.  Neffler  (Ga.),  35 
S.  E.  673  (mother  not  enough  unless 
child  is  illegitimate  or  father  is 
dead)  ;  Hopkins  v.  Antrobus,  120  la. 
21,  94  N.  W.  251;  Holmes  v.  Derrig, 

127  la.  625,  103  N.  W.  973  (grand- 
parents where  parents  both  dead) ; 
Carter  v.  Botts,  77  Kan.  765,  93  P. 
584;  Taber  v.  Douglass,  101  Me.  363, 
64  A.  653. 

Where  a  wife,  adopting  a  child, 
thereafter  became  discovert  by  di- 
vorce, her  remarriage  after  two  years 
did  not  invalidate  the  adoption. 
Lindsley  v.  Patterson,  177  S.  W.  826, 
L.  K.  A.  1915F,  680;  In  re  Wright, 
79  Neb.  10,  112  N.  W.  311;  Tiffany 
V.  Wright,  Id. 

Where  the  statute  does  not  require 
that  the  consent  of  the  natural  par- 
ents of  a  child  to  his  adoption  be  in 
writing,  it  is  sufScient  if  such  parent 
is  present  in  court  at  the  hearing  of 
the  petition  for  adoption  and  makes 
no  objection.  Milligan  v.  McLaugh- 
lin, 142  N.  W.  675,  46  L.  E.  A.  (N". 
S.)  1134;  Luppie  v.  Winans,  37  N.  J. 
Eq.  245;  In  re  McDevitt,  162  N.  Y. 
S.  1032,  176  App.  Div.  418;  In  re 
Johnston,  137  N.  Y.  S.  92,  76  Misc. 
374;  Allison  v.  Bryan,  26  Okla.  520, 
109  P.  934  (mother  of  bastard  must 
consent)  ;  In  re  Bastin,  10  Pa.  Super. 
Ct.  570  (adoption  invalid  where  con- 
senting parent  died  before  petition 
filed);  In  re  Knott  (Tenn.),  197  S. 
W.  1097;  In  re  Lease,  99  Wash.  413, 
169  P.  816;  State  v.  Wheeler,  43 
Wash.  183,  86  P.  394;  In  re  McCor- 
mick's  Estate,  108  Wis.  234,  84  N.  W. 
148,  81  Am,  St.  K.  890. 


43.  Omaha  Water  Co.  v.  Schamel, 
147  F.  502,  78  C.  C.  A.  68;  Ex  parte 
Hart,  130  P.  704;  In  re  Kelly,  25 
Cal.  App.  651,  145  P.  156  (failure  of 
parents  to  support  child  for  a  year  is 
not  abandonment) ;  Anderson  v. 
Blakesly,  155  la.  430,  136  N.  W.  210; 
Succession  of  Dupre,  116  La.  1090,  41 
So.  324;  Taber  v.  Douglass,  101  Me. 
363,  64  A.  653;  In  re  Edds,  137  Mass. 
346  (court  will  appoint  guardian  ad 
litem  for  such  child  with  parents  to 
consent  to  adoption)  ;  In  re  Wright, 
79  Neb.  10,  112  N.  W.  311;  Tiffany  v. 
Wright,  Id.;  Wood  v.  Wood,  77  N.  J. 
Eq.  593,  77  A.  91;  In  re  Potter,  85 
Wash.  617,  149  P.  23. 

44.  Ex  parte  Martin,  29  Ida.  716, 
161  P.  573  (only  when  legally  placed 
in  custody  of  the  institution)  ;  Ex 
parte  Courtright,  167  Mich.  689,  133 
N.  W.   820. 

Consent  ty  institution.  Affidavit 
of  consent  to  adoption  which  avers 
that  affiant,  the  matron  of  a  hospital, 
having  control  of  the  child,  consents 
to  adoption  held,  by  equally  divided 
court,  in  compliance  with  Comp.  Laws, 
§  8777,  authorizing  adoption.  Fisher 
V.  Gardnier,  183  Mich.  660,  150  N.  W. 
358;  Beach  v.  Bryan,  155  Mo.  App. 
33,  133  S.  W.  635  (only  when  child 
placed  with  institution  by  order  of 
court)  ;  In  re  Korte,  139'  N.  Y.  S.  444, 
78  Misc.  276.  See  Jain  v.  Priest 
(Ida.),  164  P.  364  (society  appointed 
guardian  may  not  consent  to  adop- 
tion). 

45.  Milligan  v.  McLaughlin  (Neb.), 
142  N.  W.  675,  46  L.  R.  A.  (N.  S.) 
1134 

46.  Phillips  V.  Chase,  203  Mass. 
556,  89  N.  E.  1049. 


•67 


ADOPTED    CHILDREN. 


723 


the  custody  of  the  child  does  not  render  unnecessary  the  consent 
of  the  other."' 

The  consent  of  the  adoptive  parents  may  be  assumed/^  and  the 
consent  of  the  father  may  be  assumed  on  evidence  that  the  child 
lived  in  the  family  without  objection  from  him,"  or  it  may  be 
presumed  that  a  non-consenting  mother  was  living  apart  from  her 
husband  so  that  her  consent  was  unnecessary.' 


50 


§  723.  Adoption  by  Deed  or  by  Judicial  Act. 

The  method  of  adoption  in  States  which  permit  it  is  pointed 
out  by  local  law.  In  some  States  a  written  instrument  must  be 
executed  and  recorded,  and  the  proceedings  are  in  the  nature  of 
a  solemn  contract,^^  and  adoption  must  be  evidenced  by  a  formal 
deed  or  other  writing,^"  which  should  be  liberally  construed  accord- 
ing to  its  intent,^^  and  such  deed  may  be  valid  although  the  require- 
ments of  the  statute  are  not  fully  complied  with,^*  and  may  be 


47.  Willis  V.  Bell,  86  Ark.  473,  111 
S.  TV.  808;  Bell  v.  Krauss,  169  Cal. 
357,  145  P.  874.  See  Seibert  v.  Sei- 
bert,  170  Iowa,  561,  153  N.  W.  160 
(separation). 

48.  Sayles  v.  Christie,  187  HI.  420, 
58  N.  E.  480. 

49.  Lindsley  v.  Patterson,  177  S.  W. 
826,  L.  R.  A,  1915F,  680. 

50.  James  v.  James,  35  Wash.  655, 
77  P.  1083  (false  statement  of  father 
that  mother  dead  will  not  invalidate 
adoption). 

51.  Tyler  v.  Eeynolds,  53  Iowa,  146; 
Fouts  V.  Pierce,  64  la.  71;  Ban- 
croft V.  Heirs,  53  Vt.  9 ;  hi  re  John- 
son, 98  Cal.  531. 

52.  Monk  v.  McDaniel,  120  Ga. 
480,  47  S.  E.  931  (void  where  deed 
did  not  show  residence  of  parties  in 
county)  ;  Patterson  v.  Carr  (Iowa), 
166  N.  W.  449  (giving  residence  of 
parties)  ;  Bresser  v.  Saarman,  112 
Iowa,  720,  84  N.  W.  920;  Manuel  v. 
Beck,  127  N.  Y.  S.  266,  70  Misc. 
357  (proof  of  the  authority  of  the  offi- 
1061;  Appeal  of  Landy,  Id.;  In  re 
Hughes'  Estate,  225  Pa.  79,  73  A. 
1061;  Appeal  of  Landy,  Id.;  In  re 
Phillips'  Estate,  17  Pa.  Super.  Ct. 
103  (will  mentioning  legatee  as 
adopted    child    is    ineffective    where 


legatee  dies  before  testator  as  will  is 
effective  only  on  death  of  testator) ; 
Powell  V.  Ott  (Tex.  Civ.  App.),  146 
S.  W.  1019;  Conrad  v.  Herring,  36 
Tex.  Civ,  App.  616,  83  S.  W.  427 
(mentioning  one  as  adopted  child  in 
deed  is  insufficient)  ;  James  v.  James, 
35  Wash.  650,  77  P.  1080  (void  where 
not  recorded).  See  Moon  v.  Harness, 
33  Ohio  Cir.  Ct.  E.  337  (heir  may  be 
created  by  will  without  adoption). 

53.  Fosburg  v.  Rogers,  114  Mo.  122, 
21  S.  W.  82,  19  L.  R.  A.  201.  See 
Thompson  v.  Waits,  159  S.  W.  82 
(ineffective  where  adopting  parents 
have  no  children  and  deed  provides 
that  adopted  child  should  be  only 
coheir  with  other  heirs). 

An  indenture  of  apprenticeship  is 
not  an  adoption  unless  clearly  so 
stated.  In  re  Bowdoin's  Estate  (N. 
J.)  100  A.  1069,  98  A.  514;  In  re 
Wallace's  Estate,  218  Pa.  3?,  66  A. 
1098;  Appeal  of  Brittain,  Id. 

54.  Burnes  v.  Barnes,  132  F.  485; 
Gatch  V.  Same,  70  C.  C.  A.  357,  137 
F.  781  (wives  not  separately  exam- 
ined) ;  Hilpire  v.  Claude,  109  Iowa, 
159,  80  N.  W.  332,  46  L.  E.  A.  171, 
77  Am.  St.  Eep.  524  (improperly  in- 
dexed in  records)  ;  Sires  v.  Melvin, 
135  Iowa,  460,  113  N.  W.  106;  Horner 


§  723 


PARENT    AND    CHILD. 


768 


void  where  not  acknowledged  or  recorded  as  required  by  law,**'  as 
where,  under  a  statute  requiring  the  acknowledgment  of  the  par- 
ents, an  adoption  is  defective  where  not  acknowledged  by  the  foster 
father  who  had  previously  adopted  the  child/® 

A  contract  of  adoption  will  not  be  construed  as  an  adoption.**^ 

In  other  States  a  judicial  decree,  upon  due  notice  to  kindred  or 

their  assent,  is  requisite/*  and  an  adoption  by  deed  may  have  no 

effect  on  a  court  which  had  previously  acquired  custody  of  the 

V,  Maxwell,  171  Iowa,  660,  153  N.  W.       without  notice  to  the  latter,  is  invalid. 


331;  Succession  of  Dupre,  116  La. 
1090,  41  So.  324  (certificate  of  au- 
thority of  justice  who  took  acknowl- 
edgment lacking) ;  Cook  v.  Bartlett, 
179  Mass.  576,  61  N.  E.  266  (certifi- 
cate of  acknowledgment  incorrect)  ; 
Lindslej  v.  Patterson,  177  S.  W.  826, 
L.  K.  A.  1915F,  680;  J.  M.  GufFey 
Petroleum  Co.  v.  Hooks,  47  Tex.  Civ. 
App.  560,  106  S.  W.  690  (failure  of 
clerk  to  record  as  directed). 

55.  Cook  V.  Echols,  —  Ala.  App. 
— ,  80  So.  680;  Lamb's  Estate  v. 
Morrow,  140  Iowa,  89,  117  N.  W. 
1118;  J.  M.  Guffey  Petroleum  Co.  v. 
Hooks,  47  Tex.  Civ.  App.  560,  106  S. 
W.  690. 

56.  Long  v.  Dufur,  58  Or.  162,  113 
P.  59. 

57.  Eiley  v.  McKinney,  167  Iowa, 
508,  149  N.  W.  603. 

58.  Ballard  v.  Ward,  89  Penn.  St. 
358;  Humphrey,  Appellant,  137  Mass. 
84,  346.  The  Louisiana  statutes,  as 
to  adoption,  do  not  mean  to  abridge 
the  right  of  a  natural  tutor  to  his 
minor  child.  Succession  of  Forstall, 
25  La.  Ann.  430.  The  adoption  by 
instrument  may  require  the  surviving 
parent  to  assent.  Long  v.  Hewittt,  44 
Iowa,  363.  But  the  release  of  parental 
authority  is  not  revocable  at  pleas- 
ure. Jones  V.  Cleghorn,  54  Ga.  9'. 
Equity  cannot  dispense  with  strict 
statute  compliance  as  to  adoption. 
Long  V.  Hewitt,  supra. 

Consent  of  an  orphan  asylum  from 
which  the  child  was  taken  was  held 
essential  in  Ex  parte  Chambers,  80 
Cal.  216.  An  order  based  upon  the 
child's   abandonment  by   the   parent, 


Schiltz  V.  Eoenitz,  86  Wis.  31;  Ex 
parte  Clark,  87  Cal.  638 ;  In  the  Mat- 
ter of  Charles  B.  Clements,  78  Mo. 
352.  But  the  putative  father  of  an 
illegitimate  child  is  not  entitled  to 
notice;  and  the  assent  of  the  child's 
guardian  here  suffices.  Gibson,  Ap- 
pellant, 154  Mass.  378.  Where  adop- 
tion by  written  instrument  prevails, 
an  informal  instrument  might  operate 
as  a  contract  for  specific  performance. 
Healey  v.  Simpson,  113  Mo.  340. 

A  statute  making  an  adopted 
child  legally  the  child  of  the  parents 
by  adoption  is  not  unconstitutional 
unless  interfering  with  vested  rights. 
Sewall  V.  Eoberts,  115  Mass.  262.  Un- 
der the  rule  of  comity,  adoption  in 
another  State  may  be  here  recognized 
under  suitable  circumstances.  Ross 
V.  Boss,  129  Mass.  243;  Van  Matre 
V.  Sankey,  148  111.  536.  But  not  where 
the  courts  of  that  State  had  not  juris- 
diction. Foster  v.  Waterman,  124 
Mass.  592,  General  rules  of  descent 
are  not  necessarily  or  presumably 
changed  by  statutes  of  adoption;  but 
on  death  of  an  adopted  child  his 
estates  goes  to  his  blood  relations. 
Eeinders  v.  Koppelmann,  68  Mo.  482. 
As  to  petitions  for  adoption,  see  137 
Mass.  84,  346.  That  the  child  who 
permitted  himself  to  be  adopted  as  an 
heir  knew  the  adopting  parent  to  be 
of  feeble  or  unsound  mind,  is  not 
fraud  sufficient  to  avoid  the  adoption. 
Brown  et  al.  v.  Brown,  101  Ind.  340. 
The  rights  conferred  by  adoption  can- 
not be  divested  by  the  will  of  the 
adopting  parent.  Hosser  's  Succession, 
37  La.  Ann.  839.     As  to  adoption  by 


769 


ADOPTED    CHILDREN. 


§  724 


child."*  Where  a  petition  for  adoption  is  filed  in  the  wrong 
county,  and  all  parties  are  there  represented  and  consent  to  a 
decree  of  adoption  of  a  court,  whereas  the  court  in  another  county 
where  the  child  lived  should  have  entertained  the  petition,  the 
adopting  parent  is  thereafter  estopped  to  deny  the  validity  of  the 
decree,  and  the  heirs  of  the  adopting  parent,  in  case  of  her  death, 
are  also  estopped.  The  statute  limiting  jurisdiction  to  the  court 
where  the  infant  lives  was  designed  for  the  benefit  of  the  child 
and  to  prevent  an  adoption  where  the  child  might  be  ignorant  of  his 
rights  and  to  furnish  a  record  there  where  he  might  readily  ascer- 
tain his  status.  The  statute  was  not  designed  to  cut  down  the 
rights  of  the  child.^" 

The  consent  of  the  minor  to  adoption  may  be  assumed.®^ 

§  724.  Parties. 

The  adopting  parties  may  under  the  statutes  usually  be  a  hus- 
band and  wife,®^  or  persons  of  sound  mind,®^  not  non-residents.'* 
The  statutes  sometimes  require  that  both  the  adopting  husband 
and  his  wife  shall  join  in  the  adoption,'^  in  which  event  adoption 
cannot  take  place  where  one  of  them  is  insane.*'  The  guardian 
is  not  a  necessary  party.'^ 

Adoption  relates  usually  to  minors  and  not  to  adult  children,'® 
but  adults  may  usually  be  adopted,'^  and  the  word  "  child  "  in 
adoption  statutes  includes  an  adult.'"     A  relative  of  the  adopting 


a  husband  with  or  without  his  wife's 
consent,  see  Stanley  v.  Chandler,  53 
Vt.  619 ;  Krug  v.  Davis,  87  Ind.  590. 

59.  Murphree  v.  Hanson  (Ala.),  72 
So.  437. 

60.  Milligan  v.  McLaughlin  (Neb.), 
142  N.  W.  675,  46  L.  R.  A.  (N.  S.) 
1134. 

61.  Morrison  v.  Sessions'  Estate, 
70  Mich.  29-7,  38  N.  W.  249,  14  Am. 
St.  Rep.  500  (when  for  benefit  of 
child). 

62.  Markover  v.  Krauss,  132  Ind. 
294,  31  N.  E.  1047,  17  L.  R.  A.  806. 

63.  In  re  Sharon's  Estate  (Cal.), 
177  P.  283  (that  adopting  person  is 
ten  years  older  than  person  adopted)  ; 
Collamore  v.  Learned,  171  Mass.  99, 
50  N.  E.  518  (aged  person  may  adopt 
vigorous  adult). 

64.  Knight  v.  Gallaway,  42  Wash. 
413,  85  P.  21. 

4f) 


65.  Jones  v.  Bean,  136  111.  App. 
545 ;  Lindsley  v.  Patterson,  177  S. 
W.  826,  L.  R.  A.  1915F,  680. 

66.  Watts  V.  Dull,  184  111.  86,  56 
N.  E.  303,  75  Am.  St.  Rep.  141. 

67.  Shirley  v.  Grove,  51  Ind.  App. 
17,  98  N.  E.  874;  Leonard  v.  Honis- 
fager,  43  Ind.  App.  607,  88  N.  E.  91. 
See  Egoff  v.  Board  of  Children's 
Guardians  of  Madison  County,  170 
Ind.  238,  84  N.  E.  151. 

68.  See  Moore,  Re,  14  R.  I.  38. 

69.  Succession  of  Caldwell,  114  La. 
135,  38  So.  140,  108  Am.  St.  Rep. 
341 ;  Collamore  v.  Learned,  171  Mass. 
99,  50  N.  E.  518;  Mellville  v.  Wick- 
ham,  Tex.  Civ.  App.,  169  S.  W.  1123 ; 
contra,  Succession  of  Pizzati,  141  La. 
645,  75  So.  498.  See  Bartholow  v. 
Davies,  276  111.  505,  114  N.  E.  1017. 

70.  Sheffield  v.  Franklin,  151  Ala. 
492,  44  So.  373;  Markover  v.  Krauss, 


"25 


PAItEXT    A2;D    child. 


TO 


parent,'^  or  persons  of  different  race  from  the  adopting  parents, 
maj  be  adopted.'^ 

§  725.  Evidence. 

A  presumption  of  adoption  is  not  raised  by  the  fact  that  children 
are  livins;  in  the  family  of  another/^  and  have  taken  his  name,'* 
but  after  the  lapse  of  time  adoption  may  be  presumed  on  evidence 
that  the  child  had  lived  with  and  been  treated  as  a  child  of  the 
alleged  adopting  parent." 

Where  adoption  records  have  been  destroyed  they  may  be  proved 
by  oral  evidence/®  but  adoption  cannot  be  shown  by  general  repu- 
tation of  adoption,"  and  a  reference  in  a  will  to  one  as  adopted  is 
not  conclusive  evidence  of  prior  adoption.'*  The  identity  of  the 
adopted  child  may  be  shown  although  not  properly  named."' 

The  burden  of  proof  is  on  one  attacking  an  adoption  regularly 
made,*"  but  one  claiming  rights  of  inheritance  as  an  adopted  child 
has  the  burden  of  proving  the  adoption.*^  One  claiming  adoption 
as  against  the  objection  of  the  natural  parent  must  prove  it  by  the 
clearest  evidence.*^ 


132  Ind.  294,  31  N.  E.  1407,  17  L.  R. 
A.  S06  (child)  ;  In  re  Moran's  Estate, 
151  Mo.  555,  52  S.  W.  377. 

71.  Billings  v.  Head,  1S4  Ind.  361, 
111  X.  E.  177  (grandchild).  See 
Hodges'  Heirs  v.  Kell,  125  La.  87, 
51  So.  77  (adoption  of  illegitimate 
child  of  white  man  and  negro  woman). 

72.  In-  re  Pepin's  Estate,  53  Mont. 
240,  163  P.  104. 

73.  In  re  Kuehn's  Estate,  170  N. 
T.  S.  900  Henry  v.  Taylor,  16  S.  D. 
424,  93  N.  "W.  641,  See  Daniels  v. 
Butler,  149  X.  W.  264  (decree  modi- 
fied on  rehearing  150  N.  "W.  1081). 
See  Wales  v.  Holden,  209  Mo.  552, 
108  S.  W.  89.  See  McColpin  v.  Mc- 
Colpin's  Estate,  Tex.  Civ.  App.  1903, 
75  S.  W.  824. 

74.  771  re  Huyck's  Estate,  99  N.  T. 
S.  502,  49  Misc.  391.  See  Baker 
T.  Payne,  —  Mo.  App.  — ,  198  S.  W. 
75   (evidence  of  name  is  admissible). 

75.  In  re  Herrick's  Estate,  124 
Minn.  85,  144  N.  W.  455;  Martin  v. 
Martin,  250  Mo.  539,  157  S.  W. 
575;  Coombs  v.  Cook,  35  Okla. 
326,     129     P.     698      (where     records 


destroyed.  See  Roberts  v.  Roberts, 
223  F.  775;  138  C.  C.  A.  102. 
See  Seibert  v.  Seibert,  170  Iowa, 
561,  153  X.  W.  160.  See  Heath  v. 
Cuppel,  163  Wis.  62,  157  N.  W.  527. 

76.  Kennedy  v.  Borah,  226  HI.  24S, 
SO  X.  E.  767:  Coombs  v.  Cook,  35 
Okla.  326,  129  P.  698.  See,  however, 
771  re  Sharon's  Estate  (Cal.),  177  P. 
283  (general  statements  of  persons 
who  saw  the  records  are  insufficient). 

77.  Lane  v.  Saunders,  —  Tex.  Civ. 
App.  — ,  201  S.  W.  1018. 

78.  7??  re  Phillips'  Estate,  17  Pa. 
Super.  Ct.  103. 

79.  Sayles  v.  Chrsitie,  187  111.  420, 
58  X.  E.  480. 

80.  Succession  of  Caldwell,  114  La. 
195,  38  So.  140,  108  Am.  St.  Rep. 
341. 

81.  771  re  McCombs'  Estate  (Cal.), 
162  P.  897;  Powell  v.  Ott  (Tex.  Civ. 
App.),  146  S.  W.  1019.  See  Townsend 
V.  Perry,  164  X.  T.  S.  441,  177  App, 
Div.  415  (where  adoption  paper  a  for- 
gery). 

82.  Beach  v.  Bryan,  155  Mo,  App, 
33,  133  S.  W.  635, 


771 


ADOPTED    CHILDREN. 


§   726 


§  726.  Effect  of  Adoption. 

Adoption  will  confer  on  the  adopting  parents  the  right  to  the 

custody  of  the  child,  and  in  general  places  the  adopted  child  in 

the  same  position  as  a  natural  child,^^  gi^'iiig  the  adopting  parent 

the  same  rights  over  the  property  of  the  child  as  the  natural 

father,**  and  the  adopted  child  has  only  the  rights  which  a  natural 

child  would  have,^^  leaving  the  adopting  parent  the  right  to  dispose 

of  his  property  by  will  as  he  pleases,*®  and  the  adopting  parent  is 

bound  to  support  him,®^  though  the  child  be  cared  for  by  its  natural 

parents.** 

parent  cannot  recover  for  death).  See 
In  re  Clements,  12  Mo.  App.  592 
(rights  as  affected  by  religious  be- 
lief). 

85.  Wright  v.  Green  (Ind.  App.\ 
113  X.  E.  379  (adopting  parent  may 
dispose  of  property  during  his  life 
notwithstanding  contract  of  inherit- 
ance) ;  Franklin  v.  Fairbanks,  99  Kan. 
271,  161  P.  617;  Riley  v.  Day,  88  Kan. 
503,  129  P.  524  (takes  name  of  adopt- 
ing parents)  ;  Odenbreit  v.  Utheim, 
131  Minn.  56,  154  N.  W.  741;  Steele 
V.  Steele,  161  Mo.  566,  61  S.  W.  815. 

Civil  law  as  guide.  Since  the  com- 
mon law  did  not  recognize  the  adop- 
tion of  a  child  as  creating  any  legal 
rights,  as  did  the  civil  law,  in  de- 
termining the  nature  of  such  rights 
the  civil  law  may  properly  be  looked 
to.  Clark  v.  Clark,  76  N.  H.  551,  85 
A.  758;  Kroff  v.  Amrhein  (Ohio),  114 
X.  E.  267.  See  Wallace  v.  Noland, 
246  111.   535  92  N.  E.  956. 

86.  Malaney  v.  Cameron,  99  Kan. 
70,  161  P.  1180;  s.  c,  98  Kan.  620, 
159  P.  19;  99  Kan.  677,  162  P.  1172; 
Horton  v.  Troll,  183  Mo.  App.  677, 
167  S.  W.  1081;  Forsyth  v.  Hewa.-d 
(Xev.),  170  P.  21;  Masterson  v.  Har- 
ris, 107  Tex.  73  174  S.  W.  570. 

87.  Mitchell  v.  Brown,  18  Cal.  App. 
117,  122  P.  426  (adopting  parent  may 
contract  with  natural  parent  to  sup- 
port child)  ;  Ryan  v.  Foreman,  181 
Til.  App.  262  (judgment  affd.,  262  111. 
175,  104  X.  E.  189;  Beach  v.  Bryan, 
155  Mo.  App.  33,  133  S.  W.  635. 

88.  A  naiural  parent  cannot  recover 
from  an  adoptive  parent  for  the  care 


83.  Scott  V.  Scott  (U.  S.  D.  C. 
Idaho),  247  F.  976;  In  re  Cozza,  163 
Cal.  514,  126  Pa.  161. 

Beligious  training.  Purinton  v. 
Jamrock,  195  Mass.  187,  SO  X.  E.  802. 

The  parent  of  a  child  which  had 
been  adopted  by  another  has  no  par- 
ental rights  over  such  child,  and  can- 
not institute  in  the  county  court  pro- 
ceedings for  the  protection  or  relief 
of  the  child  from  an  improper 
guardian.  State  v.  Kelley,  32  S.  D. 
526,  143  X.  W.  953;  In  re  Knott 
(Tenn.),  197  S.  W.  1097;  State  v. 
Yturria  (Tex.),  204  S.  W.  315,  189 
S.  W.  291;  contra,  White  v.  Richeson 
(Tex.  Civ.  App.),  94  S.  W.  202.  See 
Villier  v.  Watson,  168  Ky.  631,  182 
S.  W.  869  (parental  control  need  not 
necessarily  pass  with  the  adoption). 
See  In  re  Putcrbaugh's  Estate  (Pa.), 
104  A.  601  (adoption  does  not  make 
adopted  child  a  child  in  fact) ;  Bas- 
kette  v.  Streight,  106  Tenn.  549,  62  S. 
W.  142  (wife  who  did  not  join  in  pro- 
ceedings not  entitled  to  custody  on 
death  of  her  husband  who  adopted 
child).  Sec,  however,  Harle  v.  Harle 
(Tex.),  204  S.  W.  317,  166  S.  W.  674. 

84.  Burnes  v.  Burnes,  70  C.  C.  A. 
357,  137  F.  781;  Miller  v.  Miller,  123 
Iowa,  165,  98  X.  W.  631;  Mundo  v. 
McGraw,  25  Ky.  Law  Rep.  1644,  77 
S.  W.  926;  Succession  of  Haley,  49 
La.  Ann  709,  22  So.  251;  Ransom  v. 
Xew  York  C.  &  St.  L.  Ry.  Co.,  93 
Ohio  St.  223,  112  X.  E.  586  (action 
for  death  of  child).  See  Sarazin  v. 
Tnion  R.  Co.,  153  Mo.  479,  55  S.  ^. 
92     (where    adoption    void    adopting 


§  727 


PARENT    AND    CHILD. 


72 


Where  a  child  has  once  been  adopted  the  natural  parents  lose  all 
rights  in  him,  and  their  consent  is  not  necessary  to  a  subsequent 
adoption.*® 

The  act  of  adoption  is  to  be  liberally  construed  in  favor  of  the 
child/°  and  the  adoption  decree  is  the  sole  source  for  determining 
its  status.®^  A  statute  giving  parents  a  right  of  action  for  death 
of  children  gives  the  adopting  parents  a  right  to  sue  for  the  death 
of  an  adopted  child.®^  Under  an  inheritance  tax  exempting  a 
"  direct  lineal  descendant "  neither  an  adopted  child  nor  a  child 
of  an  adopted  person  is  exempt,  but  adopted  children  are  exempt 
under  a  clause  giving  them  all  the  rights  and  privileges  of  a  legal 


leir 


,.  93 


Where  a  woman  takes  a  girl  from  an  orphan  asylum  and  treats 
her  as  her  own  child  she  has  an  insurable  interest  in  the  life  of  the 
child  although  she  has  never  formally  adopted  her  or  been  ap- 
pointed her  guardian.  It  is  not  necessary  that  the  insured  shall 
be  under  any  legal  obligation  to  the  beneficiary  or  that  kinship 
shall  exist  between  them.  If  the  insured  is  under  a  moral  obliga- 
tion to  render  care  and  assistance  to  the  beneficiary  in  the  time 
of  the  latter's  need,  then  the  latter  has  an  insurable  interest,  other 
than  a  mere  pecuniary  one,  in  the  life  of  the  former.^ 


94 


§  727.  Child's  Rights  of  Inheritance  from  Parents. 

Adoption  does  not  confer  on  the  child  any  rights  of  inheritance 
unless  expressly  so  provided  in  the  statute  or  by  the  act  of  adop- 
tion,^^  but  the  statute  usually  confers  on  the  adopted  child  all  the 


and  support  of  a  child  while  in  his 
own  home  and  custody.  McNemar  v. 
McNemar,  137  111.  App.  504;  Green- 
man  V.  Gillerman's  Estate,  188  Mich. 
74,  154  N.  W.  82. 

89.  Order  (Sup.),  103  N.  Y.  S.  1133, 
118  App.  Div.  907,  affd.;  In  re  Mac- 
rae, 189  N.  Y.  142,  81  N.  E.  956  (reh. 
den.,  189  N.  Y.  538,  82  N.  E.  1129), 
(although  adopting  parents  are  dead). 

90.  Hockaday  v.  Lynn,  200  Mo.  456, 
98  S.  W.  585. 

91.  Jones  v.  Leeds,  41  Ind.  App. 
164,  83  N.  E.  526.  In  re  Clements, 
12   Mo.  App.   592. 

92.  Ransom  v.  New  York,  Chicago, 
etc.,  R.  Co.  (Ohio  St.),  112  N.  E. 
.'586,  L.  R.  A.  1916E,  704. 

93.  State    v.    Yturria    (Tex.),    204 


S.  W.  315,  L.  R.  A.  19'18F,  1079.    See 
note  as  to  adopted  child  as  child,  etc. 

94.  Thomas  v.  National  Benefit  As- 
sociation (N.  J.),  86  Atl.  375,  46 
L.  R.  A.   (N.  S.)   779'. 

95.  Moore  v.  Hoffman,  Fed.  Cas. 
No.  9,  764a  (2  Hays.  &  H.  173)  ;  In 
re  Darling's  Estate  (Cal.),  159  P. 
G06;  "Webb  v.  Mcintosh  (Iowa),  159 
N.  W.  637;  Villier  v.  Watson,  168 
Ky.  631,  182  S.  W.  869;  Leonard  v. 
H.  Weston  Lumber  Co.,  65  So.  459; 
Fisher  v.  Browning,  107  Miss.  729, 
66  So.  132 ;  Beaver  v.  Crump,  76  Miss. 
34,  23  So.  432;  Ferguson  v.  Herr,  64 
Neb.  643,  90  N.  W.  625,  94  N.  W. 
542;  Dorsett  v.  Vought  (N.  J.),  71 
So.  492;  Townsend  v.  Perry,  164  N. 
Y.  S.   441,  177  App.   Div.  415;    Mer- 


773 


ADOPTED    CHILDREN. 


§  727 


legal  rights  of  inheritance  of  a  natural  child/*  including  interests 
in  remainder  which  would  have  passed  to  the  heirs  of  the  parent/^ 
but  where  a  husband  adopts  a  child  and  the  wife  is  not  a  party  to 
the  proceedings  the  child  has  no  rights  of  inheritance  from  the 
wife.'* 


chant  V.  White,  79  N.  Y.  S.  1,  77 
App.  Div.  539,  12  N.  Y.  Ann.  Cas. 
233;  Jn  re  Carroll's  Estate,  219  Pa. 
440,  68  A.  1038;  appeal  of  Jaquay, 
Id.;  Jordan  v.  Abney,  97  Tex.  296, 
78  S.  W.  486;  Powell  v.  Ott  (Tex. 
Civ.  App.),  146  S.  W.  1019;  Wall  v. 
McEnnery'3  Estate  (Wash.),  178  P. 
631. 

96.  Scott  V.  Scott  (U.  S.  D.  C. 
Idaho),  247  F.  976;  Appeal  of  Wood- 
ward, 81  Conn.  152,  70  A.  453;  Kyan 
T.  Foreman,  181  111.  App.  262  (judg- 
ment affd.,  262  lU.  175,  104  N.  E. 
189);  Nickerson  v.  Hoover  (Ind. 
App.),  115  N.  E.  588;  Eiley  v.  Day, 
88  Kan.  503,  129  P.  524;  Lanferman 
V.  Vanzile,  150  Ky.  751,  150  S.  W. 
1008;  Succession  of  Hawkins  (La.), 
71  So.  492  (as  forced  heir) ;  Cun- 
ningham V.  Lawson,  111  La.  1024,  36 
So.  107;  Virgin  v.  Martvick,  97  Me. 
578,  55  A.  520;  Stearns  v.  Allen,  183 
Mass.  404,  67  X.  E.  349,  97  Am.  St. 
Eep.  441  (adopted  child  may  inherit 
property  of  deceased  son  of  adopting 
parents)  ;  Ultz  v.  Upham,  177  Mich. 
351,  143  N.  W.  66;  In  re  Klapp's 
Estate  (Mich.),  164  X.  W.  381; 
Fisher  v.  Gardnier,  183  Mich.  660, 
160  N.  W.  358;  In  re  Herrick's  Es- 
tate, 124  Minn.  85,  144  X.  W.  455; 
Adams  v.  Adams,  102  Miss.  259,  59 
So.  84;  In  re  Cupples'  Estate  (Mo.), 
199  S.  W.  556 ;  Lindsley  v.  Patterson, 
177  S.  W.  826,  L.  R.  A.   1915F,  680. 

Where  husband  and  wife  adopted 
children,  and  the  hus'band  died,  leav- 
ing the  bulk  of  his  estate  to  the  wife, 
■who  subsequently  died  intestate,  the 
adopted  children  took  as  her  heirs. 
Horton  v.  Troll,  1S3  Mo.  App.  677, 
67  S.  W.  1081;  Thomas  v.  Malone, 
142  Mo.  App.  193,  126  S.  W.  522 
(adopted  child  has  rights  of  child 
omitted  from  will)  ;  In  re  Pepins'  Es- 


tate, 53  Mont.  240,  163  P.  104;  Mar- 
tin V.  Long,  53  Neb.  694,  74  N.  W. 
43;  Clark  v.  Clark,  76  N.  H.  551,  85 
A.  758  (adopted  child  is  an  "heir  in 
the  descending  line");  Von  Beck  v. 
Thomsen,  167  N.  Y.  601,  60  N.  E. 
1121  (affg.  60  N.  Y.  S.  1094,  44  App. 
Div.  373,  except  that  adoption  shall 
not  defeat  rights  of  remaindermen) ; 
Middle  worth  v.  Ordway,  191  N.  Y. 
404,  84  N.  E.  29-1;  United  States 
Trust  Co.  v.  Hoyt,  135  N.  Y.  S.  849, 
150  App.  Div.  621;  In  re  Webb's 
Estate,  250  Pa.  179,  95  A.  419;  Balch 
V.  Johnson,  106  Tenn.  249,  61  S.  W. 
289  (child  may  inherit  from  both 
husband  and  wife  where  both  adopt 
heir);  State  v.  Yturria  (Tex.),  204 
S.  W.  315,  189  S.  W.  291;  Logan 
V.  Lennix  (Tex.  Civ.  App.  1905),  88 
S.  W.  364;  White  v.  Holman,  25 
Tex.  Civ.  App.  152,  60  S.  W.  437; 
Evans  v.  Evans  (Tex.  Civ.  App.), 
186  S.  W.  815;  State  v.  Yturria 
(Tex.  Civ.  App.),  189  S.  W.  2?1. 
See  Patterson  v.  Carr  (Iowa),  166 
X.  W.  449  (receipt  in  full  of  claims 
against  adopting  parent  or  his  estate 
held  to  cover  only  claim  for  wages 
and  not  of  inheritance).  See  Wester- 
man  V.  Schmidt,  80  Mo.  App.  344 
(under  deed  of  adoption  giving  child 
"heir's"  portion,  adopted  child  can- 
not recover  any  portion  of  estate  dis- 
posed of  by  will). 

Where  the  adopting  parent  is  a  life 
tenant  only,  the  adopted  child  cannot 
inherit.  Eureka  Life  Ins.  Co.  v.  Geis, 
121  ]\rd.  196,  SS  A.  158. 

97.  Adams  v.  INferrill,  85  X.  E.  114. 
See  Gilliam  v.  Guaranty  Trust  Co.  of 
Xew  York,  186  X.  Y.  127,  78  N.  E, 
697  (under  statute). 

98.  In  re  Carroll's  Estate,  219  Pa, 
440,  68  A.  1038;  Appeal  of  Jaquay, 
Id. 


728 


PARENT    AXD    CHILD. 


i  I 


A  parol  obligation  bj  a  person  to  adopt  the  child  of  another  as 
his  own,  accompanied  bj  a  virtual,  though  not  a  statutory,  adop- 
tion, and  acted  upon  by  both  parties  during  the  obligor's  life,  may 
be  enforced,  upon  the  death  of  the  obligor,  by  adjudging  the  child 
entitled  as  a  child  to  the  property  of  the  obligor,  who  dies  without 
disposing  of  his  property  by  will.  Though  the  death  of  the  prom- 
isor may  prevent  a  literal  enforcement  of  the  contract,  yet  equity 
considers  that  done  which  ought  to  have  been  done ;  and  as  one  of 
the  consequences,  if  the  act  of  adoption  has  been  formally  consum- 
mated, would  be  that  the  child  would  inherit  as  an  heir  of  the 
adoptor,  equity  will  enforce  the  contract  by  decreeing  that  the 
child  is  entitled  to  the  fruits  of  a  legal  adoption.*^  A  statute  pro- 
hibiting suits  against  administrators  within  twelve  months  of 
their  appointment  does  not  render  premature  an  action  within  that 
period  by  one  claiming  to  be  heir  by  adoption  to  enjoin  sale  of  the 
real  estate  of  the  decedent.^ 

Where  the  adoption  took  place  before  the  passage  of  a  statute 
giving  adopted  children  a  right  of  inheritance  the  child  may  in- 
herit where  the  adopting  parent  died  after  the  passage  of  such  a 
statute,"  but  adoption  under  an  unconstitutional  statute  will  have 
no  effect.' 

Heirship  by  adoption  is  not  destroyed  by  a  second  adoption  after 
the  death  of  the  adopting  parent,*  but  if  the  second  adoption  takes 
place  before  the  death  of  the  first  adopting  parent  the  child  loses  all 
rights  to  inherit  from  him.^  Where  a  man  adopts  a  child  of  a 
deceased  child  the  adopted  child  inherits  as  a  child  only  and  not  as 
both  child  and  grandchild." 

Adoption  will  not  cut  off  the  child's  right  of  inheritance  from  its 
natural  parents  unless  so  provided  by  statute.'' 

§  728.  Child's  Rights  of  Inheritance  from  Kindred  of  Parents. 

A  statute  making  the  adopted  child  the  heir  of  the  adopter  does 
not  entitle  the  child  to  inherit  through  him  from  the  ancestors  of 


99.  Crawford  v.  Wilson,  139  Ga. 
654,  78  S.  E.  30,  44  L.  R.  A.  (N.  S.) 
773. 

1.  Bauman  v.  Kusian,  139  Ga.  654, 
78  S.  E.  30,  44  L.  R.  A.  (N.  S.)   773. 

2.  Theobald  v.  Smith,  92  N.  Y.  S. 
1019,  103  App.  Div.  200;  Rosekrans 
V.  Rosekrans,  148  N,  T.  S.  954,  163 
App.  Div.  730. 

3.  Albring  v.  Ward,  137  Mich.  352, 


100  N.  W.  609,  11  Det.  Leg.  N.  328. 

4.  Patterson  v.  Browning,  146  Ind. 
160,  44  N.  E.  993;  Russell  v.  Russell, 
14  Ky.  L.  R.  236. 

5.  In  re  Klapp's  Estate  (Mich.), 
164  N.  W.  381. 

6.  Billings  v.  Head,  184  Ind.  361, 
111  X.  E.  177;  Morgan  t.  Reel,  213 
Pa.  81,  62  A.  253. 

7.  In  re  Pillsbury's  Estate   (Cal.), 


i  io 


ADOPTED    CHILDREN. 


§  723 


the  adopting  parent/  and  does  not  make  the  adopted  child  an  heir 
of  the  kindred  of  those  who  adopted  it.* 

The  adoption  of  a  child  is  a  contract  into  which  the  adopting 
parents  enter  with  those  having  the  lawful  custody  of  the  child,  an 
agreement  personal  to  themselves,  and  while  they  have  a  perfect 
right  to  bind  or  obligate  themselves  to  make  the  child  their  heir, 
thej  are  powerless  to  extend  this  right  on  his  part  to  inherit  from 
others.  All  inheritance  laws  are  based  or  built  upon  natural  ties 
of  blood  relationship,  whereas  an  adopted  child's  right  to  inherit 
rests  upon  a  contract,  and  hence  only  those  parties  to  the  contract 
are  bound  by  it.  'So  an  adopted  child  will  not  inherit  from  the 
mother  of  his  deceased  foster  parent,^"  or  from  her  brother,^^  nor- 
from  the  natural  children  of  the  adopting  parent.^" 

Under  a  statute  giving  the  adopted  child  the  status  of  a  lawful 
child  except  that  he  shall  not  be  entitled  to  inherit  from  the  lineal 
or  collateral  kindred  of  his  parents,  an  adopted  child  cannot  in- 
herit from  the  natural  children  of  his  adopting  parents.  The 
court  notes  the  general  rule  that  an  adopted  child  cannot  inherit 
from  the  kindred  of  the  parents,  and  holds  that  the  exception  in 
the  statute  cannot  be  held  to  enlarge  its  previous  language.^^  So 
an  adopted  child  will  not  take  bequests  made  to  a  predeceased 
natural  son  of  the  adopting  parent.^* 

There  is,  however,  a  line  of  cases  taking  a  more  liberal  view 


166  P.  11  (where  adoption  took  place 
after  death  of  natural  parent)  ;  Head 
V.  Leak,  —  Ind.  App.  — ,  111  N.  E. 
952;  Iji  re  Klapp 's  Estate  (Mich.), 
164  N.  W.  381;  Clarkson  v.  Hatton, 
143  Mo.  47,  44  S.  W.  761,  39  L.  E.  A. 
748,  65  Am.  St.  R.  635;  In  re  Lan- 
ders' Estate,  166  N.  T.  S.  1036,  100 
Misc.  635  (half -sister  of  intestate  may 
inherit  though  adopted  by  stranger). 

8.  Phillips  V.  McConica,  59  Ohio  St. 
1,  51  N.  E.  445,  69  Am.  St.  R.  753. 
Contra,  Cooley  v.  Powers,  63  Ind. 
App.  59,  113  N.  E.  382. 

9.  Wallace  v.  Xoland,  246  HI.  535, 
92  X.  E.  956;  Boaz  v.  Swinney,  79 
Kan.  332,  99  P.  621;  Merritt  v.  Mor- 
ton, 143  Ky.  133,  136  S.  W.  133;  Van 
Derlyn  v.  Mack,  137  Mich.  146,  100 
N.  W.  27S,  1  Det.  Leg.  N.  207,  66  L. 
R.  A.  437,  109  Am.  St.  R.  66fr;  Hock- 
aday  v.  Lynn,  200  Mo.  456,  98  S.  W. 


585;  In  re  Burnett's  Estate,  219  Pa. 
599,  69  A.  74 ;  Rhode  Island  Hospital 
Trust  Co.  V.  Humphrey,  32  R.  I.  313, 
79  A.  829;  Batcheller-Durkee  v.  Bat- 
cheller,  —  R.  I.  — ,  97  A.  378. 

10.  Merritt  v.  Morton,  143  Ky.  133, 
136  S.  W.  133,  33  L.  R.  A.  (X.  S.) 
139. 

11.  Moore  v.  Moore,  35  Vt.  93. 

12.  Helms  v.  Elliott,  89  Tenn.  446, 
14  S.  W.  930,  10  L.  R.  A.  535.  See 
also  to  the  same  effect  Matre  v. 
Sankey,  148  111.  536,  36  N.  E.  623, 
23  L.  R.  A.  665;  Sunderland's  Estate, 
60  la.  732,  13  N.  W.  655;  Meader  v. 
Archer,  65  N.  H.  214,  23  A.  521; 
Phillips  V.  McConica,  59  Ohio  St.  1, 
51  X.  E.  445,  69  Am.  St.  R.  753. 

IS.  Durkee  v.  Batcheller  (R.  I.")  97 
A.  378,  L.  R.  A.  1916E,  545. 

14.  Gammons  v.  Gammons,  212 
Mass.  454,  99  X.  E.  95. 


§  730  PARENT  AND  CHILD.  776 

under  statutes  whicli  iu  eifect  seem  to  place  the  adopted  child  in 
the  status  of  a  natural  child,  and  in  such  cases  the  adopted  child 
may  inherit  from  the  natural  children  of  the  adopting  parent,"  or 
from  the  ancestors  of  the  adopting  parent^' 
§  729.  Child's  Rights  of  Inheritance  by  Contract. 

The  adopted  child  has  generally  no  greater  rights  than  a  natural 
child,  and  therefore  when  the  natural  child  may  be  disinherited 
the  adopted  child  may  be  disinherited  also.  He  may  have  rights 
under  a  contract  if  the  adopting  parents  have  made  a  contract  at 
adoption  performed  by  the  child  to  give  him  their  property  at 
death,  but  such  a  contract  cannot  be  made  out  of  general  talk  by 
the  adopting  parents  that  the  child  should  be  treated  as  their  own 
and  that  their  property  should  go  to  him  on  their  death,  as  this 
simply  gives  her  the  same  rights  as  a  natural  child  and  was  not 
intended  as  an  irrevocable  agreement.^' 

A  promise  made  by  persons  who  took  two  infant  orphans  from 
an  asylum,  where  they  were  well  cared  for,  to  treat  them  as  in  all 
respects  their  children,  is  not  a  promise  to  leave  them  anything  by 
will.  Where  the  children  subsequently  expressed  a  desire  to  return 
to  the  asylum,  and  the  persons  taking  care  of  them  then  promised 
if  they  would  remain  to  rear  them  and  educate  them  in  a  proper 
manner  and  to  leave  them  their  property,  this  is  not  such  an 
agreement  to  leave  by  will  as  equity  will  enforce  by  specific  per- 
formance. It  is  not  sufficiently  definite  and  certain,  it  does  not 
clearly  appear  how  long  the  children  were  to  remain  and  what 
they  were  to  do,  and  it  does  not  appear  what  they  gave  up  by 
remaining.  There  is  nothing  to  indicate  that  it  would  have  been 
to  the  advantage  of  the  children  to  leave,  and  it  does  not  appear 
that  the  children  changed  their  position  in  any  way  in  reliance  on 
the  promise  made.^^ 
§  730.  Adoption  as  Revocation  of  Will  of  Adopting  Parent 

Statutes  in  many  States  provide  that  the  birth  of  a  child  will 
cause  a  partial  revocation  of  the  will  of  the  father  previously  ex- 
ecuted. Under  these  statutes  it  is  commonly  held  that  where  the 
statute  provides  that  an  adopted  child  has  all  the  rights  of  a 

15.  Stearns  v.  Allen,  183  Mass.  404,  17.  Odenbreit  v.  Utheim  (Minn.), 
67  N.  E.  340,  97  Am.  St.  E.  441;  Mc-  154  N.  W.  741,  L.  R.  A.  1916D,  421. 
Manus  v.  Lloyd  (Wash.),  183  Pac.  18.  Bauman  v.  Kusian,  164  Cal.  582, 
93.  129  P.  986,  44  L.  E.  A.   (N.  S.)   756. 

16.  Shick  V.  Howe,  137  la.  249,  114 
N.  W.  916,  14  L.  E.  A.  (N.  S.)  980. 


777 


ADOPTED    CHILDREN. 


§  731 


natural  child  the  adoption  of  a  child  will  cause  the  partial  revo- 
cation of  a  will  as  in  case  of  the  birth  of  a  natural  child/"  al- 
though the  adoption  statute  was  passed  before  the  statute  pro- 
viding for  the  partial  revocation  of  a  will.^" 

§  731.  Rights  of  Inheritance  by  Parents. 

The  adopting  parents  cannot  inherit  from  the  adopted  child  ^^ 
unless  the  statute  so  provides  when  they  will  inherit  in  prefer- 
ence to  the  natural  parents.^^  and  the  natural  parents  or  natural 
heirs  may  inherit  in  preference  to  the  heirs  of  the  adoptive  par- 
ents.^^  The  general  statutes  of  inheritance  are  modified  and  set 
aside  by  statutes  regulating  the  effect  of  adoption  only  so  far 
as  there  is  some  specific  provision  in  the  statutes  for  adoption  in- 
consistent with  the  application  in  such  cases  of  the  general  in- 
heritance statutes.  So  where  the  adopting  parents  are  deceased 
the  natural  parents  may  inherit  in  the  absence  of  a  statute  chang- 
ing the  general   rule  on   the  subject.      A   statute  declaring   the 


19.  Dreyer  v.  Schrick  (Kan.),  185 
P.  30;  Bourne  v.  Dovmer,  184  N.  Y. 
App.  Div.  476,  171  N.  Y.  Supp.  264; 
Glascott  V.  Bragg,  111  Wis.  605,  87 
N.  W.  853;  In  re  Sandon's  Will,  123 
Wis.  603,  101  N.  W.  108?.  Contra, 
Goldstein  v.  Hammell,  236  Pa.  305,  84 
A.  772,  49  Pa.  Super.  Ct.  39;  Evans 
v.  Evans   (Tex.),  186  S.  W.  815. 

20.  Scott  V.  Scott,  247  Fed.  976; 
Buckley  v.  Frazier,  153  Mass.  525,  27 
N.  E.  768. 

21.  White  V.  Dotter,  73  Ark.  130, 
83  S.  W.  1052  (although  parent  makes 
gift  to  child  believing  she  would  in- 
herit) ;  Coleman  v.  Swick,  120  111. 
App.  381  (judg.  affd.,  Swick  v.  Cole- 
man, 218  ni.  33,  75  N.  E.  807). 

Under  an  adoption  statute  provid- 
ing that  the  child  may  inherit  from 
the  parent  the  adopting  parent  can- 
not inherit  from  the  child  where  not 
expressly  so  provided.  Adopting 
statutes  should  be  strictly  construed 
and  will  not  be  construed  to  change 
the  common  law  where  not  expressly 
80  worded.  Furthermore,  it  would  be 
to  the  interest  of  designing  persons 
to  adopt  children  likely  to  inherit 
and  then  to  bring  about  their  death. 


Edwards  v.  Yearby,   168   N.  C.   663, 
85  S.  E.   19,  L.  R.  A,  1915E,  462. 

22.  In  re  Darling's  Estate  (Cal.), 
159  P.  606;  In  re  Jobson's  Estate, 
164  Cal.  312,  128  P.  938;  Swick  v. 
Coleman,  218  111.  33,  75  N.  E.  807, 
120  111.  App.  381;  Dunn  v.  Means, 
48  Ind.  App.  383,  95  N.  E.  1015; 
Lanferman  v.  Vanzile,  150  Ky.  751, 
150  S.  W.  1008;  In  re  Havsgord's 
Estate,  34  S.  D.  131,  147  N.  W.  378; 
Calhoun  v.  Bryant,  28  S.  D.  266,  133 
N,  W.  266;  Coleman  v.  Swick,  120 
m.  App.  381  (judg.  affd.,  Swick  v. 
Coleman,  218  Dl.  33,  75  N.  E.  807). 
See  Paul  v.  Davis,  100  Ind.  422  (sta- 
tute making  child  the  heir  casts  de- 
scent from  child  to  adopting  parent). 

23.  Russell  v.  Jordan,  58  Colo.  445, 
147  P.  693;  Maker  v.  Clowser,  158 
la.  156,  138  N.  W.  837. 

Property  inherited  by  an  adopted 
child  goes  to  it  in  fee,  and  on  its 
death  descends  according  to  the  law 
of  descent  and  distribution  to  its 
blood  relatives  to  the  exclusion  of  its 
adoptive  parents.  Fisher  v.  Brown- 
ing, 107  Miss.  729,  66  So.  132;  Ed- 
wards V.  Yearby,  168  N.  C.  663,  85  S. 
E.  19,  L.  R.  A.  1915E,  462. 


§  733  PAREVr  A^'D  child.  778 

rights  of  inheritance  existing  between  the  parent  and  child  bj 
adoption  shall  be  the  same  as  exist  between  parent  and  child  bj 
lawful  birth  does  not  alter  the  rights  of  the  natural  parent  where 
the  adopting  parent  is  dead."*  But  the  share  under  a  will  be- 
queathed to  a  predeceased  adopted  daughter  goes  to  the  heirs  of 
the  testator  rather  than  to  the  child's  natural  parents." 

§  732.  Inheritance  by  Children  of  Adopted  Child. 

The  childen  of  an  adopted  child  may  take  by  representation 
from  the  estate  of  the  adopting  parent/"  or  on  the  death  of  the 
adopted  child  without  issue  his  heirs  may  inherit-."  Our  adoption 
statutes  are  properly  construed  having  in  view  the  ancient  civil 

I  law,^*  and  a  statute  declaring  that  the  adopted  child  has  the  same 
right  of  inheritance  between  the  parties  to  the  adoption  as  a  legiti- 
mate child  makes  the  adopted  child  the  legal  child  of  the  adopter 

!  and  he  stands  as  to  the  property  of  the  adoptive  parent  in  the  same 
position  as  a  child  born  in  lawful  wedlock.  Furthermore,  the 
relation  of  parent  and  child  is  a  correlative  one.  Where  there  is 
a  legal  child  there  is  a  legal  father.  As  a  logical  sequence  the 
children  of  such  legal  child  are  the  grandchildren  of  the  legal 
father.^®  Therefore,  the  grandchild  is  the  legal  grandchild  of  the 
adopter  and  as  such  he  is  entitled  to  stand  in  his  parent's  place 
and  take  by  right  of  representation  in  her  place  where  she  dies 
before  the  adopting  parent.'" 

§  733.  Effect  of  Adoption  on  Inheritance  by  Widow  of  Adopting 

Parent. 

Where  the  statute  provides  that  the  adopted  child  shall  inherit 

the  widow  of  the  adopting  parent  has  only  the  same  rights  under 

the  statute  as  if  her  husband  left  issue,^^  but  a  husband  by  a  con- 

24.  "Baker  v.  Clowaer  (la.),  138  N.  271.  161  P.  617;  McMaster  v.  Pobes, 
W.  837,  43  L.  R.  A.   (N.  S.)    1056.  226  Mass.  396,  115  N.  E.  487.   Contra, 

25.  Warner  v.  King,  267  111.  82,  Kroff  v.  Amrhein  (Ohio),  114  N.  E. 
107  N.  E.  837.  267. 

26.  In  re  Herrick's  Estate,  124  28.  Markover  v.  Krauss,  132  Ind» 
Minn.  85,  144  N.  "W.  455;  In  re  Cup-  294,  31  X.  E.  1047,  17  L.  R.  A.  806. 
pies'  Estate  (Mo.),  199  S.  W.  556;  29.  Vidal  v.  Commagere,  13  La. 
Williams  v.  Rollins  (Mo.),  195  S.  W.  Ann.  516. 

1009;    Bernero  v.   Goodwin,  267   Mo.  30.  Batchelder  v.  Walworth    (Vt.), 

427,  184  S.  W.  74;  Kroff  v.  Amrhein,  82  A.  7,  37  L.  R.  A.   (N.  S.)  849. 
5  Ohio  App.  37,  —  Ohio  — ,  114  N.  31.    Atchison   v.    Atchison's   Ex'rs, 

E.  267;  Jn.  re  Webb's  Estate,  250  Pa.  89   Ky.   488,   12   S.   W.   942,   11   Ky. 

179,  95  A.  419;   Harle  v.  Harle,  166  Law,  705;   Moran  v.  Moran,  151  Mo. 

S.  W.  674;   Batchelder  v.  Walworth,  558,  52  S.  W.  378;  In  re  McQuiston's 

85  Vt.  322,  82  A.  7.  Estate,  238  Pa.  313,  86  A.  207. 

27.  Franklin  v.  Fairbanks,  99  Kan. 


779 


ADOPTED    CIIILDREIf. 


§    734 


tract  of  adoption  cannot  impair  the  rights  of  his  widow  *'  unless 
the  contract  of  adoption  was  made  before  the  marriage  when  the 
rights  of  the  widow  are  subject  to  the  rights  of  inheritance  of  the 
adopted  child." 

§  734.  Revocation  of  Adoption. 

Proceedings  to  abrogate  the  adoption  may  be  brought  in  equity'* 
and  the  jurisdiction  to  set  aside  an  adoption  by  any  other  court  is 
statutory  purely.^^  Adoption  may  be  set  aside  on  the  ground  of 
unsoundness  of  mind  of  the  adopting  parent  and  undue  influence 
on  petition  begun  by  the  next  of  kin  of  the  adopting  parent,'®  for 
fraud  on  the  court,'^  that  the  court  had  no  jurisdiction,'^  that  it 
was  made  without  notice  to  the  parents,"  or  without  the  parent's 
consent.'"'  Under  the  Xew  York  statute  adoption  may  be  abro- 
gated without  the  consent  of  a  divorced  parent.*^ 

The  heirs  may  not  have  the  right  to  rely  on  defects  in  the 
adoption  although  it  might  be  void  as  against  the  parents.*^  The 
natural  parent's  rights  cease  on  his  death  and  his  heirs  cannot  after 
his  death  carry  on  proceedings  to  revoke  an  adoption.*' 

"Where  the  record  of  the  adoption  is  valid  on  its  face  irregulari- 

32.  McCann  v.  Daly,  168  111.  App.  37.  Miller  v.  Higgins,  14  Cal.  App. 
287.                                                                             156,   111  P.   403. 

The  adoption  of  a  child  is  not 
equivalent  to  the  birth  of  issue  in 
determining  the  rights  of  a  surviv- 
ing husband  or  wife.  Clark  v.  Clark, 
76  jST.  H.  551,  85  A.  758;  Middle- 
worth  V.  Ordway,  98  N.  Y.  S.  10,  49 
Misc.  74. 

33.  Lee  v.  Bermingham,  igO'  111. 
App.  497. 

34.  McClure  v.  Williams  (Ala.), 
78  So.  853;  In  re  Ziegler,  146  N.  T. 
S.  881,  161  App.  Div.  598  (affirming 
order  [Sur.]  143  N.  Y.  S.  562,  82 
Misc.  346)  ;  In  re  Beers,  78  Wash.  576, 
139  P.  629. 

35.  In  re  McDevitt,  162  N.  Y.  S. 
1032,  176  App.  Div.  418. 

36.  Tucker  v.  Fisk,  154  Mass.  574, 
28  X.  E.  1051;  McKay  v.  Kean,  167 
Mass.  524,  46  N.  E.  120  (jury  may 
be  refused) ;  Phillips  v.  Chase,  203 
Mass.  556,  89  N.  E.  1049;  Raymond 
T.  Cooke,  226  Mass.  326,  115  N.  E. 
423;  Stevens  v.  Halstead,  168  N.  Y. 
S.  142,  181  App.  Div.  198. 


88.  In  re  Johnston,  37  N.  Y.  S.  92, 
76  Misc.  374. 

89.  Bell  V.  Krauss,  169  Cal.  387, 
146  P.  874;  In  re  Moore,  132  N.  Y. 
S.  249,  72  Misc.  644;  In  re  Keeler's 
Adoption,  52  Pa.  Super.  Ct.  516.  See 
Darlington's  Adoption,  69  Pa.  Super. 
Ct.  281. 

40.  Nelson  v.  Xelson,  127  111.  App. 
422  (that  consent  given  under  mis- 
taken belief  of  approaching  death 
is  no  ground  for  setting  aside 
adoption) ;  Coleman  v.  Coleman,  81 
Ark.  7,  98  S.  W.  733;  In  re  Ziegler, 
143  N.  Y.  S.  562,  82  Misc.  346. 

41.  Matter  of  Ziegler,  50  N.  Y.  L. 
J.  99. 

42.  Appeal  of  Woodward,  81  Conn. 
152,  70  A.  453;  Jones  v.  Leeds,  41 
Ind.  App.  164,  83  N.  E.  526  (heirs  of 
wife  cannot  take  advantage  of  defect 
in  petition). 

43.  In  re  Young,  259  Pa.  573,  103 
A.  344. 


§  735 


PARENT    AND    CHILD. 


780 


ties  must  be  clearly  proved  to  set  it  aside,**  and  it  is  not  a  ground 
for  setting  aside  an  adoption  that  the  adopting  parent's  home  has 
a  bad  moral  atmosphere/^  or  that  it  was  made  for  the  purpose  of 
preventing  a  contest  over  the  will.** 

If  an  order  of  adoption  is  set  aside  the  status  of  the  child  is 
the  same  as  if  no  proceedings  for  adoption  had  been  had  and  the 
child  may  be  again  adopted  by  the  same  parties.*^ 

One  may  be  estopped  to  claim  irregularities  in  an  adoption  *' 
as  where  the  guardian  procures  the  adoption  by  transferring  to 
the  adopting  parents  the  property  of  the  ward,  he  will  not  be  per- 
mitted to  repudiate  it  later.**  Acquiescence  for  several  years  by 
a  parent  in  the  claim  of  adoption  does  not  estop  her  from  claiming 
the  child  on  the  ground  that  the  order  of  adoption  is  invalid. 


59 


§  735.  Conflict  of  Laws  Relating  to  Adoption. 

An  adoption  valid  where  made  will  entitle  the  adopted  child 
to  inherit  under  the  laws  of  another  State  where  the  property 
lies,°^  and  the  right  of  the  adopted  child  to  inherit  depends  on 
the  law  of  the  domicile  of  the  adoptive  parent.*^^ 

Adoption  under  a  statute  of  a  foreign  State  conferring  right-s 
of  inheritance  to  land  will  not  be  sufficient  to  confer  such  rights 
in  another  State.^*  Adoption  in  one  State  will  be  recognized  in 
another  State  of  similar  laws.     The  legality  of  the  adoption  is 


44.  Simpson  v.  Simpson,  29  Ohio 
Cir.  Ct.  E.  503. 

45.  Bedford  v.  Hamilton,  153  Ky. 
429,  155  S.  W.  1128, 

46.  Collamore  v.  Learned,  171  Mass. 
93,  50  N.  E.  518. 

47.  771  re  Trimm,  63  N.  T.  S.  952, 
30  Misc.  493,  7  N.  Y.  Ann.  Cas.  293. 

48.  Barclay  v.  People,  132  111.  App. 
338. 

49.  Chubb  V.  Bradley,  58  Mich.  268, 
25  N.  W.   186. 

50.  Ex  parte  Clarke,  87  Cal.  638, 
25  P.  967.  See  In  re  Brown's  Adop- 
tion, 25  Pa.  Super.  Ct.  253  (21  years 
delay  will  bar). 

51.  Appeal  of  "Woodward,  81  Conn. 
152,  70  A.  453;  Shick  v.  Howe,  137 
la.  249,  114  N.  W.  916;  Brewer  v. 
Browning,  115  Miss.  358,  76  So. 
267,  519;  Anderson  v.  French,  77 
N.   H.   509,  93   A.   1042;    Simpson   v. 


Simpson,  29  Ohio  Cir.  Ct.  R.  503; 
Pinley  v.  Brown,  122  Tenn.  316,  123 
S.  W.  359;  McColpin  v.  McColpin's 
Estate  (Tex.  Civ.  App.  1903),  77  S. 
W.  238;  James  v.  James,  35  Wash. 
655,  77  P.  1082;  Appeal  of  Wood- 
ward, 81  Conn.  152,  70  A.  453  (for- 
3ign  adoption  presumed  valid).  See 
Fisher  v.  Davidson  (Mo.),  195  S.  W. 
1024  (contract  to  adopt  made  in  an- 
other State  may  be  enforced  in  Mis- 
souri). 

52.  Shick  v.  Howe,  137  la.  249,  114 
N.  W.  916. 

53.  Hood  V.  McGehee,  35  S.  Ct.  718, 
237  U.  S.  611,  59  L.  Ed.  1144  (affg. 
decree,  199  F.  989,  117  C.  C.  A.  664, 
189  La.  205;  Brown  v.  Finley,  157 
Ala.  424,  47  So.  577;  Fisher  v.  Brown- 
ing, 107  Miss.  729,  66  So.  132;  Cal- 
houn v.  Bryant,  28  S.  D.  266,  133 
N.  W.  266. 


781  ADOPTED  CHILDREN.  §  735 

decided  by  the  law  of  the  State  where  the  adoption  took  place 
but  that  relation  or  status  having  been  established,  what  the 
adopted  child  shall  inherit  should  be  determined  in  the  case  of 
personalty  by  the  leco  domicilii  of  the  owner  at  the  time  of  his 
decease  and  in  case  of  real  estate  by  the  lex  rei  sitae,^ 


64 


*4.  Anderson    v.    French,    77    N.    H.    509,    93    A.    1042,  L.   E.   A.    1916A, 
660. 


§  737  PARENT  AND  CHILD.  782 


CHAPTER  y. 


BIGHTS  OF  PARENT3. 


Section  736.  Foundation  of  Parental  Eights. 

737.  Eight  of  Chastisement. 

738.  P.arent's  Eights  to  Child's  Propertj. 

739.  Child's  Duty  to  Care  for  Parents. 

§  736.  Foundation  of  Parental  Rights. 

The  rights  of  parents*  result  from  their  duties,  being  given  them. 
hy  law  partly  to  aid  in  the  fulfilment  of  their  obligations,  and 
partly  by  way  of  recompense.^'  As  they  are  bound  to  maintain 
and  educate,  the  law  has  given  them  certain  authority  over  their 
children,  and  in  the  support  of  that  authority  a  right  to  the  ex- 
ercise of  such  discipline  as  may  be  requisite  for  the  discharge  of 
their  important  trust.  This  is  the  true  foundation  of  parental 
power.*® 

The  legal  rights  a  parent  has  in  respect  to  his  children  dur- 
ing minority  are  not  absolute  and  may  be  forfeited  by  his  own 
conduct.  They  may  be  modified  or  suspended  against  his  will  by 
action  of  the  court;  and  they  may,  to  a  certain  extent,  be  trans- 
ferred by  agreement  to  another,  but  they  cannot  be  destroyed  as 
between  himself  and  his  child,  except  by  statute.^^ 

§  737.  Right  of  Chastisement. 

Some  of  the  ancient  nations  carried  the  parental  authority 
beyond  all  natural  limits.  The  Persians,  Egyptians,  Greeks, 
Gauls,  and  Pomans  tolerated  infanticide.  Under  the  ancient 
Poman  laws  the  father  had  the  power  of  life  and  death  over  his 
children,  on  the  principle  that  he  who  gave  had  also  the  power  to 
take  away;***  and  thus  did  law  attribute  to  man  those  functions 
which  belong  only  to  the  Supreme  Being.  This  power  of  the 
father  was  toned  down  in  subsequent  constitutions,  and  in  the 
time  of  the  Emperor  Hadrian  the  wiser  maxim  prevailed,  "  Patria 
potestas  in  pietate  debet,  non  in  atrocitate  consistere ;"  for  which 
reason  a  father  was  banished  who  had  killed  his  son.  The  Em- 
peror Constantine  made  the  crime  capital  as  to  adult  children; 

55.  1  Bl.  Com.  452.  57.  Appeal  of  Woodward,  81  Conn. 

66.  2  Kent  Com.  203.  152,  70  A.  453. 

58.  Cod.  8,  47,  10;  1  Bl.  Com.  452. 


783  EIGHTS    OF    PARENTS.  §    737 

and  infanticide  was  under  Valentinian  and  Valens  punishable  by 
death.  Thus  was  the  doctrine  of  paternal  supremacy  gradually 
reduced,  though  at  the  civil  law  never  wholly  abandoned.^* 

The  common  law,  far  more  discreet,  gives  the  parent  only  a 
moderate  degree  of  authority  over  his  child's  person,  which  au- 
thority relaxes  as  the  child  grows  older.  With  the  progress  of 
refinement,  parents  have  learned  to  enforce  obedience  by  kind- 
ness rather  than  severity;  and  although  the  courts  are  reluctant 
to  interfere  in  matters  of  family  discipline,  they  will  discounte- 
nance every  species  of  cruelty  which  goes  by  the  name  of  paren- 
tal rule.  The  common  law  gives  the  right  of  moderate  correction 
of  the  child  in  a  reasonable  manner;  "for,"  it  is  said,  "this  is 
for  the  benefit  of  his  education;  "  ^^  and  the  mother  has  the  same 
right  as  the  father,®^  and  in  the  absence  of  the  father  may  call  in 
a  stranger  to  assist  her  who  will  not  be  liable  if  he  only  uses 
reasonable  force.*^ 

But  at  the  same  time  the  parent  must  not  exceed  the  bounds  of 
moderation,  and  inflict  cruel  and  merciless  punishment;  for  if  he 
do,  he  is  liable  to  be  punished  by  indictment.®^  And  he  may  be 
found  guilty  of  manslaughter,  or  even  murder,  under  gross  cir- 
cumstances."* Thus,  where  a  father  put  his  child,  a  blind  and 
helpless  boy,  in  a  cold  and  damp  cellar,  without  fire,  during  several 
days  in  midwinter,  giving  as  his  only  excuse  that  the  boy  was 
covered  with  vermin,  he  was  rightly  held  subject  to  indictment 

59.  1  Bl.  Com.  452;   2  Kent  Com.  against    a    criminal    prosecution,    see 

204;    1   Heinec.  Antiq.  Eom.  Jur.  9;  Dean  v.  The   State,  89  Ala.  46,  con- 

Dr.  Taylor,  Civ.  Law,  403-406;   For-  cerning  an  authorized  friend  of  the 

syth,  Custody,  3.  family. 

«0.  Hutchinson  v,  Hutchinson,   124  61.  Kowe  v.  Rugg,  117  la.  606,  91 

Cal.  677,  57  P.  674    (evidence  of  the  N.  W.  gOS,  94  Am.  St.  R.  318  (mother 

conduct  of  the  children  immediately  may  delegate  right  to  punish  to  an- 

preceding  the  punishment  is  sufficient  other). 

and    evidence    of   prior    instances   of  62.  Vanmeter  v.  True,  10  Ky.  Law, 

falsehoods    is    inadmissible)  ;     Horn-  320. 

beck  v.  State,  16  Ind.  App.  484,  45  63.   The  law  reluctantly  interferes 

N.  E.  620;  1  Hawk.  P.  C.  130;  1  Bl.  criminally  in  such  cases  unless  the  pa- 

Com.  452.     One  in  loco  parentis,  as  a  rental   chastisement   produces   perma- 

stepfather  may  become,  has  the  right  nent    injury    or    was    maliciously    in- 

of   moderate   correction.     Gorman   v.  flicted.    State  v.  Jones,  95  N.  C.  538 ; 

State,     42     Tex.     221;     Marshall     v.  Dean  v.  The  State,  89  Ala.  46.     But 

Reams,  32  Fla.  499;  State  v.  Alford,  cf.  Powell  v.  State,  67  Miss.  719. 

68  N.  C.  322.    And  see,  as  to  the  an-  64.  1  Russ.  Crimes,  Grea.  ed.  490; 

alogous  case  of  a  schoolteacher.  State  Regina  v.  Edwards,  8  Car.  &  P.  611; 

T.  Burton,  4  5  Wis.  150;   Danenhoffor  2  Bish.  Crim.  Law,  §  714. 
y.   State,   69    Ind.   293.     So,   too,    as 


§  738 


PARENT    AND    CHILD. 


784: 


and  punishment  for  such  wanton  cruelty."^  So  may  a  parent  at 
the  common  law  be  indicted  for  exposure  and  neglect  of  his  chil- 
dren ;  and  the  heinousness  of  the  offence  depends  in  a  great  meas- 
ure upon  the  proof  of  simple  negligence  or  wilful  cruelty.  The 
parent,  too,  who  suffers  his  little  child  to  starve  to  death,  com- 
mits murder. *'  But  the  child's  tenderness  of  age  and  helplessness 
are  elements  in  such  cases ;  and  when  children  grow  up  they  are 
presumed  to  provide  for  their  urgent  wants. 

§  738.  Parent's  Right  to  Child's  Property. 

A  parent  of  a  minor  child  has  no  right  to  the  possession  or  us© 
of  his  property,*^  or  to  make  contracts  concerning  it,°*  except  by 
statute,**  and  cannot  bring  suit  on  account  of  it,^°  but  where  a 
parent  occupies  the  child^s  property  without  any  agreement  to 
pay  rent,  no  such  agreement  will  be  implied  in  the  absence  of 
circumstances  showing  that  such  payment  was  intended.'^  The 
parent  has  no  authority  to  settle  suits  or  claims  of  the  minor." 


65.  Fletcher  v.  People,  52  lU.  395; 
Johnaon  v.  State,  2  Humph.  283; 
Hinkle  v.  State,  127  Ind.  49'0. 

68.  4  Bl.  Com.  182,  183;  2  Bishop, 
Crim.  Law,  §§  688,  712;  Eegina  v. 
White,  L.  E.  1  C.  C.  311.  Wilfully 
permitting  a  child's  life  to  be  endan- 
gered for  want  of  proper  food  or  med- 
ical treatment,  legislation  sometimes 
makes  an  indictable  offence  as  against 
a  parent  or  one  in  his  stead.  Cowley 
V.  People,  83  N.  Y.  464. 

67.  Gaines  v.  Kendall,  176  111.  228, 
52  N.  E.  141;  Paskewie  v.  East  St. 
L.  &  Ry.  Co.,  281  111.  385,  117  N.  E. 
1035,  206  111.  App.  131;  Hopkins  v. 
Lee,  162  la.  165,  143  N.  W.  1002; 
Partee  v.  Partee,  114  Miss.  577,  75 
So.  438,  114  Miss.  198,  74  So.  827 
(where  widowed  mother  has  not  been 
appointed  guardian) ;  State  v.  Staed, 
143  Mo.  248,  45  S.  W.  50;  Bell  v. 
Eice,  50  Neb.  547,  70  N.  W.  25; 
Ficken  v.  Emigrants'  Industrial  Sav. 
Bank,  67  N.  Y.  S.  143,  33  Misc.  92; 
Guillou  V.  Campbell,  35  Pa.  Super. 
Ct.  639;  Pickthall  v.  Steinfeld,  12 
Ariz.  230,  100  P.  779;  Steinfeld  v. 
Pickthall,    Id.;    Anderson    v.    Dodge, 


143  N.  Y.  S.  132,  158  App.  Div.  201 
(father  may  lease  ward's  property 
by  statute). 

68.  Fassitt  v.  Seip,  249  Pa.  576,  95 
A.  273. 

69.  Darlington  v.  Turner,  202  U.  S. 
195,  26  S.  Ct.  630,  50  L.  Ed.  992 
(reversing  24  App.  D.  C.  573)  ;  Var- 
nado  V.  Lewis,  113  La.  72,  36  So. 
893. 

70.  Miles  V.  Boy  den,  20  Mass.  (3 
Pick.)  213  (father  cannot  sue  for 
child's  legacy);  Morris  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  58  Mo.  78. 

71.  Wills  V.  Wills,  34  Ind.  106; 
Aaron  v.  Bayon,  131  La.  228,  59  So. 
130;  Bell  v.  Dingwell,  91  Neb.  699, 
136  N.  W.  1128. 

Where  the  child,  while  living  with 
the  mother  on  property  in  which  he 
had  an  interest  from  his  father's 
estate,  earns  and  pays  to  the  mother 
wages  sufficient  for  his  support,  the 
mother  must  account  to  the  child  for 
rent.  Keeney  v.  Henning,  58  N.  J. 
Eq.  74,  42  A.  807. 

72.  Spring  Valley  Coal  Co.  v.  Don- 
aldson, 123  HI.  App.  196;  Leslie  v. 
Proctor  &  Gamble  Mfg.  Co.,  102  Kan. 


785  EIGHTS    OF    PARENTS.  §    738 

The  law  treats  legacies,  gifts,  distributive  shares,  and  the  like, 
which  may  vest  in  a  person  during  minority,  as  his  own  property ; 
and  the  modern  practice  is  to  require  the  appointment  of  a 
guardian  in  such  cases,  to  manage  the  estate  until  the  child  comes 
of  age.''  Under  no  pretext  may  the  father  appropriate  such  funds 
to  himself,  or  use  them  to  pay  his  own  debts;  and  an  adminis- 
trator or  trustee  who  pays  the  child's  money  to  the  father  as  par- 
ent incurs  a  personal  risk.'*  The  same  may  be  said  of  the  child's 
lands.''  And  the  parent's  investment  of  his  child's  money  for 
the  latter's  benefit  will  be  protected  against  all  creditors  of  the 
former,  who  are  chargeable  with  notice  of  the  child's  rights." 

While  the  parent  may  be  called  the  natural  guardian  of  the 
child,  this  is  not  such  a  guardianship  as  gives  the  right  to  control 
or  manage  the  child's  property ;  for  here  a  chancery  or  probate 
appointment  should  be  made;  but  equity  would  hold  the  parent 
to  account  like  any  intermeddler  or  holder  of  trust  funds."  So  a 
widow  as  the  natural  guardian  of  her  children  is  a  trustee  for  them 
and  cannot  buy  at  a  foreclosure  sale  of  the  homestead  property 
and  sell  to  a  third  party  and  thus  cut  off  the  rights  of  her  children 
even  though  she  uses  her  own  money  in  buying  at  the  foreclosure. 
By  doing  so  she  simply  become'^  subrogated  to  the  rights  of  the 
mortgagee  and  does  not  change  her  relation  of  trustee  to  her 
minor  children.'* 

The  parent  may,  however,  inherit  as  heir  of  the  child,  and  even 

159,  169  P.  193;   Blake  v,  Corcoran,  75.   As  to   conveying  an  easement, 

211  Mass.  406,  97  N.  E.  1002 ;   Kirk  see  Farmer  v.  McDonald,  59  Ga.  509. 

V.  Middlebrook,  201  Mo.  245,  100  S.  A  father,  as  such,  cannot  be  judici- 

W,  450;   Hannula  v.  Duluth  &  I.  R.  ally  empowered  to  sell  his  son's  land. 

E.  Co.,  130  Minn.  3,  153  N.  W.  250  Guynn  v.  McCaulcy,  32  Ark.  97.    See 

(effect  of  statute).  English  Act,  44  &  45  Vict.,  ch.   41, 

73.  Keeler  v.  Fassett,  21  Vt.  539;  as  to  management  of  an  infant's 
Jackson  v.  Combs,  7  Cow.  36;  Miles  v.  lands. 

Boyden,  3  Pick.  213;  Cowell  v.  Dag-  76.    McLaurie    v.    Partlow,    53    111. 

gett,  97   Mass.   434;    Kenningham  v.  340.     But  as  to  payments  of  income 

M'Laughlin,   3    Monr.   30.      And   see  by   the   debtor   to   the   natural   guar- 

Guardian  and  Ward,  infra.     But  see  dian,  which  income  is  applied  to  the 

Selden's  Appeal,  31  Conn.  548.   A  fa-  child's  necessary  use,  see  Southwest- 

ther   who   buys  property   for  himself  em  R.  v.  Chapman,  46  Ga.  557. 

in  his  son's  name  must  not  perpetrate  77.  See  Bedford  v.  Bedford,  136  111. 

a   fraud   upon    others.     Richardson's  354;    Guardian    &    Ward,    Part    IV, 

Case,  L.  R.  19  Eq.  588.  Tost. 

74.  Perry    v.    Carmichael,    95    HI.  78.  Sorrels  v.  Childers   (Ark.),  195 
519;  Clark  v.  Smith,  13  S.  C.  585.  S.  W.  1,  L.  R.  A.  1917F,  430. 

50 


^    739  PAEEXT    A^TD    CHILD.  78 G 

the  misconduct  of  the  father  will  not  always  exclude  him  from,  the 
benefits  of  his  child's  fortune.'* 

§  739.  Child's  Duty  to  Care  for  Parents. 

"  The  duties  of  children  to  their  parents,"  sajs  Blackstone, 
*'  arise  from  a  principle  of  natural  justice  and  retribution.  Tor 
to  those  who  gave  us  existence  we  naturally  owe  subjection  and 
obedience  during  our  minority,  and  honor  and  reverence  ever 
after;  they  who  protected  the  weakness  of  our  infancy  are  en- 
titled to  our  protection  in  the  infirmity  of  their  age ;  they  who  by 
sust-enance  and  education  have  enabled  their  offspring  to  prosper 
ought  in  return  to  be  supported  by  that  offspring  in  case  they 
stand  in  need  of  assistance."  ^°  Upon  this  principle  rest  what- 
ever duties  are  enjoined  upon  children  to  their  parents  by  positive 
law.  The  Athenians  compelled  children  to  provide  for  their  father 
when  fallen  into  poverty.^^  And  Kent,  enforcing  the  same  precept, 
cites  several  other  historical  precedents  less  to  the  purpose.*^ 

Perhaps  this  principle  could  not  have  been  better  expressed 
than  in  these  words  of  Blackstone;  for  it  is  to  be  observed  that 
the  obligation,  as  a  legal  one,  is  somewhat  vague  and  indefinite, 
extending  little  farther  than  the  succor  of  parents  in  distress. 
Gratitude,  certainly,  is  what  all  parents  true  to  their  trust  have 
the  right  to  expect;  but  whether  it  is  due  to  those  who  were 
negligent  and  unfaithful  to  their  offspring  may  admit  at  this 
day  of  much  doubt.  In  other  words,  honor  and  reverence  are 
justly  awarded  according  to  one's  deserts.  The  child,  when  full 
grown,  naturally  marries  and  assumes  parental  liabilities  of  his 
own;  and  in  the  usual  course  of  things  adults,  whether  father 
or  son,  will  prudently  provide  for  their  future  as  well  as  their 
present  wants.  Some  have  thought  it  the  duty  of  fathers  to 
leave  property  to  their  children  at  their  death, —  a  principle 
somewhat  at  conflict  with  this  right  to  lean  upon  their  children 
for  their  own  maintenance.  Yet  exceptional  cases  mtist  occur 
where  a  father,  faithful  to  his  own  obligations,  is  yet  left, 
through  misfortune,  penniless  in  his  old  age;  and  here  the  voice 
of  nature  bids  the  children  aid,  comfort,  and  relieve.     Municipal 

79.  Macphers.  Inf.  251.     See  Allen  rated)    the   sole   heirs,   eee   Pierce   v. 

V.  Co3ter,  1  Beav.  202.  Pierce,  64  Wis.  73. 

As  to  the  mother's  claim  for  allow-  80.  1  Bl.  Com.  453, 

ance   for   the   child's   support   out   of  81.  2  Potter's  Antiq.  347,  351. 

lands  devised  to  the  child,  who  died,  82.  2  Kent  Com.  207. 

leaving  the   parents    (who   had   sepa- 


787  EIGHTS    OP    PARENTS.  §    739 

law  quickens  the  child,  and  says,  "  If  your  parent,  however, 
vagabond  and  worthless,  becomes  unable  to  maintain  himself, 
the  public  shall  not  relieve  him  as  a  pauper ;  you,  his  children, 
being  of  sufficient  means,  must  assume  the  burden."  "We  speak 
not  here  of  the  mother,  whose  moral  claims  upon  her  children, 
if  her  own  husband  prove  incapable,  are  much  stronger;  yet  it 
must  be  admitted  that  the  municipal  law  makes  no  great  distinc- 
tion on  her  behalf. 

Thus  may  be  explained  what  appears  now  a  well-settled  rule  at 
the  common  law;  namely,  that  there  is  no  legal  obligation  resting 
upon  a  child  to  support  a  parent ;  that  while  the  parent  is  bound 
to  supply  necessaries  to  an  infant  child,  an  adult  child,  in  the 
absence  of  positive  statute,  or  a  legal  contract  on  his  own  part, 
is  not  bound  to  supply  necessaries  to  his  aged  parent.** 

But  statutes  have  been  enacted,  both  in  England  and  most  parts 
of  the  Unitel  States,  to  enforce  this  imperfect  legal  obligation, 
usually  to  the  extent  of  relieving  cities  and  towns  from  the  sup- 
port of  paupers.  Such  is  the  tenor  of  the  English  statutes  of  43 
Eliz.  and  5  Geo.  I.,  to  which  allusion  has  already  been  made, 
which  declare,  in  effect,  that  the  children,  being  of  sufficient  ability, 
of  poor,  old,  lame,  or  impotent  persons,  not  able  to  maintain  them- 
selves, must  relieve  and  maintain  them.**  Ingratitude,  to  use  the 
word  in  a  more  general  sense,  the  parent  may  punish  still  further, 
as  other  statutes  prescribe,  by  disinheriting  the  undutiful  children 
by  will;*^  a  punishment  found  by  no  means  terrible  in  cases  which 
arise  under  the  statute  of  Elizabeth.  The  moral  obligation  of 
honor  and  reverence  still  remains  clear  and  unquestioned,  so  far 
as  parental  faithfulness  has  earned  it;  doubtful  in  its  more  ex- 
tended application,  yet  always  a  favorite  theme  of  the  poet  and 
dramatist,  and  never  to  be  lightly  esteemed  among  men.** 

The  law  does  not  imply,  then,  a  promise  from  the  child  to  pay 

83.  Reeve,  Dom.  Eel.  284;  Hex.  v.  Com.  203;  and  see  Ex  parte  Hunt,  5 
Munden,    1    Stra.    190;    Edwards    v.       Cow.  284. 

Davia,    16    Johns.    281;    Lebanon    v.  86.  No  one  can  read  "King  Lear " 

Griffin,  45  N.  H.  558;  Stone  v.  Stone,  without  recognizing  the  sublimity  of 

32   Conn.   142 ;   Becker  v.   Gibson,  70  an  unquestioning  faith  in  this  moral 

Ind.  239,  duty.     Kent  (2  Com.  207)   quotes  the 

84.  2  Kent  Com.  208;  Dierkes  v.  speech  of  Euryalus  in  the /Eneid;  but 
Philadelphia,  93  Pa.  270.  See  Smith  the  instance  of  pius  ^neaa  himself  is 
T.  Lapeer  County,  34  Mich.  58;  still  stronger,  perhaps  the  strongest 
Dierkes  v.  Phila.,  93  Pa.  St.  270.  See  to  be  found  in  the  classics;  devotion 
{  265.  to  his  aged  father  rendering  him  more 

85.  N.  Y.  Rev.  Sts.,  p.  614;  2  Kent  illustrious    in    song    than    his    heroic 


§  739 


PABENT    AND    CHILD. 


788 


for  necessaries  f umislied  without  his  request  to  an  indigent  parent ; 
and  the  natural  obligation  can  only  be  enforced  in  the  mode  pointed 
out  by  statute.*^'*^  The  promise  of  a  child  to  pay  for  past  ex- 
penditures in  relief  of  an  indigent  parent  is  not  binding  in  law.** 
But  for  necessaries  or  other  goods  furnished  to  the  parent,  or  for 
the  parent's  benefit,  at  a  grown  child's  request,  the  latter  is  charge- 
able, as  any  one  else  would  be.°° 

In  some  States  it  is  now  the  duty  of  a  child  to  support  a  parent 
unable  to  take  care  of  himself,'^  but  it  has  been  held  that  there  is 
no  such  legal  duty.*^ 

The  care  by  children  of  aged  and  infirm  parents  is  so  clear  a 
dictate  of  common  humanity  that  such  care  raises  no  presump- 
tion of  agreement  for  remuneration,®^  which  may  be  recovered, 
however,  on  proof  of  express  contract.'*  Also  the  law  will  not 
imply  a  promise  to  repay  sums  voluntarily  paid  by  one  child  to 
another  for  parental  support.®^  And  it  is  held,  further,  that 
where  one  of  several  children  renders  support  at  the  request  of 
the  others,  they  will  be  liable  on  an  implied  promise  to  contribute.** 
achievements,  and  largely  atoning,  as      until     order    made    under    statute)  ; 


Bome  would  say,  for  the  sin  of  con- 
jugal unfaithfulness. 

87-88.  Rex  v.  Munden,  1  Stra.  190 ; 
Edwards  v.  Davis,  16  Johns.  281; 
Dawson  v.  Dawson,  12  la.  512.  See 
Johnson  v.  Ballard,  11  Rich.  178. 

89.  Milla  V.  Wyman,  3  Pick.  207; 
Cook  V.  Bradley,  7  Conn.  57.  It  is 
otherwise  by  the  Civil  Code  of  Louisi- 
ana, art.  245. 

90.  Lebanon  v.  Griffin,  45  N.  H. 
558;  Gordon  v.  Dix,  106  Mass.  305; 
Becker  v.  Gibson,  70  Ind.  239.  Such 
a  claim  might  now  be  enforced,  in  a 
suitable  case,  against  the  separate 
estate  of  a  married  daughter,  on  the 
usual  principles  applicable  to  her  con- 
tracts. 

91.  Cooley  v.  Stringfellow,  164  Ala. 
460,  51  So.  321;  Williams  v.  Williams 
(Ala.),  81  So.  41;  Tobin  v.  Bruce  (S. 
D.),  162  N.  W.  933;  Bruce  v.  Tobin, 
245  U.  S.  IS,  38  S.  Ct.  7,  62  L.  Ed. 
(under    statute). 

92.  Schwerdt  v.  Schwerdt,  235  111. 
386,  85  N.  E.  613;  In  re  Erickson 
(Kan.),  180  P.  263;  Pinel  v.  Rapid 
By.  System,  150  N.  W.  897   (no  duty 


Schwanz  v.  Wujek,  163  Mich.  492,  128 
N.  W.  731,  17  Det.  Leg.  N.  956;  La- 
tour  V.  Guillory,  134  La.  332,  64  So. 
130. 

93.  Borum  v.  Bell,  132  Ala.  85,  31 
So.  454;  Maupin  v.  Gains,  125  Ark. 
181,  188  S.  W.  552;  Cotter  v.  Cotter, 
82  Conn.  331,  73  A.  903;  Niehaus  v. 
Cooper,  22  Ind.  App.  610,  52  N.  E. 
761;  Wright  v.  Senn's  Estate,  85 
Mich.  191,  48  X.  W.  545;  In  re 
Skelly's  Estate,  43  N.  Y.  S.  964,  18 
Misc.  719,  2  Gibbons,  176;  In  re  De- 
laney'3  Estate,  58  X.  T.  S.  924,  27 
Misc.  398;  Nicholas  v.  Nicholas,  100 
Va.  660,  42  S.  E.  669,  866;  Millis 
V.  Thayer,  139  Wis.  4S0,  121  N.  W. 
124.  See  Duvall  v.  Duvall,  21  Ky. 
Law,   530,  54  S.  W.  791. 

94.  Worth  V.  Daniel,  1  Ga.  App.  15, 
57  S.  E.  898 ;  Falls  v.  Jones,  107  Mo. 
App.  357,  81  S.  W.  455;  Harris  v. 
Orr,  46  W.  Va.  261,  33  S.  E.  257,  76 
Am.  St.  R.  815. 

95.  Hough  v.  Comstock,  97  Mieh. 
11. 

96.  Stone  v.  Stone,  32  Conn.  142, 
And  see  Succession  of  Olivier,  18  La. 


789  EIGHTS    OF    PARENTS.  §    739 

but  a  statute  making  it  the  duty  of  children  to  support  parents 
will  not  authorize  suit  by  a  mother  who  is  being  supported  by  one 
child  against  another  child  to  enforce  contribution,*^  and  gives 
the  parent  no  right  to  enforce  such  duty  by  action  unless  ex- 
pressly so  worded,®*  and  where  such  a  statute  exists  an  agree- 
by  a  child  to  support  his  parent  is  without  consideration." 

Ann.    594;    Marsh    v.    Blackman,    50  98.  Schwerdt  v.  Schwerdt,  141  111. 

Barb..  329.  App.   386    (judg.   affd.,  235  111.   386, 

97.  Duflfy  V.  Yordi,  149  Cal.  140,  84  85  N.  E.  613). 

P.  838,  4  L.  B.  A.  1159,  117  Am.  St.  99.  Schwerdt  v.  Schwerdt,  235  111. 

R.  125.  386,  85  N.  E.  613. 


§  740  PARENT  AND  CHILD.  790 


CHAPTER  VI. 

parents'  right  of  custody. 

Section  740.  Common-law  Eule ;  English  Doctrine. 

741.  Chancery  Jurisdiction  in  Custody;  Common  Law  Overruled. 

742.  English  Rule;  Statute. 

743.  American  Eule. 

744.  Welfare  of  Child. 

745.  Child's     0\\-n  Wishes. 

746.  Custody  under  Divorce  and  other  Statutes. 

747.  Parent's  Eight  to  Attend  Funeral  of  Child. 

748.  Contracts  Transferring  Parental  Eights. 

749.  Proceedings  to  Determine  Custody;   Prior  Adjudication. 

750.  Suit  for  Harboring  or  Enticing  Away  One's  Child;  Abduction 

etc. 

751.  Contests  for  Custody  between  Husband  and  Wife,  etc. 

§  740.  Common-Law  Rule ;  English  Doctrine. 

The  topic  of  parental  custody  is  one  of  absorbing  importance  in 
England  and  America ;  and  its  principles  have  received  the  most 
ample  discussion  in  the  courts  of  both  countries.  The  fundamental 
principle  of  the  common  law  was  that  the  father  possessed  the 
paramount  right  to  the  custody  and  control  of  his  minor  children, 
and  to  superintend  their  education  and  nurture.^  The  mother,  as 
such,  had  little  or  no  authority  in  the  premises.'  The  Eoman  law 
enjoined  upon  children  the  duty  of  showing  due  reverence  and 
respect  to  the  mother,  and  punished  any  flagrant  instance  of  the 
want  of  it;  but  beyond  this  it  seems  to  have  recognized  no  claim 
on  her  part.'  Indeed,  the  father  is  permitted  by  Anglo-Saxon 
policy  to  perpetuate  his  authority  beyond  his  owti  life ;  for  he  may 
constitute  a  testamentary  guardian  of  his  infant  children.* 

In  case  there  is  no  father,  then  the  mother  is  entitled  to  the 
custody  of  the  children;  supposing,  of  course,  the  rights  of  no 
testamentary  guradian  intervene.'  She  has,  as  natural  guardian, 
a  right  to  the  custody  of  the  person  and  care  of  the  education  of 

1.  JEx  parte  Hopkins,   3   P.  Wms.  3.  Cod.  8,  tit.  47,  §  4;  Forsyth, Cus- 
l.")!;    2    Story,    Eq.    Juris.,    §§    1341       tody,  5. 

1342 ;  2  Kent  Com.  205  ;  Forsyth,  Cus-  4.  Stat.  12  Car.  II.  ch.  24,  re-enacted 

tody,  10;  People  V.  Olmstead,  27  Barb.  in   most   of  the  United   States.     See 

9,      and      cases      cited;      Ex     parte  Guardian  and  Ward,  tn/ra,  §  814. 

McClellan,  1  Dowl.  P.  C.  34.  5.  See  Guardian  and  Ward,  infra. 

2.  See  1  Bl.  Com.  453. 


791  CUSTODY  OF  CUILD.  §  741 

her  children;  "and  this  in  all  countires,"  said  Lord  Hardwicke, 
''  where  the  laws  do  not  break  in.''^  The  priority  of  the  surviving 
mother's  right  to  custody  is  frequently  a  matter  of  statute  regula- 
tion;^ but  her  absolute  right  on  remarriage  is  not  so  clearly 
recognized.  Her  claims,  as  we  shall  see  hereafter,  may  conflict 
with  those  of  a  guardian.  If  the  husband  and  father  deserts  his 
family,  his  wife  becomes  fairly  entitled  to  the  custody  and  con- 
trol of  their  infant  children,  at  all  events  as  against  all  third 
parties  and  while  his  desertion  continues.* 

§  741.  Chancery  Jurisdiction  in  Custody;  Common  Law  Over- 
ruled. 
Were  these  invariable  rules,  uncontrolled  by  the  courts,  un- 
changed by  statute,  this  common-law  doctrine  of  custody  would  be 
as  simple  of  application  as  unjust.  It  is  neither.  And  the  courts 
of  chancery,  in  assuming  a  liberal  jurisdiction  over  the  persons  and 
estates  of  infants,  soon  made  the  claims  of  justice  override  all 
considerations  of  parental  or  rather  paternal  dominion,  at  the 
common  law.®  Thus  Lord  Thurlow,  in  a  case  where  it  appeared 
that  the  father's  affairs  were  embarrassed,  that  he  was  an  outlaw 
and  resided  abroad,  that  his  son,  an  infant,  had  considerable  es- 
tate, and  that  the  mother  lived  apart  from  her  husband  and  prin- 
cipally directed  the  child's  education,  restrained  the  father  from, 
interfering  without  the  consent  of  two  persons  nominated  for  that 
purpose;  and,  with  reference  to  the  objection  that  the  court  had 
no  jurisdiction,  he  added  that  he  knew  there  was  such  a  notion, 
but  he  was  of  opinion  that  the  court  had  arms  long  enough  to 
reach  such  a  case  and  to  prevent  a  father  from  prejudicing  the 
health  or  future  prospects  of  the  child;  and  he  signified  that  he 
should  act  accordingly.^"  But  the  leading  case  on  this  subject  is 
that  of  Wellesley  v.  The  Duke  of  Beaufort,  which  went  on  appeal 
from  Lord  Eldon  to  the  House  of  Lords ;  and  in  which  the  learned 
Lord  Chancellor's  judgment  was  unanimously  affirmed. 


11 


6.  Villareal  v.   Mellish,   2    Swanst.  87.     See  Heyward  v.  Cuthbert,  4  De- 
536;    Forsyth,    Custody,    11,    109;    2  saus.  445. 

Kent  Com.  506 ;  People  v.  Wilcox,  22  8.  Winslow  v.  State,  92  Ala.  78. 

Earb.      178 ;      Osborn     v.      Allen      2  9.  2  Story,  Eq.  Juris.,  §  1341.   And 

Dutch.   388.     So  where  the  father  is  see  Butler  v.  Freeman,  Ambl.  302. 

sentenced     to     transportation.        Ex  10.  Creuze  v.  Hunter,  2  Bro.  C.  C. 

farie  Bailey,  6  Dowl.  P.  C.  311.  459,  «.;  2  Cox,  242.     And  see  Whit- 

7.  2  &  3  Vict.,  ch.  54 ;  Mass.  Gen.  field  v.  Hales,  12  Yes.  402. 

St3.,  ch.  109,  5  4;  State  v.  Scott,  10  11.  2  Russ.  1;  Wellesley  v.  Wellea- 

Fost,  274;   Striplin  v.  Ware,  26  Ala.  ley,  2   Eligh    (N.   S.),   124. 


§  741 


PARENT    AND    CHILD. 


792 


But  the  result  of  the  English  authorities  is  to  establish  the 
principle,  independently  of  statutory  provisions,  that  the  Court 
of  Chancery  will  interfere  to  disturb  the  paternal  rights  only  in 
cases  of  a  father's  gross  misconduct ;  such  misconduct  seeming, 
however,  to  be  regarded  with  reference  rather  to  the  interests  of 
the  child  than  the  moral  delinquency  of  the  parent.  If  the  father 
has  so  conducted  himself  that  it  will  not  be  for  the  benefit  of 
the  infants  that  they  should  be  delivered  to  him,  or  if  their  being 
with  him  will  injuriously  affect  their  happiness,  or  if  they  cannot 
associate  with  him  without  moral  contamination,  or  if,  because 
they  associate  with  him,  other  persons  will  shun  their  society,  the 
court  will  award  the  custody  to  another.  ^^  It  is  held  that  chancery 
has  nothing  to  do  with  the  fact  of  the  father's  adultery,  unless  he 
brings  the  child  into  contact  with  the  woman.^^  But  unnatural 
crime  is  otherwise  regarded.^* 

Atheism,  blasphemy,  irreligion,  call  for  interference,  when  the 
minds  of  young  children  may  be  thereby  poisoned  and  corrupted ; 
although  in  matters  of  purely  religious  belief  there  is  of  course 
much  difficulty  in  defining  that  degree  of  latitude  which  should  be 


In  this  latter  case  children  were 
taken  from  a  father  who  was  living  in 
adultery.  In  the  course  of  his  elabo- 
rate judgment  in  this  case,  Lord  El- 
don  cited  with  approbation  a  dictum 
of  Lord  Macclesfield,  to  the  effect  that 
where  there  is  reasonable  ground  to 
believe  that  the  children  would  not  be 
properly  treated,  the  court  would  in- 
terfere without  waiting  further,  upon 
the  principle  that  preventing  justice 
was  better  than  punishing  justice. 
Duke  of  Beaufort  v.  Berty,  1  P.  Wms. 
703,  cited  in  Wellesley  v.  Duke  of 
Beaufort,  supra. 

The  evidence  showed  that  the  con- 
duct of  the  father  was  of  the  most 
profligate  and  immoral  description.  It 
appeared  that  he  had  ill-treated  hia 
wife,  continued  his  adulterous  connec- 
tion to  the  time  of  judicial  proceed- 
ings, and  in  his  letters  to  his  young 
children  had  frequently  encouraged 
them  in  habits  of  swearing  and  keep- 
ing low  company.  Lord  Eedesdale, 
in  the  course  of  his  opinion  before 
the  House   of  Lords,  repudiated  em- 


phatically the  insinuation  that  pater- 
nal power  is  to  be  considered  more 
than  a  trust.  "Look  at  all  the  ele- 
mentary writings  on  the  subject,"  he 
adds,  ' '  they  say  that  the  father  is  en- 
trusted with  the  care  of  his  children; 
that  he  is  entrusted  with  it  for  this 
reason,  because  it  is  supposed  his  na- 
tural affection  would  make  him  the 
most  proper  person  to  discharge  the 
trust. ' '  Wellesley  v.  Wellesley,  2 
Eligh  (N.  S.),  141  (1828). 

12.  Anonymous,  11  E.  L.  &  Eq.  281 ; 
s.  c,  2  Sim.  (N.  S.)  54;  Forsyth, 
Custody,  52;  De  Manneville  v.  De 
Manneville,  10  Ves.  52;  Warde  v. 
Warde,  2  Phil.  786. 

13.  Ball  V.  Ball,  2  Sim.  35;  Lord 
Eldon,  71.  6  to  Lyons  v.  Blenkin,  Jac. 
254.  The  English  Divorce  Act  indi- 
cates the  peculiar  views  prevalent  in 
that  country  as  to  adultery  committed 
by  a  married  man.  Schouler,  Hus.  & 
Wife,  §  506. 

14.  Anonymous,  11  E.  L.  &  Eq.  281; 
8.  c,  2  Sim.  (N.  S.)  34. 


793 


CUSTODY    OF    CHILD. 


742 


allowed.  Says  Lord  Eldon,  ''  With  the  religious  tenets  of  either 
party  I  have  nothing  to  do,  except  so  far  as  the  law  of  the  country 
calls  upon  me  to  look  on  some  religious  opinions  as  dangerous  to 
society.'"^  Mere  poverty  or  insolvency  does  not  furnish  an  ade- 
quate ground  for  depriving  the  father  of  his  children;  not  even 
though  a  fund  is  offered  for  their  benefit,  conditioned  upon  the 
surrender  of  their  custody.^®  Yet  so  solicitous  is  chancery  for  the 
welfare  of  its  wards,  that  it  seems  indisposed  to  sacrifice  their 
large  pecuniary  opportunities  to  the  caprice  of  the  natural  pro- 
tector. Thus  far  has  chancery  carried  its  exception,  that  if  prop- 
erty be  settled  upon  an  infant,  upon  condition  that  the  father  sur- 
renders his  right  to  the  custody  of  its  person,  and  he,  by  acquies- 
cing for  a  time,  and  permitting  the  child  to  be  educated  in  a 
manner  conformably  to  the  terms  of  the  gift  or  bequest  en- 
courages corresponding  expectations,  he  will  not  be  allowed  to  dis- 
appoint them  afterwards  by  claiming  possession  of  the  infant.  He 
has  in  such  a  case  "  waived  his  parental  right." 


17 


§  742.  English  Rule;  Statute. 

The  English  rule,  up  to  the  year  1839,  was,  therefore,  that 
the  father  is  entitled  to  the  sole  custody  of  his  infant  child ;  con- 
trollable, in  general,  by  the  court  only  in  case  of  very  gross  mis- 
conduct, injurious  to  the  child.  Such  a  state  of  things  was  un- 
just, since  it  took  little  account  of  the  mother's  claims  or  feelings 
in  a  matter  which  most  deeply  interested  lier.  This  finally  led  to 
the  passage  of  statute  2  &  3  Vict.,  ch,  54,  known  as  Justice  Tal" 


15.  Lyons  v.  Blenkin,  Jac.  256. 

16.  Ex  parte  Hopkins,  3  P.  Wms. 
152;  Colston  v.  Morris,  Jac.  257,  n. 
11;  Macphers.  Inf.  142,  143;  For- 
syth, Custody,  37;  Earl  &  Countess 
of  Westmeath,  Jac.  251,  n.  c.  But 
see  Ex  parte  Montfort,  15  Ves.  445. 

17.  Per  Lord  Hardwicke,  Blake  v. 
Leigh,  Ambl.  307 ;  Powell  v.  Cleaver, 
2  Bro.  C.  C.  499 ;  Creuze  v.  Hunter,  2 
Cox,  242;  Forsyth,  Custody,  38,  53; 
Lyons  v.  Blenkin,  Jac.  254,  262. 

The  English  courts  of  common  law 
likewise  interfere  in  questions  relat- 
ing to  the  custody  of  infants  by  writ 
of  habeas  corpus,  which,  in  general, 
lies  to  bring  up  persons  who  are  in 
custody,  and  who  are  alleged  to  be 
subject  to  illegal  restraint.   Macphers. 


Inf.  152;  Ex  parte  Glover,  4  Dowl.  P. 
C.  293;  Forsyth,  Custody,  17,  54;  hi 
re  Pulbrook,  11  Jur.  185;  In  re  Fynn, 
2  De  G.  457;  s.  c,  12  Jur.  713;  Rex  v. 
Greenhill,  4  Ad.  &  El.  624.  Lord 
Mansfield  once  said  that  the  common- 
law  court  is  not  bound  to  deliver  an 
infant,  when  set  free  from  illegal  re- 
straint, over  to  anybody,  nor  to  give 
it  any  privilege.  Rex  v.  Delarel,  3 
Burr.  1436;  1  W.  Bl.  409.  But  the 
later  English  rule  is  that  where  a 
clear  right  to  the  custody  is  shown  to 
exist  in  any  one,  the  court  has  no 
choice,  but  must  order  the  infant  to 
be  delivered  up  to  him.  Rex  v.  Isley, 
5  Ad.  &  El.  441.  This  jurisdiction  is 
les3  ample  than  that  of  the  chancery 
courts,  to  whose  authority  it  must  be 


§  743 


PARENT    AND    CHILD, 


794 


fourd's  Act,  which  introduced  important  changes  into  the  law  of 
parental  custody/®  but  does  not  appear  to  have  interfered  with 
the  father's  right  of  custody  further  than  to  introduce  new  ele- 
ments and  considerations  under  which  that  right  is  to  be  exer- 
cised. This  act  proceeds  upon  three  grounds:  First,  it  assumes 
and  proceeds  upon  the  existence  of  the  paternal  right.  Secondly, 
it  connects  the  paternal  right  with  the  marital  duty  and  imposes 
the  marital  duty  as  the  condition  of  recognizing  the  paternal  right. 
Thirdly,  the  act  regards  the  interest  of  the  child. ^®  If  the  two 
considerations  of  marital  duty  to  be  observed  towards  the  wife  and 
of  the  interest  of  the  child  can  be  attained  consistenly  with  the 
father's  retaining  the  custody  of  the  child,  his  common-law  pater- 
nal right  will  not  be  disturbed;  otherwise  it  may  be.*°  There  is 
a  later  infants'  custody  act  (36  &  37  Vict.,  eh.  12),  under  which  the 
surrounding  circumstances  of  a  case  will  be  still  more  sedulously 
regarded,  against  a  father's  own  application  for  custody;  and 
paternal  right,  the  marital  duty,  and  the  interest  of  the  child  are 
all  considered."'^ 

§  743.  American  Rule. 

In  this  country  the  doctrine  is  universal  that  the  courts  of 
justice  may,  in  their  sound  discretion,  and  when  the  morals  or 
safety  or  interests  of  the  children  strongly  require  it,  withdraw 
their  custody  from  the  father  and  confer  it  upon  the  mother,  or 
take  the  children  from  both  parents  and  place  the  care  and  cus- 
tody of  them  elsewhere.^^ 

The  father  is,  however,  the  natural  guardian  of  his  minor 
children  and  is  entitled  to  their  custody  if  a  suitable  person  ^^  in 


considered  subservient.  See  Welles- 
ley  V.  Wellesley,  2  Bligh  (N.  S.),  136 
142;  Ex  parte  Skinner,  9  Moore,  278. 

18.  Ex  parte  Woodward,  17  Jur.  56 ; 
Forsyth,  Custody,  137.  See  Forsyth, 
lb.  139,  140. 

19.  Per  Turner,  V.  C,  in  Ex  parte 
Woodward,  17  E.  L.  &  Eq.  77;  17  Jur. 
56. 

20.  lb.  See  also  Warde  v.  Warde, 
2  Phil.  787.  Stat.  3  &  4  Vict.,  ch.  90, 
empowers  chancery  to  assign  the  care 
and  custody  of  infants  convicted  of 
felony. 

21.  Under  statute  36  &  37  Vict.,  ch. 
12,  the  custody  of  a  child  three  years 


old  was  given  to  the  mother,  her  hus- 
band having  deserted  her.  771  re 
Taylor,  4  Ch.  D.  157.  And  see  Brown, 
Be,  13  Q.  B.  D.  614;  Elderton,  Ee,  25 
Ch.  D.  220.  Grounds  upon  which  a 
parent's  right  may  be  interfered  witb 
considered,   (1893)   2  Q.  B.  232. 

22.  2  Kent  Com.  205,  and  cases 
cited;  1  Story,  Eq.  Juris.,  §  1341 
Eichards  v.  Collins,  45  N.  J.  Eq.  283. 

23.  Bailey  v.  Gaston,  8  Ala.  App. 
476,  62  So.  1017;  Bell  v.  Krauss,  169 
Cal.  387,  146  P.  874;  Hernandez  v. 
Thomas,  50  Fla.  522,  39  So.  641,  2  L. 
K.  A.  203;  Steele  v.  Hohenadel,  141 
111.  App.  201   (judg.  affd.,  Hohenadel 


'9 


<yy 


CUSTODY    OF    CHILD. 


7i' 


preference  to  the  mother,^*  The  legal  right  of  the  father  to  the 
custody  of  the  child  where  the  mother  is  insane  is  beyond  question 
unless  he  is  clearly  unfit  and  the  parents  of  the  insane  mother 
have  no  rights  whatever  to  the  custody."^ 

Upon  the  death  of  the  father  the  mother  is  prima  facie  entitled 
to  control  the  child,"®  and  so  where  the  mother  is  abandoned  by 
the  father  she  has  a  right  prior  to  a  stranger.^^     That  a  mother  of 


V.  Steele,  237  111.  229,  86  N.  E.  717; 
Hohenadel  v.  Steele,  141  111.  App.  218 
(judg.  afFd.,  86  N.  E.  717);  In  re 
Smith's  Guardianship  (la.),  158  N. 
W.  578  (father  is  entitled  in  death  of 
mother  who  has  been  awarded  cus- 
tody in  divorce)  ;  Swarens  v.  Swarens, 
7S  Kan.  682,  97  P.  968;  Mason  v. 
Williams,  165  Ky.  331,  176  S.  W. 
1171;  Kallihan  v.  Motschmann,  179 
Kj.  180,  200  S.  W.  358;  Heitkamp 
T.  Ragan  (La.),  76  So.  247;  Waters 
V.  Gray  (Mo.  App.),  193  S.  W.  33; 
Howell  V.  Solomon,  167  N.  C.  588, 
83  S.  E.  609;  Atkinson  v.  Downing, 
175  N.  C.  244,  95  S.  E.  487;  Titus 
V.  McGloskey,  67  N.  J.  Eq.  709,  63 
A.  244;  Brackett  v.  Brackett,  77  N 
H.  68,  87  A.  252;  People  v.  Rubens 
92  N.  T.  S.  121;  School  Board  Dist 
No.  18,  Garvin  County,  v.  Thompson 
24  Okla.  1,  103  P.  578;  Lowe  v 
Lowe,  53  Wash.  50,  101  P.  704 
Adkins  v.  Hope  Engineering  &  Sup 
ply  Co.,  81  W.  Va.  449,  94  S.  E.  506 

2  Kent,  Com.  205 ;  People  v.  Mercein 

3  Hill,  399;  People  v.  Olmstead,  27 
Barb.  9;  Miner  v.  Miner,  11  111.  43 
Cole  V.  Cole,  23  Iowa,  433 ;  Henson  v. 
Walts,  40  Ind.  170;  Rush  v.  Vanvac- 
ter,  9  W.  Ya.  600;  State  v.  Baird,  6 
C.  E.  Green,  384;  Smith  Pet'r,  13 
111.  138.    But  see  Gishwiler  v.  Dodez, 

4  Ohio  St.  615.  Thus  the  father  may 
commit  the  child  to  its  grandmother. 
State  V.  Barney,  14  E.  I.  62. 

24.  Donk  Bros.  Coal  &  Coke  Co.  v. 
Leavitt,  109  111.  App.  385.  See  Sabine 
V.  Stringer,  15  Mo.  App.  586;  People 
V.  Sinclair,  95  N.  T.  S.  861,  47  Misc. 
Rep.  230,  17  X.  Y.  Ann.  Cas.  37;  In 
re  Tierney,  112  X.  Y.  S.  1039, 128  App. 


Div.  835  (where  mother  left  her  home 
without  cause)  ;  People  ex  rel.  Snell 
V.  Snell,  137  N.  Y.  S.  193,  77  Misc. 
Rep.    538. 

Equity  jurisdiction  In  re  Tier- 
ney, 112  N.  Y.  S.  1039,  128  App. 
Div.  835;  Buseman  v.  Buseman  (W. 
Va.),  98  S.  E.  574;  contra.  Royal  v. 
Royal,  167  Ala.  510,  52  So.  735  (where 
father  lived  outside  the  State ;  con- 
tra, Patterson  v.  Patterson,  86  Ark. 
64,  109  S.  W.  1168  (infant  given  to 
mother)  ;  contra,  Cole  v.  Superior 
Court  in  and  for  San  Joaquin  County, 
28  Cal.  App.  1,  151  P.  169;  contra. 
State  V.  Beslin,  19  Idaho,  185,  112 
P.  1053;  contra,  Cain  v.  Gamer,  169 
Ky.  633,  185  S.  W.  122  (under  Iowa 
statute)  ;  contra,  Edleson  v.  Edleson, 
179  Ky.  300,  200  S.  W.  625  (custody 
given  to  parent  who  is  most  fit)  ; 
contra.  Turner  v.  Turner,  93  Miss. 
167,  46  So.  413;  contra.  People  v. 
Workman,  157  N.  Y.  S.  594,  94  Misc. 
Rep.  374  (under  statute  giving 
mother  joint  control).  See  Russell 
V,  Russell,  20  Cal.  App.  457,  129  P. 
467  (child  ten  years  old  is  not  neces- 
sarily of  ' '  tender  years. ' ' 

25.  Morin  v.  Morin,  66  Wash.  312, 
119  Pac.  745,  37  L.  R.  A.  (N.  S.) 
585. 

26.  In  re  Lindner's  Estate,  13  Cal. 
App.  208,  109  P.  101;  Dixon  v.  Dixon, 
77  N.  J.  Eq.  313,  76  A.  1042  Heit- 
kamp v.  Ragan  (La.),  76  So.  247; 
Ex  parte  Smith,  197  Mo.  App.  200, 
193  S.  W.  288  (surviving  parent)  ; 
Brackett  v.  Brackett,  77  N.  H.  68, 
87  A.  252   (while  unmarried). 

27.  Waldron  v.  Childers,  104  Ark. 
206,    148    S.    W.    1030;    In    re   Knoll 


§  744  PARENT  AND  CHILD.  T96 

a  twelve-year-old  boy  has  embraced  the  Mazadaznan  religion  and 
permits  him  to  travel  round  with  a  priest  of  that  religion  who 
has  written  an  immoral  book  does  not  show  that  he  is  neglected 
or  that  a  guardian  should  be  appointed  for  him  as  a  delinquent 
child  where  there  is  no  evidence  that  the  priest  is  teaching  him 
immoral  things  or  that  the  priest  is  himself  an  immoral  man  or 
that  the  boy  has  read  the  book.^*  Under  a  statute  authorizing  the 
court  to  use  its  discretion  in  awarding  the  custody  of  a  child  ac- 
cording to  its  best  interest  the  court  has  no  right  to  take  the 
child  out  of  the  custody  of  an  aunt  where  it  is  well  cared  for  and 
award  it  temporarily  to  its  dissolute  and  immoral  mother  to  see 
if  the  presence  of  the  child  will  not  reform  the  mother.^' 

The  mere  fact  that  the  mother  of  white  children  has  married 
a  man  with  negro  blood  in  his  veins  does  not  justify  the  court  in 
depriving  her  of  their  custody  where  the  children  were  well 
cared  for  in  proper  surroundings  even  though  the  marriage  has 
compelled  them  to  mingle  with  persons  of  mixed  blood.  The  mere 
fact  that  the  mother  has  married  into  a  family  lower  in  the  social 
scale  than  that  in  which  she  was  reared  is  no  reason  for  depriving 
her  of  their  custody,  where  the  husband  is  not  possessed  of  enough 
negro  blood  to  render  him  a  "  colored  person  "  within  the  meaning 
of  the  statute  forbidding  marriage  with  colored  persons.'" 

§  744.  Welfare  of  Child. 

The  tendency  of  our  courts  to-day  is  to  consider  more  and  more 
the  rights  of  the  children  when  opposed  to  the  legal  rights  of  the 
parents.  The  modem  view  is  that  the  right  to  create  children 
does  not  include  the  right  to  ill-treat  them,  that  the  child  has  a 
right  to  a  fair  start  in  life  and  the  parent  will  not  be  allowed  to 
keep  control  of  him  where  unwilling  or  unable  property  to  care  for 
his  offspring. 

In  awarding  custody  of  minors  modern  courts  have  often  said 
that  the  welfare  of  the  child  is  paramount,  but  this  consideration 
will  not  suffice  to  take  children  from  parents  who  are  decent  and 
responsible,  if  able  to  furnish  the  necessities  for  their  children, 
although  the  child's  welfare  and  prospects  in  life  might  be  bet- 
Guardianship,  167  Wis.  461,  167  N.  29.  Re  Lee  (Cal.),  131  Pae.  749, 
W.   744.                                                                  45  L.  R.  A.   (N.  S.)   91. 

28.    Lindsay    v.    Lindsay,    257    111.  30.   Moon  v.   Children's  Home  So- 

328,  100  N.  E.  892,  45  L.  R.  A.  (N.  ciety,  112  Va.  737,  72  S.  E.  707,  38 
S.)  9'08.  L.  R.  A.  (N.  S.)  418. 


79T 


CUSTODY    OF    CHILD. 


§  744: 


tered   thereby,^ ^  but  custody  may  be  taken  away  from  parents 
manifestly  unfit  by  the  State  standing  in  loco  parentis  in  equity.*^ 


31.   7n  re   Schwartz,   171  Cal.   633, 
154   P.   304;    Wilson   v.    Mitchell,   48 
Colo.   454,   111   P.   21;    Hernandez  v. 
Thomas,  50  Fla.  522,  39  So.  641,  2  L. 
R.  A.  203;  State  v.  BesUn,  19  Idaho, 
185,  112  P.  1053;  Hohenadel  v.  Steele, 
237  111,  229,  86  N.  E.  717;  Wohlford 
V.    Burckhardt,    141    HI.    App.    321; 
People  V.  Hoxie,   175   111.  App.   563; 
Cormack   v.    Marshall,    122    111.   App. 
208;    Smiley  v.  Mcintosh,   129   Iowa, 
337,    105    N.    W.    577;     Swarens    v. 
Swarens,    78    Kan.    682,    97    P.    968; 
Buchanan  v.  Buchanan,  93  Kan.  613, 
144    P.    840;    Stapleton    v.    Poynter, 
111   Ky.  264,   62   S.  W.   730,  23  Ky. 
Law.   Rep.   76,   53   L.   R.  A.   784,   98 
Am.  St.  Rep.  411;  State  ex  rel.  Curtis 
V.  Thompson,  117  La.  102,  41  So.  367; 
State   ex  rel.    Kearney   v.   Steel,    121 
La.  215,  46  So.  215;  State  v.  Thomp- 
son, 117  La.   102,  41   So.   367;   Com- 
monwealth V.  Dee,  222  Mass.  184,  110 
N.    E.    287;    Ex    parte    Smith    (Mo. 
App.),   200   S.  W.   681;    Newsome   v. 
Bunch,  142  N.  C.   19,  56  S.  E.   509; 
In    re    Wilson     (N.    J.    Ch.     1903), 
55   A.    160;    Titus   v.    McGloskey,   67 
N.   J.   Eq.   709,   63   A.   244;    Giffin   v. 
Gascoigne,   60   N.   J.  Eq.   256,  47   A. 
25;  People  v.  Beaudoin,  110  N.  Y.  S. 
592,    126    App.    Div.    505;    Ex   parte 
Livingston,    135    N.    T.    S.    328,    151 
App.   Div.    1,   reversing   order  In   re 
Livingston,    134    N.    Y.    S.    148,    74 
Misc.    Rep.    49'4;    Walker    v.    Finney 
(Tex.    Civ.    App.),    157    S,    W.    948; 
Kirkland    v.     Matthews     (Tex.     Civ. 
App.),  174  S.  W.  830;  Jensen  v.  Jen- 
sen  (Wis.),  170  N.  W.  735;   Case  of 
Waldron,    13    Johns.    418;    People   v. 
Mercein,     3     Hill,     399;     Ex    parte 
Schumpert,    6    Rich.    344;    Wood    v. 
Wood,  3  Ala.  756;  Gishwiler  v.  Dodez, 
4   Ohio   St.   615.     And  thus  may  the 
mother    be    preferred    in    a    suitable 
case    to    the    father.     See    Moore    v. 
Moore,   66   Ga.   336.      In   the   case   of 
several  children,  and  parents  equally 


fit,  a  division  of  custody  agreeble  to 
the  the  several  interests  of  the  chil- 
dren may  be  made.  Umlauf  v.  Um- 
lauf,  128  111.  378. 

32.    Wadleigh   v.   Newhall,    136    F. 
941;   Saunders  v.  Saunders,  166  Ala. 
351,   52   So.   310;    Dunn  v.  Christian 
(Ala.),  80  So.  870;  Coulter  v.  Sypert, 
78      Ark.      193,      95      S.      W.      457; 
In  re  Lee,  165  Cal.  279,  131  P.  749; 
Moore  v.  Dozier,  128  Ga.  90,  57  S.  E. 
110;  In  re  Brown,  117  111.  App.  332; 
Swarens  v.  Swarens,  78  Kan.  682,  97 
P.    968;    Burke    v.    Crutcher,    4    Ky. 
Law  Rep.  251;  Smith  v.  Martin  (Ky. 
Super.   1883),  4  Ky.   Law  Rep.  734; 
United  State  v.  Green,  3  Mason,  382 ; 
Purinton  v.  Jamrock,  195  Mass.  187, 
80  N.  E.  802;  State  ex  rel.  Cave  v. 
Tincher,  258  Mo.   1,  166  S.  W.   1028 
(even    in    the    absence    of    statute) ; 
Home  of  the  Friendless  v.  Berry,  79 
Mo.  App.  566;  Waters  v.  Gray  (Mo. 
App.),  193  S.  W.  33;  Wood  v.  Wood, 
77   N.  J.  Eq.   593,  77   A.   91;    In   re 
Gustow,   220   N.   Y.    373,    115   N.    E. 
995;   In  re  Kirschner,   162   N.  Y.  S. 
1126,  176  App.  Div.   904    (cruelty  to 
child  by  parents) ;    People   v.   Beau- 
doin, 110  N.  Y.  S.  592,  126  App.  Div. 
505;  In  re  Murtha,  455  N.  Y.  S.  47, 
32   N.   Y.   Cr.   R.    532    (desertion   by 
father)  ;    Allison   v.   Rryan,   26   Okla. 
520,    109    P.   934;    Ex   parte   Adams 
(Okla.),  169  P.  1004;  Commonwealth 
V.  Wormser,  260  Pa.  44,  103  A.  500, 
67  Pa.  Super.  Ct.  444. 

A  father  has  no  property  right  in 
a  child  and  a  claim  that  he  was  de- 
prived of  his  property  without  due 
process  of  law  by  taking  the  child 
from  him  cannot  be  considered.  Ken- 
ner  v.  Kenner,  139  Tenn.  700,  202  S. 
W.  723,  139  Tenn.  211,  201  S.  W.  779; 
Kirkland  v.  Matthews  (Tex.  Civ. 
App.),  162  S.  W.  375  (evidence  is 
admissible  that  a  member  of  the 
father 's  family  had  tuberculosis)  ; 
Cobb  V.  Works  (Tex.  Civ.  App.  1910), 


§  744 


PARENT    AXD    CHILD. 


798 


There  is  a  strong  presumption,  ho-wever,  that  the  child's  welfare 
will  be  best  subserved  in  the  care  and  control  of  its  own  parents 
and  some  of  the  earlier  decisions  seem  to  have  treated  the  right 
of  the  father  to  the  custody  of  the  child  as  paramount  but  the  more 
recent  opinions  regard  the  welfare  of  the  child  as  paramount. 
The  mere  fact  that  a  child  is  in  the  control  of  a  parent  who  is 
utterly  selfish  will  not  alone  cut  off  the  right  of  the  parent  to 
that  custodv.^' 

A  statute  permitting  the  court  to  give  the  custody  of  a  child 
to  one  not  the  parent  does  not  render  the  court  the  guardian  of 
all  the  children  in  the  State  and  the  unfitness  of  the  parent  to  care 
for  the  child  must  be  positive  and  the  mere  fact  that  he  is  not  so 
well  able  to  care  for  the  child  as  another  is  not  sufficient  reason 
for  giving  the  custody  to  that  other.  "  However  poor  and  un- 
able a  father  may  be,  if  of  good  moral  character  and  able  to  sup- 
port the  child  in  his  own  style  of  life  he  cannot  be  deprived  of 
that  privilege  by  any  stranger,  however  brilliant  the  advantage  he 
mav  offer."  ^* 

In  determining  the  custody  of  a  child  the  highest  good  of  the 
child  must  be  the  paramount  consideration,  and  the  court  may 
well  refuse  to  take  a  child  from  the  custody  of  proper  persons  who 
are  treating  her  kindly  and  give  her  to  the  mother  who  has  remar- 
ried after  separation  to  the  father  of  the  child  who  has  never  seen 
her  and  never  contributed  to  her  support  and  is  only  earning  a 
small  sum  and  living  with  his  wife  in  two  rooms.^'     Although  the 


125  S.  W.  349;  Ward  v.  Ward,  34 
Tex.  Civ.  App.  104,  77  S.  W.  829 
(mother's  reputation  for  chastity, 
honesty  and  veracity  may  be  shown) ; 
Matthews  v.  Kirkland  (Tex.  Civ. 
App.),  186  S.  "W.  423;  Kirby  v.  Mor- 
ris (Tex.  Civ.  App.),  198  S.  W.  995; 
Peese  v.  Gellerman,  51  Tex.  Civ.  App. 
39,  110  S.  W.  196  (where  stepmother 
was  a  bad  woman")  ;  Bedell  v.  Bedell, 
1  Johns.  Ch.  604 ;  Barrere  v.  Barrere, 
4  Johns.  Ch.  187,  197;  2  Bishop,  Mar. 
&  Div.,  5th  ed.,  §  532;  Ex  parte 
Schumpcrt,  6  Eich.  344;  People  v. 
Chegaray,  18  Wend.  637;  Garner  v. 
Gordon,  41  Ind.  92;  Corrie  v.  Corrie, 
42  Mich.  509.  Courts  have  refused 
to  allow  a  widowed  mother,  who  re- 
married, to   take  her   child   from   the 


husband 's  sister  with  whom  she  had 
left  it  nine  years.  Hoxsie  v.  Potter, 
16  R.  I.  374;  In  re  Gates,  95  Cal. 
461.  Or  to  deliver  the  child  to  a 
non-resident  mother  under  disfavoring 
circumstances.  Harris  v.  Harris 
(1894),  N.  C.  And  see  Lally  v.  Fitz 
Henry,  85  Iowa,  49;  In  re  Vance,  92 
Cal.  195.  See  Kirby  v.  Morris  (Tex. 
Civ.  App.),  198  S.  W.  99^5  (court 
may  require  adoptive  parents  to  al- 
low child  to  visit  relatives). 

33.  Risting  v.  Sparboe  (Iowa),  162 
N.  W.  592,  L.  R.  A.  1917E,  318. 

34.  Jamison  v.  Gilbert   (Okla.),135 
Pac.  342,  47  L.  R.  A.   (N.  S.)   1133. 

85.    Be    Pryse,    85    Kan.    556,    118 
Pac.  56,  41  L.  R.  A.  (N.  S.)   564. 


799  CUSTODY  OF  CUILD.  §  746 

father,  a  widower,  may  have  a  right  to  the  custody  and  care  of  his 
own  child,  still  this  will  not  oblige  the  court  to  order  its  change 
from  a  home  where  it  is  well  cared  for  to  that  of  an  aunt  who  does 
not  particularly  care  to  have  it/' 

§  745.  Child's  Own  Wishes. 

It  is  sometimes  a  question,  in  proceedings  relative  to  the  custody 
of  minors,  how  far  the  child's  own  wishes  should  he  consulted. 
Where  the  object  is  simply  that  of  custody,  the  rule,  though  not 
arbitrary,  rests  manifestly  upon  a  principle  elsewhere  often  ap- 
plied ;  namely,  that  after  a  child  has  attained  to  years  of  discretion 
he  may  have,  in  case  of  controversy,  a  voice  in  the  selection  of  his 
own  custodian.  The  practice  is  to  give  the  child  the  right  to  elect 
where  he  will  go,  if  he  be  of  proper  age,  and  the  issue  is  a  doubtful 
one.  If  he  be  not  of  that  age,  and  want  of  discretion  would  only 
expose  him  to  dangers,  the  court  must  make  an  order  for  placing 
him  in  custody  of  the  suitable  person ;  ^^  nor  will  the  choice  of  the 
child  in  any  case  control  the  court's  discretion,'®  and  the  affection 
of  the  child  for  others  will  not  suffice  to  deprive  the  parents  of 
custody  if  fit.*' 

§  746.  Custody  under  Divorce  and  other  Statutes. 

Our  divorce  jurisprudence,  being,  until  recently,  quite  different 
from  that  of  England,  further  opportunity  has  been  furnished  for 

36.  Eisting  v.  Sparboe  (Iowa),  162  P.  &  D.  221,  sixteen  years  is  now  the 

N.    W.    592,    L.    E.    A.    1?17E,    31S.  limit  adopted  in  English  courts  within 

87.  Proctor  v.  Ehoads  (Ky.  Super.  which   the   child's   own   choice    as   to 

1882),  4  Ky.  Law  Eep.  453;  Eallihan  custody   may   be    regarded.      See,   as 

v.  Motschmann,  179   Ky.   180,  200  S.  to  children  too  young,  Eust  v.  Van- 

W.  358;   Forsyth,  Custody,  93,  etc.;  vacter,    9    "W.    Va.    600;    Henson    v. 

Rex    V.    Greenhill,    4    Ad.    &    El.    62.  Walts,  40  Ind.  170. 

Nine   or   ten   years  of   age   has   been  38.  Marshall  v.  Eeams,  32  Fla.  499; 

considered    too    young,    yet    mental  People  v.  Watts,  122  N.  Y.  238. 

capacity  appears  the   real  test;    and  39.  Under  Code,  §  3192,  providing 

the  wishes  of  children  less  than  four-  that  parents  are  the  natural  guardians 

teen  have  been  regarded.     See  Anon.,  of  their  minor  children,  and  equally 

2  Ves.  274;   Ex  parte  Hopkins,  2  P.  entitled  to  their  custody,  a  father  has 

Wms.   152;   Curtis  v.  Curtis,  5  Gray,  a  primary  right  to  the  guardianship 

535;  People  v.  Mercein,  8  Paige,  47;  of  his  minor  child  as  against  all  per- 

95   Cal.    461 ;    In   re   Goodemough,   19  son    except    the    mother,   so    that   the 

Wis.  274 ;   Eegina  v.  Clarke,  7  El.  &  father    of   a   child,    whose   mother   is 

B.   186;    State  v.  Eichardson,  40  N.  dead,  should  be  given  its  custody  un- 

H.    272 ;    Spears   v.    Snell,    74   N.    C.  less  he  is  an  unsuitable  person,  and 

210;   32  Fla.  499.     But  according  to  has    forfeited    his    right    thereto    by 

Eegina  v.  Howes,   3  Ell.  Sc  Ell.   332,  misconduct.      Brem  v.    Swander,   153 

and  Mallinson  t.  Mallinson,  L.  R.   1  Iowa,  669,  132  N.  W.  829. 


§  746 


PARENT    AND    CHILD. 


800 


a  departure  from  the  common-law  rules  which  favor  the  paternal 
right  of  custody.  The  same  tribunal  which  hears  the  divorce  cause 
has  power  to  direct  with  which  of  the  parties,  or  what  third  per- 
son, the  children  shall  be,  and  direct  as  to  their  support.*"  Like 
powers  are  now  conferred  upon  the  English  matrimonial  court  by 
recent  statutes;  *^  and  the  child's  custody  may  be  given  to  either 
parent  or  a  third  person ;  generally  to  the  innocent  parent,  though 
with  due  regard  to  the  child's  welfare ;  and,  in  suitable  cases,  with 
a  right  of  access  to  the  parent  or  parents  deprived  of  custody,** 
but  a  mother  to  whom  minor  children  were  awarded  by  a  divorce 
decree  cannot  deprive  the  father  of  their  custody  after  her  death 
by  will.*' 

Where  the  custody  of  a  child  is  the  subject  of  chancery  or  divorce 
proceedings,  the  court  will  often  be  justified  in  making  temporary 
arrangements  for  his  custody.**     And  where  there  has  been  no  order 


A  child  fourteen  years  of  age  can- 
not at  will  leave  its  father's  home 
and  choose  another  person  as  its 
guardian,  in  the  absence  of  essential 
legal  proceedings  in  the  probate 
court.  Grego  v.  Schneider  (Tex.  Civ. 
App.),  154  S.  W.  361. 

40.  See  post,  Vol.  II. 

41.  [1894]    P.,  29f5. 

42.  Stat3.  20  &  21  Vict.,  ch.  85, 
§  35;  22  &  23  Vict.,  ch.  61,  §  4.  See 
Ahrenfeldt  v.  Ahrenfeldt,  1  Hoff.  Ch. 
497;  Spratt  v.  Spratt,  1  Swab.  &  T. 
215;  2  Bishop,  Mar.  &  Div.,  5th  ed., 
§§  532,  544,  and  cases  cited;  Bedell 
V.  Bedell,  1  Johns.  Ch.  604;  Chet- 
wynd  V.  Chetwynd,  L.  R.  1  P.  &  T>. 
39;  Harding  v.  Harding,  22  Md. 
337;  Mallinson  v.  Mallinson,  L.  R.  1 
P.  &  D.  221;  McBride  v.  McBride, 
1  Bush,  15;  Goodrich  v.  Goodrich,  44 
Ala.  670;  Bush  v.  Bush,  37  Ind.  164; 
Harvey  v.  Lane,  66  Me.  536 ;  Hill  v. 
Hill,  49  Md.  450.  The  father  is 
strongly  preferred  to  the  mother  where 
he  obtained  divorce  for  her  desertion. 
Carr  v.  Carr,  22  Qratt.  168.  See  In 
re  Taylor,  4  Ch.  D.  157.  Even  after 
divorce  with  a  decree  of  custody  to 
one  parent,  occasion  may  arise  for 
separating  the  child,  in  the  latter 's 
interest,   from   both   parents   as   con- 


cerns custody.  D 'Alton  v.  D 'Alton, 
4  P.  D.  87 ;  In  re  Bort,  25  Kan.  306. 
"Where  the  divorce  court  awarded  cus- 
tody to  the  mother,  and  the  mother 
on  dying  left  the  children  to  some 
relative  who  was  appointed  their 
guardian,  the  father  must  at  least 
show  his  fitness  to  take  custody. 
Bryan  v.  Lyon,  104  Md.  227;  Murphy, 
Ex  parte,  75  Ala.  409;  Smith  v. 
Bragg,  68  Ga.  650.  But  as  against 
a  stranger  in  blood,  see  McGlennan 
V.  Margowski,  90  Ind.  150.  Even 
though  a  divorce  be  obtained  for  the 
wife's  bigamous  adultery,  the  court's 
discretion  in  custody  is  not  concluded 
in  the  husband's  favor.  Haskell  v. 
Haskell,  152  Mass.  16;  Luther  v. 
Luther,  12   Col.  421. 

43.  In  re  l^efl,  20  Wash.  652,  66 
Pa.  383. 

44.  Hutson  v.  Townsend,  6  Rich. 
Eq.  249 ;  Barnes  v.  Barnes,  L.  R.  1 
P.  &  D.  463;  Ee  Welch,  74  N.  T. 
29^. 

Some  American  statutes  concerning 
custody  are  worthy  of  notice.  Follow- 
ing the  temper  of  the  times,  the  New 
York  Legislature  of  1860  enacted  that 
"every  married  woman  is  hereby  con- 
stituted and  declared  to  be  the  joint 
guardian  of  her  children,  with  her  hus- 


801 


CUSTODY    OF    CHILD. 


§  747 


of  custodj  but  a  separation,  the  husband  and  father  cannot  in  our 
later  cases  rely  strongly  upon  his  paramount  right  against  the  wife 
and  mother,  unless  he  is  free  from  blame.*^  In  short,  the  welfare 
of  the  child  becomes  in  modem  practice  the  paramount  consider- 
ation, nor  are  parental  rights  considered  without  due  regard  for 
parental  duties. 

§  747.  Parent's  Right  to  Attend  Funeral  of  Child. 

A  father  has  no  right  to  attend  the  funeral  services  of  his  child 
where  he  has  been  divorced  and  the  custody  of  the  child  given  to 
the  mother  where  the  funeral  services  are  held  from  the  house  of 
the  wife's  father,  and  the  father  of  the  child  cannot  therefore  main- 
tain action  against  the  father-in-law  for  preventing  him  from  at- 


band,  with  equal  powers,  rights,  and 
duties  in  regard  to  them  with  her  hus- 
band."  Such  a  statute,  unexplained, 
might  seem  to  do  away  altogether  with 
the  paramount  claims  of  the  husband. 
But  the  courts  appeared  disposed  to 
regard  the  innovation  with  little 
favor;  and  the  law  was  in  1862  re- 
pealed. People  V.  Brooks,  35  Barb. 
85;  People  v.  Boice,  39  Barb.  307. 
But  of.  original  Constitution  of  Kan- 
sas; also  New  York  Act,  1893,  ch. 
175,  declaring  every  married  woman 
"joint  guardian"  with  her  husband. 
The  State  v.  Angel,  42  Kan.  216.  In 
the  former  case  a  married  woman, 
who  lived  apart  from  her  husband,  no 
misconduct  on  his  part  being  shown, 
eought  under  the  new  statute  to  obtain 
custody  of  the  children.  An  earlier 
statute  of  New  York  provides  that  if 
the  parents  live  in  a  state  of  separa- 
tion, without  being  divorced,  and 
without  the  fault  of  the  wife,  the 
courts  may,  on  her  application,  award 
the  custody  of  the  child  to  the  mother. 
2  N.  Y.  Eev.  Sts.  148;  2  Kent,  Com. 
205  n. ;  People  v.  Mercein,  3  Hill, 
399.  The  discretion  thus  conferred 
upon  the  courts  is  a  judicial  one, 
however,  and  is  to  be  exercised  with 
due  reference  to  the  cause  of  separa- 
tion, and  the  conduct  and  character 
of   the  parties.      And   see   People   v. 

51 


Brooks,  supra.  See  N.  Y.  Act  1862, 
ch.  172,  §  6,  which  restrains  the  father 
from  binding  his  child  as  apprentice, 
or  parting  with  his  control,  or  cre- 
ating a  testamentary  guardian  with- 
out the  mother 's  written  assent.  Legis- 
lative provisions  of  a  like  tendency 
are  frequently  to  be  met  with  in  other 
States.  Thus  in  Massachusetts  it  is 
enacted  that,  pending  divorce  contro- 
versies, the  respective  rights  of  the 
parents  shall,  in  the  absence  of  mis- 
conduct, be  regarded  as  equal,  and 
that  the  happiness  and  welfare  of  the 
children  shall  determine  the  custody 
in  which  they  shall  be  placed.  Mass. 
Gen.  Sts.,  ch.  107,  §  37.  And  under 
a  still  more  recent  statute  in  New 
Jersey,  the  court  is  to  a  certain  ex- 
tent deprived  of  its  discretion  in  dis- 
posing of  the  cu.stody  of  children 
whose  parents  are  separated,  but  not 
divorced ;  for  by  this  statute  the  cus- 
tody of  the  children  under  seven 
years  of  age  is  transferred  from  the 
father  to  the  mother.  Bennet  v.  Ben- 
net,  2  Beasl.  114.  As  to  modifying 
the  order  of  custody  after  divorce, 
see  Harvey  v.  Lane,  66  Me.  536. 

45.  Winslow  V.  The  State,  92  Ala. 
78;  Giles  v.  Giles,  30  Neb.  624. 
Where  a  divorce  court  has  jurisdic- 
tion of  the  parties,  a  common-law 
court  disinclines  to  entertain  a  qucs- 


§  748  PARENT  AND  CHILD.  802 

tending  the  funeral.  At  common  law  the  duty  of  providing 
sepulture  and  of  carrying  to  the  grave  the  dead  body  decently  cov- 
ered was  cast  upon  the  person  under  whose  roof  the  death  took 
place ;  for  such  a  person  could  not  keep  the  body  unburied  nor  do 
anything  which  prevented  Christian  burial.  There  was  no  duty, 
however,  to  conduct  a  public  funeral  and  is  not  now  in  this  coun- 
try, and  the  father-in-law  was  not  therefore  required  to  invite 
anyone  onto  his  premises  simply  to  see  the  dead  body  or  to  have 
any  sort  of  burial  services  for  the  public.  A  man's  dwelling 
house  is  his  castle,  and  no  one  has  the  right  to  enter  except  upon 
invitation  express  or  implied.  The  fact  that  the  father  of  the 
child  was  excluded  from  the  funeral  through  malice  of  his  father- 
in-law  does  not  make  the  act  actionable,  as  the  control  of  one's 
dwelling  is  absolute,  and  therefore  the  intent  with  which  this 
control  is  exercised  is  wholly  immaterial.'*' 

§  748.  Contracts  Transferring  Parental  Rights. 

It  is  held  in  England  that  an  agreement  by  which  the  father 
surrenders  custody  of  his  child  is  not  binding;  and  that  he  is  at 
liberty  to  revoke  his  consent  afterwards,  and  obtain  the  child  by 
a  writ  of  habeas  corpus.*'' 

In  this  country  there  is  a  conflict  of  opinion  as  to  whether  a 
contract  to  surrender  the  custody  of  a  child  by  the  parent  is  valid, 
but  even  where  such  a  contract  is  upheld  the  parent  will  not  be 
held  to  have  surrendered  the  custody  to  a  stranger  permanently 
unless  it  clearly  appears  that  such  was  his  intention.  It  is  not 
enough  that  the  person  taking  the  custody  understood  that  the 
parent  had  granted  to  him  permanent  custody;  but  it  must  appear 
clear  that  there  was  a  corresponding  understanding  on  the  part  of 
the  parent.  The  mere  fact  that  the  father  permitted  the  grand- 
parents to  have  custody  of  the  child  for  some  years  is  not  enough 
to  show  such  transfer  of  custody.^^  And  a  father's  phrase  in  a 
letter  of  affection  to  relatives  is  not  to  be  readily  construed  into 
a  barrier  of  his  natural  rights ;  "^  nor  is  his  permissive  custody  to 

tion  of  custody  upon  habeas  corpus.  47.   Eegina  v.   Smith,   16   E.  L.   & 

In  re  Gladys  Morgan,   117  Mo.  249,  Eq.  221. 

See  Harding  v.  Harding,  144  111.  48.  In,  re  Morhofif's  Guardianship 
589;  Schroeder  v.  Filbert  (189-4),  (Cal.),  178  P.  294;  Jamison  v.  Gil- 
Neb,  bert  (Okla.),  135  Pac.  342,  47  L.  B. 

46.    Kader    v.    Davis    (Iowa),    134  A.   (N.  S.)   1133. 

N.  W.  849,  38  L.  R.  A.  (N.  S.)   131.  49.  Scarritt,  Be,  76  Mo.  565. 


803  CUSTODY  OF  CHILD.  §  748 

others,  in  the  absence  of  more  unfavorable  circumstances  against 
him,  to  be  deemed  irrevocable  on  his  part/" 

The  general  doctrine  appears  to  us,  on  the  whole,  to  be  this: 
that  public  policy  is  against  the  permanent  transfer  of  the  natural 
rights  of  a  parent ;  and  that  such  contracts  are  not  to  be  specifically 
enforced,  unless  in  the  admitted  exception  of  master  and  appren- 
tice, to  constitute  which  relation  requires,  both  in  England  and 
America,  certain  formalities ;  and  excepting,  too,  in  parts  of  the 
United  States  where  the  principles  of  legal  adoption  are  part  of 
the  public  policy.^^  American  courts  hold  fast,  nevertheless,  to 
the  true  interests  and  welfare  of  the  child.  And  hence  the  con- 
tract of  a  parent  unfit  to  have  custody  of  the  child,  and  more 
especially  of  a  shiftless  widowed  mother,  which  surrenders  that 
child  by  formal  instrument,  fair  in  its  terms,  to  a  benevolent  insti- 
tution, for  the  purpose  of  having  the  child  brought  up  in  a  good 
family,  or  to  some  other  suitable  third  party,  has  been  so  far 
upheld,  where  the  institution  or  person  intrusted  has  not  failed  in 
duty,  that  the  child  is  suffered  to  remain  where  he  was  placed,  for 
the  reason  that  his  welfare  requires  it,  rather  than  be  returned  to 
the  parent  who  seeks  to  recover  custody  once  more.^^  Thus,  there 
is  a  Massachusetts  case  where  a  child  had  been  given  up  at  its 
birth,  the  mother  having  then  died,  to  its  grandparents,  who  kept 
it  for  thirteen  years,  at  their  own  expense,  without  any  demand 

50.  Weir  v.  Marley,  99  Mo.  484;  benefit  of  a  grandparent's  -will.  Bui- 
Kelly,  Petitioner,  152  Mass.  432.    But       len,  Ex  parte,  28  Kan.  781. 

a  fair  contract  of  tranfer  on  a  good  The  mother,  being  a  suitable  per- 

and  executed  consideration,  ought  not  son,  was  allowed  to  recover  custody,  in 

to  be  set  aside  and  custody  restored  Wishard  v.  Medaris,  34  Ind.  168.   And 

unless   the   parent   can    show   that   a  see  Seller  v.  Jones,  22  Ark.  92.   Mayne 

change  will  promote  the  child's  wel-  v.  Baldwin,  1  Halst.  Ch.  454;  People 

fare.     Cunningham  v.  Barnes,  37  W.  v.  Mercein,  8  Paige  Ch.  67;   s,  c,  3 

Va.  476.  Hill,  408;   State  v.  Libbey,  44  N.  H. 

51.  See,  as  to  adoption,  supra,  321;  State  v.  Scott,  30  N.  H,  274, 
§  721;  Legate  v.  Legate  (1894),  Tex.  establish  that  a  parol  transfer  of  cus- 
tody  is  insufficient.    But  this  is  rather 

52.  2  Kent,  Com.  205 ;  State  v.  as  regards  the  parent  than  third  par- 
Barrett,  45  N.  H.  15;  Dumain  v.  ties,  or  the  heirs  or  kindred  of  the 
Gwynne,  10  Allen,  270;  Common-  parent.  Assent  and  transfer  was, 
wealth  V.  St.  John's  Asylum,  9  after  long  lapse  of  time,  presumed 
Phila.  571;  Bonnctt  v.  Bonnett,  61  in  Sword  v.  Keith,  31  Mich.  248. 
Iowa,  198.  Where  sisters  of  charity  That  a  grandparent,  by  virtue  of 
took  a  female  child  without  legally  transfer  to  him,  may  sue  a  third 
adopting,  the  child  was  transferred  ]icrson  for  disturbing  his  custody,  see 
afterwards    in    order    to    receive    the  Clnrk  v.  Bayer,  32  Ohio  St.  299. 


§  748 


PAEEJTT    AND    CHILD. 


804 


made  by  the  father  for  its  restoration;  and  under  these  circum- 
stances the  court  refused  afterwards  to  change  the  custody.^' 

And  there  are  circumstances,  where  parental  rights  have  been 
waived  by  the  voluntary  establishment  of  new  relations  permis- 
sively,  under  which  the  curt  will,  from  similar  regard  for  the 
child's  welfare,  refuse  to  disturb  a  custody  voluntarily  yielded,  in 
favor  of  the  parent  who  has  long  acquiesced  in  the  transfer;  thus 
regarding  the  ties  both  of  nature  and  association/*  And  so,  too, 
often,  where  a  shiftless  parent  permits  the  child  to  be  brought  up 
by  other  relatives  at  their  cost,  and  a  change  afterwards  would  be 
unsuitable/^ 

It  is  the  general  American  rule  that  agreements  by  parents  for 
the  transfer  to  others  of  the  custody  of  their  children  are  against 
public  policy  and  are  not  binding  on  the  parties,^*  especially  after 


53.  Pool  V.  Gott,  14  Law  Eep. 
269,  before  Shaw,  C.  J.  And  see  In 
re  Goodenough,  19  Wis.  274;  Bently 
V.  Terry, '59  Ga.   555. 

54.  Hoxsie  v.  Potter,  16  E.  I.  374; 
Marshall  v.  Reams,  32  Fla.  499. 

55.  Drumb  v.  Keen,  47  Iowa,  435. 

If  a  father,  after  making  an  as- 
signment of  the  services  or  society  of 
his  minor  child,  has  retaken  the  child 
into  his  own  keeping,  the  assignee's 
only  remedy  on  his  own  behalf  (if 
any  he  have)  is  by  action  on  the  con- 
tract. Famsworth  v.  Eichardson,  35 
Me.  267.  And  see  Commonwealth  v. 
McKeagy,  1  Ashm.  248;  Lowry  v. 
Button,  "Wright,  330.  An  adjudica- 
tion of  the  appropriate  tribunal  on 
the  question  of  the  custody  of  an 
infant  child,  brought  up  on  habeas 
oorpus,  may  be  pleaded  as  res  adjudi- 
cata.  Merceia  v.  People,  25  "Wend. 
64.  The  child's  welfare  and  wishes 
are  considered  as  before  stated. 

56.  In  re  Galleher,  2  Cal.  App.  364, 
84  P.  352;  Hernandez  v.  Thomas, 
50  Fla.  522,  39  So.  641,  2  L.  R.  A. 
203;  McCarter  v.  McCarter,  10  Ga. 
App.  754,  74  S.  E.  308;  Cormack  v. 
Marshall,  122  111.  App.  208;  "Wood 
V.    Shaw,   92    Kan.   70,    139   P.    1165. 

Contract  by  which  the  widowed 
father  of  an   infant   surrendered  hia 


custody  to  a  home  and  relinquished 
all  rights  over  the  infant  was  not  con- 
trary to  public  policy,  though  it  was 
subject  to  cancellation  on  its  appear- 
ing to  be  for  the  best  interests  of  the 
infant.  Bedford  v.  Hamilton,  153 
Ky.  429,  155  S.  W.  1128;  State  ex  rel. 
Kearney  v.  Steel,  121  La.  215,  46  So. 
215;  Smith  v.  Young,  136  Mo.  App. 
65,  117  S.  "W.  628;  Brewer  v.  Gary, 
148  Mo.  193,  127  S.  "W.  685;  Dix.  v. 
Martin,  171  Mo.  App.  266,  157  S.  "W. 
133;  Marks  v.  "Wooster  (Mo.  App.), 
1?9  S.  "W.  446.  Becovery  for  support. 
Gordon  v.  "Wyness,  155  N.  T.  S.  162, 
169  App.  Div.  659;  Long  v.  Smith, 
(Tex.  Civ.  App.),  162  S.  "W.  25;  "Wil- 
liford  V.  Richards  (Tex.  Civ.  App.), 
169  S.  W.  1139;  Peese  v.  Gellerman, 
51  Tex.  Civ.  App.  39,  110  S.  W.  19-6. 
Even  thoupJi  a  gift  of  a  child  is 
invalid,  in  seeking  to  regain  posses- 
sion of  the  child,  the  fact  of  the  gift 
would  place  the  parent  in  the  atti- 
tude of  invoking  the  powers  of  an 
equity  court,  and  the  fact  that  the 
parent  has  voluntarily  surrendered 
the  control  of  his  child  should  be 
considered  with  other  facts  in  deter- 
mining its  best  interests  and  the 
propriety  of  giving  it  again  into  his 
control.  Peese  v.  Gellerman,  51  Tex. 
Civ.  App.  39,  110  8.  "W.  196;  contra, 


805 


CUSTODY    OF    CHILD. 


§  749 


the  children  become  of  age.*'  It  has  been  held,  however,  that  a 
father  maj  transfer  to  another  the  custody,''®  except  that  where 
the  statute  gives  the  mother  joint  control  the  father  can  make  an 
agreement  for  custody  only  with  the  consent  of  the  mother.**® 
Where  the  mother  dies,  and  the  father  tells  the  great-grandparent 
that  he  might  take  and  keep  his  infant  child  as  long  as  he  and  his 
wife  lived,  or  until  the  child  reaches  the  age  of  twenty-one,  and 
the  latter  does  take  the  child  and  care  for  it  and  keep  it  until  it 
reaches  the  age  of  three  years  before  the  father  has  asserted  any 
claim  to  it,  the  father  has  lost  his  right  of  custody.  The  contract 
was  sufficiently  definite  to  be  enforced.  The  contract  cannot  be 
said  to  be  unilateral  and  without  consideration.®"  Agreements  be- 
tween the  parents  on  separation  as  to  the  care  of  minor  children 
valid  between  themselves  will  not  be  sustained  to  the  detriment  of 
the  children."^ 

Nor  can  the  father,  under  the  common-law  rule,  divest  himself, 
even  by  contract  with  the  mother,  of  the  custody  of  his  children, 
though  he  allows  them  to  remain  with  her  for  several  years."* 

A  parent,  if  personally  suitable,  is  not  debarred  from  recovering 
custody  of  a  young  child  who,  without  parental  consent,  has  been 
bound  out  in  some  emergency  by  the  public  authorities.®^ 

And  the  right  of  the  child's  custodian  under  some  parental  con- 
tract is  always  strongest  and  most  positive  as  against  third  parties.®* 

§  749.  Proceedings  to  Determine  Custody;  Prior  Adjudication. 

Proceedings  as  to  the  custody  of  children  are  usually,  in  this 

country,  conducted  by  writ  of  habeas  corpus.     And  the  settled  rule 

with  us  is  that,  while  the  court  is  bound  to  free  the  person  from 


Wilkinson  v.  Lee,  138  Ga.  360,  75  S. 
E.   477. 

57.  Dittrich  v.  Gobey,  119  Cal.  599, 
51  P.  9«2. 

58.  An  agreement  whereby  a  father 
makes  a  gift  of  his  child  to  its  grand- 
parents, who  take  it  as  one  of  the 
family,  is  not  without  consideration. 
Eaves  v.  Fears,  131  Ga.  820,  64  S.  E. 
269;  Proctor  v.  Ehoads  (Ky.  Super. 
18S2),.4  Ky.  Law  Rep.  453. 

59.  Order,  110  N.  T.  8.  592,  126 
App.  Div.  505,  affd.,  People  v.  Bean- 
doin,  193  N.  T.  611,  86  N.  E.  1129; 
Zink  V.  Milner,  39  Okla.  347,  135 
P.  1. 


60.  Wilkinson  v.  Lee,  138  Ga.  360, 
75  S.  E.  477,  42  L.  E.  A.  (N.  S.) 
1013. 

61.  Carpenter  v.  Carpenter,  149 
Mich.  138,  112  N.  W.  748,  14  Det. 
Leg.  N.  366. 

62.  Torrington  v.  Norwich,  21  Conn. 
543;  People  V.  Mercein,  3  Hill,  408. 
And  see  Vansittart  v.  Vansittart,  4 
Kay  &  J.  62;  Johnson  v.  Terry,  34 
Conn.  259. 

63.  Goodchild  v.  Foster,  51  Mich. 
5?9 ;  Famham  v.  Pierce,  141  Mass. 
203.  See  Briaster  v.  Compton,  68  Ala. 
299. 

64.  Jones  v.  Harmon,  27  Fla.  238. 


§  749 


PAREXT    AXD    CHILD. 


806 


illegal  restraint,  it  is  not  bound  to  decide  who  is  entitled  to  the 
guardianship,  or  to  deliver  infants  to  the  custody  of  any  particular 
person ;  but  this  may  be  done  whenever  deemed  proper.  In  other 
words,  it  is  in  the  sound  discretion  of  the  court  to  alter  the  custody 
of  the  infants,  or  not.^^ 

Under  modern  statutes,  where  there  has  been  a  voluntary  separa- 
tion the  wife  may  bring  up  the  question  of  custody  of  the  children 
hj  a  petition  filed  in  her  own  name.^®  The  petition  should  ask  for 
the  custody  of  the  child  and  not  merely  access  to  it,^^  and  should 
be  brought  in  the  court  where  the  parties  reside.**  Custody  can- 
not be  taken  away  from  the  parents  by  summary  proceedings  with- 
out notice.*^ 

The  burden  of  proof  is  ordinarily  on  those  who  dispute  the  fit- 
ness of  the  father  to  have  the  custody  of  his  child,"°  and  it  is  pre- 
sumed that  the  father  consents  to  the  mother's  care  of  minor  chil- 
dren when  not  under  his  immediate  control.'^ 

In  such  a  proceeding  a  judgment  in  divorce  may  be  considered 
if  properly  proved,""  but  a  decree  awarding  custody  of  a  child  is 
necessarily  temporary  in  character,  and  may  always  be  modified 
on  proof  of  change  in  circumstances.'^     The  right  to  custody  is 

67.  Eossell  v.  Rossell,  64  N.  J.  Eq. 
21,  53  A.  S21. 

68.  State  ex  rel.  Norris  v.  Graham, 
141  La.  73,  74  So.  635. 


65.  Common-n-ealth  v.  Addicks,  5 
Binn.  520;  Armstrong  v.  Stone,  9 
Gratt.  102;  Case  of  Waldron,  13 
Johns.  418;  State  v.  Smith,  6  Me. 
462 ;  State  ex  rel.  v.  Paine,  4  Humph. 
523 ;  Commonwealth  v.  Briggs,  16  Pick. 
203;  Ward  v.  Eoper,  7  Humph.  Ill; 
Foster  v.  Alston,  6  How.  (Miss.)  406; 
Stigall  V.  Turney,  2  Zabr.  286;  Mer- 
cein  V.  People,  25  Wend.  64;  State  v. 
King,  1  Ga.  Dec.  93;  State  v.  Banks, 
25  Ind.  495;  Bennet  v.  Bennet,  2 
Beasl.  114;  Ex  parte  Williams,  11 
Rich.  452;  State  v.  Richardson,  40  N. 
H.  272 ;  State  v.  Grisby,  38  Ark.  406. 

The  United  States  courts  have  no 
inherent  authority  to  determine  ques- 
tions of  the  custody  and  guardian- 
ship of  a  child;  but  local  State  courts 
deal  with  such  matters.  Whether  the 
diverse  citizenship  of  contesting 
parties  may  found  such  a  jurisdic- 
tion, qu.  Burrus,  Re,  136  U.  S.   597. 

66.  McGough  V.  McGough,  136  Ala. 
170,  33  So.  860;  Pearce  v.  Pearce,  136 
Ala.  188,  33  So.  883. 


69.  In  re  Knoll  Guardianship,  1G7 
Wis.  461,  167  X.  W.  744. 

70.  Rallihan  v.  Motschmann,  179 
Ky.  180,  200  S.  W.  358;  Giffin  v. 
Gascoigne,  60  X.  J.  Eq.  256,  47  A. 
25. 

Where  the  father  has  given  the 
child  away  and  failed  to  provide  for 
it,  there  is  no  presumption  that  he  is 
best  fitted  to  care  for  it.  Peese  v. 
Gellerman,  51  Tex.  Civ.  App.  39,  110 
S.  W.  196. 

71.  Berger  v.  Charleston  Consol. 
Ry.,  Gas.  &  Electric  Co.,  93  S.  C.  372, 
76  S.  E.  1096. 

72.  State  v.  Thompson,  117  La. 
102,  41  So.  367;  Dixon  v.  Dison,  76 
N.  J.  Eq.  364,  74  A.  995. 

73.  Hohenadel  v.  Steele,  237  111. 
229,  86  N.  E.  717;  Green  v.  Campbell, 
35  W.  Va.  69B. 


S07 


CUSTODY    OF    CHILD. 


§  T50 


not  rendered  res  judicata  by  a  prior  judgment  as  to  it,  the  primary 
•consideration  being  the  welfare  of  the  child/*  but  where  habeas 
corpus  is  used  not  as  a  writ  of  liberty  but  as  a  means  of  obtaining 
the  possession  or  control  of  one  whose  personal  liberty  is  only  in 
a  remote  and  technical  sense  involved,  as  in  case  of  an  application 
for  the  custody  of  a  child,  then  the  doctrine  of  res  adjudicata 
applies  to  the  case,  and  the  court  is  bound  by  a  finding  previously 
made  where  the  same  issues  were  tried  before.'"  In  habeas  corpus 
proceedings  to  determine  the  custody  of  a  child  the  decree  in 
divorce  awarding  the  custody  of  the  child  to  one  of  the  parties  is 
conclusive  except  for  causes  arising  since  the  decree,  and  where 
the  decree  awards  the  child  to  the  father,  with  the  privilege  for 
the  mother  to  visit  it,  and  the  father  moves  to  Cuba  and  marries 
again  and  expresses  the  determination  never  to  allow  the  child  to 
see  its  mother  again,  this  presents  a  case  where  the  court  may  well 
in  habeas  corpus  proceedings  refuse  to  turn  the  child  over  from 
the  mother  to  the  father,  where  it  appears  the  mother  is  a  suitable 
person  to  rear  the  child.''* 

§  750.  Suit  for  Harboring  or  Enticing  Away  One's  Child ;  Abduc- 
tion, etc. 
Every  person  who  knowingly  and  designedly  interrupts  the  rela- 
tion subsisting  between  parent  and  child,  by  procuring  the  child  to 
depart  from  the  parent's  service,  or  by  harboring  and  keeping  him 
after  he  has  quitted  his  home,  commits  a  wrongful  act,  for  which 
he  is  responsible  to  the  parent.  The  offence,  where  force  was  not 
used,  is  known  as  enticement,  and  the  rule  applies  to  the  relation 
of  master  and  servant.  In  such  cases,  again,  the  parent  sues  on  a 
principle  analogous  to  that  of  the  master;  namely,  because  of  an 
alleged  loss  of  service;  or  possibly  in  trespass  vi  et  armis  upon 
the  more  reasonable  allegation  of  loss  of  the  child's  society,'^  and 


74.  Pearce  v.  Pearce,  136  Ala.  188, 
33  So.  883. 

75.  Knapp  v.  Tolan,  26  N.  D.  23, 
142  N.  W.  915,  49  L.  R.  A.  (N.  S.) 
83. 

76.  Barlow  v.  Barlow,  141  Ga.  535, 
81  S.  E.  433,  52  L.  E.  A.  (N.  S.) 
683. 

77.  Lumley  v.  Gje,  2  El.  &  B.  224; 
Kirkpatrick  v.  Lockhart,  2  Brev.  276 ; 
1  "Woodes,  Lee.  451;  Sargent  v.  Ma- 
thew3on,   38   N.   H.    54;    3   Bl.   Com. 


140;  Selman  v.  Barnett,  4  Ga.  App. 
375,  61  S.  E.  501;  Soper  v.  Crutcher, 
29  Ky.  Law,  1080,  96  S.  "W.  907; 
Arnold  v.  St.  Louis  &  S.  F.  R.  Co., 
100  Mo.  App.  470,  74  S.  W.   5. 

At  common  law  the  enticing  of  an 
infant  from  the  service  of  his  parent 
was  not  an  offence.  State  v.  Rice, 
76  N.  C.  194;  Wheeler  v.  Price,  21  R. 
T.  99,  41  A.  894  (action  may  be  tres- 
pass) ;  Howell  v.  Howell,  162  N.  C. 
283,  78  S.  E.  222. 


§  750 


PARENT    AND    CHILD. 


808 


action  will  lie  although  the  child  renders  no  services  to  the  parent/' 
and  is  not  actually  a  member  of  the  household  at  the  time."  The 
quo  animo  of  the  defendant  in  such  suits  is  always  material.  To 
afford  shelter  is  one  thing;  to  encourage  filial  disobedience  an- 
other. The  mere  employment  of  a  runaway  child  does  not  amount 
tb  enticement.*" 

The  action  must  be  maintained  by  the  father  where  he  is  alive 
and  living  with  the  mother,*^  but  the  action  will  lie  on  behalf  of 
the  mother  after  the  father's  death,®^  or  by  a  mother  who  was  on 
divorce  given  the  custody  of  the  child.*^  Where  a  father  had 
divorced  his  wife  and  abandoned  his  minor  child  to  her  custody 
he  is  not  a  necessary  party  to  proceedings  by  the  mother  to  recover 
for  the  abduction  of  the  child.  But  where  the  stepfather  has  re- 
ceived the  child  into  his  home  and  supported  her  he  is  a  necessary 
party  to  the  proceedings,  as  the  suit  is  one  for  loss  of  services  of 
the  child  and  mental  distress  and  loss  of  companionship.  As  the 
stepfather  has  assumed  the  liabilities  of  a  parent  the  correspond- 
ing benefits  follow,  and  the  rights  of  the  mother  and  stepfather  in 
respect  to. the  child  are  then  equal  before  the  law,  and  he  must 
be  joined  in  any  action  for  loss  of  services  of  the  child.** 

Under  the  early  common  law  the  only  right  of  action  afforded 
the  parent  for  abduction  of  his  child  was  in  case  of  abduction  of 
an  heir  in  whose  marriage  he  had  valuable  rights.*^  Later  the 
parent  was  allowed  to  sue  on  the  ground  that  he  had  lost  the 
services  of  his  minor  child.*®  The  modem  American  rule  seems, 
however,  to  be  that  the  parent  may  sue  without  alleging  or  proving 


A  written  notice  to  defendant, 
plaintiff's  son-in-law,  that  if  he  har- 
bored plaintiff's  n^nor  son  plaintiff 
■would  claim  his  wages,  held,  a  waiver 
of  the  father 's  right  to  sue  defendant 
in  tort  for  enticing  his  son  away. 
Wolff  V.   Vannoy,   154   N.  W.   215. 

78.  Washburn  v.  Abram,  122  Ky. 
53,  90  S.  W.  997,  28  Ky.  Law,  985. 
See  contra,  Kenney  v.  Baltimore  &  O. 
R.  Co.,  101  Md.  490,  61  A.  581,  1  L. 
R.  A.  205. 

79.  Hare  v.  Dean,  ffO  Me.  308,  38 
A.  227. 

80.  Keane  v.  Boycott,  2  H.  Bl.  511 ; 
Butterfield  v.   Ashley,   6  Cush.  249. 

81.  Roper  v.  T^-^o,  Walker  &  Co.,  121 
Ky.   550,  89  S.  W.  538,  28  Ky.  Law 


Rep.   519,   1   L.  R.   A.   362,   123   Am. 
St.  R.  212. 

Under  a  statute  providing  that 
"fathers  and  mothers  shall  jointly 
have  the  care  and  custody  of  the  per- 
son of  their  minor  children,"  both 
parents  are  properly  joined  aa  plain- 
tiffs in  a  suit  for  enticment.  H'.re 
V.  Dean,  90  Me.  308,  38  A.  227. 

82.  Jones  v.  Tevis,  4  Litt  25; 
Moore  v.  Christian,  56  Miss.  408. 

83.  Magnuson  v.  O'Dea,  75  Wash. 
574,  135  P.  640. 

84.  Magnuson  v.  O'Dea  (Wash.), 
135  P.  640,  48  L.  R.  A.   (N,  S)   327. 

85.  Bl.  Com.  140. 

86.  Whitboume  v.  Williams  (1901), 
2  K.  B.  722. 


809  CUSTODY  OF  CHILD.  §  750 

loss  of  services,  whicli  seems  to  be  an  honest  result/^  The  modem 
authorities  have  advanced  and  nov7  the  parent  can  recover  damages 
for  the  unlawful  taking  awaj  or  concealment  of  a  minor  child,  and 
is  not  limited  to  oases  in  w^hich  such  child  is  the  heir  or  eldest  son 
nor  to  cases  where  the  abduction  is  for  immoral  purposes  nor  are 
the  damages  limited  to  the  fiction  of  "  loss  of  services."  The  real 
ground  of  action  is  compensation  for  the  expense  and  injury  and 
punitive  damages  for  the  wrong  done  him  in  his  affections  and  the 
destruction  of  his  household.  It  can  make  no  difference  that  the 
child  ait  the  time  she  was  carried  away  was  not  in  the  immediate 
custody  of  the  father  where  he  was  legally  entitled  to  it  or  to  have 
it  adjudged  by  the  court,  and  to  take  her  out  of  it  or  secrete  her 
was  an  injury  for  which  he  was  entitled  to  damages.^^  So  the 
mere  fact  that  the  child  has  left  the  parent  and  gone  to  work  for 
another  is  not  enough  without  proof  of  solicitation.*' 

But  where  it  appears  that  the  defendant,  knowing  that  the  son 
had  absconded  from  his  father,  boarded  him  in  his  family  and 
allowed  him  to  work  on  his  farm  as  he  pleased,  doing  this  with 
the  intention  of  aiding  or  encouraging,  or  with  the  knowledge  that 
it  aids  and  encourages  the  son  to  keep  away  from  the  father,  he  is 
liable  to  this  action.®"  And  to  harbor  or  entice  away  an  innocent 
child  for  immoral  and  corrupt  purposes  is  an  outrage  criminally 

87.  Howell  V.  Howell  (N.  C),  78  77  N.  C.  37.  Where  one 's  minor  child 
S.  E.  222;  Kirkpatrick  v.  Lockport,  is  enticed  away  or  harbored  against 
2  Brev.  (S.  C.)  276;  Anthony  v.  Nor-  the  father's  will,  and  without  justi- 
ton,  60  Kan.  341,  56  P.  529.  fication,     the      offender     cannot,     of 

88.  Howell  V.  Howell  (N.  C),  78  course,  recover  for  the  child's  board. 
S.  E.  222,  45  L.  R.  A.    (N.  S.)   &67.  Schnuckle    v.    Bierman,    89    111.    454. 

89.  Arnold  v.  St.  Louis  &  S.  F.  E.  But  where  one  employs  a  runaway 
Co.,  100  Mo.  App.  470,  74  S.  W.  5;  child  bona  fide,  without  being  guilty 
Cummins  v.  State,  36  Tex.  Cr.  R.  of  this  offence,  he  may  offset  wages 
398,  37  S.  W.  435.  due    the    father    by    the    expense    of 

90.  Sargent  v.  Mathewson,  38  N.  H.  actual  support  of  the  child.  Hun- 
54;  Everett  v.  Sherfey,  1  la.  3'56.  toon  v.  Hazelton,  20  N.  H.  388.  The 
Indictment  lies  under  fit  circum-  father  may  sue  on  the  basis  of  a  con- 
stances  for  the  offence  of  abduction  tract  for  his  absconding  child's 
or  enticement  of  one's  minor  child.  wages;  but  he  is  put  to  his  election, 
See  Langham  v.  State,  55  Ala.  114;  and  the  suit  in  tort  against  the  em- 
State  V.  Rice,  76  N.  C.  194;  Queen  v.  ployer,  for  unlawfully  enticing  or  har- 
Prince,  L.  R.  2  C.  C.  154.  The  doc-  boring  his  minor  child,  precludes  the 
trine  of  enticement  extends  to  the  re-  action  of  assumpsit  as  for  wages 
lation  of  Master  and  Servant,  where  earned.  Thompson  v.  Howard,  31 
it  will  be  considerpd  further.  See  Mich.  309;  Grand  Rapids  R.  v. 
post,  Part  VI.  c.  4;  Noice  v.  Brown,  Showers,  71  Ind.  451. 

319   N.   J.  L.   569;   Morgan  v.   Smith, 


§  750 


PARENT    AND    CHILD. 


810 


dealt  with  besides.®^  Enticement  of  a  minor  child  may  be  the 
basis  of  a  parental  suit  for  damages  where  fraudulent  representa- 
tion misled  both  child  and  parent.®' 

A  parent  may  maintain  a  libel  in  the  admiralty  for  the  wrong- 
ful abduction  of  the  child,  a  minor,  and  carrying  him  beyond  the 
seas.®'  Abduction  or  kidnapping  is  an  offence  similar  to  entice- 
ment, but  implying  the  use  of  force  rather  than  persuasion;  and 
the  parental  remedies  are  similar.  Where  father  and  mother  live 
apart,  the  mother's  assent  to  the  child's  enlistment  as  a  sailor  may 
sometimes  affect  the  father's  remedies.'*  But  some  parental  rati- 
fication of  the  son's  contract  of  enlistment  should  be  shown,  in 
order  to  defeat  the  parent's  right  of  action ;  and  similar  principles 
apply  in  the  case  of  an  army  enlistment;  there  being,  doubtless, 
cases  where  a  parent  may  sue  one  at  law  for  unlawfully  harboring 
and  concealing  his  young  child,  and  so  inducing  him  to  enlist  as  a 
soldier.®^ 

There  must  be  a  reasonable  limit  to  suits  by  the  parent  for  loss 
of  his  child's  services  or  society.  Hence  it  is  now  well  settled  in 
this  country  that  the  parent  cannot  sue  for  enticing  his  child  into 
a  marriage  against  the  parent's  consent.'®  For  a  forcible  abduc- 
tion, resulting  in  an  imperfect  marriage,  and  aggravated  cases  of  a 
like  nature,  where,  in  fact,  there  is  not  a  valid  union,  there  might 
be  a  remedy.  So  the  marriage  statutes  not  unfrequently  provide 
penalties  to  be  meted  out  to  offenders  who  aid  and  encourage  infant* 
in  evading  statutes  requiring  the  consent  of  parents  or  guardians. 
But  for  drawing  children  of  suitable  age  into  a  marriage  which 


91.  People  V.  Marshall,  59  Cal.  386; 
Gtate  V.  Gordon,  46  N.  J.  L.  432. 
Whether  force  or  persuasion  was  used 
in  such  abduction  of  a  child  does  not 
affect  the  parental  right  of  action. 
Lawrence  v.  Spence,  99^  N.  Y.  669. 
Eut  criminal  prosecutions  for  entic- 
ing, etc.,  for  purposes  of  prostitution 
may  fail,  where  it  appears  that  the 
child  was  lewd  and  went  of  her  ovra 
free  will,  being  of  suitable  age.  Peo- 
ple V.  Plath,  100  N.  Y.  590;  Jenkina 
V.  The  State,  15  Lea,  674,  People  v. 
Cummons,  56  Mich.  544. 

92.  As  where  a  married  man  gained 
a  female  child's  affections  and  in- 
duced the  father '3  consent  to  their 
marriage   by    fraudulently   represent- 


ing himself  as  single,  and  the  girl, 
on  discovering  the  falsehood,  com- 
mitted suicide.  Lawyer  v.  Fritcher, 
130  N.  Y.  239. 

93.  Steele  v.  Thacher,  Ware,  91; 
Plummer  v.  "Webb,  4  Mason,  380.  Se© 
Cutting  V.  Seabury,  Sprague,  522; 
Weeks  v.  Holmes,  12  Cush.  215. 

94.  Wodell  V,  Coggeshall,  2  Met.  89. 
And  see  Worcester  v.  Marchant,  14 
Pick.  510. 

95.  Caughey  v.  Smith,  47  N.  Y.  244. 

96.  Jones  v.  Tevis,  4  Litt.  25;  Her- 
vey  V.  Moseley,  7  Gray,  479;  Good- 
win V.  Thompson,  2  Green  (la.),  329. 
But  see  Hills  v.  Hobert,  2  Root,  48. 
It  is  not  "kidnapping"  to  carry 
away  a  girl  of  suitable  age  and  then. 


811  CUSTODY  OF  CHILD.  §  751 

pleases  themselves,  the  law  affords  no  redress ;  nor  can  it  punish 
for  the  sake  of  parental  discipline.  And  even  though  the  match  be 
unhappy,  yet  marriage  must  supersede  the  filial  relation.'^  Nor 
can  a  parent  sue  a  school  teacher,  school  trustees,  or  others,  for 
excluding  his  children  from  school;  the  right  of  action,  if  any, 
being  in  the  child,'*  and  there  being  no  real  loss  of  services  conse- 
quent upon  the  affront.  In  short,  the  general  rule  is  to  place  all 
actions  by  the  parent  on  the  sole  ground  of  value  of  the  lost  services 
of  the  child,  who  is  regarded  as  a  servant  for  the  purpose  of  the 
suit;  not  to  punish,  for  the  sake  of  the  father,  those  who  wrong 
the  child." 

The  damages  should  be  measured  by  the  nature  of  the  injury 
which  caused  the  parent's  suffering,  and  are  not  to  be  affected  by 
evidence  of  his  language  and  conduct  at  the  time.^ 

§  751.  Contests  for  Custody  between  Husband  and  Wife,  etc. 

Where  a  father  is  entitled  to  the  possession  of  his  minor  child 
as  against  all  of  the  world  except  its  mother,  and  where  the  father 
and  mother  are  equally  entitled  to  its  possession,  he  does  not  com- 
mit the  crime  of  kidnapping  by  peaceably  taking  possession  of  it. 
And  a  person  who  assists  the  father  under  such  circumstances  is 
not  guilty  of  the  crime.^ 

It  seems  to  be  well  settled  that  even  a  parent  may  be  guilty  of 

kidnapping  his  own  child  if  he  takes  it  away  from  the  other  parent 

to  whom  its  custody  has  been  awarded,^  but  that  where  a  parent 

has  equal  right  to  the  custody  with  the  other  parent  it  is  no  crime 

marry  her  with  her  consent.   Cochran  99.  Hall  v.  Hollander,  4  B.  &  C.  660 ; 

V.  State,  91  Ga.  763.  Grinnell  v.  Wells,  7   M.  &  Gr.   1033; 

97.  Marrying  a  parent's  son  and  Eager  v.  Grimwood,  1  Exch.  61.  But 
heir  ■was  a  civil  injury  at  common  law,  see  dictum  in  Stephenson  v.  Hall,  14 
during   the   continuance   of  the   mill-  Barb.  222. 

tary  tenures,  for  thereby  the  parent  1.  Stowe  v.  Heywood,  89  Mass.  118. 

lost  the  value  of  his  child's  marriage;  2.  State  v.  Dewey  (la.),  136  N.  W. 

but  this  injury  ceased  long  ago,  with  533,  40  L.  E.  A.  (N.  S.)  478. 

the  right  on  which  it  was  founded.  A    separated   mother   in   possession 

See  3  Bl.  Com.  140,  and  notes.     But  of  a  minor  child  cannot  prosecute  as 

see  Lawyer   v.   Fritcher,   130   N.   Y.  a  kidnapper  the  father  who  gets  the 

239.  child  away.    Burns  v.  Commonwealth, 

98.  Spear   v.   Cummings,   23    Pick.  129  Pa.  138. 

7^24 ;    Donahue    v.    Richards,    38    Me.  3.    Comm.    v.    Nickerson,    5    Allen 

376;   Boyd  v.  Blaisdell,  15   Ind.  73;  (Mass.),  518;  State  v.  Farrar,  41  N. 

Stephenson    v.    Hall,    14    Barb.    222.  H.  53;  State  v.  Rhodes,  29  Wash.  61, 

Contra,  Eoe  v.  Deming,  21  Ohio  St.  69  P.  389. 
666. 


§  751  PARENT  AND  CHILD.  812 

to  take  it  awaj.*  Tbose  agents  who  assist  the  parent  to  take  away 
the  child  are  usually  in  the  same  situation  as  the  principal,"  but 
it  is  held  in  a  recent  case  ®  that  although  the  wife  might  have  a 
right  to  entice  a  child  away  fi-om  the  father,  still  that  she  could  not 
confer  this  right  even  on  her  second  husband,  the  stepfather  of  the 
child,  and  that  he  might  be  held  for  kidnapping  the  child  for  the 
mother.  The  decision  is  supported  by  the  rather  inconclusive 
reasoning  that  any  other  construction  of  the  statute  would  result 
in  requiring  the  parent  to  first  ascertain  whether  the  party  who 
took  the  child  away  is  an  agent  of  the  other  parent  before  having 
him  arrested.  A  better  reason  for  the  rule  is  that  the  object  of 
the  statute  is  to  protect  the  parents  from  the  mental  anguish  of  the 
disappearance  of  the  child. 

A  grandmother  is  justified  in  shooting  her  son-in-law  when  he  is 
trying  to  break  into  her  house  to  get  his  child  and  threatening  to 
kill  the  defendant.^  And  where  the  husband  and  wife  are  strug- 
gling over  the  possession  of  the  child,  and  the  husband  shoots  the 
wife,  it  is  no  defence  that  the  child  was  being  strangled  in  the 
struggle  where  the  husband  might  have  prevented  this  by  ceasing 
the  struggle.® 

4.  Hunt  V.  Hunt,  94  Ga.  257,  21  S.      216,  21  P.  1075;  People  v.  Congdon, 
E.  515;   State  v.  Breslin   (Ida.),  112       77  Mich.  351,  43  N.  W.  986. 

P.  1053;  Burns  v.  Comm.,  129  Pa.  138,  6.  State  v.  Brandenberg  (Mo.),  134 

18  A.   756;   State  v.  Angel,  42  Kan.  S.  W.  529,  32  L.  E.  A.   (N.  S.)   845. 

216,  21  P.   1075;   Biggs  v.  State,  13  7.   State  t.  Perkins,  88   Conn.   360, 

Wyo.  94,  77  P.  901.  9^1  A.  265,  L.  E.  A.  1915A,  73, 

5.  State  V.  Breslin   (Ida.),  112  P.  8.  State  v.  Thomson,  153  N.  C.  618, 
1053 ;   Burns  v.  Comm.,  129  Pa.   138,  69  S.  E.  ?54. 

18  A.  756;   State  v.  Angel,  42  Kan. 


813  SEBVICES    OF    CHILD.  §    752 


CHAPTER  VII. 
parent's  bight  to  services  of  child. 

BicnoN  752.  Eight  of  Father  to  Child's  Labor  and  Services. 

753.  Mother's  Eights  to  Child's  Services  and  Earnings. 

754.  Loss  of  Eight  to  Child's  Services. 

755.  Parent's  Eight  of  Action  for  Child's  Labor. 

756.  Child's  Eight  of  Compensation  for  Services  to  Parent. 

§  752.  Right  of  Father  to  Child's  Labor  and  Services. 

Next  to  the  right  of  custody  of  infants  comes  that  of  the  value 
of  their  labor  and  services.  The  father,  says  Blackstone,  has  the 
benefit  of  his  children's  labor  while  they  live  with  him  and  are 
maintained  by  him ;  and  this  is  no  more  than  he  is  entitled  to 
from  his  apprentices  or  servants.®  This  right,  like  that  of  cus- 
tody, rests  upon  the  parental  duty  of  maintenance,  and  furnishes 
some  compensation  to  the  father  for  his  own  services  rendered 
the  child. 

Whether  this  right  remains  absolute  in  the  father  until  the 
child  has  obtained  full  age  is  apparently  a  matter  of  doubt.  It 
is  certainly  perfect  while  the  period  of  the  child's  nurture  con- 
tinues. But  if  this  is  all,  it  can  be  of  little  consequence,  he- 
cause  the  child's  labor  and  services  are  for  that  period  of  little 
or  no  value ;  nor  could  compensation  be  thus  afforded  for  the  many 
years  when  the  child  was  entirely  helpless.  All  will  admit  that 
the  father's  right  continues  until  the  child  reaches  fourteen.  And 
since  the  father's  guardianship  by  nature  extends  through  the 
full  term  of  the  child's  minority ;  since,  too,  he  may  by  will  place 
a  testamentary  guardian  of  his  own  choice  over  the  infant ;  since 
it  is  reasonahle  that  the  law  should  set  off  years  of  later  usefulness 
against  years  of  earlier  helplessness;  in  short,  since  the  age  of 
majority  is  fixed  as  the  period  when  an  infant  becomes  legally 
emancipated  from  his  father's  control. —  we  may  fairly  assumo 
that,  all  other  things  being  equal,  the  father  is  actually  entitled  to 
the  value  of  his  child's  labor  and  services  until  the  latter  becomea 
of  age.     This  is  the  principle  assumed  by  the  elementary  writers, 


10 


9.    1   Bl.   Com.   453;    2   Kent   Com.  10.    1    El.   Com.   453;    E^eve,   Dom. 

193.  Eel.  290. 


752 


PARENT    AND    CHILD. 


814 


and  in  most  of  the  judicial  decisions  ;^^  though  to  such  opinion 
Chancellor  Kent  appears  to  yield  a  somewhat  doubtful  assent.^^ 

The  father  is  in  this  country,  as  a  general  rule,  entitled  to  the 
sen'ices  of  minor  children^^  and  to  their  wages  if  working  for  an- 
other ^*  only  during  minority,^^  and  the  minor  child  has  no  right 
to  assign  his  wages  to  another  so  as  to  bar  the  parent  of  this  right.^*' 

We  assume  that  the  child  lives  at  home  or  is  supported  by  the 
parent.  And  if  a  child,  being  of  full  age,  chooses  to  remain  with 
the  father,  or  is  imbecile  and  needs  to  be  harbored  at  home,  the 
relation  may  continue  so  as  to  entitle  the  parent,  either  as  such 


11.  Day  V.  Everett,  7  Mass,  145 
Benson  v.  Remington,  2  Mass.  113 
Plummer  v.  Webb,  4  Mason,  380 
Gale  V.  Parrot,  1  N.  H.  28;  Nightin 
gale  V.  Withington,  15  Mass.  272 
The  Etna,  Ware,  462, 

12.  2  Kent  Com.  193. 

13.  Williams  v.  Williams  (Ala,),  81 
So,  41;  Kenure  v,  Brainerd  &  Arm- 
strong Co.,  88  Conn.  265,  91  A.  185; 
Central  of  Georgia  Kj.  Co.  v.  Cheney, 
20  Ga.  App.  393,  92  S.  E,  42;  Crox- 
ton  V,  Foreman,  13  Ind.  App.  442,  41 
N.  E.  838 ;  Henninger  v.  McGuire, 
146  la,  270,  125  N.  W.  180;  Fuller 
V.  Blair,  104  Me.  469,  72  A.  182; 
Dembinski's  Case  (Mass.),  120  N.  E. 
856;  Fox  V.  Schumann,  191  Mich.  331, 
158  N.  W.  168;  Gurley  v.  Southern 
Power  Co.,  172  N.  C.  690,  90  S.  E. 
943 ;  Young  v.  Sterling  Leather  Works 
(N,  J,),  102  A,  395, 

The  services  of  illegitimate  children^ 
while  living  with  and  working  for 
their  father  under  the  belief  that  they 
are  legitimate  are  presumed  gratuit- 
ous. Williams  v.  Halford,  73  S.  C. 
119,  53  S.  E.  88;  Adkins  v.  Hope  En- 
gineering &  Supply  Co.,  81  W.  Va. 
449,  94  S.  E,  506;  Taylor  v.  Chesa- 
peake &  O.  Ry,  Co,,  41  W,  Va.  704, 
24  S.  E.  631. 

The  parent's  right  to  the  child's 
wages  is  founded  on  the  theory  of 
compensation  for  the  support  of  the 
child.  Biggs  V.  St.  Louis,  I.  M.  &  8. 
Ry.  Co.,  91  Ark.  122,  120  8.  W.  970; 


Wheeler  v.  State,  51  Ind.  App.  622, 
100  N,  E.  25;  Rounds  Bros,  v,  Mc- 
Daniel,  133  Ky.  669,  118  S.  W.  956; 
Judgment  (1906)  101  N.  T.  S.  1119, 
115  App.  Div.  921,  reversed.  Doyle 
V.  Carney,  190  N,  Y,  386,  83  N.  E. 
37. 

14,  Kansas  City,  P,  &  G,  R,  Co.  v. 
Moon,  66  Ark,  409,  50  S,  W.  996; 
Mock  V,  Nefaer  (Ga.),  95  S.  E.  673; 
Smith  V.  Smith,  112  Ga.  351,  37  S.  E. 
407;  Royal  v.  Grant,  5  Ga,  App.  643, 
63  S.  E.  70S ;  Cox  v.  W.  T.  Adams  & 
Co.,  5  Ga.  App.  296,  63  S.  E.  60 
(laborer's  lien  may  be  enforced  by 
father  for  son's  wages  and  his  own) ; 
Benson  v.  Remington,  2  Mass,  113; 
Reeder  v,  Moore,  95  Mich,  594,  55  N, 
W,  436;  Freeman  v,  Shaw,  173  Mich. 
262,  139  X.  W.  66;  Winebremer  v. 
Eberhardt,  137  Mo.  App.  659,  119  S. 
W.  530;  Crete  Mut.  Fire  Ins.  Co.  v. 
Patz,  64  Neb.  676,  90  N.  W.  546; 
Galligan  v.  Woonsocket  St.  Ry.  Co., 
27  R.  I.  363,  62  A.  376;  Kenner  v. 
Kenner,  139  Tenn.  700,  202  S.  W. 
723,  139  Tenn.  211,  201  S.  W.  779; 
Harper  v,  Utsey  (Tex.  Civ.  App. 
1906),  97  S.  W.  508;  Dean  v.  Ore.  R. 
&  Nav.  Co.,  44  Wash,  564,  87  P,  824, 

15,  Gilman  v,  C.  W,  Dart  Hardware 
Co,,  42  Mont.  96,  111  P.  550, 

16,  Southern  Ry.  Co.  v.  King  Bros. 
&  Co,,  136  Ga,  173,  70  S,  E,  1109; 
Greider  v.  Chicago  &  E.  I.  Ry.  Co., 
140  111.  App.  246, 


815  SERVICES    OF    CHILD.  §    753 

or  on  tlie  principle  of  master  and  servant,  to  recover  for  the  child's 
"svages  in  the  same  manner.^^ 

Where  a  minor  child  is  hired  under  agreement  with  the  father, 
the  hirer  cannot  discharge  the  child  without  ^notice  to  the  parent 
■and  thereupon  proceed  to  make  a  new  contract  of  hire  with  the 
child,  independently.  The  effect  of  such  a  new  an-angement,  if 
made  without  the  knowledge  and  assent  of  the  father,  is  that  the 
latter,  on  learning  of  it,  may  either  adopt  the  contract  and  claim 
what  was  due  under  it,  or  repudiate  and  claim  the  value  of  his 
child's  services. ^^  If  a  minor  child,  without  his  father's  consent, 
enters  into  a  contract  of  hire  with  a  third  party,  the  father  may 
promptly  and  peremptorily  command  the  child  to  quit  the  service.^' 
So  if  the  permitted  service  is  illegally  pursued,  the  father  may 
terminate  it.'° 

§  753.  Mother's  Right  to  Child's  Services  and  Earnings. 

At  the  common  law  a  mother  has  no  implied  right  to  the  ser- 
vices and  earnings  of  her  minor  child ;  not  being  bound  as  a  father 
would  be  for  the  child's  maintenance.  Nor  have  her  rights  or  lia- 
bilities in  these  respects  been  usually  regarded  as  equivalent  to 
those  of  a  father,  even  where  she  is  the  only  surviving  parent.^^  But 
the  modern  tendency  in  this  country,  if  not  in  England,  is  cer- 
tainly to  treat  a  mother's  rights  with  considerable  favor,  especiallly 
if  she  be  a  widow;  and  in  several  late  cases  her  title  has  been 
upheld  in  her  minor  child's  clothing '"  or  earnings,*^  or  the  control 
of  his  services  so  far  as  concerns  third  persons ;  it  appearing  that 

17.  Brown  V.  Eamsay,  5  Dutch.  117;  key,  133  111.  636;  Snediker  v.  Ever- 
Overseers  of  Alexandria  v.  Overseers  ingham,  3  Dutch.  143.  See  Clapp  v. 
of  Bethlehem,  1  Harr.  122;  infra,  ch.  Greene,  10  Met.  439;  Campbell  v. 
5.  Campbell,  3  Stockt.  268. 

18.  Sherlock  v.  Kimmel,  75  Mo.  77.  22.  Burke  v.  Louisville  E.,  7  Heisk. 

19.  State   V.   Anderson,   104   N.   C.       451. 

771.     Statutes  forbidding  the  entice-  23.  McElmurray  v.  Turner,  86  Ga. 

ment  of  a  servant  from  the  master,  215;    Hollingsworth    v.    Swedenborg, 

etc.,  have  no  application  here.     76.  49  Ind.  378,  19  Am.  E.  687;  Tague  v. 

20.  As  in  Hunt  v.  Adams,  81  Me.  Hayward,  25  Ind.  427;  Horgan  v. 
356,  where  the  employer  persisted  in  Pacific  Mills,  158  Mass.  402,  33  N. 
keeping  the  child  at  work  on  Sunday  E.  581,  35  Am.  St.  B.  504;  Scamell 
in  violation  of  law.  v.  St.  Louis  Transit  Co.,  103  Mo.  App. 

21.  1  Bl.  Com.  453;  Commonwealth  504,  77  S.  W,  1021;  Franklin  v.  But- 
V.  Murray,  4  Binn.  487;  Riley  v.  chcr,  144  Mo.  App.  660,  129  S.  W. 
Jamesson,  3  N.  H.  29;  People  v.  428;  Trinity  Lumber  Co.  v.  Conner, 
Mercein,  3  Hill,  400;  Morris  v.  Low,  —  Tex.  Civ.  App.  — ,  187  S.  W.  1023 
4  Stew.  &  Port.  123;  Prny  v.  Gor-  (or  in  case  of  his  imprisonment  or 
iam,  31  Me.   240;   McMahon  v.  San-  desertion). 


§  V54 


PARENT    AND    CHILD. 


816 


she  was  the  surviving  parent,  and  that  the  child  had  no  probate 
guardian  and  was  not  emancipated;  and  especially  where  she  had 
borne  the  burden  of  the  child's  support.^*  Whether  such  title  on 
her  part  could  be  so  well  enforced  against  the  child's  own  consent, 
and  to  the  extent  of  depriving  the  child  of  the  fruits  of  his  own 
toil,  especially  if  the  mother  remarries,  or  does  not  support  him, 
may  be  reasonably  doubted,^^  but  the  evident  tendency  of  the  more 
recent  decisions  is  to  regard  the  mother  as  having  the  same  rights 
as  the  father  when  she  steps  into  his  place  for  any  reason. 

§  754.  Loss  of  Right  to  Child's  Services. 

But  the  duties  and  rights  of  parents  are  limited,  mutually  de- 
pendent, and  in  a  great  degree  correspondent  with  one  another. 
When  the  father  has  discharged  himself  of  the  obligation  to  support 
the  child,  or  has  obliged  the  child  to  support  himself,  and  especially 
wherever  he  has  been  remiss  in  his  own  parental  duties,  our  courts 
are  reluctant  to  admit  his  right  to  the  child's  services.  Under 
such  circumstances,  says  a  New  Hampshire  coi  t,  "  there  is  no 
principle  but  that  of  slavery  which  continues  his  right  to  receive 
the  earnings  of  his  child's  labor."^® 

It  may  appear  that  the  parent  has  waived,  or  released  his  right 
to  the  child's  services,^''  but  the  mere  fact  that  the  child  is  re- 


24.  Horgan  v.  Pacific  Mills,  158 
Mass.  402. 

25.  See  Matthewson  v.  Perry,  37 
Conn.  435;  Hammond  v.  Corbett,  50 
N.  H.  501;  Hays  v.  Seward,  24  Ind. 
352 ;  Holingsworth  v.  Swedenborg,  49 
Ind.  378;  Lind  v.  SuUestadt,  21  Hun, 
364. 

26.  Thompson  v.  Chicago,  M.  &  St. 
P.  Ky.  Co.,  U.  S.  C.  C.  Nob.  1900, 
104  F.  845;  Southern  Ey.  Co.  v.  Flem- 
ister,  120  Ga.  524,  48  S.  E.  160;  New- 
ton V.  Cooper,  13  Ga.  App.  458,  79  S. 
E.  356;  Brisco  v.  Price,  275  HI.  63, 
113  N.  E.  881;  P.  J.  Hunycutt  &  Co. 
V.  Thompson,  159  N.  C.  29,  74  S.  E. 
628 ;  Chaloux  v.  International  Paper 
Co.;  75  N.  H.  281,  73  A.  301;  Woods, 
J.,  in  Jenness  v.  Emerson,  15  N.  H. 
48i9.  But  in  this  case  the  principle 
peems  to  he  assumed  that  the  parent 's 
obligation  to  support  and  his  right  to 
receive  wages  commence  together,  con- 


tinue together,  and  ought  always  to 
teminate  together.  See  Benson  v. 
Remington,  2  Mass.  113. 

27.  In  re  Kanter,  215  F.  276;  Cul- 
berson V.  Alabama  Const.  Co.,  127  Ga. 
59^,  56  S.  E.  765,  9  L.  R.  A.  (N.  S.) 
411;  Orr  v.  Wahfeld  Mfg.  Co.,  179 
111.  App.  235;  Story  &  Clark  Piano 
Co.  V.  Davy,  —  Ind.  App.  — ,  119  N. 
E.  177;  Gray  v.  Grimm,  157  Ky.  603, 
163  S.  W.  762;  Zongker  v.  People's 
Union  Mercantile  Co.,  110  Mo.  App. 
289,  90  S.  W.  728. 

Waiver  need  he  made  before  the 
services  he  gin  but  may  take  place 
while  they  are  in  progress.  McMor- 
row  V.  McDowell,  116  Mo.  App.  289, 
00  S.  W.  728. 

The  par'ent's  conduct  while  the 
services  were  in  progress  may  be  suf- 
ficient to  show  waiver  which  need  not 
take  place  when  the  services  were 
comenced.      McMorrow  v.  Dowell,  116 


817  SERVICES    OF    CHILD.  §    754 

ceiving  his  own  wages  is  not  enough  to  show  waiver.^*  Where  the 
father  permits  the  son  to  make  his  own  contracts  and  collect  and 
use  his  own  wages  they  belong  to  the  son  who  can  recover  them 
from  the  employer,^^  and  where  a  minor  has  been  paid  in  full 
for  his  services  the  parent  cannot  recover  therefor  from  the  em- 
ployer,^" but  the  parent's  right  to  recover  for  the  child's  services 
is  not  lost  by  the  fact  that  they  were  performed  under  a  contract 
to  which  the  parent  was  not  a  party.'^ 

The  parent  may  voluntarily  relinquish  the  right  to  his  child's 
earnings,  and  may  permit  the  child  to  earn  for  himself,  receive 
his  earnings,  and  appropriate  them  at  pleasure.  He  is  not  obliged 
to  claim  such  earnings  for  the  benefit  of  his  own  creditors.^^  And 
if  the  parent  authorize  a  third  person  to  employ  and  pay  the  child, 
or  even,  as  it  is  held,  where  he  knows  that  the  infant  contracted 
on  his  own  account  and  does  not  object,  payment  to  the  child  and 
not  to  the  parent  will  be  a  sufficient  discharge.  Such  an  agree- 
ment may  be  in  express  terms,  or  it  may  be  implied  from  cir- 
cumstances.^' An  American  court  favorably  regards  contracts 
of  this  nature,  for  the  child's  benefit,  as  they  are  in  conformity 
with  the  spirit  of  free  institutions.^*  An  a  New  York  statute 
provides   that   unless   the  parent  notifies   the  minor^s   employer, 

Mo.  App.  289,  &0  S.  W.  728 ;   Liber-  he  may  thus  relinquish,  provided  this 

man  v.  Third  Ave.  K.  Co.,  54  N.  Y.  be    done   in    good    faith.      Wilson    v. 

S.  574,  25  Misc.  296,  55  N.  Y.  S.  677,  McMillan,  62  Ga.  16;  Atwood  v.  Hol- 

25    Misc.    704;    Sweet    v.    Crane,    39  comb,    39    Conn.    270;     Wambold    v. 

Okla.  248,  134  P.  1112;   Kuchenmeis-  Vick,  50  Wis.  456;   Clemens  v.  Brill- 

ter  v.   Los  Angeles   &   S.   L.   E.   Co.  hart,  17  Neb.  335.    But  the  executory 

(Utah),  172  P.  725   (where  child  was  promise    to    relinquish    is    revocable, 

supporting  himself)  ;  Jackson  v.  Jack-  Stovall  v.  Johnson,  17  Ala.   14. 

eon,  96  Va.  165,  31  S.  E.  78;  Kiley  v.  33.  See  Campbell  v.  Cooper,   34  N. 

Eiley,  38  W.  Va.  283,  18  S.  E.  569.  H.    49;    Jenness    v.    Emerson,    15   N. 

28.  Southern    Cotton    Oil    Co.    v.  H.     489;     Cloud     v.     Hamilton,     11 
Dukes,  121  Ga.  787,  49  S.  E.  788.  Humph.    104;    Armstrong   v.   McDon- 

29.  Vance  v.  Calhoun,  77  Ark,  35,       aid,    10    Barb.    300;    Atkins   v.   Sher- 
90   S.  W.   619,   113   Am.  St.  K.   Ill;       bino,  58  Vt.  248. 

Penrose    v.    Baker,    171    S.    W.    482;  34.     Snediker     v.     Everingham,     3 

Merrill  v.  Hussey,  101  Me.  439,  64  A.  Dutch.    143;    Cloud   v.    Hamilton,    11 

819;    Daniel    v.    Atlantic   Coast   Line  Humph.  104.     An  infant  may  sue  for 

R.  Co.,  86  S.  E.  174.  breach   of   contract  for   employment. 

80.  Ping  Min.  &  Mill  Co.  v.  Grant,  even    though    the    father    might    also 
68  Kan.  732,  75  P.  1044.  sue;    relinquishment    of    the    latter 's 

81.  Scamell  v.  St.  Louis  Transit  Co.,  right     being     implied     from     cireum- 
103  Mo.  App.  504,  77  S.  W.  1021.  stances.     Benziger  v.  Miller,  50  Ala. 

83.  Even  if  the  father  is  insolvent,       206.  See  post,  ch.  5. 

52 


§  754 


PAEEIS'T    AND    CHILD. 


81S 


within  thirty  dajs  after  the  commencemeiit  of  service,  that  he 
claims  the  wages,  payment  to  the  minor  will  be  good.'^ 

The  father  may  by  his  own  delay  and  laches  forfeit  the  right  of 
action  for  'his  son's  wages;  as  where  the  minor  agrees  to  work 
at  certain  monthly  wages  to  be  paid  to  himself,  and  the  father, 
knowing  of  the  agreement,  gives  no  notice  of  his  objection,  but 
waits  until  the  work  has  been  done  and  payment  is  made  to  the 
child,  before  making  a  demand.^*^  But  if  the  father  has  given 
seasonable  notice  of  his  dissent  and  demand  to  the  stranger  hiring 
his  son,  the  fact  that  the  son  continues  to  work  against  his  ex- 
press dissent,  and  that  the  stranger  notified  him  to  come  and  take 
his  son  away  and  he  neglected  to  do  so,  will  not  preclude  him  from 
recovering  the  wages.^'  Nor  does  the  fact  that  the  son  has 
agreed  with  his  father  to  buy  out  his  time  for  the  remainder  of 
his  minority  by  paying  a  certain  siun  therefor,  which  has  not 
been  paid,  prevent  the  father  from  recovering  his  wages  pending 
the  payment  of  such  eum.^* 

We  may  add  that,  whatever  private  arrangement  may  exist 
between  the  father  and  his  son,  unless  it  is  brought  to  the  em' 
ployer's  notice,  it  cannot  be  set  up  to  justify  payment  to  the  minor 
himself.  As,  for  instance,  where  father  and  son  had  secretely 
agreed  that  the  latter  should  have  his  own  wages.^*  And  the  pub- 
lication, by  a  parent,  of  a  notice  of  his  son's  emancipation,  more 
liberal  to  the  latter  than  the  actual  agreement  between  them,  will 
not,  as  against  one  who  has  no  knowledge  of  the  publication,  estop 
the  father  from  insisting  on  such  right  to  his  son's  wages  as  the 
contract  between  them  actually  gives.*°  But  the  usage  of  father 
and  son  may  be  alleged.*'^ 

A  contract  by  the  parent  to  assign  the  services  of  the  child 
and  to  place  him  in  the  control  of  the  assignee  is  not  contrary  to 
public  policy  if  it  is  not  prejudicial  to  the  child's  welfare." 

One  who  employs  the  minor  son  of  another  cannot  be  liable  to 


35.  Watson  v.  Kemp,  59  N.  T.  S. 
142,  42  App.  Div.  372;  Langer  v. 
Kaufman,  157  N.  Y.  S.  825,  94  Misc. 
216;  N.  Y.  Laws,  1850,  p.  579;  Her- 
rick  V.  Fritcher,  47  Barb.  589.  And 
see  Everett  v.  Sherfey,  1  la.  356. 

36.  Smith  v.  Smith,  30  Conn.  111. 
87.  76. 

38.  Cahill  v.  Patterson,  30  Vt.  592. 
And   see    KaufFelt    v.    Moderwell,    21 


Penn.  St.  222;  Cloud  v.  Hamilton,  11 
Humph.  104;  Whiting  v.  Earle,  3 
Pick.  201. 

39.  Kaufifelt  v.  Moderwell,  21  Penn, 
St.  222. 

40.  Mason  v.  Hutchins,  32  Vt.  780. 

41.  Perlinau  v.  Phelps,  25  Vt.  478; 
Canovar  v.  Cooper,  3  Barb.  115. 

42.  Anderson   v.    Young,    54   S.   C. 
388,  32   S.  E.   448,  44   L,  R.  A.  277. 


819  SERVICES    OF    CHILD.  §    754: 

the  father  as  for  breach  of  contract,  because  of  such  minor's  de- 
linquencies. Hence  it  is  held,  that  where  the  father  contracts 
that  his  minor  son  shall  work  for  a  specified  time  and  price,  and 
the  son  leaves  his  employer  before  the  expiration  of  the  time, 
though  against  his  father's  will,  the  father  can  only  recover  for 
the  time  of  actual  employment,  although  the  employer  assented 
to  the  departure  ;*'  and  the  child's  breach  of  specified  conditions  of 
notice  before  quitting  bars  the  father's  recovery  of  wages  ac- 
cordingly.^* But  where  the  minor  is  hired  to  serve  for  a  specified 
time,  the  employer  who  contracted  with  the  parent  should  notify 
the  latter  of  any  failure  of  duty  on  the  child's  part  before  dis- 
charging the  child,  nor  should  he  discharge  without  notice  to  the 
parent.*^  Where  a  father  and  his  minor  son  agree  that  the  latter 
shall  work  for  B.  until  his  majority,  and  be  paid  the  wages,  this 
does  not  debar  the  father  from  suing  B.  for  a  breach  of  the 
agreement  and  recovering  the  expense  of  finding  other  employ- 
ment for  the  son.*' 

If  a  father  place  his  minor  son  to  work  for  another,  for  no 
illegal  purpose,  and  without  knowledge  and  assent  as  to  his  illegal 
employment  in  fact,  he  is  still  entitled  to  compensation  for  his 
son's  services ;  as  where  a  son  is  employed  by  another  in  unlaw- 
fully selling  intoxicating  liquors,  the  father  being  ignorant  of  the 
nature  and  character  of  the  services  while  they  were  being  per- 
formed.*^ 

Wages  due  a  minor  seaman  belong  to  his  father,  and  the  latter 
may  sue  for  them  in  admiralty.**  And  pa^Tuent  of  such  wages 
to  the  son,  while  he  was  known  by  his  employer  to  have  been 
less  than  twenty-one  at  the  time  of  making  the  contract,  furnishes 
no  defence  to  an  action  by  the  father,  who  had  no  knowledge 

43.  Hennessy  v.  Stewart,  31  Vt.  notice  to  the  parent.  Sherlock  v. 
486.      See   Schoenberg  v.   Voight,   36       Kimmel,  75  Mo.  77. 

Mich.  310,  where,  the  employment  be-  46.  Dickinson  v.  Talmage,  138  Mass, 

ing    quantum    meruit,    the    employer  249.     As  to  the  effect  of  mere  notice 

could    show    that    the    son    had    em-  by  the  father  to  the  employer,  that 

bezzled  more  than  his  services   were  he  shall  exact  payment,  see  Williams 

worth.      But   cf.   The  Lucy  Anne,   3  v.  Williams,  132  Mass.  304. 

Ware,   253.  47.  Eme?;y  v.  Kempton,  2  Gray,  237. 

44.  Tennessee  Man.  Co.  v.  James,  91  48.  Gifford  v.  KoUock,  3  Ware,  45. 
Tenn.  154.  As  to  the  effect  of  desertion  by  the 

45.  Day  v.  Oglesby,  53  Ga.  646.  child  after  attaining  majority,  sea 
SemhJe,   a    child   may   be    discharged       Coffin  v.  Shaw,  3  Ware,  82, 

for    suitable    reason    without    giving 


§  755 


PARENT    AND    CHILD. 


820 


of  his  hiring  until  after  the  wages  were  earned.*'  Nor  is  the 
father,  in  such  case,  affected  bj  the  terms  of  the  shipping  articles, 
because  it  is  an  express  contract  which,  as  against  him,  the  son 
has  no  right  to  make;  he  can  claim  under  a  quantum  meruit  for 
the  value  of  the  services.  But  mercantile  custom  may  determine 
certain  questions  as  to  the  remedy.^" 

As  to  enlistments  in  the  army  or  navy  of  the  United  States, 
the  laws  contemplate  that  the  contract  is  personal  and  for  the 
benefit  of  the  infant ;  and  pay,  bounties,  and  prize-money  in  gen- 
eral, though  earned  under  State  laws,  are  held  to  belong  to  the 
eon,  and  not  to  the  father.^^ 

The  parent  may  lose  the  right  to  the  child's  services  by  operation 
of  law  as  where  the  child  marries  his  new  obligations  to  his  wife 
are  considered  superior  to  those  to  his  parents  and  the  parents 
have  no  further  rights  in  his  wages,^^  and  the  parent  has  no  remedy 
for  loss  of  earnings  if  the  son  is  lawfully  committed  to  jail  for  a 
crime.^^  When  the  parent  is  a  pauper  and  is  maintained  by  a  town, 
such  town  is  held  not  entitled  to  the  earnings  of  a  minor  child 
who  is  not  himself  a  pauper. 


54 


§  755.  Parent's  Right  of  Action  for  Child's  Labor. 

The  parent  may  recover  the  wages  of  the  minor  child  in  an 
action    for    work    and    labor,^^    and    not    in    the    name   of    the 


49.  White  V.  Henry,  24  Me.  531. 
See  Weeks  v.  Holmes,   12   Cush.   215. 

50.  Bishop  V.  Shepherd,  23  Pick.  492, 

51.  United  States  v.  Bainbridge,  1 
Mason,  84 ;  Baker  v.  Baker,  41  Vt.  55 ; 
Banks  v.  Conant,  14  Allen,  497;  Mears 
V.  Bickford,  55  Me.  528;  Carson  v. 
Watts,  3  Doug.  350;  Cadwell  v.  Sher- 
man, 145  111.  348;  Magee  v.  Magee, 
65  111,  255.  But  cf.  Ginn  v.  Ginn, 
38  Ind.   526. 

52.  A  father  may  recover  for  loss  of 
services  of  an  adult  daughter  who 
though  married  was  separated  from 
her  husband  and  a  member  of  such 
father's  family,  where  such  loss  of 
services  was  the  result  of  an  illegal 
carnal  assault.  Palmer  v.  Baum,  123 
ni.  App.  584 ;  Comomnwealth  v. 
Graham,  157  Mass.  73,  31  N.  E.  706, 
16  L.  R.  A.  578,  35  Am.  St.  Rep. 
504.    An  infant  son  who  marries  must 


use  his  earnings  to  support  his  wife. 
Commonwealth  v.  Graham,  157  Mass. 
73. 

People  V.  Masten,  79  Hun,  580. 

Jenness  v.   Emerson,   15   N.  H. 


53. 
54, 

486, 
55. 

App. 


Cannon  v.  McKenzie,  3  Cal. 
286,  85  P.  130;  Weaver  v. 
Thompson,  143  Ga.  526,  85  S.  E.  69«; 
Sapp.  V.  Parrish,  3  Ga.  App.  234,  59 
S.  E.  821;Kooser  v.  Housh,  78  111. 
App.  98;  Weeks  v.  Holmes,  66  Mass. 
215. 

The  employer  may  deduct  any  loss 
caused  by  the  unfaithfulness  of  the 
child  or  his  absence  without  leave. 
Moulton  V.  Trask,  50  Mass.  (9  Mete.) 
557. 

The  mere  fact  that  the  father  noti- 
fies the  employer  that  he  shall  expect 
to  receive  the  wages  of  his  minor  son 
is  not  enough  to  entitle  him  to  them. 


821 


SERVICES    OF    CHILD. 


§  756 


r,8 


child'^®  unless  waived,^^  or  unless  the  child  has  been  emancipated'' 
and  the  employer  may  set  off  the  reasonable  value  of  necessaries 
furnished  the  child. '^^ 

The  right  of  action  to  recover  for  the  services  of  a  minor  is 
presumed  to  be  iu  his  father.®"  And  the  father  may  charge  ser- 
vices rendered  by  his  son,  as  a  master  for  his  apprentice  or  hired 
laborer,  and  consider  it  his  own  work.®^  The  defendant  has  the 
burden  of  proving  any  special  contract  set  up,  as  that  the  minor's 
services  were  in  remuneration  for  board  and  care  for  him.®'^ 


§  756.  Child's  Right  of  Compensation  for  Services  to  Parent 

Where  parents  and  children  are  living  together  in  the  same 
family  there  is  no  presumption  that  legal  liability  is  raised  be' 
tween  them  by  work  done  by  the  child  or  by  financial  transactions 
between  them  relating  to  family  expenses  but  these  questions  are 
for  the  jury  to  consider,®^  A  minor  son  who  occupies  the  posi- 
tion of  a  son  in  his  father's  household  is  not  entitled  to  compensa- 
tion for  services  rendered  in  caring  for  his  father  and  mother  in 


as  where  he  has  failed  to  provide  for 
the  son  and  he  is  working  for  his 
grandfather.  Wililams  v.  Williams, 
132  Mass.  304;  Inness  v.  Meyer,  93 
Neb.  43,  139  N.  W.  836;  Wolf  v. 
Vannoy,  154  N.  W.  215;  Daniel  v. 
Atlantic  Coast  Line  E.  Co.,  86  S.  E. 
174. 

Defenses.  Fanton  v.  Byrum,  26  S. 
D.  366,  128  N.  W.  325;  Letts  v. 
Brooks,  Hill  &  Den.  36;  Van  Dorn 
V.  Young,  13  Barb.  286. 

56.  Fuller  v.  Blair,  104  Me.  469, 
72  A.  182;  Trinity  County  Lumber 
Co.  V.  Conner  (Tex.  Civ.  App.),  187 
S.  W.  1022.  See  Langer  v.  Kaufman, 
157  N.  Y.  S.  825,  94  Misc.  216 
(infant's  right  under  statute). 

57.  Biggs  V.  St.  Louis,  I.  M.  & 
S.  Ey.  Co.,  91  Ark.  122,  120  S.  W. 
970;  Allen  v.  Allen,  60  Mich.  635, 
27  N.  W.  702;  McMorrow  v.  Dowell, 
116  Mo.  App.  289,  90  S.  W.  728. 

68.  In  re  Haskell,  228  F.  819; 
Freeman  v.  Shaw,  173  Mich.  262,  139 
N.  W.  66;  Woodward  v.  Donnell,  146 
Mo.  App.  119,  123  S.  W.  1004. 

59.  Culberson  v.  Alabama  Const.  Co., 


127  Ga.  599,  5€  S.  E.  765,  9  L.  E.  A. 
(N.  S.)  411;  Newton  v.  Cooper,  13 
Ga.  App.  458,  79  S.  E.  356;  Bounds 
Bros.  V.  McDaniel,  133  Ky.  669,  118 
S.   W.   956. 

60.  Dufield  V.  Cross,  12  111.  397; 
Shute  V.  Dorr,  5  Wend.  204 ;  Hollings- 
worth  V.  Swedenborg,  49  Ind.  378 ; 
Monaghan  v.  School  District,  38  Wis. 
100.  See  Campbell  v.  Cooper,  34  N. 
H.  49. 

61.  Brown  v.  Eamsay,  5  Dutch. 
117.  But  see  Jones  v.  Buckley,  19 
Ala.  604. 

62.  Pierce  v.  Coffee,  160  Iowa,  30, 
139  N.  W.  1092. 

63.  Hilbish  v.  Hilbish,  71  Ind.  27; 
Allen  v.  Allen,  60  Mich.  635,  27 
N.  W.  702;  Classen  v.  Pruhs,  69 
Neb.  278,  95  N.  W.  640;  Hollings- 
worth  V.  Beaver,  Tenn.  Ch.  App. 
1900,  59  S.  W.  464;  Myers  v.  Myers, 
47  W.  Va.  487,  35  S.  E.  868  (unjust 
litigation  of  undutiful  son  not  coun- 
tenanced). 

Right  of  adult  child  living  with 
parents  to  recover  for  services  ren- 
dered.    Se€  post,  §  806. 


§  756 


PAKENT    AND    CHILD. 


822 


the  absence  of  an  express  contract  to  that  effect,^*  and  whether 
a  child  was  to  be  paid  for  services  is  a  question  depending  on  all 
the  circumstances.**  Where  minor  children  of  a  widow  assist  her 
to  run  the  deceased  father's  business  there  is  no  consideration  for 
an  agreement  on  her  part  that  thej  shall  be  partners,  if  one  was 
made.®®  A  father,  after  emancipating  his  minor  child,  may  make 
a  contract  with  him  for  services.*' 


64.  In  California  by  statute  there 
is  a  presumption  that  money  paid 
between  parents  and  children  is  due, 
and  this  applies  to  money  turned  over 
by  child  to  parents.  Smith  v.  Smith 
(Cal.  App.),  176  P.  382;  Farley  v. 
Stacey,  177  Ky.  109,  197  S.  W.  636, 
1  A.  L.  R.  1181. 

65.  Cole  V.  Fitzgerald,  132  Mo. 
App.   17,  111  S.  W.  628;   Officer  v. 


Swindlehurst,  41  Mont.   126,   108   P. 
583. 

66.  Tuite  v.  Tuite,  72  N.  J.  Eq. 
740,  66  A.  1090. 

67.  MeDaniel  v.  Parish,  4  App.  D. 
C.  213;  Granrud  v.  Rea,  24  Tex. 
Civ.  App.  299,  59  S.  W,  841.  A 
parent's  contract  to  pay  his  minor 
child  for  services  is  evidence  of 
emancipation.  Granrud  v.  Rea,  24 
Tex.   Civ.  App.  299,   59    8.   W.    841. 


823  INJURY  TO  CHILD.  §  757 


CHAPTER  yill. 

ACTIONS   FOE   INJURY    TO    CHILD. 

Section  757.  Actions  for  Injury  to  Child  in  General. 

758.  Statutes   Affecting  Eight  of  Action. 

759.  Surgeon '3  Liability  for  Operation  on  Child. 

760.  Dangerous  Employment;  Father's  Consent. 

761.  Suits    for  Seduction  of  a  Child. 

762.  Parent's  Action  for  Death. 

763.  Father's  Liability  for  Fraudulent  Misstatement  of  Age. 

764.  Parties. 

765.  Negligence  of  Parent. 

766.  Contributory  Negligence  of  Child. 

767.  Pleadings. 

768.  Evidence. 

769.  Questions  for  Jury. 

770.  Damages  for  Injuries  or  Enticement. 

771.  Damages  for  Seduction. 

§  757.  Actions  for  Injury  to  Child ;  In  General. 

Two  rights  of  action  arise  for  the  negligent  injury  of  an  infant, 
one  in  the  father  to  recover  for  the  loss  of  the,  services  of  his 
child  from  the  date  of  the  injury  until  he  attains  his  majority  and 
for  the  expense  he  has  incurred  in  effecting  or  attempting  to  effect 
a  cure,  and  compensation  for  his  care  and  attention  f^  the  other  in 
the  child  to  recover  for  his  pain  and  suffering  and  the  impair- 
ment of  his  power  to  earn  money  after  he  reaches  his  majority."* 

But  the  parent  may  waive  his  right  to  assert  his  claim  for  the 
damages  to  which  he  is  entitled,  and  permit  the  child  to  recover 
the  full  amount  to  which  he  would  be  entitled  if  separate  suits 
were  brought  by  each.  Such  a  waiver  takes  place  when  the 
parent  has  actual  notice  of  the  suit  brought  by  his  child  and  of 
the  nature  and  extent  of  the  amount  he  is  seeking  to  recover,  and 
he  fails  to  interpose  any  objection  or  bring  for  himself  an  inde- 
pendent action  before  there  has  been  a  trial  and  judgment  in  the 
action  brought  by  his  child,""  and  after  the  father  has  prosecuted 

68.  Grinnell  v.  Wells,  7  M.  &  Gr.  v.  Lyons,  155  Ky.  396,  156  Ky.  222, 
1041;  Rogers  v.  Smith,  17  Ind.  323;  159  S.  V7.  971,  160  S.  W.  942,  48 
Hartfield  v.  Roper,  21  Wend.  615;  L.  R.  A.  (N.  S.)  667;  Chesapeake  & 
Dennis  v.  Clark,  2  Cush.  347.  O.    Ey.    Co.    v.    Davis,    22    Ky.    Law 

69.  Akers  v.  Fulkerson,  153  Ky.  Rep.  748,  58  S.  W.  698,  119  Ky.  641, 
228,  154  S.  W.  1101.  60  S.  W.  14,  22  Ky.  Law  Rep.  1156. 

70.  Louisville,  H.  &  St.  L.  E.  Co.  A   father  cannot   be   held   to   have 


§  T57 


PARENT    AND    CHILD. 


824 


a  suit  as  next  friend  of  the  child  for  all  damages  he  cannot  later 
bring  action  on  his  own  behalf/^ 

Hence  it  is  the  general  rule  in  this  country  that  recovery  for 
personal  injuries  to  the  minor  child  may  be  had  by  the  parent/* 
and  the  action  for  services  during  minority  must  be  brought  by 
the  parent  and  not  by  the  child. 


73 


waived  his  right  to  sue  for  injuries  to 
hia  minor  son,  where  he  is  not  shown 
to  be  connected  with  his  son's  suit 
therefor  in  any  way,  or  to  have  had 
notice  thereof,  beyond  the  fact  that 
his  son  lived  with  him.  Helm  v. 
Phelps,  157  Ky.  795,  164  S.  W.  9'2. 
The  fact  that  a  child,  by  her  father 
as  next  friend,  has  recovered  damages 
for  a  personal  injury,  does  not  bar 
the  father's  subsequent  action  for 
loss  of  services  from  the  same  injury. 
Wilton  V.  Middlesex  E.,  125  Mass. 
130.  Here  the  child  reached  majority 
before  the  father  sued. 

71.  Furste  v.  Henderson  Lotho- 
graphing  Co.,  33  Ohio  Cir.  Ct.  E. 
645. 

72.  St.  Louis,  I.  M.  &  S.  Ey.  Co. 
V.  Waren,  65  Ark.  619,  48  S.  W.  222; 
Shoemaker  v.  Jackson,  128  Iowa,  488, 
104  N.  W.  503,  1  L.  E.  A.  137;  How- 
ell V.  lola  Portland  Cement  Co.,  86 
Kan.  450,  121  P.  346;  Henry  v,  Mis- 
souri, K.  &  T.  Ey.  Co.,  98  Kan.  567, 
158  P.  857;  Meers  v.  McDowell,  110 
Ky.  926,  62  S.  W.  1013;  23  Ky.  Law 
Eep.  461,  53  L.  E.  A.  789,  96  Am.  St. 
Eep.  475;  Ballard  v.  Smith  (Ky.), 
210  S.  W.  489  (when  child  employed 
in  dangerous  work  without  knowledge 
of  parent)  ;  Slaughter  v.  Nashville 
C.  &  St.  L.  Ey.  Co.,  28  Ky.  Law  Eep. 
665,  90  S.  W.  243,  28  Ky.  Law  Eep. 
1343,  91  S.  W.  713  Cincinnati,  N.  O. 
&  T.  P.  E.  Co.  V.  Pemberton,  7  Ky. 
Law  Eep.  669 ;  Davern  v.  Bridgeford, 
13  Ky.  Law  Eep.  971, 

Even  the  parent  of  a  hastard  is 
entitled  to  his  services,  so  where  the 
parent  has  released  action  for  in- 
juries, this  bars  the  child's  action  for 
los3  of  earning  capacity.     Cincinnati, 


N.  O.  &  T.  P.  E.  Co.  V.  Pemberton, 
7  Ky.  Law  Eep.  670 ;  Dennis  v.  Clark, 
56  Mass.  347,  48  Am.  Dec.  671;  Mc- 
Greevey  v.  Boston  Elevated  Ey.  Co. 
(Mass.),  122  N.  E.  278. 

A  statute  authorizing  sv/it  by  the 
father  for  injuries  to  the  minor  child 
is  not  unconstitutional  as  assuming 
to  transfer  a  cause  of  action  from 
the  child  to  the  father.  Hess  v. 
Adamant  Manuf'g  Co.  of  America, 
66  Minn.  79,  6.8  N.  W.  774;  Nyman 
V.  Lynde,  93  Minn.  257,  101  N.  W. 
163  (criminal  abuse  of  minor  child) ; 
Sabine  v.  Stringer,  15  Mo.  App.  586; 
Scamell  v.  St.  Louis  Transit  Co.,  103 
Mo.   App.   504,   77   S.   W.   1921. 

If  the  injury  was  not  due  to  the 
negligence  of  the  defendant  employer 
the  father  cannot  recover  for  loss  of 
services  of  the  son.  Williams  v. 
Southern  Ey.  Co.,  121  N.  C.  512,  28 
S.  E.  367;  Gurley  v.  Southern  Power 
Co.,  172  N,  C.  690,  90  S.  E.  943; 
Callaghan  v.  Lake  Hopatcong  Ice  Co., 
69'  N.  J.  Law,  100,  54  A.  223;  Ken- 
ner  v.  Kenner,  139  Tenn.  700,  202 
S.  W.  723,  139  Tenn.  211,  201  S.  W. 
779;  Texas  &  P.  Ey.  Co.  v.  Hervey 
(Tex.  Civ.  App.),  89  S.  W.  1095; 
Gulf,  C.  &  S.  F.  Ey.  Co.  v.  Johnson 
(Tex.  Civ.  App.  1897),  43  S.  W.  583; 
Eishworth  v.  Moss  (Tex.  Civ.  App.), 
191  S.  W.  843;  Trow  v.  Thomas,  70 
Vt.  580,  41  A.  652 ;  Otey  v.  Bradley, 
e3  Wash.  500,  115  P.  1045;  Taylor  v. 
Chesapeake  &  O.  Ey.  Co.,  41  W.  Va. 
704,  24  S.  E.  631. 

78.  Eichardson  v.  Nelson,  221  111. 
254,  77  N.  E.  583,  123  HI.  App.  550 
(the  child  may  recover  for  loss  of 
services  after  reaching  his  majority 
only)  ;    Western    Union    Tel.    Co.    v. 


825  INJURY   TO   CHILD.  §    757 

The  action  was  originally  framed  on  the  basis  of  the  parent's 
loss  of  services  and  some  of  the  early  cases  refuse  relief  where 
the  child  was  too  young  to  render  service  and  there  is  no  evidence 
that  he  was  of  value  to  the  parent,  but  the  modern  cases  in  this 
country  regard  the  loss  of  services  as  a  fiction  and  allow  recovery 
even  in  the  absence  of  evidence  that  the  child  rendered  any  ser- 
vice whatever/* 

In  an  early  English  case  where  the  plaintiff  brought  an  action 
against  the  defendant  for  carelessly  driving  over  and  injuring  the 
plaintiff's  child,  so  that  the  plaintiff  was  obliged  to  expend  a  large 
sum  of  money  in  doctors  and  nurses,  and  it  appeared  that  the 
child  was  only  two  years  and  a  half  old,  and  incapable  of  per- 
forming any  act  of  service,  it  was  held  that  the  parent's  action 
was  not  maintainable."  ''  The  gist  of  the  action,"  it  is  here 
said,  "  is  the  loss  of  services,  and,  therefore,  though  the  relation 
of  parent  and  child  subsists,  yet,  if  the  child  is  incapable  of  per- 
forming any  services,  the  foundation  of  the  action  fails.'®  And 
it  is  doubtful  whether  the  father,  as  such,  can  even  maintain  a 
special  action  for  the  expenses  necessarily  incurred  by  him  in 
having  so  young  a  child  cured  of  the  injury.''^ 

In  this  country  the  rule  appears  to  be  more  liberal  towards  the 

parent.     A  Xew  York  court  observes  that  it  is  really  questionable 

whether  the  father  can  be  deprived  of  his  right  to  sue  for  the  loss 

of  services  on  account  of  the  child's  youth ;  though,  of  course,  the 

right  may  be  forfeited  by  the  parent's  culpable  negligence."    And 

in  Massachusetts  it  is  decided  that  if  an  infant  child,  a  member 

of  his  father's  household,  and  too  young  to  be  capable  of  rendering 

any  service  to  his  father,  is  wounded  or  otherwise  injured  by  a 

third  person,  or  by  a  mischievous  animal  o^vned  by  a  third  person, 

imder  such  circumstances  as  to  give  the  child  himself  an  action 

against  such  person  for  the  personal  injury,   and  the  father  is 

thereby  necessarily  put  to  trouble  and  expense  in  the  care  and 

cure  of  the  child,  he  may  maintain  an  action  against  such  person 

for  indemnity.     The  court  laid  down  the  rule,  however,  with  much 

caution.'^'    In  general,  by  our  American  rule,  the  parent  may  now 

Woods,  88  ni.  App.  375;  Gulf,  C.  &  76.  Bayley,  J.,  in  ih. 

S.  F.  Ry.  Co.  V.  Grisom,  36  Tex.  Civ.  77.  See  Addison,  Torts,  697;  Grin- 

App.  630,  82  S.  W.  671.  nell  v.  Wells,  S  Scot.  N.  R.  741.    Con- 

74.  Rice     v.     Norfolk-Southern     R.  tra.  Hall  v.  Hollander,  supra. 

Co.,  167  N.  C.  1,  82  S.  E.  1034.  78.  Hartfield    v.    Roper,    21    Wend. 

75.  Hall   V.   Hollander,   7   Dowl.   &       615. 

Ry.  133.  79.   Dennis   v.   Clark,   2   Cush.    347. 


757 


PARENT    AND    CHILD. 


826 


recover  for  loss  of  the  child's  services  during  minority,  or  at 
least  while  incapacitated,  and  the  reasonable  expense  of  the  child's 
sickness  and  restoration  to  health.^^  The  child's  pecuniary  ser- 
vices are  liberally  estimated.^^  The  father's  action  is  predicated 
on  pecuniary  loss,*^  and  is  dependent  on  the  child's  right  of 
action.*^ 

The  father  may  sue  for  illegal  sales  of  drug  to  minor,'*  but  not 
for  libel  against  his  daughter.*^  Trespass  lies  per  quod  for  loss  of 
services  occasioned  by  assault  and  battery  of  the  child.**  The  true 
question  here,  as  elsewhere,  seems  to  be,  whether  a  loss  of  service 
was  consequent  upon  the  injury.  For  assault  and  battery  on  the 
high  seas,  there  is  likewise  a  remedy  in  admiralty." 

And  where  an  injury  is  inflicted  upon  a  child  while  living  with 
and  in  the  service  of  another,  the  proper  remedy  of  the  father  is 
trespass  on  the  case  for  the  reversion,  as  it  were,  of  the  child's 
services ;  as  where  a  person  who  hired  the  son  of  another  put  him 
A  parent  may  recover  the  expense  of      sidered.     Ala.     Connelsville     Coal     & 


nursing  and  healing  his  minor  child 
of  such  tender  years  that  it  is  in- 
capable of  rendering  him  any  service, 
from  one  who  wilfully  or  negligently 
injures  such  child.  Sykes  v.  Lawlor, 
49  Cal.  236;  Connell  v.  Putnam,  53 
N.  H.  534.  Cf.  Karr  v.  Parks,  44 
Cal.  46;  Sawyer  v.  Sauer,  10  Kan. 
519. 

80.  Evansich  v.  Gulf  R,,  57  Tex. 
123;  Frick  v.  St.  Louis  E.,  75  Mo. 
542. 

81.  But  here,  as  in  other  suits  for 
damages,  indirect  and  unreasonable 
items  of  damage  should  be  excluded, 
as,  for  instance,  the  father's  relin- 
quishment of  a  lucrative  business  as 
nurse,  while  nursing  his  child.  Barnes 
V.  Keene,  132  N.  Y.  13.  The  loss  of 
the  child's  prospective  society,  solace, 
and  comfort,  is  not  a  basis  in  such 
suits,  but  the  pecuniary  value  of  ser- 
vice during  minority  or  as  a  servant. 
Railroad  Co.  v.  Watly,  69  Miss,  145; 
The  Louisville,  New  Albany  &  Chi- 
cago V.  Rush,  127  Ind.  545;  Leahy  v. 
Davis,  121  Mo.  227.  If  the  child  be 
a  burden,  instead  of  a  support,  in 
earning  capacity,  this  should  be  con- 


Coke  Co,  V,  Pitts,  9S  Ala.  285. 

82.  Sorrels  v,  Matthews,  129  Ga. 
319,  58  S.  E.  819,  13  L.  R,  A,  (N,S.) 
357;  Tidd  v.  Slanner  (N.  Y.),  122 
N.  E.  247;  Miles  v.  Cuthbert,  122 
N.  Y.  S.  703  (loss  of  love  and  affec- 
tion is  not  enough). 

83.  Benson  v.  City  of  Ottumwa,  143 
Iowa,  349,  121  N,  W.  1065;  Thomp- 
son V.  United  Laboratories  Co.,  221 
Mass.  276,  108  N.  E.  1042;  Regan 
V.  Superb  Theater,  220  Mass.  259,  107 
N.  E,  984  (defendant's  negligence 
must  be  shown) ;  Balke  v.  Otis  Ele- 
vator Co.,  164  N.  Y,  S,  287,  177  App. 
Div.  499'  (claim  defeated  by  failure 
to  give  notice  and  by  limitation  un- 
der Employers'  Liability  Act). 

84.  Tidd  V.  Skinner,  156  N.  Y.  S. 
885,  171  App.  Div.  98. 

85.  Pattison  v.  Gulf  Bag  Co.,  116 
La.  963,  41  So.  224,  114  Am.  St.  Rep. 
570. 

86.  Hammer  v.  Pierce,  5  Barring. 
171;  Hoover  v.  Heim,  7  Watts,  62; 
Plummer  v.  Webb,  Ware,  75;  Cowden 
V.  Wright,  24  Wend.  429.  But  as  to 
indictments,  see  Hearst  v.  Sybert, 
Cheves,  177. 

87.  Plummer  v.  Webb,  Ware,  75 


827 


INJURY    TO    CHILD. 


§  758 


upon  a  vicious  horse,  so  that  be  was  thrown  and  had  his  leg 
broken/* 

The  death  of  the  child  after  the  injury,  though  it  may,  on 
familiar  principles,  terminate  the  right  to  sue  for  the  child's  tort, 
does  not  affect  the  parent's  consequential  right  of  action.**  The 
death  occurring  before  the  commencement  of  the  suit,  if  in  con- 
sequence of  the  injury,  only  aggravates  the  parent's  remedy;  if 
the  death  is  occasioned  by  other  causes,  it  leaves  the  remedy  as  it 
stood  before.*" 

§  758.  Statutes  Affecting  Right  of  Action. 

This  right  is  affected  by  various  local  statutes'^  and  may  be 
brought  under  the  Employers'  Liability  Acts.*^  Statutes  author- 
izing suits  for  injuries  in  the  name  of  the  minor  child  prevent 
action  by  the  father  for  loss  of  services  especially  where  it  is 
provided  that  he  may  sue  for  expenses  in  caring  for  the  injured 
child.*^  A  statute  requiring  notice  in  an  action  for  personal  injury 
does  not  apply  to  an  action  by  a  father  for  loss  of  services  and 
medical  attendance  resulting  from  an  injury  to  the  son.' 


S4 


88.  Wilt  V.  Vickers,  8  Watts,  227. 

89.  Loss  of  services  from  the  time 
of  the  child  'a  injury  to  the  time  of  his 
death  may  be  recovered,  as  well  as 
incidental  expenses  incurred  for  nurs- 
ing and  medical  attendance.  Natchez 
R.  V.  Cook,  63  Miss.  38. 

90.  Plummer  v.  Webb,  Ware,  80; 
Winsmore  v.  Greenbank,  Bull.  N.  P. 
78;    Ihl  V.   Street  R.,  47   N.  Y.   317. 

91.  A  statute  authorizing  recovery 
for  personal  injuries  by  the  employee 
does  not  authorize  recovery  by  the 
parent.  Woodward  Iron  Co.  v.  Cook, 
124  Ala.  349,  27  So.  455.  And  a  stat- 
ute authorizing  the  parent  to  recover 
for  death  of  a  minor  rhild  has  no  ap- 
plication where  death  does  not  ensue. 
Bube  V.  Birmingham  Ry.  Light  & 
Power  Co.,  140  Ala.  276,  37  So.  285, 
103  Am.  St.  Rep.  33;  Jackson  v. 
Pittsburg,  C.  C.  &  St.  L.  Ry.  Co.,  140 
Ind.  241,  39  N.  E.  663,  49  Am.  St. 
Rep.  192 ;  Adams  Hotel  Co.  v.  Cobb, 
3  Ind.  T.  50,  53  S.  W.  478 ;  Gibson  v. 
Kansas  City  Packing  Box  Co.,  85  Kan. 
346,  116  P.  502;  Alexander  v.  Stand- 


ard Oil  Co.  of  Louisana,  140  La. 
54,  72  So.  806  (violation  of  statut-^ 
prohibiting  employment  of  minor  un- 
der 14  creates  no  liability  to  a  par- 
ent) ;  Mackin  v.  Detroit-Timkin  Axle 
Co.,  153  N.  W.  49;  Brunette  v.  Min- 
neapolis, St.  P.  &  S.  S.  M.  Ry.  Co., 
118  Minn.  444,  137  N.  W.  172  (stat- 
ute applicable  to  non-resident  minor)  ; 
Valenti  v.  Mesinger,  102  N.  Y.  S. 
30,  175  App.  Div.  398  (Employers' 
Liability  Act  inures  to  benefit  of  par- 
ent) ;  Dobra  v.  Lehigh  Valley  Coal 
Co.,  250  Pa.  313,  9'5  A.  465;  St.  Louis, 
L  M.  &  S.  Ry.  Co.  v.  Leazer,  119 
Tenn.  1,  107  S.  W.  684;  Stevenson 
V.  W.  M.  Ritter  Lumber  Co.,  108  Va. 
575,  62  S.  E.  351,  18  L.  R.  A.  (N.  S.) 
316. 

92.  Balke  v.  Otis  Elevator  Co.,  164 
N.  Y.  S.  287,  177  App.  Div.  499. 

93.  Tennessee  Cent.  Ry.  Co.  v. 
Boak,  115  Tenn.  720,  92  S.  W.  853. 

94.  Wysocki  v.  Wisconsin  Lakes  Ice 
&  Cartage  Co.,  125  Wis.  638,  104  N. 
W.  707. 


§  760  PARENT  AND  CHILD.  828 

Statutes  providing  that  the  mother  and  father  are  jointly  liable 
for  all  necessaries  used  by  the  family  and  are  jointly  entitled 
to  their  custody  make  no  material  change  in  the  duty  imposed 
on  the  father  to  support  the  family  and  therefore  the  father  alone 
may  bring  an  action  for  loss  of  services  in  case  of  injury  to  the 
child.''^ 

§  759.  Surgeon's  Liability  for  Operation  on  Child. 

A  surgeon  is  not  liable  for  amputating  the  foot  of  a  child  which 
is  crushed  in  the  absence  of  the  parents  and  without  their  con- 
sent where  it  is  a  case  of  emergency  and  prompt  action  is  neces- 
sary to  save  the  life  of  the  patient,  and  he  uses  his  best  judgment 
that  an  amputation  is  necessary,  where  also  he  inquires  as  to  the 
parents  and  is  informed  that  they  are  not  available."" 

§  760.  Dangerous  Employment;  Father's  Consent. 

An  employer  who  uses  one  whom  he  knows  to  be  a  minor  or 
might  in  the  exercise  of  reasonable  care  know  to  be  such  in  a 
dangerous  employment  is  liable  to  the  father  for  injuries  suffered 
in  such  employment/''  but  not  where  the  employer  did  not  know 
that  the  child  was  a  minor  or  in  the  exercise  of  ordinary  oare 
could  not  find  it  out,  the  child  appearing  to  be  of  age.^* 

If  the  father  consents  to  the  employment  of  his  minor  child  in  a 
certain  employment  he  is  chargeable  with  all  the  risks  of  the  em- 
ployment whether  he  knew  of  them  or  not."®  and  cannot  recover 
for  the  negligence  of  a  fellow-servant,^  but  consent  to  employment 

95.  Ackeret  v.  Minneapolis,  129  Ala.  205,  44  So.  974;  Reaves  v.  An- 
Minn.  190,  151  N.  W.  976,  L.  R.  A.  niston  Knitting  Mills,  154  Ala.  565, 
1915D,  1111.  45  So.  702   (although  the  employment 

96.  Luka  v.  Lowrie  (Mich.),  136  of  minors  in  the  work  was  prohibited 
N.  W.  1106,  41  L.  R.  A.  (N.  S.)  by  statute) ;  Harris  v.  Union  Cotton 
290.  Mills  (Ga.  App.),  98  S.  E.  192;  Ches- 

97.  Illinois  Cent.  R.  Co.  v.  Henon,  apeake  &  O.  Ry.  Co.  v.  De  Atley,  151 
24  Ky.  Law  Rep.  298,  68  S.  W.  456.  Ky.  109,  151  S.  W.  363;  Rowland  v. 

A  newsboy  receiving  a  commission  Little,  140  Ky.   309,  131  S.  W.   20; 

from  a  news  company  for  the  sale  of  Hetzel   v.   Wasson    Piston    Ring   Co., 

papers  is  in  the  employment  of  such  89  N.  J.  Law,  205,  98  A.  308;  Texas 

company   and  the   company   is  liable  &  P.  Ry.   Co.  v.  Putman    (Tex.  Civ. 

in  a  suit  by  the  widowed  mother  for  App.),  89  S.  W.  1095;  Pecos  &  N.  T. 

injury  to  the  boy.     Union  News  Co.  Ry.  Co.  v.  Blasengame,  42   Tex.  Civ. 

V.  Morrow,  20  Ky.  Law  Rep.  302,  46  App.  66,  93  S.  W.  187. 
S.  W.  6.  1.  Harris  v.  A.  J.  Spencer  Lumber 

98.  Chesapeake  &  O.  Ry.  Co.  v.  De  Co.,  Inc.,  64  So.  557;  Woodward  Iron 
Alley,   151   Ky.    109,   151   S.  W.   363.  Co.  v.  Cook,  124  Ala.  349,  27  So.  455; 

99  Woodward  Iron  Co.  v.  Curl,  153       Jordan    v.    New    England    Structural 


829»  INJURY    TO    CHILD.  §    760 

in  a  particular  task  does  not  involve  consent  to  a  different  work.' 
A  contract  by  which  a  father  releases  the  employer  of  his  son  from 
liability  for  injuries  suffered  is  binding  and  will  prevent  recovery 
for  such  injuries.^ 

It  is  well  settled  that  the  father  may  stipulate  as  to  the  kind  of 
work  his  child  may  be  employed  in,  and  the  consent  of  the  parent 
that  the  child  may  be  employed  at  one  kind  of  labor  is  not  con- 
sent that  he  be  placed  in  another  and  a  more  dangerous  kind  of 
work.*  It  is  a  general  rule  that  an  employer  putting  a  minor  ser- 
vant, against  his  parent's  consent,  to  do  work  by  which  the  child  is 
injured,  commits  an  actionable  wrong  for  which  the  employer  is 
liable  to  the  parent,  although  there  is  no  other  evidence  of  negli- 
gence upon  his  part.^  And  under  such  circumstances  the  minor 
S'ervant's  contributory  negligence  is  no  defence  to  such  action.' 
So  one  who  employs  a  minor  in  a  dangerous  employment  without 
the  consent  of  the  parent  is  liable  to  the  parent  for  any  loss  of 
the  minor's  services  due  to  the  employment,  without  reference  to 
whether  the  loss  resulted  from  negligence  of  the  master.'^  Con- 
sent may  appear  from  acquiescence  and  failure  to  object  after 
knowledge  of  the  particular  employment.® 

r-o.,  197  Mass.  43,  83  N.  E.  332;  Texas  30  L.  R.   A.    (N.  S.)    311;   Hillsboro 

&  P.  B.  V.  Hervey  (Tex.  Civ.  App.),  Cotton   Mills   v.   King,   51   Tex.  Civ. 

89  8.  W,  1095,  App,  518,  112  S.  W.  132. 

2.  Marbury  Lumber  Co.  v.  "West-  5.  Union  P.  E.  Co.  v.  Fort,  17  Wall, 
brook,  121  Ala.  179,  25  So.  914;  Dim-  553,  21  L.  ed.  739. 

mick  Pipe  Co.  v.  Wood,  139  Ala.  282,  6,   Marbury  Lumber   Co,   v.   West- 

35  So.  885;  Braswell  v.  Garfield  Cot-  brook,    121    Ala,    179,    25    So,    914; 

ton  Oil  Mill  Co,,  7  Ga.  App.  167,  66  Haynie    v.    North    Carolina    Electric 

S.  E.  539;  Berry  v.  Majestic  Milling  Power  Co.,   157  N.  C.   503,  73   S,  E, 

Co.     (Mo.    App.),    210    S.    W.    434;  198,  37  L.   R.  A.    (N.  S.)    580. 
Haynie    v.    North    Carolin."    Electric  7.  Woodward  Iron  Co.  v.  Curl,  153 

Power  Co.,  157  N.  C.  503,  7o   "*    E.  Ala.  205,  44  So.  974;  Jefferson  Fer- 

198;  Southwestern  Telegraph  &  Vole-  tilizer  Co.  v.  Burns,  10  Ala.  App.  301, 

phone  Co.  v.  Coffey  (Tex.  Civ.  App.),  64  So,  667;   King  v.  Floding,  18  Ga. 

167  S.  W.  8.  App.  280,  89  S,  E,  451;  Hendrickson 

3.  New  V,  Southern  Ry.  Co.,  116  v.  Louisville  &  N.  Ry.  Co.,  137  Ky. 
Ga.  147,  42  S.  E.  391,  59  L.  R.  A.  562,  126  S.  W.  117;  Boutotte  ▼. 
115;  contra,  Texas  &  P.  Ry.  Co.  v.  Daigle,  113  Me.  539,  95  A.  213;  Webb 
Putnam  (Tex.  Civ.  App.),  63  S.  W.  v.  Southern  Ry.  Co.,  104  S.  C.  89,  88 
910  (recovery  for  injuries  received  S.  E.  297;  Cook  v.  Urban  (Tex.  Cir. 
from     negligence     of    employer     not  App.),  167  S.  W.  251. 

barred).  8.  Warrior  Mfg.  Co.  v.   Jones,  155 

4.  Bmswell  v.  Garfield  Cotton  Oil  Ala.  379,  46  So.  456;  Tennessee  Coal, 
Mill  Co.,  7  Ga.  App.  167,  66  S.  E.  Iron  &  R.  Co.  v.  Crotwell,  156  Ala. 
539;  Hendrickson  v.  Louisville  &  N.  304,  47  So.  64;  King  v.  Floding,  18 
B.  Co.,  137  Ky.  562,  126  S.  W.  117,  Ga.   App.  280,  89  8.  E.  451;   Louis- 


761 


PAREXT    AND    CHILD. 


830 


§  761.  Suits  for  Seduction  of  a  Child. 

Even  in  seduction  suits  the  same  technical  principle  is  rather 
absurdlv,  though  not  always  imkindly,  applied.  The  foundation 
of  the  action  by  a  father  to  recover  damages  against  the  wrong-doer 
for  the  seduction  of  his  daughter  has  been  uniformly  placed,  from 
the  earliest  times,  not  upon  the  seduction  itself,  which  is  the  wrong- 
ful act  of  the  defendant,  but  upon  the  loss  of  service  of  the 
daughter,  in  which  he  is  supposed  to  have  a  legal  right  or  interest.* 
At  common  law  the  seduced  woman  herself  has  no  cause  of  action 
against  her  seducer.^"  And  without  some  allegation  and  proof  of 
loss  of  service  in  a  parent  or  master  the  action  is  not  maintainable. 
Our  local  statutes,  however,  sometimes  change  this  basis  of  action 
in  favor  rather  of  a  loss  of  society  and  solace." 

Thus,  where  it  was  alleged  by  the  father  that  his  daughter  was 
a  poor  person,  maintaining  herself  by  her  labor  and  personal  ser- 
vices, and  not  of  sufficient  ability  to  maintain  herself  otherwise ; 
and  that,  by  being  debauched,  she  became  unable  to  work,  and  had 
to  be  maintained  by  her  father  at  considerable  expense, —  all  this 
was  held  insufficient  allegation  of  loss  of  sen^ice.^^  So  it  is  not 
enough  to  show  that  the  father  had  apprenticed  his  daughter  to 
the  defendant  to  learn  millinery,  and  had  paid  him  a  large  sum 
of  money  to  instruct  her  in  a  trade,  but  that  the  defendant  seduced 
her  and  rendered  her  unable,  by  reason  of  pregnancy,  to  learn  the 
trade.'" 

But  the  evidence  of  service  may  be  very  slight ;  for  the  making 
tea,  milking  cows,  or  doing  any  household  work  at  the  command 
of  the  parent,  is  esteemed  quite  sufficient  to  constitute  the  relation- 
ship of  master  and  servant,  when  the  girl  is  residing  with  her 
father  and  mother ;  ^*  and  the  right  of  action  once  clear,  damages 
far  in  excess  of  the  loss  of  service  are  usually  recoverable,  damages 


Tille  &  N.  E.  Co.  V.  Davis,  32  Ky. 
Law  Rep.  306,  105  S.  W.  455;  Mauck 
T.  Southern  Ev.  Co.  in  Kentucky,  148 
Kj.  122,  146  S.  W.  28. 

9.  Grinnell  v.  Wells,  7  M.  &  Gr. 
1033;  Eager  v.  Grimwood,  1  Esch. 
61 ;  Van  Horn  v.  Freeman,  1  Halst. 
322;  McDaniel  v.  Edward,  7  Ired. 
408;  Sutton  v.  Huffman,  32  N.  J.  L. 
58;  Knight  v.  Wilcox,  14  N.  Y.  413; 
Bartley  v.  Richtmeyer,   4  Comst.   38. 

10.  Woodward  v.  Anderson,  9  Bush, 
€24. 


11.  Graham  v.  McEeynolds,  90  Tenn. 
673;  Stoudt  v.  Shepherd,  73  Mich. 
588, 

12.  Grinnell  v.  Wells,  7  M.  &  Gr. 
1033, 

13.  Harris  v.  Butler,  2  M.  &  W. 
539. 

14.  1  Addison,  Torts,  658,  701 ;  Ben- 
nett V.  Allcott,  2  T.  E.  166;  Thomp- 
son v.  Eos3,  5  Hurl.  &  Nor.  16;  Man- 
vell  V.  Thomson,  2  Car.  &  P.  303; 
Vessel  V.  Cole,  10  Mo.  634;  2  Kent, 
Com.  205,  12th  ed.,  and  cases  cited. 


831  INJURY  TO  CHILD.  §  761 

whicii  practically  regard  tlie  wrong  done  by  her  disgrace  to  the 
young  woman's  household  and  to  her  own  character  and  prospects. 
Thus  will  justice,  seeing  the  goal  clearly,  drive  straight  towards  it, 
regardless  of  obstructions ;  either  finding  an  avenue  or  making  one. 

But  to  render  this  action  maintainable,  the  parent  must  have 
a  genuine  right  to  his  daughter's  services,  however  slight  the  ser- 
vices which  may  be  exacted.  If,  therefore,  the  daughter,  at  the 
time  she  was  seduced,  was  at  the  head  of  an  establishment  of  her 
own,  and  her  father  was  living  with  her  as  a  visitor  in.  her  own 
house,  she  cannot  be  treated  as  holding  the  subordinate  position  of 
a  servant,  and  the  action  will  not  lie.^^  Nor  can  a  parent  sue,  as 
the  stricter  rule  is  laid  doAvn,  where  the  child  is  really  in  the 
service  of  another,  and,  by  permission  of  her  mistress,  comes  home 
to  render  slight  assistance  from  time  to  time.^'  Xor  where  the 
child  is  seduced  while  in  the  service  of  another,  and  then  returns 
home  and  remains  there  in  a  state  of  pregnancy.^^  IN^or  where 
one's  daughter  had  been  left  to  shift  for  herself  and  was  another's 
household  servant.^^  But  if  the  daughter  is  away  only  on  a  tem- 
porary visit,  and  still  forms  part  of  her  father's  family,  and  makes 
herself  serviceable  to  him  while  she  is  at  home,  such  temporary 
absence  constitutes  no  impediment  to  an  action  by  the  father  for 
damages.^'  In  a  word,  the  question  is  whether  there  was,  at  the 
time  the  injury  was  committed,  a  bona  fide  relation  of  constructive 
service  between  parent  and  child,  which  suffered  by  the  wrongful 
act  of  the  defendant. 

This  rule  of  constructive  service  is,  however,  carried  very  far, 
by  many  of  our  later  and  humane  decisions.^"    Such  cases  illustrate 

15.  Manley  v.  Fields,  7  C.  B.  (N.  S.)  daughter  -was  about  twenty-two  years 
96.  of  age  ■when  seduced,  and  was  living 

16.  Thompson  v.  Ross,  5  Hurl.  &  a  part  of  the  time  with  her  brother, 
Nor.  16 ;  Hedges  v.  Tagg,  L.  R.  7  Ex.  ^vho  occupied  a  farm  about  a  mil© 
283;  Blaymire  v.  Haley,  6  M.  &  W.  from  her  father,  and  part  of  the  time 
55.  And  see  Kinney  v.  Laughenour,  with  her  father.  While  the  rule  was 
89  N.  C.  365.  fully    approved   that   the    father   and 

17.  Davies  v.  Williama,  10  Q.  B.  daughter  must  have  stood  in  the  rela- 
725.  tion    of   master    and    servant    at    the 

18.  Ogborn  v.  Francis,  44  17.  J.  L.  time  the  injury  was  committed,  it 
441.  was  further  held  that  it  was  not  nec- 

19.  Griffiths  v.  Teetgen,  15  C.  B.  cssary  that  the  daughter  should  be 
344;  28  E.  L.  &  Eq.  371.  See,  further,  in  the  actual  service  of  the  father  at 
1  Addison.  Torts.  698 ;  Evans  v.  Wal-  the  time  of  the  seduction,  if  the  rela- 
ton.  L.  E.  2  C.  P.  615.  tion  of  master  and  servant  then  ex- 

20.  There  is  a  New  .Tersey  case,  is+ed  between  them;  in  other  words, 
where  it  appeared  in  evidence  that  the       that  the  service  rendered  need  not  bo 


761 


PARENT    AND    CHILD. 


832 


the  generous  disposition  with  whicli  the  courts  uphold  a  parent'e 
right  of  action  in  seduction  suits ;  and  it  is  probably  at  any  point 
short  of  her  abode  in  another  household  where  the  parent  has 
relinquished  the  right  of  her  service  past  the  power  of  recall,  that 
the  bounds  should  be  placed  to  this  rule  of  a  daughter's  service 
entitling  the  parent  to  sue  for  damages.^^ 


house  service,  nor  service  from  day  to 
day,  but  that  any  accustomed  service 
lost  by  the  injury  •would  sustain  the 
action.  Sutton  v.  Huffman,  32  N.  J.  L. 
58.  And  see  Greenwood  v.  Greenwood, 
28  Md.  370;  Ellington  v.  Ellington, 
47  Miss.  329;  Emery  v.  Goiven,  4  Me. 
33;  Simpson  v.  Grayson,  54  Ark.  404. 
In  these  and  some  other  cases  there 
is  a  manifest  tendency  to  exclude  a 
presumption  of  emancipation,  so  as 
to  leave  the  parent's  remedy  unim- 
paired. The  rule  in  Virginia  is  more 
strict.  Lee  v.  Hodges,  13  Gratt.  726. 
In  New  York,  the  doctrine  of  Martin 
V.  Payne,  9  Johns.  387,  and  other 
cases,  led  to  much  confusion,  by  per- 
mitting suits  to  be  brought  where 
there  was  in  reality  no  loss  of  ser- 
vices sustained.  But  in  the  later 
cases  the  courts  have  returned  to  the 
strictness  of  the  English  rule.  Bart- 
ley  V.  Eichtmeyer,  4  Comst.  38.  And 
cf.  earlier  and  later  notes  to  2  Kent, 
Com.  205.  In  a  recent  English  case 
the  plaintiff's  daughter,  being  under 
age,  left  his  house  and  went  into  ser- 
vice. After  nearly  a  month  the  mas- 
ter dismissed  her  at  a  day's  notice, 
and  the  next  day,  on  her  way  to  her 
father's  house,  the  defendant  seduced 
her.  It  was  held  that  as  soon  as  the 
real  service  was  terminated  by  the 
master,  whether  rightfully  or  wrong- 
fully, the  girl  intending  to  return 
home,  the  right  of  the  father  to  her 
services  revived,  and  that  there  was, 
therefore,  sufficient  evidence  of  ser- 
vice to  maintain  an  action  for  the 
seduction.  Terry  v.  Hutchinson,  L. 
E.  3  Q.  B.  599  (1868).  And  see 
Evans  v.  Walton,  L.  E.  2  C.  P.  615. 
This,  the  court  admitted,  was  carry- 
ing the   doctrine   of  constructive   ser- 


vice very  far.  "  The  action,  no 
doubt,  is  founded  on  the  special 
ground  of  loss  of  service  (this  is  not 
very  creditable,  perhaps,  to  our  law), 
but  the  action  is  substantially  for  the 
aggravated  injury  that  the  father  has 
sustained  in  the  seduction  of  the 
child. ' '  Per  Cockbum,  C.  J.,  in  Terry 
V.  Hutchinson,  L.  E.  3  Q.  B.  599. 

21.  Where  the  father  verbally  agrees 
that  his  daughter  shall  reside  as  ser- 
vant in  a  stranger 's  family  for  a  cer- 
tain number  of  years,  this  does  not 
debar  his  right  to  recover  for  her 
seduction  during  minority  by  her  em- 
ployer's  son.  Mohry  v.  Hoffman,  86 
Pa.  St.  358.  Cf.  White  v.  Murtland, 
71  111.  252.  In  other  words,  the  father 
may  sue  per  quod  where  he  does  not 
relinquish  the  daughter's  services,  but 
retains  the  right  to  command  them, 
though  she  resides  elsewhere.  Mohry 
V.  Hoffman,  supra;  Blagge  v.  Ilsley, 
127  Mass.  191.  Very  slight  service 
at  home  every  Sunday,  where  the 
daughter  is  employed  by  another,  suf- 
fices. Kennedy  v.  Shea,  110  Ma^. 
147;  Eiddle  v.  McGinnis,  22  W.  Va. 
253. 

Enticing  one's  daughter  away  for 
the  purpose  of  prostitution  or  concu- 
binage or  seduction,  is  made  an  in- 
dictable offence  in  some  States.  Slo- 
cum  V.  People,  90  111.  274;  State  v. 
Breice,  27  Conn,  319 ;  Wood  v.  State, 
48  Ga.  192;  Boyce  v.  People,  55  N. 
T.  644;  Bowers  v.  State,  29  Ohio  St. 
542;  Galvin  v.  Crouch,  65  Ind.  56. 
And  see  Bishop  and  other  general 
writers  on  Criminal  Law  and  Torts. 
The  female  under  such  statutes,  ought 
in  general  to  be  of  good  repute  for 
chastity  previous  to  the  offence,  and 
unmarried.     But  statutes  differ.     See 


833  INJUKY  TO  CHILD.  §  761 

It  is  not  necessary  that  the  daughter  should  be  under  age  in 
order  that  the  parent  may  maintain  the  action  for  seduction.  The 
important  question  is,  whether  emancipation  in  fact  had  taken 
place  at  the  time  of  the  injury;  for  if  the  relation  of  master  and 
servant  exists  between  the  father  and  his  grown-up  daughter,  how- 
ever this  relation  may  have  been  created,  the  right  of  action  is 
complete.^^  And  even  where  a  married  woman,  separated  from 
her  husband,  returned  to  her  father's  house  and  lived  with  him, 
performing  various  acts  of  service,  it  was  held  that,  as  against  a 
wrong-doer,  it  was  sufficient  to  prove  that  there  was  the  relationship 
of  master  and  ser^'ant  de  facto.^^ 

So  where  one  stands  in  loco  parentis,  he  may  recover  damages, 
as  an  actual  parent  would ;  as  in  the  case  of  an  orphan  living  with 
a  relation,  or  a  friend  and  benefactor,  and  rendering  such  domestic 
attendance  and  obedience  as  is  usually  rendered  by  a  daughter  to 
her  father.^*  But  the  parent  cannot  maintain  an  action  for  the 
seduction  of  a  daughter  over  tr^venty-one  and  working  out  on  her 
own  account."^  And  while,  as  surviving  parent,  the  mother  may 
sue  for  her  daughter's  seduction  imder  circumstances  showing 
service  rendered  her,  it  is  held  that  a  mother  cannot  maintain  an 
action  for  the  seduction  of  her  daughter  while  the  father  was  alive, 
though  the  illicit  offspring  was  not  bom  until  after  the  father's 
death.^^" 

The  wrongful  act  for  which  the  parent  sues  must  be  the  natural 
and  direct  cause  of  the  injury  for  which  damages  are  sought,  and 

State   V.   Jones,    16    Kan.    608.      The  inson,  3  Comst.  312  ;  Maguinay  v.  Sau- 

woman   might   have   reformed.    Illicit  dek,  5  Sneed,  146;  Ball  v.  Bruce,  21 

intercourse  alone  does  not  constitute  111.  161. 

what  is  known  as  seduction.     People  25.   George  v.  Van  Horn,  9   Barb. 

V.  Clark,  33  Mich.  112.  533. 

22.  1  Addison,  Torts,  700 ;  Sutton  v.  26.  Vessel  v.  Cole,  10  Mo.  634  ;  Gray 
Huffman,  32  N.  J.  L.  58;  Greenwood  v.  Durland,  50  Barb.  100.  Statutes 
V.  Greenwood,  28  Md.  370;  Stevenson  enlarging  the  rights  of  married  wo- 
V.  Belknap,  6  la.  97 ;  Wert  v.  Strouse,  men  sometimes  extend  the  mother  'a 
38  N.  J.  L.  184.  An  imbicile  daugh-  action.  Badgley  v.  Decker,  44  Barb, 
ter  over  twenty-one,  who  lives  at  home  577.  A  widowed  mother  whose  minor 
still,  is  not  emancipated  in  any  sense  child  is  actually  in  her  service  has  the 
to  debar  a  suit.  Hahn  v.  Cooper,  84  right  of  action.  Gray  v.  Durland,  51 
Wis.  629.  N.  T.  424.     A  mother  remarried  may 

23.  Harper  v.  LuflFkin,  7  B.  &  C.  have  the  right  to  sue.  Lampman  v. 
387.  Hammond,  3  Thomp.  &  C.  293.     See 

24.  1  Addison,  Torts,  700;  Irwin  v.  Hobson  v.  Fullerton,  4  111.  App.  282; 
Dearman,  11  East,  23;  Edmonson  v.  Furman  v.  Van  Sise,  56  N.  T.  435. 
Machell,  2  T.  R.  4 ;  Williams  v.  Hutch-       But  not  one  in  whose  household  a  girl 

53 


§    762  PARENT    AND    CHILD.  834 

the  damages  recoverable  its  necessary  and  proximate  consequence. 
To  this  principle  is  to  be  referred  a  curious  case  in  Xew  York,^'^ 
But  mental  illness  directly  resulting  from  the  injury  is,  of  itself, 
sufficient  to  support  an  action  for  loss  of  services;  and  such  a  suit 
might  be  maintainable,  notvrithstanding  seduction  was  followed 
neither  by  pregnancy  nor  sexual  disease.^^* 

^Yhere  a  person  hires  a  girl  as  a  servant  for  the  purpose  of  with- 
drawing her  from  her  family  and  seducing  her,  this  is  fraud,  and 
the  parent's  right  of  action  is  not  thereby  forfeited ;  for  in  such  a 
case  the  new  relation  of  master  and  servant  is  not  bojia  fide  created, 
and  the  former  relation  may  be  held  to  have  continued.^®  Fraud- 
ulent marriage  virtually  resulting  in  a  seduction  may  be  treated  as 
enticement.^*  It  would  seem  as  though  the  previous  unchasteness 
of  a  girl  —  considering,  too,  her  age,  and  her  apparent  want  of 
parental  oversight  —  ought  to  affect  the  right  of  such  suits  and 
the  damages ;  but  at  all  events  it  is  the  general  rule  that  the 
daughter's  consent  does  not  bar  the  parental  suit  whether  the 
daughter  was  willing  or  not,  and  whether  the  person  debauching 
her  accomplished  his  end  by  force  or  by  insinuating  arts ;  nor  is 
"  seduction  "  commonly  applied  here  in  its  most  literal  sense.^° 
But  we  may  finally  observe  that  the  latest  legislation  in  some 
States  tends  to  place  seduction  suits  on  a  more  natural  footing,  by 
enabling  the  woman  to  sue  an  offender  directly  in  damages  for  her 
own  seduction  and  the  consequent  injury .^^ 

§  762.  Parent's  Action  for  Death. 

Though  natural  equity  may  assert  otherwise,  the  common  law 
does  not  permit  a  father  to  recover  for  injuries  causing  the  imme- 
diate death  of  his  child,  either  on  the  ground  of  loss  of  services  or 

stays    temporarily    without    any    defi-  219;  Abrahams  t.  Kidney,  104  Mass. 

nite  agreement  of  service.    Blanchard  222. 

T.  Tlsley,  120  Mass.  487.  28.    Speight    v.    Oliviera,    2    Stark. 

A  grandfather  standing  in  loco  pa-  435;    2    Kent   Com.   205;    1   Addison, 

rentis,  and  with  due  rights  and  obliga-  Torts,  699;  Dain  v.  Wyckoff,  18  N.  T. 

tions,  may  thus  sue.    Certwell  v.  Hoyt,  45. 

13  N.  y.  Rupr.  575.  29.  Lawyer  v.  Fritcher,  130  N.  Y. 

27.  Knight  v.  Wilcox,  14  N.  T,  413.  239. 

See  Eager  v.  Grimwood,  1  Exch,  61 ;  30.  Damon  v.  Moore,  5  Lansing  (N. 

Boyle  V,  Brandon,  13  M.  &  "W.  738;  Y.)  454;  Graham  v.  Reynolds,  90  Tenn. 

E^ddie  v.  Seoolt,  Peake,  240;    1  Ad-  673. 

dison,   Torts,   701,   as   to   the   various  31.    Thompson    v.    Young,    51    Ind. 

grounds  of  defence  in  seduction  suits.  599;  Watson  v.  Watson,  49  Mich.  540; 

27a.  Manvell  v.  Thomson,  2  Car.  &  Weiher  v.  Meyersham,  50  Mich.  602. 

P.  303;  Seagcr  V.  Sligerland,  2  Caines,  To  sue   thus,   alleging  that   she  per- 


835 


INJURY    TO    CHILD. 


§  762 


for  burial  expenses.^"  And  since,  as  we  have  seen,  the  parent's 
right  of  suit  is  founded  upon  the  loss  of  a  child's  services,  irrespec- 
tive of  the  child's  own  suit  for  damages,  there  are  circumstances 
under  which  such  suits  might  be  brought,  notwithstanding  the 
child  was  of  age,  contrary  to  the  general  rule,^^  or  where  one  stood 
to  a  child  not  his  own  in  place  of  a  parent.'* 

However,  statutes  enlarging  the  rights  of  widows,  dependent 
parents,  and  others,  in  torts  occasioned  by  the  negligence  of  rail- 
road corporations  and  other  common  carriers,  are  to  be  found  in 
England  and  America.  Under  such  statutes  it  is  frequently  pro- 
vided that,  where  a  child  is  thus  killed,  the  child's  administrator 
may  sue  for  the  parent's  benefit.  The  English  statute,  known  as 
Lord  Campbell's  Act,  9  &  10  Vict.,  c.  93,  has  given  rise  to  suits 
of  this  kind ;  but  the  rule  is  laid  down  that  such  actions  are  not 
maintainable  without  some  evidence  of  actual  pecuniary  damage, 
some  loss  of  service.^' 

Under  statutes  giving  a  right  of  action  for  death  of  the  child 
to  the  parent  like  the  Federal  Employers'  Liability  Statute,  the 


natted  seduction  in  consideration  of 
a  promise  to  pay  money  which  the 
defendant  failed  to  keep,  is  a  bar  to 
the  action.  Wilson  v.  Ensworth,  85 
Ind.  399.  But  previous  chastity  need 
not  be  averred.  Hodges  v.  Bales,  102 
Tnd.  494.  Xor  special  damage.  Mc- 
Ilvain  V.  Emery,  88  Ind.  298.  A  fe- 
male of  nonage  may  thus  sue.  Mc- 
Coy V.  Trucks,  121  Ind.  292. 

32.  Osbom  v.  Gillett,  L.  R.  8  Ex.  88, 
and  cases  cited;  Edgar  v.  Castello,  14 
S.  C.  20;  McDowell  v.  Georgia  R.,  60 
Ga.  320;  Carey  v.  Berkshire  R.,  1 
Cush.  475.  Parental  suit  not  allowed 
against  the  seller  of  a  revolver  to  a 
boy  of  fifteen,  in  violation  of  law, 
with  which  the  boy  carelessly  shot 
himself.  Poland  v.  Earhart,  70  la. 
285.  But  suit  allowed  against  one 
who  employed  a  child,  without  the 
father's  consent,  in  dangerous  service, 
and  negligently  caused  the  child's 
death.  Fort  Wayne  R.  v.  Beyerle, 
110  Ind.  100.  As  to  circumstances  of 
isnch  employment  and  knowledge  that 
the  child  was  a  minor,  cf.  Railway 
Campany  v.  Redeker,  67  Tex.  190;  T. 


&  N.  O.  Ry.  Co.  V.  Crowder,  61  Tex. 
262.  And  see  Sherman  v.  Johnson, 
58  Vt.  40.  In  suits  for  damages 
caused  by  corporate  negligence,  our 
juries,  and  sometimes  the  courts  and 
legislature,  incline  to  extravagant 
computation  of  a  punitive  sort.  See 
rule  of  statute  held  constitutional  in 
84  Ga.  345.  Burial  expenses,  if  the 
child  dies  of  the  injury,  are  recover- 
able. 121  Mo.  227.  Prospective  ser- 
vices of  the  child  during  minority, 
less  the  cost  of  support,  should  be 
considered  in  case  the  child  is  killed, 
and  actual  pecuniary  damage  esti- 
mated, 95  Cal.  510.  Whether  the  sta- 
tutory action  by  administrator  and 
the  parental  action  coexist,  see  53 
Ark.  117. 

33.  Pennsylvania  R.  v.  Keller,  67 
Pa.  St.  300;  Mercer  v.  Jackson,  54 
111.  397.     And  see  infra,  §  262. 

34.  Whitaker  v.  Warren,  60  N.  H. 
20;    §   273. 

35.  Duckworth  v.  Johnson,  4  Hurl. 
A-  Nor.  653.  See,  further,  Frank  v. 
Xpw  Orleans,  &c..  R.,  20  La.  Ann.  25; 
Pennsylvania   R.   v.   Banton,    54    Pa. 


§  763  PARENT  AND  CHILD.  836 

extent  of  the  damage  is  to  be  measured  by  the  pecuniary  loss  sus- 
tained by  the  beneficiaries  rather  than  by  the  loss  to  the  estate  of 
the  deceased.  The  damages  must  in  the  case  of  parents  be  limited 
to  the  present  worth  of  gifts  which  the  parents  could  reasonably 
have  expected  to  have  received  from  the  adult  child  in  the  course  of 
their  lives.  This  involves  an  inquiry  into  the  means  and  earning 
capacity  of  the  decedent  on  the  one  hand  and  the  means  and  earning 
capacity  of  the  parents  on  the  other  hand.^^ 

The  mother  of  a  child  who  is  divorced  from  the  father  and  is 
obliged  by  statute  to  support  the  child  is  entitled  to  recover  for  his 
wrongful  death,^^  and  where  a  father  deserts  his  family  entirely 
and  leaves  the  mother  to  take  care  of  them,  and  she  negligently 
allows  him  to  undertake  a  dangerous  occupation,  she  is  his  agent 
so  far  that  her  negligence  will  bar  a  suit  for  the  death  of  the  child 
brought  for  his  benefit.^^  So  where  the  damages  recovered  for  the 
death  of  a  .minor  child  under  the  statute  would  be  community  prop- 
erty, no  recovery  can  be  had  for  the  benefit  of  the  wife  where  the 
husband  is  barred  by  his  negligence  or  misrepresentation,  as  there 
is  no  way  of  allowing  the  mother  a  recovery  without  allowing  the 
father  to  profit  by  his  own  wrong.^^  A  statute  providing  for  action 
for  death  to  the  parents  of  an  "  unmarried  "  woman  covers  a  case 
of  one  who  dies  in  an  accident  about  thirty  minutes  after  her 
husband.*" 
§  763.  Father's  Liability  for  Fraudulent  Misstatement  of  Age. 

Where  a  person  is  induced  by  the  misrepresentation  of  another 
to  do  an  act  which,  in  consequence  of  such  misrepresentation,  he, 
without  negligence  on  his  part,  believes  to  be  neither  illegal  nor 
immoral,  and  which  would  not  be  illegal  or  immoral  if  the  repre- 
sentation were  true,  but  which  is  in  fact  a  criminal  offence,  he  may 
recover  from  the  maker  of  the  representation  any  damages  sustained 
by  him  proximately  resulting  from  the  act. 

The  rule  that  a  minor  suffering  an  injury  while  engaged  in  an 
employment  which  the  law  forbids  him  to  be  engaged  in  on  account 

St.  495 ;  Gann  v.  Worman,  69  Ind.  458 ;  38.  Swope  v.  Keystone  Coal  &  Coke 

Perry  v.  Carmichael,  95  111.  519;  May-  Co.  (W.  Va.),  89  S.  E.  284,  L.  E.  A. 

hew  V.  Burns,  103  Ind.  328.  1917A,  1128. 

36.  McCullough  V.  Chicago,  Rock  39.  Crevelli  v.  Chicago,  Milwaukee, 
Island  &  Pacific  E.  Co.  (la.),  142  N.  &c.,  E.  Co.  (Wash.),  167  Pac.  66,  L. 
W.  67,  47  L.  E.  A.  (N.  S.)  23.  E.  A.  1918A,  206. 

37.  Clark  v.  Detroit  &  Mackinac  E.  40.  Myers  v.  Denver  &  Eio  Grande 
Co  (Mich.),  163  N.  W.  964,  L.  R.  A.  R.  Co.  (Colo.  1),  157  Pax;.  196,  L.  E. 
1917F    851.                                                        A.  1917D,  287. 


837  INJURY  TO  CHILD.  §  764 

of  his  age  cannot  be  barred  of  his  recovery  nor  subjected  to  an 
action  or  counterclaim  for  damages  because  he  misrepresented  his 
age  when  he  was  employed  does  not  apply  to  the  father  or  other 
third  person  upon  the  faith  of  whose  false  representations  the  minor 
was  employed.  The  law  prohibiting  the  employment  of  children 
of  tender  years  at  dangerous  occupations  is  for  the  protection  of  the 
children  themselves,  and  public  policy  forbids  that  they  should  be 
capable  of  dispensing  with  its  provisions.  The  same  consideration, 
however,  does  not  apply  to  the  act  of  the  parent.  No  good  reason 
is  perceived  why  he  should  not  answer  for  his  wrong.  Hence  one 
who  employs  a  minor,  relying  on  the  false  representations  of  the 
father  as  to  his  age,  may  recover  of  the  father  the  expenses  to  which 
he  was  subjected  by  recovery  against  him  by  the  minor  in  an  action 
under  the  statute  for  employment  of  a  minor  in  a  dangerous 
occupation.*^  So  an  action  brought  by  the  surviving  parent  for  the 
death  of  his  minor  child  is  barred  by  the  fraud  of  the  parent  in 
misrepresenting  the  age  of  the  child  in  obtaining  employment  for 
him.  To  allow  a  recovery  would  be  a  violation  of  the  policy  of  the 
law  which  forbids  that  one  shall  reap  a  benefit  for  his  own  miscon- 
duct, and  the  rule  is  the  same  where  the  father  brings  the  action  aa 
administrator  of  the  son  for  his  own  benefit.*^ 

§  764.  Parties. 

Action  for  injury  to  the  minor  child  should  be  brought  in  the 
name  of  the  father,  if  alive,*^  or  if  he  is  dead  at  the  time  of  the 
injury  in  the  name  of  the  mother,**  but  under  a  statute  giving  both 

41.  Stryk  v.  Mnichowiez,  167  Wis.  News  Co.  v.  Morrow,  20  Kv.  Law, 
265,  167  N.  W.  246,  1  A.  L.  R.  297.  302,  46  S.  W.  6;  Creagh  v.  New  Or- 

42.  Crevelli  v.  Chicago,  Milwaukee,  leans  Ey.  &  Light  Co.,  128  La.  305, 
&c.,  R.  Co.  (Wash.),  167  Pac.  66,  L.  54  So.  828. 

R.  A.  1918A,  206,  Tlie  mother  cannot  sue  where  the 

43.  Louisville,  N.  A.  &  C.  Ry.  Co.  father  is  living.  Kaufman  v.  Clark, 
V.  Goodykoontz,  119  Ind.  Ill,  21  N.  141  La.  316,  75  So.  65;  Franklin  v. 
E.  472,  12  Am.  St.  E.  371 ;  Adams  v.  Butcher,  144  Mo.  App.  660,  129  S.  W. 
Louisville  &  N.  R.  Co.,  153  Ky.  42,  428. 

154  S.  W.   392;    Ackeret  v.  City  of  Death   or   desertion   of   the   father 

Minneapolis,  151  N.  W.  976.  may  be  enough  to  warrant  action  by 

44.  Union  News  Co.  v.  Morrow,  20  the  mother  under  statute,  but  the  fa- 
Ky.  Law,  302,  46  S.  W.  6;  Crowley  ther's  death  or  desertion  must  appear 
V.  Pennsylvania  R.  Co.,  231  Pa.  286,  in  the  petition.  Martin  v.  City  of 
80  A.  175.  Butte,  34  Mont.  281,  86  P.  264;  Mc- 

The  fact  that  the  mother  since  the  Garr  v.  Nat.   &  Providence  Worsted 

injury  Tuts  become  unfit  to  have  the  Mills,  24  R.  T.  447,  53   Atl.  320.  60 

care  and  custody  of  the  child  does  not  L.   R.   A.    122.   95   Am.    St.   R.   749; 

prevent   action  in  her  name.     Union  Forsyth    v.    Central    Mfg.    Co.,    103 


765 


PARENT    AND    CHILD, 


838 


parents  equal  rights  in  minor  children  it  is  proper  for  both  to  join 
in  an  action  to  recover  for  loss  of  services  of  a  minor  child.*' 

Suit  maj  be  brought  in  some  States  by  statute  bj  a  deserted 
wife,"  or  where  it  appears  that  by  mutual  arrangement  the  mother 
has  taken  the  care  of  the  child  and  the  father  has  relinquished  his 
rights  to  the  child's  earnings/^  or  by  anyone  standing  in  loco 
parentis  to  the  child.*® 

A  divorce  decree  giving  the  mother  care  and  custody  of  the  chil- 
dren does  not  release  the  father  from  the  duty  of  support,  and 
therefore  does  not  entitle  her  to  sue  for  injury  to  a  child.*"  Where 
the  father  dies  pending  suit  and  the  mother  is  substituted  a  judg- 
ment in  her  name  in  her  own  right  cannot  be  obtained.'" 
§  765.  Negligence  of  Parent. 

The  negligence  of  the  parent  in  failing  to  take  care  properly  of 
his  minor  child  will  bar  the  parent  from  action  for  injury  to  the 
child  where  the  parent's  negligence  contributes  to  the  injury,*'  as 
Tenn.  497,  53  S.  W.  731;  Natchez  E. 
V.  Cook,  63  Miss.  38.  Some  late  cases 
prefer  to  say  that  tlie  right  is  based 
upon    the    parental    relation,    a3    dis- 


tinct from,  though  analogous  to,  that 
of  master  and  servant.  Netherland- 
American  Steam  Nav.  Co.  v.  Hol- 
lander, 59  Fed.  417.  See  Sorenson  v. 
Balaban,  42  N.  Y.  S.  654,  11  App. 
Div.  164,  4  N.  T.  Ann.  Cas.  7. 

45.  Bailey  v.  College  of  Sacred 
Heart,  52  Colo.  116,  119  P.  1067; 
Thomas  v.  St.  Louis,  L  M.  &  S.  Ey. 
Co.,  180  S.  W.  1030. 

46.  American  Steel  &  Wire  Co.  v. 
Tynan,  183  F.  949,  106  C.  C.  A.  289 
(unless  remarried)  ;  Tornroos  v.  E.  H. 
White  Co.,  220  Mass.  336,  107  N.  E. 
1015;  Tost  V.  Grand  Trunk  Ey.  Co., 
163  Mich.  564,  128  N.  W.  784,  17  Det. 
Leg.  N.  911. 

47.  McGarr  v.  National  &  Provi- 
dence Worsted  Mills,  24  E.  I.  447,  53 
A.  320,  60  L.  E.  A.  122,  96  Am.  St. 
E.  749. 

48.  City  of  Albany  v.  Lindsey,  11 
Ga.  App.  573,  75  S.  E.  911. 

49.  Keller  v.  City  of  St.  Louis,  152 
Mo.  596,  54  S.  W.  438,  47  L.  E.  A. 
391. 


50.  Kelly  v.  Pittsburg  &  B.  Trac- 
tion Co.,  204  Pa.  623,  54  A.  482. 

51.  Defendant's  failure  to  warn. 
In  an  action  by  a  parent  for  injury 
to  a  minor,  based  upon  defendant 
employer 's  failure  to  instruct  her  as 
to  the  dangers  of  the  employment, 
that  the  parent  knowingly  permitted 
the  minor  to  go  unprotected  among 
defendant's  machinery,  knowing  the 
place  to  be  dangerous,  etc.,  is  insuffi- 
cient to  show  contributory  negligence, 
defeating  right  to  recovery.  Eeaves 
v.  Anniston  Knitting  Mills,  154  Ala. 
565;  45  So.  702;  s.  c,  166  Ala.  645, 
52  So.  142;  St.  Louis,  I.  M.  & 
S.  Ey.  Co.  V.  Colum,  72  Ark.  1,  77  S. 
W.  596;  Thomas  v.  Chicago,  M.  &  St. 
P.  Ey.  Co.,  114  la.  169,  86  N.  W. 
259;  Feldman  v.  Detroit  United  Ey., 
162  Mich.  486,  127  N.  W.  687,  17  Det. 
Leg.  N.  707;  Mattson  v.  Minnesota  & 
N.  W.  E.  Co.,  95  Minn.  477,  104  N. 
W.  443,  70  L.  E.  A.  503,  111  Am.  St. 
E.  483;  Peterson  v.  Martin  (Minn.), 
164  N.  W.  813;  Mattson  v.  Minne- 
sota &  N.  W.  E.  Co.,  98  Minn.  296, 
108  N.  W.  517;  Berry  v.  St.  Louis, 
M.  &  S.  E.  E.  Co.,  214  Mo.  593,  114 
S.    W.   27;    Winters   v.    Kansas   City 


83  i) 


INJURY    TO    CHILD. 


§  767 


where  the  parent  was  at  work  and  unable  to  have  personal  over- 
sight of  the  child.'^  If  the  defendant's  negligence  was  the  prox- 
imate cause  of  the  injury  the  parents  may  still  recover  although 
negligent  in  some  jurisdictions/'  The  negligence  of  a  parent  is 
not  to  be  imputed  to  a  minor  child.  So  where  the  father  is  driv- 
ing a  horse  and  sleigh  with  his  child  as  passenger  the  father's 
negligence  is  not  to  be  imputed  to  the  child.'* 
§  766.  Contributory  Negligence  of  Child. 

The  contributory  negligence  of  the  child  will  be  a  defence  to  an 
action  by  the  parent  if  it  proximately  contributed  to  the  injury.'* 
§  767.  Pleadings. 

The  petition  should  set  forth  the  injury  received  and  the  rela- 
tion of  the  plaintiff  as  parent,^®  and  that  as  a  consequence  thereof 
Cable  E7.  Co.,  99  Mo.  509,  12  S.  W.       care  used)  ;   Quinn  v.  City  of  Pitts- 


€52,  6   L.   E.   A.   536,   17   Am.   St.  K. 
591  (parents'  negligence  must  be  the 
proximate  cause  of  injury)  ;  Harring- 
ton   V.    Butte,    A.    &    P.    Ey.    Co. 
(Mont.,  1908),  95  P.  8   {prima  facie 
evidence) ;       Conway      v.       Monidah 
Trust,    52    Mont.    244,    157    P.    178; 
O'Shea  v.  Lehigh  Val.  E.  Co.,  79  N. 
Y.  S.  890,  79   App.  Div.  254;    Eapa- 
port  V.  Pittsburgh  Eys.  Co.,  247  Pa. 
347,  93  A.  493;  Kuehne  v.  Brown,  257 
Pa.  37,  101  A.  77;   Pollack  v.  Penn- 
sylvania E.   Co.,  210   Pa.   634,  60  A. 
312,  105  Am.  St.  E.   846;   Watson  v. 
Highland  Grove  Traction  Co.,  68  Pa. 
Super.  Ct.  332;  Kilpatrick  v.  City  of 
Spartanburg,  85  S.  E.  775;  Berger  v. 
Charleston  Consol.  Ey.,  Gas.  &  Elec- 
tric Co.,  93  S.  C.  372,  76  S.  E.  1096; 
Gulf,  C.  &  S.  F.  Ey.  Co.  v.  Johnson 
(Tex.,  1899),  51  S.  W.  531,  53  S.  W. 
374;    Pierce    v.   Millay,   62   111.    133; 
Smith  V.  Hestonville  E.,  92   Pa.  St. 
450;   Kreis  v.  Wells,   1  E.  D.  Smith, 
74 ;    Glassey   v.    Hestonville,   &c.,   E., 
57  Pa.  St.  172. 

In  the  follomng  cases  negligence 
of  the  parent  did  not  appear:  Cohn 
V.  W.  E.  Cody  Sales  Stable  Co.,  14 
Ga.  App.  234,  80  S.  E.  661  (eight- 
year-old  boy  riding  tricycle  in  street)  ; 
Winters  v.  Kansas  City  Cable  Ey.  Co., 
99  Mo.  509,  12  S.  W.  652,  6  L.  E.  A. 
536,  17  Am.  St.  E.  591   (where  usual 


burgh,  243  Pa.  521,  90  A.  353  (cross- 
ing foot-bridge)  ;  Enright  v.  Pitts- 
burg Junction  E,  Co.,  204  Pa.  543, 
54  A.  317  (strolling  on  railroad 
tracks)  ;  Texas  &  P.  Ey.  Co.  v.  Ball, 
96  Tex,  622,  75  S.  W.  4,  73  S.  W. 
420   (crossing  railroad  track). 

52.  Addis  v.  Hess,  29  Pa.  Super. 
Ct.  505;  Weida  v.  Hanover  Tp,  30  Pa. 
Super.  Ct.  424 ;  Distasio  v.  United 
Traction  Co.,  35  Pa.  Super.  Ct.   406. 

53,  Danna  v.  City  of  Monroe,  129 
La.  138,  55  So.  741. 

64.  Brennan  v.  Minnesota,  &c.,  B. 
Co.,  130  Minn.  314,  153  N.  W.  611, 
L.  E,  A.  1915r,  11. 

55.  Marbury  Lumber  Co.  v.  West- 
brook,  121  Ala.  179,  25  So.  914; 
Wueppeshal  v.  Connecticut  Co.,  87 
Conn.  710,  89  A.  166;  Ballard  v. 
Smith  (Ky.),  210  S.  W.  489  (where 
child  without  knowledge  of  employer 
undertook  dangerous  work)  ;  Tidd  v. 
Skinner (  N.  T.),  122  N.  E.  247;  Ken- 
ner  v.  Eader,  170  N.  Y.  S.  957. 

Where  a  minor  was  induced  by  his 
employer  to  engage  in  hazardous 
employment  without  roe  consent  of  his 
father  the  minor  '3  contributory  negli- 
gence is  no  defence.  Webb  v.  South- 
ern Ey.  Co.,  104  S.  C.  89,  88  S,  E. 
297. 

56.  Woodward  Iron  Co.  v.  Curl,  153 
Ala.  205,  44  So.  974  (child  presumed 


§  769 


PAKENT    AND    CHIIJ). 


840 


the  parent  lost  his  services."^  In  actions  against  an  employer  the 
petition  should  state  that  the  work  was  dangerous,'^®  and  that  the 
employment  was  without  the  consent  of  the  parent/' 

§  768.  Evidence. 

The  evidence  in  an  action  by  a  parent  for  injury  to  his  minor 
child  may  cover  the  relationship  of  the  parent  and  child,®"  the 
expense  of  supporting  and  caring  for  the  child  while  ill,®^  and  the 
due  care  of  the  parent  and  child,®^  and  the  character  of  the  danger- 
ous occupation.^*  Evidence  is  not  admissible  of  an  action  for  the 
same  injury  by  the  child  unless  expenses  of  care  were  claimed  in 
it,^*  or  that  plaintiff  depended  for  a  living  on  the  wages  of  the 
child." 

The  burden  is  on  the  plaintiff  to  prove  all  the  allegations  of  the 
complaint/®  and  the  burden  is  on  the  defendant  to  prove  emanci- 
pation.®^ The  unexplained  presence  of  a  young  child  in  a  danger- 
ous place  makes  out  a  prima  facie  case  of  n^ligence  in  the 
parents,®® 

§  769.  Questions  for  Jury. 


The     question     of     the     parent's 
jury,    in    most    cases,®®    and    s« 

to  be  a  member  of  the  family) ;  Bin- 
ford  V.  Johnston,  82  Ind.  426,  42  Am. 
E.  508;  Larson  v.  Berquist,  34  Kan. 
334,  8  P.  407,  55  Am.  E.  249;  Webb 
V.  Southern  Ey.  Co.,  104  S.  C.  89,  88 
S.  E.  297;  Markus  v.  Thompson,  51 
Tex.  Civ.  App.  239,  111  S.  W.  1074; 
Woodward  Iron  Co.  v.  Curl,  153  Ala. 
205,  44  So.  974  (employment  and  its 
dangerous  nature). 

57.  Birmingham  Ey.,  Light  &  Power 
Co.  V.  Chastain,  158  Ala.  421,  48  So, 
85;  Eeaves  v.  Anniston  Knitting 
Mills,   154   Ala.    565,   45   So,   702. 

58.  Woodward  Iron  Co.  v.  Curl,  153 
Ala.  205,  44  So.  974. 

59.  Eeaves  v.  Anniston  Knitting 
Mills,  154  Ala.  565,  45  So.  702;  Inter- 
Btate  Coal  Co.  v.  Trivett,  155  Ky. 
795,  160  S.  W.  731;  Hetzel  v.  Wasson 
Piston  Ring  Co.,  89  N.  J.  Law,  205, 
98  A,  308. 

60.  Woodward  Iron  Co.  v.  Cook,  124 
Ala.  349,  27  So.  455  (consent  of  em- 
ployment presumed)  ;  Erunke  v.  Mis- 


negligence 


is     for     the 
is    the    question    of    emancipa- 

soori  &  K.  Telephone  Co.,  112  Mo. 
App.  623,  87  S.  W.  84;  Dean  v.  Ore, 
E.  &  Nav,  Co.,  38  Waah,  565,  80  P. 
842, 

61.  Sawyer  v.  Sauer,  10  Kan.  519. 

62.  Cameron  v.  Duluth-Superior 
Traction  Co.,  94  Minn.  104,  102  N.  W. 
208;  Woeckner  v.  Erie  Electric  Motor 
Co.,  182  Pa.  St.  182,  37  A.  986. 

63.  Huntsville  Knitting  Mills  v. 
Butner  (Ala.),  76  So.  54. 

64.  Sondheim  v.  Brooklyn  Heights 
E.  Co.,  73  N.  Y.  S.  543,  36  Misc. 
339. 

65.  Gulf,  C.  &  S.  F.  Ey.  Co.  v.  John- 
son, 99  Tex.  337,  90  S.  W.  164. 

66.  King  V.  Floding,  18  Ga.  App. 
280,  89  S.  E.  451  (that  child  given 
dangerous  work  without  parent's  con- 
sent). 

67.  Memphis  Steel  Const.  Co.  v.  Lis- 
ter, 138  Tenn.  307,  197  S.  W.  902. 

68.  Conway  v.  Monidah  Trust,  52 
Mont.   244,   157  P.   178. 

69.  Huntsville    Knitting    Mills    ▼• 


841 


INJUKY    TO    CHILD. 


§  770 


tion,^"  but  the  child's  competency  to  care  for  himself  should  not 
be  so  submitted  when  the  father  testifies  that  the  child  is  com- 
petent and  the  child  evidently  appears  such/^ 

§  770.  Damages  for  Injuries  or  Enticement. 

In  suits  for  injuries,  such  as  for  enticement,  the  measure  of 
damages  applied  is  liberal,  though  the  rule  is  somewhat  conflicting 
in  different  States.  It  is  a  general  principle  that  where  servants 
are  enticed  away,  or  forcibly  abducted,  the  jury  may  award  ample 
compensation  for  all  the  damage  resulting  from  the  wrongful  act.''* 
A  parent  can  recover  damages  for  the  prospective  value  of  the 
services  of  a  young  child  permanently  injured  or  killed  by  an  act 
of  negligence;  ^^  and  a  reasonable  expectation  of  pecuniary  benefit 
is  favorably  considered  where  the  parent  is  old  anJ  mfirm.''* 

Medical  expenses  for  the  care  and  cure  of  the  child,  with  the 
expense  of  nursing,  are  of  course  recoverable.  And  even  the  ex- 
pense of  the  mother's  sickness,  which  was  caused,  in  an  extreme 
case,  by  the  shock  to  her  feelings,  has  been  treated  as  a  proper  item 
of  special  damage.'^'  So,  it  would  seem,  are  the  costs  of  prosecut- 
ing the  suit.''  But  the  parent  cannot  recover  for  lacerated  feel- 
ings, as  well  as  for  other  injuries  personal  to  the  child,  as  in 
seduction   suits.''     But  local   statutes  will   sometimes   affect  the 


Butner  (Ala.),  "^^  So.  54;  Koersen  v. 
Newcastle  Electric  St.  Ey.  Co.,  138 
Pa.  30,  47  A.  851;  Jones  v.  United 
Traction  Co.,  201  Pa.  346,  50  A.  827; 
Muhlhause  v.  Monongahela  St.  Ey. 
Co.,  201  Pa.  244,  50  A.  940 ;  Herron  v. 
City  of  Pittsburg,  204  Pa.  509,  54  A. 
311,  93  Am.  St.  E.  798;  Trow  v. 
Thomas,  70  Vt.  580,  41  A.  652. 

70.  Shawnee -Tecumseh  Traction  Co. 
V.  Campbell    (Okla.),  155  P.  697. 

71.  Henderson  v.  Detroit  Citizens' 
Street  Ey.  Co.,  116  Mich.  368  74  N. 
W.  525,  4  Det.  Leg.  N.  1205. 

72.  Gunter  v.  Astor,  4  Moore,  15 ;  1 
Addison,  Torts,  704 ;  Lumley  v.  Gye, 
2  El.  &  Bl.  216;  Magee  v.  Holland,  3 
Dutch.  86. 

73.  Supra,  §  760;  Drew  v.  Sixth 
Avenue  E.  E.  Co.,  26  N.  T.  49 ;  Ford 
V.  Monroe,  20  Wend.  210 ;  Hoover  v. 
Heim,  7  "Watts,  62 :  Franklin  v.  South- 
eastern E.  E.  Co.,  3  Hurl.  &  Nor.  211. 


But  see  Williams  v.  Hutchinson,  3 
Comst.  314.  For  the  loss  of  service 
for  the  remainder  of  the  period  of  mi- 
nority, a  parent  may  usually  recover 
if  such  loss  necessarily  result;  while 
if  the  injury  continue  beyond  that 
period  further  right  is  usually  in  the 
child.  Traver  v.  Eight  Avenue  E.,  4 
Abb.  App.  422 ;  McDowell  v.  Georgia 
E.,  60  Ga.  320 ;  Houston  E.  v.  Miller, 
49r  Tex.  322 ;  Hussey  v.  Eyan,  64  Md. 
426. 

74.  Duckworth  v.  Johnson,  4  H.  & 
N".  653 ;  Franklin  v.  Southeastern  E., 
3  H.  &  K  211. 

75.  Ford  v.  Monroe,  20  Wend.  210. 
Such  damages  appear  exceptional. 
Harford  Co.  v.  Hamilton,  60  Md.  340. 

76  Wilt  V.  Vickers,  8  Watts,  227. 

77.  Pa.  E.  E.  Co.  v.  Kelly,  31  Pa. 
St.  372:  Sawyer  v.  Sauer.  10  Kan. 
519;  Cowden  v.  Wright,  24  Wend. 
429.    But  see,  as  to  battery  of  a  child. 


§  T71 


PARENT    AND    CHILD. 


842 


78. 


question  of  damages  here  as  well  as  the  right  of  action  itself 

The  damages  resulting  from  loss  of  services  may  be  estimated, 
although  they  cannot  be  exactly  computed,  and  a  reasonable  verdict 
therefor  will  be  allowed  to  stand,"  and  may  include  permanent 
loss  of  services  during  minority  if  proved,^"  and  the  increase  in  the 
value  of  the  child's  services  with  age  may  be  considered,^^  but  not 
injury  to  the  child's  health,^*  or  loss  of  the  child's  society.*'  Where 
the  injury  results  in  death  the  parent  may,  in  the  absence  of 
statute,  recover  only  for  the  loss  of  the  child's  services  between  the 
injury  and  his  death.** 

The  damages  recoverable  for  enticing  a  child  away  from  her 
mother  and  keeping  her  in  a  school  are  compensatory  only  and  not 
punitive,*^  and  one  who  entices  a  minor  daughter  to  work  for  him 
without  the  parent's  consent  is  not  liable  for  her  seduction  by  his 
son,  as  this  is  too  remote  to  be  assessed  as  damages.*' 

§  771.  Damages  for  Seduction. 

As  to  the  amount  of  damages,  cases  of  seduction  stand  on  a 
peculiar  footing.  The  ground  of  action  is  the  loss  of  services; 
yet  the  rule  is  well  established  that  neither  this  nor  the  medical 
expenses,  such  as  her  lying-in,  are  all  that  the  parent  can  recover. 
Lord  Ellenborough,  in  his  day,  declared  the  principle  inveterate, 
and  not  to  be  shaken,  that  in  estimating  damages  the  jury  might 
go  beyond  the  mere  loss  of  service,  and  give  damages  for  the  dis- 
tress and  anxiety  of  mind  which  the  parent  had  sustained  in  being 


Klingman  v.  Holmes,  54  Mo.  304.  See 
also  Rooney  v.  Milwaukee  Chair  Co., 
65  Wis.  397. 

78.  M'Carthy  v.  Guild,  12  Met.  291 ; 
Kcnnard  v.  Burton,  25  Me.  39. 

79.  Vanderveer  v.  Moran,  79"  Neb. 
431,  112  N.  "W.  581;  Blackwell  v. 
Memphis  St.  Ry.  Co.,  124  Tenn.  516, 
137   S.  W.   486. 

£0.  Wennell  v.  Bowson,  88  Conn. 
'10,  92  A,  663;  Travers  v.  Hartman, 
92  A.  855;  Orr  v,  Wahlfeld  Mfs;.  Co., 
179  111.  App.  235;  Shawnee  Gas  & 
Electric  Co.  v.  Hunt,  32  Okla.  368, 
122  P.  673;  Northern  Texas  Traction 
Co.  T.  Crouch  (Tex.  Civ.  App.),  202 
S.  W.  781   (only  durinj^  minority). 

81.  Shawnee  Gas  &  Electric  Co.  v, 
Motesenbocker,  41  Okla.  454,  138  P. 
790. 


82.  Western  Union  Telegraph  Co. 
V.  Erwin  (Tex.  Civ.  App.),  147  S.  W. 
607. 

83.  Birmingham  Ry.,  Light  &  Power 
Co.  V.  Baker,  161  Ala.  135,  49  So. 
755;  Werbolovsky  v.  New  York  & 
Boston  Despatch  Express  Co.,  117  N. 
Y.  S.  150,  63  Misc.  329.  See  Simpson 
V.  Mills  Mfg.  Co.,  104  S.  C.  78,  88  8. 
E.  28S    (penalty  only  recovered). 

84.  Verlinde  v.  Michigan  Cent.  R. 
Co.,  165  Mich.  371,  130  N.  W.  317,  17 
Det.  Leg.  N.  1238;  Chaloux  v.  Inter- 
national Paper  Co.,  75  N.  H.  2S1,  73 
A.  301. 

85.  Magnuson  v.  O'Dea  (Wash.), 
135  Pac.  640,  48  L.  R.  A.  (N.  S.) 
327. 

86.  Stewart  v.  Strong,  20  Ind.  App» 
44,  50  N.  E.  95, 


843 


IXJUKY    TO    CHILD. 


§  771 


deprived  of  the  society  and  comfort  of  iiis  child/'  So  must  the 
situation  in  life  and  circumstances  of  the  parties  be  taken  into  con- 
sideration in  estimating  the  household  disgrace.** 

A  parent  cannot  maintain  an  action  for  injury  to  feelings  by 
reason  of  the  betrayal  of  a  daughter  still  living.  There  is  no 
precedent  for  an  action  by  one  person  for  injuries  to  feelings  as  a 
consequence  of  injury  to  another  still  living.  The  only  basis  for 
this  action  is  in  case  of  loss  of  services,  and  where  this  is  lacking 
there  can  be  no  recovery.*® 

In  an  action  by  the  father  for  seduction  of  the  daughter  exem- 
plary damages  may  be  allowed  in  some  States,  although  not  speci- 
ally provided  by  the  statute,  and  even  though  the  defendant  may 
be  liable  to  exemplary  damages  by  the  daughter  also.  The  rule  of 
"  double  jeopardy  "  has  no  application  to  civil  cases.  A  verdict 
of  $6,000  exemplary  damages  was  supported.  Damages  may  also 
include  a  doctor's  bill  for  attendance  on  the  daughter,  and  the 
time  lost  by  the  daughter  at  the  ordinary  wages  of  household  help 
even  though  there  was  no  evidence  that  the  father  had  anything  for 
the  daughter  to  do  during  the  period.®" 


87.  Irwin  v.  Dearman,  11  East,  23. 

88.  Andrews  v.  Askey,  8  Car.  &  P. 
9. 

"In  point  of  form,"  observes  Lord 
Eldon,  "the  action  only  purports  to 
give  a  recompense  for  loss  of  service ; 
but  we  cannot  shut  our  eyes  to  the 
fact  that  it  is  an  action  brought  by  a 
parent  for  an  injury  to  her  child,  and 
the  jury  may  take  into  their  consider- 
ation all  that  she  can  feel  from  the 
nature  of  the  loss.  They  may  look 
upon  her  as  a  parent  losing  the  com- 
fort, as  well  as  the  service,  of  her 
daughter,  in  whose  virtue  she  can  feel 
no  consolation;  and  as  the  parent  of 
other  children  whose  morals  may  be 
corrupted  by  her  example."  Bedford 
V.  McKowl,  3  Esp.  120.  And  see 
Eobinson  v.  Burton,  5  Barring.  335 ; 
Klopfer  V.  Bromme,  26  Wis.  372; 
Pence  v.  Dozier,  7  Bush,  133;  Dain 
V.  WyckofF,  18  N.  Y.  45;  White  v. 
Murtlnnd,  71  111.  250.  See  further, 
on  this  subject,  White  v.  Campbell, 
13   Gratt.    573;    Sellars  v.   Kinder,   1 


Head,  134;  1  Addison,  Torts,  703; 
Eager  v.  Grimwood,  1  Exch.  61 ; 
Eichardson  v.  Fonts,  11  Ind.  466; 
Eeed  v.  Williams,  5  Sneed,  580;  Rus- 
sell v.  Chambers,  31  Minn.  54;  Ves- 
sel V.  Cole,  10  Mo.  634;  2  Kent  Com. 
205,  9th  ed.  n.;  Bigelow  on  Torts. 
Exemplary  damages  have  been  denied 
where  the  daughter 's  willing  mis- 
conduct appeared.  Comer  v.  Taylor, 
82  Mo.  341.  And  where  before  con- 
finement the  daughter  marries  ano- 
ther man,  the  father's  damages  may 
prove  merely  nominal.  Humble  v. 
Shoemaker,  70  la.  223.  Under  sta- 
tutes changing  the  old  rule,  the  pa- 
rent's suit  is  allowed  to  embrace  not 
only  the  loss  of  peace  and  comfort  to 
the  family,  but  the  effect  upon  the 
character  and  prospects  of  the  girl 
herself.  Stoudt  v.  Shepherd,  73  Mich. 
588. 

89.  Kaufman  v.  Clark  (La.),  75  So. 
65,  L.  R.  A.  1917E,  756. 

90.  Tleutkeimer  v.  Nolte  (la.),  161 
X.  W.  290,  L.  E.  A.  1917D,  273. 


§  773  PARENT  AND  CHILD.  844 


CHAPTER  IX. 

THE  parent's  duties  AND  LIABILITIES. 

Section  772.  Leading  Duties  of  Parents  Enumerated. 

773.  Duty  of  Protection ;  Defence,  Personal  and  Legal. 

774.  Duty  of  Education. 

775.  Duty  of  Providing  a  Trade  or  Profession. 

776.  Religious  Education. 

777.  Parent's  Liability  for  Torts  of  Child. 

778.  Liability  for  Acts  of  Insane  Child. 

779.  Parent's  Liability  for  Child's  Acts  in  Driving  Automobile, etc. 

§  772.  Leading  Duties  of  Parents  Enumerated. 

Three  leading  duties  of  parents  as  to  their  legitimate  children 
are  recognized  at  the  common  law :  first,  to  protect ;  second,  to  edu- 
cate; third,  to  maintain  them.  These  duties  are  all  enjoined  by 
positive  law;  yet  the  law  of  the  natural  affections  is  stronger  in 
upholding  such  fundamental  obligations  of  the  parental  state.*^ 

§  773.  Duty  of  Protection;   Defence,  Personal  and  Legal. 

First,  as  to  protection :  that  cover  or  shield  from  evil  and  injury 
which  is  afforded  by  the  parent.  This  duty  the  stronger  owes  to 
the  weaker,  and  especially  does  the  father  owe  it  to  his  child,  so 
long  as  the  latter  remains  comparatively  helpless.  This  obligation 
may  be  shifted  in  time,  as  age  adds  to  the  strength  of  the  one  and 
the  infirmities  of  the  other.  The  duty  of  giving  personal  care  and 
protection  to  children  is  distinct  from  the  duty  of  support,^^ 

It  is  to  the  credit  of  our  civilization  that  the  natural  duty  of 
protection  is  rather  permitted  than  enjoined  by  any  municipal 
laws ;  nature  in  this  respect  "  working  so  strongly,"  to  use  the 
forcible  words  of  Blackstone,  "  as  to  need  rather  a  check  than  a 
spur."^^  The  strongest  illustration  of  protection  at  the  common 
law  which  is  furnished  by  this  learned  writer,  —  that  of  a  father 
who  revenged  his  son's  injury  by  going  near  a  mile  and  beating  the 
offender  to  death  with  a  cudgel,  —  though  affording  a  questionable 
legal  principle,  as  he  puts  it,  shows  at  least  what  the  verdicts  of 
our  juries  are  constantly  confirming,  that  the  sympathies  of  human 

91.   1  Bl.  Com.  447;    2   Kent  Com.  92.    Courtright    v.    Courtright,    40 

ISS;    Taylor's  Civil  Law,   383;    Puff.       Mich.  633. 
b.  4,  c.  11,  §§  4,  5.  93.  Bl.  Com.  450. 


846  THE  parent's  duties.  §  774: 

tribunals  are  witK  him  who  defends  his  own  offspring,  even  when 
his  zeal  outruns  his  discretion.®* 

A  parent  may,  by  the  common  law  of  England,  maintain  and 
uphold  his  children  in  their  lawsuits,  without  being  guilty  of  the 
legal  crime  of  maintaining  quarrels."^  He  may  also  justify  an 
assault  and  battery  committed  in  defence  of  the  persons  of  his 
children.*®  So  where  a  father  finds  a  man  attempting  to  rape  his 
daughter  he  has  a  right  to  protect  her  by  any  means  in  his  power 
and  if  he  kills  the  assailant  in  good  faith  on  an  appearance  of  neces- 
sity he  will  be  acquitted  although  it  may  afterwards  appear  that  he 
might  have  prevented  the  crime  by  other  means.'^ 

The  culpability  of  the  father  going  to  the  defence  of  his  son  is 
measured  not  by  the  intent  of  the  son  in  engaging  in  a  conflict  but 
by  the  intent  with  which  the  father  acted.  So  where  the  father  in 
ignorance  of  the  circumstances  comes  upon  a  fight  between  the  son 
and  another  in  which  his  son  is  apparently  in  imminent  peril  of  his 
life  and  the  fatber  kills  the  son's  opponent  it  would  be  on  his  part 
a  homicide  in  self-defense  although  the  son  was  originally  the 
aggressor  in  the  fight.^^ 

On  the  other  hand,  as  we  shall  hereafter  see,  where  he  is  cruel 
and  devoid  of  natural  affection,  his  children  may  be  taken  from  his 
personal  keeping;  nay,  he  may  be  subject  to  punishment  for  his 
own  misconduct.'®  The  doctrine  of  parental  protection  seems  to 
have  required  little  or  no  special  judicial  discussion  in  modem 
times. 

§  774.  Duty  of  Education. 

The  second  duty  of  parents  is  that  of  education ;  a  duty  which 
Blackstone  pronounces  to  be  far  the  greatest  of  all  these  in  im- 
portance.^ This  importance  is  enhanced  by  the  consideration  that 
the  usefulness  of  each  new  member  of  the  human  family  to  society 
depends  chiefly  upon  his  character,  as  developed  by  the  training  he 
receives  in  early  life.  Not  the  increase  of  population,  but  the 
increase  of  a  well-ordered,  intelligent,  and  honorable  population  is 

94.  See  1  Hawk.  P.  C.  83,  cited  in  96.  1  Hawk.  P.  C.  131;  1  Bl.  Com. 
1  Bl.  Com.  450;  and  n.  by  Coleridge,       450. 

citing   Post.    294,   and    2    Ld.    Raym.  97.  Litchfield  v.  State,  8  Okla.  Crim. 

1498,  in  opposition  to  Blackstone 'a  re-  Eep.  164,  126  Pac.  707,  45  L.  B.  A. 

mark.  (N.  S.)   153. 

95.  2   Inst.   564.     But  a  parent  is  98.  Mayhew  v.  State  (Tex.),  144  S. 
not  bound   to   employ   counsel  to   de-  W.  229,  39  L.  R.  A.  (N.  S.)  671. 
fend  the  suits  of  his  minor  children.  99.  See  post,  §  801. 

Hill  V.  Childress,  10  Terg.  514.  1.  1  Bl.  Com.  450. 


774 


PARE!<rT    AND    CHILD. 


846 


to  determine  the  strength  of  a  State ;  and,  as  a  civil  writer  observes, 
the  parent  who  suffers  his  child  to  grow  up  like  a  mere  beast,  to 
lead  a  life  useless  to  others  and  shameful  to  himself,  has  conferred 
a  very  questionable  benefit  upon  him  bj  bringing  him  into  the 
world,^  and  the  education  should  be  consistent  with  the  station  in 
life  of  the  parties.^  Solon  excused  the  children  of  Athens  from 
maintaining  their  parents,  if  they  had  neglected  to  train  them  up 
in  some  art  or  profession.*  So  intimately  is  government  concerned 
in  the  results  of  early  training,  that  it  interferes,  and  justly,  too, 
both  to  aid  the  parent  in  giving  his  children  a  good  education,  and 
in  compelling  that  education,  where  the  parent  himself,  and  not 
the  child,  is  delinquent  in  improving  the  opportunities  offered.^ 
But  schemes  of  education,  in  cases  of  disagreement  among  guard- 
ians, are  still  prescribed  in  chancery.^  So  the  rights  of  the  guard- 
ian as  judge  of  the  place  of  his  ward's  education  have  been 
sometimes  enforced  in  equity  against  the  ward's  own  wishes.'  The 
father's  educational  scheme  has  been  permitted  to  put  restrictions 
on  the  intercourse  of  a  daughter  with  her  own  mother.*  Courts  of 
chancery,  in  short,  have  jurisdiction  to  superintend  the  education 
of  infant  children.  Yet  the  English  courts  seem  to  have  acted 
rather  for  the  purpose  of  securing  the  control  of  the  child's  educa- 
tion to  the  proper  person,  or  upholding  the  father's  wishes,  than  to 
make  independent  regulations  of  their  own  according  to  the  child's 
welfare.'  In  this  respect,  as  well  as  in  enforcing  the  disabilities 
of  the  law  against  Eoman  Catholics  and  dissenters,  chancery  was 
manifestly  influenced  by  considerations  of  national  policy. 

Should  such  a  subject  come  before  the  courts  of  this  country, 


2.  Puff.  Law  of  Nations,  b.  6,  c.  2, 
§  12. 

3.  In  re  Putney,  114  N.  Y.  S.  556, 
€1  Misc.  1;  School  Board  Dist.  No. 
18,  Garvin  County,  v.  Thompson,  24 
Okla.  1,  103  P.  578. 

4.  Plutarch '3  Lives;  2  Kent,  Com. 
195. 

5.  Under  existing  statutes  a  parent 
may  be  prosecuted  for  neglecting  to 
educate  his  child.  School  Board  v. 
Jackson,  7  Q.  B.  D.  502. 

6.  Campbell  v.  Mackay,  2  Myl.  &  Or. 
34;   Macphers.   Inf.   555. 

7.  Tremain's  Case,  Stra.  168;  Hall 
T.   Hall,   3   Atk.   721.     In   Tremain's 


case,  an  "infant"  went  to  Oxford 
contrary  to  the  orders  of  his  guar- 
dian, who  wished  him  to  study  at 
Cambridge.  The  court  sent  a  mes- 
senger to  carry  him  from  Oxford  to 
Cambridge;  and  upon  his  repeated 
disobedience  there  went  another  tarn 
to  carry  him  to  Cambridge,  guam  to 
keep  him  there.  See  Macphers.  Inf. 
121,  141. 

8.  Agar-Ellis  v.  Lascelles,  24  Ch.  D. 
317. 

9.  See  2  Story,  Eq.  Juris.,  §  1342; 
Wellesley  v.  Wellesley,  2  Bligh  (N. 
S.),  124. 


847  THE  parent's  duties.  §  776 

they  might  fairlj  take  a  different  course,  more  in  accordance  with. 
American  legislation.  Our  municipal  laws  in  general  provide  for 
the  infant's  educational  wants ;  and  this  whole  jurisdiction  is  one 
of  great  embarrassment  and  responsibility.^"  But  there  are  several 
decisions  concerning  the  right  of  public  school  boards  to  issue  gen- 
eral regulations  concerning  the  admission,  suspension,  or  dismissal 
of  pupils,  or  the  subjects  of  study.  And  in  some  States  the  father 
of  a  child  may  apply  for  mandamus  against  the  board  to  compel 
them  to  admit  to  the  public  school  his  child,  who  has  been  unlaw- 
fully excluded." 

§  775.  Duty  of  Providing  a  Trade  or  Profession. 

The  parent's  duty,  according  to  some  authorities,  also  extends 
to  providing  the  children  with  a  profession  or  trade  as  well  as  a 
suitable  education.  How  far  the  duty  of  competent  provision 
extends,  must  depend  upon  the  condition  and  circumstances  of  the 
father.  Kent  observes  that  this  duty  is  not  susceptible  of  municipal 
regulations,  and  is  usually  left  to  the  dictates  of  reason  and  natural 
affection." 

§  776.  Religious  Education. 

The  father  has  the  absolute  right  at  common  law  to  determine 
the  religious  education  of  his  children.^^  Questions  of  parental, 
and  more  particularly  religious,  education  arise  often  in  English 
law  under  the  will  of  the  father.  It  is  laid  down  as  the  rule,  that 
where  one  has  left  no  direction  in  his  will  as  to  the  religion  in 
which  his  children  are  to  be  educated,  it  will  be  presumed  that  his 
wishes  were  that  they  shall  be  educated  in  his  own  religion.^* 

10.  See  the  topic  of  Custody,  supra,  upon  a  local  domicile  in  the  strict 
§  740  et  seq.;  Jones  v.  Stockett,  2  sense.  School  Dist.  of  Waukesha  v. 
Bland,  409.  Thayer,   74    Wis.    48;    Yale    v.    West 

11.  People  V.  Board  of  Education,  Middle  School  Dist.,  59  Conn.  489. 
18  Mich.  400;  Sheibley  v.  School  Dis-  12.  2  Kent,  Com.  202.  It  is  within 
trict,  31  Neb.  552,  maintaining  a  the  police  power  of  the  legislature  to 
father's  right  to  make  a  reasonable  prohibit  a  parent  from  putting  a 
selection  for  his  own  child  from  the  young  female  child  upon  exhibition  as 
studies  prescribed.  See  further,  Bur-  a  professional  dancer,  on  considera- 
dick  V.  Babcock,  31  la.  562 ;  Hodg-  tions  of  injury,  whether  to  the  child  'a 
kins  V.  Rockport,  105  Mass.  475.  A  health  or  morals.  People  v.  Ewer, 
pupil  cannot  be  expelled  from  a  pub-  141  N.  Y.  129. 

lie  school  because  of  mere  negligence,  13.  Ex  parte  Flynn,  87  N.  J.  Eq. 

neither  wilful  nor  malicious.    Holman  413,  100  A.  861. 

V.  School  District,  77  Mich.  605.     A  14.   In  re  North,  11  Jur.  7,  V.  C. 

minor    child's    right    to    local    public  Bruce;    Tilacphers.    Inf.    555;    Camp- 

«ducation    is    not    entirely    dependent  bell  v.  Mackay,  2  Myl.  &  Cr.  34. 


§  776 


PARENT    AND    CHILD. 


848 


Further,  that  the  religious  education  of  an  infant  of  fifteen  will 
not  be  changed  unless  the  infant  wishes  it."  But  no  regard  is  paid 
to  the  wishes  of  a  child  ten  years  old.^®  The  father  is  allowed  to 
designate  the  plan  of  education  to  be  followed  with  respect  to  his 
children  after  his  death.  And  while,  as  Lord  Cottenham  has 
observed,  he  has  no  power  to  prescribe  a  particular  religion  to  his 
child,  yet  he  has  indirectly  the  power  of  effecting  his  object  by  the 
choice  of  a  guardian." 

The  English  courts  of  chancery  have  indeed  exercised  consider- 
able jurisdiction  over  the  education  of  minor  wards:  a  topic  which 
very  seldom  engages  the  attention  of  American  tribunals.  While 
the  penal  laws  against  Roman  Catholics  were  in  full  force  in 
England,  it  was  considered  the  duty  of  the  court  of  chancery,  by 
analogy  to  the  st-atute  law,  to  see  that  all  infants  under  its  control 
should  be  brought  up  in  the  Protestant  religion.^®  A  case  is 
reported  in  which  Lord  Cowper  ordered  a  Roman  Catholic  girl  to 
be  sent  to  a  Protestant  school,  evidently  with  a  view  to  her  con- 
version.^^ With  the  progress  of  religious  toleration  came  a  dif- 
ferent rule  of  practice;  and  it  is  now  a  question  whether,  under 
any  circumstances,  the  court  would  interfere  with  the  testamentary 
guardian,  and  the  infant's  religion  as  designated  by  the  father; 
indeed,  according  to  many  late  decisions,  the  Roman  Catholic  faith 
appears  in  this  respect  as  much  favored  as  the  Protestant.^"  And 
the  courts  are  disposed  to  uphold  the  father  in  his  reasonable  views 
against  the  mother's  religious  convictions,  or  those  of  the  children 
themselves.^^     Our  various  constitutional  provisions  for  religious 


15.  Witty  V.  Marshall,  1  You.  &  C. 
N.  C.  68. 

16.  Regina  v.  Clarke,  7  El.  &  B. 
186.  And  see  Hawksworth  v.  Hawks- 
worth,  L.  R,  6  Ch.  539. 

17.  Talbot  V.  Earl  of  Shrewsbury, 
18  L.  J.  125;  Macphers.  Inf.  126. 
See  also  Hill  v.  Hill,  8  Jur.  (N.  S.) 
609.  And  see  Eraser,  Parent  &  Child, 
82. 

18.  Macphers.  Inf.  123 ;  Lady  Teyn- 
ham's  Case,  9  Mod.  40. 

19.  Hill  V.  Filkin,  2  P.  Wms.  5.  And 
Bee  Blake  v.  Leigh,  Ambl.  306 ;  Jac. 
264,  n;  In  re  Bishop,  Eeg.  Lib.  1774, 
cited  in  Macphers.  Inf.  124. 

20.  Talbot  V.  Earl  of  Shrewsbury, 
18  L.  J.  125,  per  Lord  Ch.  Cottenham. 


And  see  Regina  v.  Clarke,  7  El.  &  B. 
186;  Hawksworth  v.  Hawksworth,  L. 
E.  6  Ch.  539-;  Clarke,  Be,  21  Ch.  D. 
817.  But  ef.  Agar-Ellis  v.  Lascelles, 
L.  R.  10  Ch.  D.  49;  D 'Alton  v.  D 'Al- 
ton, L.  R.  4  P.  D.  87. 

21.  In  several  late  English  cases, 
where  the  young  children,  under  the 
mother's  influence,  were  likely  to  be- 
come either  Roman  Catholics  or  athe- 
ists, chancery  interposed  to  carry  out 
the  father's  washes  and  bring  them  tin- 
dor  Protestant  influence ;  and  this,  not- 
withstanding a  voluntary  or  judicial 
separation  of  the  parents  which  had 
given  the  mother  the  children 's  cus- 
tody. Agar-Ellis  v.  Lascelles,  L.  E. 
10  Ch,  D.  49;  Besant,  In  re,  L.  R  11 


849  THE  pakent's  duties.  §  777 

freedom    produce,    moreover,    local    disputes    on    the    subject   of 
religious  or  race  instruction  in  the  public  schools.^^ 

In  this  country  the  Constitutions  of  most  of  the  States  contaia 
guarantees  of  religious  freedom  which  have  affected  the  attitude  of 
the  courts  and  made  them  remarkably  timid  about  laying  down 
any  set  rules  on  the  subject.  It  has  been  held  that  the  father  alone 
has  the  right  to  decide  his  child's  religion,^^  or  that  no  rule  will  be 
laid  down  but  each  case  considered  on  its  merits  for  the  good  of  the 
child,^*  or  that  religious  distinctions  and  questions  will  not  be  con- 
sidered by  the  court  at  all.^^  There  are  very  few  decisions  on  the 
subject  in  this  country  as  the  questions  involved  have  not  usually 
been  considered  important  enough  to  carry  to  courts  of  last 
resort.*' 

§  777.  Parent's  Liability  for  Torts  of  Child. 

As  to  the  parent's  liability  to  action,  where  the  child  is  the  injnr^ 
ing  party.  The  question  is  sometimes  asked,  how  far  a  father  is 
responsible  in  damages  for  the  torts  and  frauds  of  his  infant  child. 
We  have  already  seen  that  the  husband's  responsibility  for  his 
wife's  injuries  at  the  common  law  is  founded  upon  his  right,  by 
marriage,  to  her  property.  Very  different  is  the  relation  of  parent 
and  child,  where,  it  is  now  plain,  the  father  has  little  more  than  the 
right  to  claim  his  child's  wages,  so  far  as  the  infant's  property  is 
concerned.^^  Yet  some  have  been  misled  into  the  belief  that  the 
two  cases  are  entirely  analogous;  and  they  would  hold  the  father 
liable  for  his  son's  wrongful  acts,  as  a  husband  for  the  wife's.  It 
is  held  in  Pennsylvania  that  the  father  may  be  sued  in  trespass  for 
an  injury  committed  by  his  son,  when  they  ride  together  in  the 

Ch.  D,  508.     In  D 'Alton  v.  D 'Alton,  23.   Hernandez  v.   Thomas,   50   Fla. 

L.  K,   4   P.   D.   87,  both  parents  had  522,  39  8o.  641. 

been  Roman  Catholics,  and  the  father  24.  Purington  v.  Jamrock,  195  Mass. 

afterwards  became  a  Protestant.   And  187,  80  N.  E.  802. 

see  In  re  Scanlanj  Infants,  40  Ch.  D.  25.  Jones  v.  Bowman,  13  "Wyo.  79, 

200.  77  Pac.  43?. 

22.  As  to  studying  languages,  see  26.  See  learned  article  on  the  re- 
Board  of  School  Comm  'rs  of  Indian-  ligious  education  of  children  in  29 
apolis  V.  The  State,  129  Ind.  14.  As  Harvard  Law  Review,  485.  See  Mat- 
to  religious  instruction  and  the  use  ter  of  McConnon,  60  Misc.  22,  112 
of   the   Bible,   see   Hysong   v.    School  N.  T.  Supp.  590. 

District  (1894),  Pa.;  State  v.  District  27.  Nor  can  the  parent  make  the  in- 

Board,  76  Wis.  177.    Separate  schools  fant   child's  real  estate  itself  liable, 

/or   white   and   colored   children   may  even  for  a  necessary  debt  of  his  o^mi 

be   rightfully   established.      Lehew   v.  creation.    Cox    v.    Storts,    14    Bush, 

Brummell,  103  Mo.  546.  502. 

54 


§ 


777 


PAEENT    AND    CHILD. 


850 


father's  team,  and  the  act  is  committed,  in  the  latter's  presence.^* 
Whether  the  principle  can  be  safely  carried  further  is  extremely 
doubtful.  In  Missouri,  on  the  other  hand,  and  with  better  reason, 
it  is  decided  that  a  father  is  not  responsible  for  an  independent 
assault  committed  by  his  infant  son,  without  his  sanction ;  not  even 
though  the  child  was  known  by  him  to  be  of  a  vicious  temper.^' 
The  same  rule,  with  more  caution,  has  been  applied  in  New  York, 
in  a  case  where  it  was  shown  that  a  minor  daughter,  in  her  father's 
absence,  and  without  his  authority  or  approval,  wilfully  set  his 
dog,  not  ordinarily  a  vicious  animal,  upon  the  plaintiff's  hog,  which 
was  thereby  bitten  and  killed.^" 

But  for  injuries  occasioned  by  the  infant  with  his  father's  direct 
sanction  or  participation,  or  while  in  the  due  course  of  employment 
by  the  father,  the  latter  is  held  answerable  to  others.  Thus,  a 
minor  son,  under  a  contract  with  bis  father  to  clear  a  parcel  of 
land,  did  it  so  negligently  as  to  destroy  a  neighbor's  property  by 
fire ;  and  for  this  the  parent  was  held  to  damages  at  the  neighbor's 
suit.^^  In  Wisconsin,  a  father  was  held  liable  for  injury  sustained 
by  a  passer-by  whose  horse  took  fright,  because  he  carelessly  per- 
mitted his  young  children  to  fire  pistols  and  shout  on  the  highway 
and  thus  contributed  to  the  injury.^"  And  while  a  parent  is  not 
liable  for  an  independent  trover  and  conversion  committed  by  his 
child,  he  becomes  liable  where  he  learns  of  it  and  continues  to  enjoy 


the  benefit  of  the  wrong. 


33-34 


For  all  such  injuries  (subject  to  the  usual  scope  of  negligent 
performance  as  another's  agent  or  servant)  an  infant  is  answer- 


28.  Strohl  V.  Levan,  39  Pa.  St. 
177.  And  see  Lashbrook  v.  Patten,  1 
Duvall,  316. 

29.  Baker  v.  Haldeman,  24  Mo. 
219;  Paul  v.  Hummel,  43  Mo.  119. 

30.  Tifft  V.  Tifft,  4  Denio,  175. 
And  see  McManus  v.  Crickett,  1  East, 
106;  Foster  v.  Essex  Bank,  17  Mass. 
479.  The  responsible  occupation  of 
premises  on  which  vicious  animals  are 
kept  is  sometimes  a  legal  element. 

Nor  was  the  father  held  liable  in 
damages  where  his  son  set  another's 
property  on  fire,  in  Edwards  v.  Grume, 
13  Kan.  348.  And  see  Baker  v.  Mor- 
ris, 33  Kan.  580.  See  also  Paulin  v. 
Howser,    63    111.    312;     Chandler    v. 


Deaton,  37  Tex.  406;  Smith  v.  Daven- 
port, 45  Kan.  423.  The  want  of 
parental  knowledge  or  sanction  here 
appeared.  For  the  peculiar  rule  of 
the  Louisiana  code  as  to  parental  lia- 
bility in  such  cases,  see  Marionneaux 
V.  Bougier,  35  La.  Ann.  13,  891;  Mul- 
lins  V.  Blaise,  37  La.  Ann.  92. 

31.  Teagarden  v.  McLaughlin,  86 
Ind.  476. 

32.  Hoverson  v.  Noker,  60  Wis.  511. 
Evidence  was  admitted  that  the  father 
knew  his  children  had  thus  miscon- 
ducted before.  Cf.  Hagerty  v.  Pow- 
ers, 66  Cal.  368. 

33-34.  Hower  v.  Ulrich,  156  Pa.  St. 
410. 


851 


THE    PARENT  S    DUTIES. 


(    4    : 


able  at  law,  out  of  iiis  own  estate ;  at  least,  if  he  is  old  enough  to 
have  kno\vn  better.^^  But  how  as  to  the  parent's  liability  ?  For 
that  is  the  present  issue.  The  principles  of  the  Eoman  law  cannot 
be  cit^d  to  much  advantage,  in  support  of  such  liability,  on  the 
score  of  agency,  or  otherwise;  since  under  that  system  the  child 
was  little  better  than  the  slave  of  his  father ;  and  even  as  to  slaves, 
it  was  considered  at  the  time  of  the  Institutes  that  it  would  be  very 
unjust,  when  a  servant  did  a  wrongful  act,  to  make  the  master  lose 
anything  more  than  the  servant  himself.^*  The  modern  rule  of  the 
civil  law,  in  European  countries,  is  to  make  every  person  respon- 
sible for  injuries  caused  by  the  act  of  persons  and  things  under  his 
dominion ;  but  a  father  incurs  no  responsibility  for  the  act  of  his 
minor  child,  if  he  can  prove  that  he  was  not  able  to  prevent  the  act 
which  gives  rise  to  the  liability.^^ 

On  the  whole  it  may  be  stated  as  a  rule  of  our  common  law  that 

discharged.  After  the  remand,  the 
son  told  his  father  Tvhat  he  had  done ; 
the  latter  did  not  prohibit  him  from 


35.  Campbell  v.  Stakes,  2  Wend. 
137;  fost,  §  1028  et  seq.;  Smith  v. 
Davenport,  45  Kan.  423. 

36.  Smith's  Diet.  Greek  and  Koman 
Antiq.,  "Novalis  Actio."  Inst.  lib. 
4,  tit.  8,  by  Saunders. 

37.  Civil  Code  France,  art.  1384; 
Cleaveland  v.  Mayo,  19  La.  414.  See 
Baker  v.  Haldeman,  24  Mo.  219. 

This  point  received  some  attention 
in  a  modern  English  case,  where  the 
father  of  a  young  man,  about  seven- 
teen or  eighteen,  was  sued  for  tres- 
pass and  false  imprisonment.  The 
plaintiff  was  property-man  at  a  thea- 
tre, of  which  the  defendant  was  les- 
see. The  young  man,  minor  son  of 
the  defendant,  acted  as  his  father's 
treasurer.  The  plaintiff,  in  his  char- 
acter of  property-man,  presented  to 
the  treasurer  an  account,  containing 
some  wrongful  items  of  disbursement. 
The  defendant,  conceiving  this  to  be 
an  intentional  fraud  on  the  part  of 
the  plaintiff,  dismissed  him  from  his 
employment.  His  son  thereupon, 
without  consulting  the  father,  indis- 
creetly caused  the  plaintiff  to  be  ap- 
prehended by  a  policeman,  and  taken 
to  the  station  on  a  charge  of  obtain- 
ing money  by  false  pretences.  The 
plaintiff  went  before  a  magistrate, 
and  was  remanded,  but  was  ultimately 


proceeding  in  the  matter,  but  said 
that  as  the  son  had  begun  it,  he  would 
not  interfere.  The  court  decided  that 
these  facts  showed  neither  a  previous 
authority  nor  a  subsequent  ratification 
by  the  father,  sufficient  to  render 
him  liable  for  his  son's  conduct,  and 
on  that  ground  dismissed  the  suit. 
Moon  V.  Towers,  8  C.  B.  (N.  S.)  611. 
The  opinions  of  the  several  judges  in 
this  case,  though  expressed  by  way  of 
dicta,  exhibit  considerable  reluctance 
to  hold  the  father  liable,  as  a  tres- 
passer, for  his  son's  torts.  Says 
Willes,  J.,  approved  by  Byles,  J.,  ib.; 
Williams,  J.,  dub. :  ' '  The  tendency 
of  juries,  where  persons  under  age 
have  incurred  debts  or  committed 
wrongs,  to  make  their  relatives  pay, 
should,  in  my  opinion,  be  checked  by 
the  courts.  Xo  man  ought  as  a  general 
rule,  to  be  responsible  for  acts  not 
his  own."  And  says  the  Chief  Jus- 
tice: "Suppose  the  son  had  knocked 
the  plaintiff  down,  and  the  father 
had  said,  'I  think  it  served  him  right,' 
would  that  be  such  a  ratification  of 
the  son 's  act  as  to  make  the  father 
liable  as  a  trespasser!"  Per  Erie, 
C.   J.,  ib.      As   to   the  injuries  of  a 


778 


PARENT    AND    CPIILD. 


852 


a  father  is  not  liable  in  damages  for  the  torts  of  his  child,  com- 
mitted without  his  knowledge,  consent,  participation,  or  sanction, 
and  not  in  the  course  of  his  employment  of  the  child. 

A  parent  is  not  liable  as  such  in  this  country  for  the  torts  of  his 
minor  child  in  the  absence  of  evidence  of  authority  express  or 
implied,^^  but  may  be  if  the  acts  were  done  under  his  direction^" 
or  with  his  knowledge. 


40 


§  778.  Liability  for  Acts  of  Insane  Child. 

Parents  of  an  insane  person  are  not  liable  for  his  acts  in  the 
absence  of  negligence  of  the  parents  in  caring  for  him.*^  If  the 
condition  of  mind  of  an  adult  son  mentally  incompetent  is  such 
that  he  is  dangerous  or  that  danger  to  others  might  reasonably  be 
expected  from  his  acts  it  is  the  duty  of  the  parent  while  the  son  is 
in  his  custody  to  use  such  measures  of  restraint  and  control  as 
would  result  in  rendering  it  impossible  for  him  to  have  possession 
of  a  weapon.  This  is  on  the  same  theory  that  the  owner  of  a 
domestic  animal  is  answerable  in  damages  for  injury  done  by  that 
animal  when  its  vicious  nature  is  known  to  the  owner.  But  evi- 
dence that  the  son's  only  overt  act  of  violence  had  been  committed 


servant,  and  his  master's  liability, 
see  Master  and  Servant,  infra,  §§ 
488-491. 

38.  Parker  v.  Wilson,  179  Ala.  361, 
60  So.  150;  Chastain  v.  Johns,  120 
Ga.  977,  48  S.  E.  343,  66  L.  E.  A. 
958;  Harris  v.  Jones,  87  S.  E.  713; 
Sehumer  v.  Register,  12  Ga.  App,  743, 
78  S.  E.  731;  Wilkins  v.  Barnes,  11 
Ga.  App.  350,  75  S.  E.  361;  Arkin  v. 
Page  (111.),  123  N.  E.  30;  Kitchen 
V.  Weatherby,  205  111.  App.  10;  Dick 
v.  S-wenson,  137  111.  App.  68;  Palm 
V.  Ivoraon,  117  111.  App.  535;  Malm- 
berg  V.  Bartos,  83  111.  App.  481; 
Lemke  v.  Ady  (Iowa),  ISQ'  N.  W. 
1011;  Zeeb  v.  Bahnmaier  (Kan.),  176 
P.  326 ;  Mirick  v.  Suchy,  74  Kan.  715, 
87  P.  1141;  Barry  v.  Same,  Id.; 
Paulsey  v.  Draine,  9  Ky.  Law  Rep. 
693,  6  S.  W.  329;  Miller  v.  Meche, 
111  La.  143,  35  So.  491;  Winn  v. 
Haliday,  69  So.  685;  Hays  v.  Hogan, 
273  Mo.  1,  L.  R.  A.  1918C,  715,  200 
S.  W.  286;  Basaett  v.  Riley,  131  Mo. 


App.  676,  111  S.  W.  596;  Britting- 
ham  V.  Stadiem,  151  N.  C.  299, 
66  S.  E.  128;  McCarthy  v.  Heisel- 
man,  125  N.  Y.  S.  13,  140  App. 
Div,  240 ;  Muller  v.  Barker,  90  N.  Y. 
S.  388  (forged  check)  ;  Hemdobler  v. 
Rippen,  75  Ore.  22,  146  P.  140;  Fan- 
ton  V.  Byrum,  26  S.  D.  366,  128  N. 
W.  325;  Ritter  v.  Thibodeaux  (Tex. 
Civ.  App.),  41  S.  W.  492;  Lessoff  v. 
Gordon  (Tex.  Civ.  App.  1909),  124  S. 
W.  182;  Klapproth  v.  Smith  (Tex. 
Civ.  App.),  144  S.  W.  688;  Mopsikov 
V.  Cook  (Va.),  95  S.  E.  426  (slander)  ; 
Kumba  v.  Gilham,  103  Wis.  312,  79 
N.  W.  325;  Taylor  v.  Sell,  120  Wis. 
32,  97  N.  W.  498. 

39.  Harrington  v.  Hall  (Del.  Super. 
1906),  63  A.  875. 

40.  Stewart  v.  Swartz,  106  N.  E. 
719 ;  Johnson  v.  Glidden,  11  S.  D.  237, 
76  N.  W.  933,  74  Am.  St.  R.  795. 

41  Whitesides  v.  Wheeler,  158  Ky. 
121,  164  S.  W.  335;  BoUinger  v. 
Kader,  153  N.  C.  488,  69  8.  E.  497. 


853  THE  parent's  duties.  §  779 

twelve  years  before  is  insufficient  to  charge  the  parent  with  such 
knowledge  or  liability.** 

§  779.  Parent's  Liability  for  Child's  Acts  in  Drivng  Automobile, 
etc. 

An  injured  party  may  recover  on  account  of  the  parent's  neg- 
ligence in  caring  for  the  child  for  placing  in  his  hands  a  dangerous 
instrumentality  which  he  was  not  fitted  to  use,  as  an  automobile" 
or  a  gun.** 

There  is  a  conflict  of  authority  on  the  question  whether  a  father 
is  liable  for  the  negligence  of  his  minor  child  in  driving  an  auto- 
mobile which  the  father  has  furnished  for  him.  Some  cases  hold 
tiiat  the  father  is  liable  on  the  theory  that  he  has  furnished  the  car 
for  the  pleasure  of  his  family  and  therefore  must  be  responsible 
for  their  driving*^  while  other  courts  have  taken  the  view  that  the 
father  is  not  liable  unless  the  son  is  driving  on  the  parent's  busi- 
ness and  that  the  mere  fact  that  the  father  permits  a  capable  child 
to  use  his  car  for  his  own  pleasure  does  not  imply  that  the  father 
has  undertaken  the  occupation  of  entertaining  the  son  and  made 
him  his  agent  in  this  business.*®  The  father  may  be  of  course 
liable  if  he  permits  an  incompetent  child  to  run  his  car.  It  seems 
to  be  settled  that  an  automobile  is  not  such  a  dangerous  agency  that 
the  father  should  be  liable  for  intrusting  it  to  the  child.*^  In  some 
States  the  parent  is  liable  for  the  negligence  of  his  child  driving 
the  parent's  automobile  where  the  car  is  supplied  by  the  parent  for 
the  use  of  the  family  and  the  father  allows  the  son  to  drive  it,**  but 

42.  Whitesides  v.  Wheeler,  158  Ky.  53  L.  E.  A.  789,  96  Am.  St.  R.  475; 
121,  164  S.  W.  335,  50  L.  E.  A.  (N.  Sutton  v.  Champagne,  141  La.  469,  75 
S.)    1104.  So.   209;    Souza  v.   Irome,  219   Mass. 

43.  Gardiner  v.  Solomon  (Ala.),  75  273,  106  N.  E.  998;  Charlton  v.  Jack- 
So.  621;  Crittenden  v.  Murphy  (Cal.  son,  183  Mo.  App.  613,  167  S.  "W.  670. 
App.),  173  P.  595;  Walker  v.  Klopp,  45  Farnham  v.  Clifford  (Me.),  101 
99r  Neb.  794,  157  N.  W.  962 ;   Taylor  Atl.  468. 

V.  Stewart,  172  N.  C.  203,  90  S.  E.  46.  Blair  v.  Broadwater    (Va.),  93 

134;  Linville  v.  Nissen,  162  N.  C.  95,  S.  E.  632,  L.  E.  A.  1918A,  1011. 

77  S.  E.   1096;    Salisbury  v.  Crudale  47.  Blair  v.  Broadwater    (Va.),  93 

CE.   I.),   102    A.    731.     Contra,   Wat-  S.  E.  632,  L.  E.  A.  1918A,  1011. 

kins    V.    Clark    (Kan.),    176    P.    131.  48.  Griffin  v.  Eussell,  144   Ga.  275, 

Contra,  Warren  v.  Norguard  (Wash.),  87  S.  E.  10;   Anthony  v.  Kiefner,  96 

174  P.  7.     See  Stephens  v.  Stephens,  Kan.  194,  150  P.  524,  L.  E.  A.  1915F, 

173  Ky.  780,  189  S.  W.  1143;  Schultz  876;  Smith  v.  Jordan,  211  Mass.  269, 

V.    Morrison,    154    N.    T.    S.    257,    91  97  N.  E.  761;   Uphoff  v.  McCormick, 

Misc.  248    (judg.  affd.,  156  N.  Y.  S.  139  Minn.  392,  166  N.  W.  788;  Kay- 

1144.     See   Fleming  v.   Kravitz,   260  ser  v.  Van  Nest,  125  Minn.  277,  146 

Pa.  428,  103  A.  831.  N.   W.   1091;    Daily   v.   Maxwell,   152 

44.  Meers  v.  McDowell,  110  Ky.  ATo.  App.  415,  13  S.  W.  351;  McNeal 
926,  62  8.  W.  1013,  23  Ky.  Law,  461,  v.  McKain,  33  Okla.  449,  126  P.  742, 


§  779  PAKENT  AND  CHILD.  854 

the  father  is  not  responsible  for  the  negligence  of  the  son  in  driving 
the  family  automobile  on  his  own  business  in  the  absence  of  evi- 
dence of  agency  express  or  implied/^ 

Where  a  father  had  provided  his  family  with  an  automobile  as 
a  means  of  recreation  and  amusement,  and  the  son  in  the  use  of 
the  car  for  that  purpose  is  engaged  in  driving  his  sister  and  her 
friends  and  negligently  injures  a  third  person  he  is  not  performing 
an  independent  service  of  his  own  but  is  carrying  out  what  within 
the  spirit  of  the  matter  was  the  business  of  the  father,  even  though 
the  father  was  ignorant  of  this  particular  trip.°° 

It  is  settled  law  that  a  father  is  not  liable  for  the  tort  of  a  minor 
child,  with  which  he  was  in  no  way  connected,  which  he  did  not 
ratify  and  from  which  he  did  not  derive  any  benefit,  merely  because 
of  the  relation  of  parent  and  child."  He  may,  however,  be  liable 
for  the  acts  of  the  child  when  acting  as  his  agent  as  in  driving  the 
family  automobile,  but  not  when  he  took  the  car  without  his  father's 
permission  on  an  errand  of  his  ovm.^'  A  mother  is  not  liable  for 
the  negligence  of  her  son  in  driving  his  automobile  when  riding  as 
his  guest  although  she  did  ask  him  to  do  an  errand  for  her  on  the 
way,  which  was  a  mere  incident  of  the  trip.^^ 

Where  certain  persons  borrowed  an  automobile  from  the  owner 
to  make  a  trip  and  invited  the  owner's  son  to  accompany  them  and 
he  was  driving  at  the  time  of  the  accident  the  owner  is  not  liable 
as  the  son  was  not  at  the  time  his  servant  engaged  in  his  business."'^* 
The  father  is  not  liable  for  the  negligence  of  the  son  in  driving  his 
car  where  he  had  lent  the  car  on  the  day  in  question  to  a  third 

41   L.   E.   A.    (N.   S.)    775;    Birch  v.  140  Tenn.  217,  204  S.  W.  296;   Blair 

Abercrombie,   74    Wash.    486,   133    P.  v.  Broadwater,  121  Va.  301,  93  S.  E. 

1020   (opinion  modified  on  rehearing,  632. 

135  P.  821);  contra,  Maher  v.  Bene-  50.  Stowe  v.  Morris,  147  Ky.  386, 

diet,  108  N.  Y.  S.  228,  123  App.  Div.  144  S.  W.  52,  3?  L.  R.  A.    (N.  S.) 

.'-.79;    McFarlane   v.  Winters,   155   P.  224. 

437.  51.  Griffin  v.  Russell,  144  Ga.  275, 

49.    Erlick    v.    Heis,    69    So.    530;  87  S.  E.  10,  L.  R.  A.  1916F,  216. 

Dougherty  v.  Woodward   (Ga.  App.),  52.   Sultzbach  v.   Smith    (la.),   156 

94  S.  E.  636   (father '3  expressions  of  N.  W.  673,  L.  R.  A.  1916F,  228. 

sympathy  and  promise  to  do  the  right  53.    Anthony  v.   Kiefner,   96   Kan. 

thing  do  not  amount  to  ratification)  ;  194,   150   Pac.   524,  L.   R.  A.   1915F, 

Sultzbach  v.  Smith,  156  N.  W.   673;  876. 

Mast  V.  Hirsh,  199  Mo.  App.  1,  202  54.  Halverson  v.  Blosser,  101  Kan. 

S.  W.  275;  Lewis  v.  Steele,  52  Mont.  683,  168  Pac.  863,  L.  R.  A.  1918B, 

300,  157  P.  575;  Kunkle  v.  Thompson,  498. 
67  Pa.  Super.  Ct.  37 ;  King  v.  Smythc, 


855  THE  parent's  duties.  §  77{> 

party  who  had  without  his  knowledge  persuaded  the  son  to  drive 
for  him.^'* 

The  liability  of  a  parent  for  the  tort  of  a  child  is  governed  by 
the  principles  of  law  applicable  to  the  relation  of  principal  and 
agent  and  it  does  not  arise  out  of  a  mere  relation  of  parent  and 
child.  But  where  the  parent  is  accustomed  to  leave  his  automobile 
unlighted  on  the  street  at  night  and  the  son  knew  of  it  then  the 
father  would  be  liable  for  the  act  of  the  son  in  doing  the  same  thing 
upon  the  ground  of  an  implied  sanction  to  so  leave  it.°* 

55.  McFarlane  v.  Winters   (Utah),       349,  132  Pac.  33,  48  L.  B.  A.  (N.  S.) 
155  Pac.  437,  L.  R.  A,  1?16D,  618.  827. 

56.  Jaquith  v.   Worden,   73   Wash. 


§  780  PABENT  AND  CHILD.  866 


CHAPTER  X. 

parent's  duty  of  suppoet. 

Section  780.  Duty  of  Maintenance  in  General. 

781.  Father's  Support. 

782.  Mother's  Support. 

783.  Mother's  Pension  Acts. 

784.  Ability  of  Parent  to  Support  Child. 

785.  Duty  of  Stepchildren. 

786.  Value  of  Parental  Education,  Support,  &c. 

787.  Liability  of  Parents  to  Third  Persona  in  Absence  of  Agreement. 

788.  Child  as  Agent  for  Parent. 

789.  Agreements  to  Support. 

79t).  What  Constitutes  Support  or  "Necessaries." 

791.  Medical  Expenses. 

792.  Funeral  Expenses. 

793.  Maintenance,  &c.,  in  Chancery;  Allowance  from  Child's  Fortune. 

794.  Chancery  Maintenance ;  Out  of  Income  or  Principal. 

795.  When  Duty  Ceases. 

796.  Separation  or  Divorce  of  Parents. 

797.  Pleadings  and  Evidence  in  Actions  for  Support. 

798.  English  Statute  Enforcing  Support. 

799.  American  Penal  Statutes  Enforcing  Support. 

800.  Support  by  Others  as  a   Defence. 

801.  Proceedings  to  Compel  Support. 


§  780.  D.uty  of  Maintenance  in  General. 

The  third  parental  duty  is  that  of  maintenance.  It  is  a  plain 
precept  of  universal  law  that  young  and  tender  beings  should  be 
nurtured  and  brought  up  by  their  parents ;  and  this  precept  have 
all  nations  enforced.  So  well  secured  is  the  obligation  of  main- 
tenance that  it  seldom  requires  to  be  enforced  by  human  laws."*^ 
Are  we  brought  into  this  world  to  perish  at  the  threshold  by  suffer- 
ing and  starvation  ?  Ko ;  but  to  live  and  to  grow.  Some  one,  then 
must  enable  us  to  do  so;  and  upon  whom  more  justly  rests  that 
responsibility  than  upon  those  who  brought  us  into  being?  Hence, 
as  Puffendorf  observes,  the  duty  of  maintenance  is  laid  on  the 
parents,  not  only  by  ISTature  herself,  but  by  their  own  proper  act 
in  bringing  the  children  into  the  world.  By  begetting  them,  they 
have  entered  into  a  voluntary  obligation  to  endeavor,  as  far  as  in 
them  lies,  that  the  life  which  they  have  bestowed  shall  be  sup- 
ported and  preserved."* 

57.  1  Kent,  Com.  189.  58.  Puff.  Law  of  Nations,  b.  4,  e. 

11;   1  Bl.  Com.  447. 


867 


DUTY    OF    SUPPORT. 


§  781 


Maintenance  is  that  support  which  one  person  gives  to  another 
for  his  living.  This  word,  used  by  common-law  writers,  corre- 
eponds  with  the  civil-law  term  "  aliment."  '^^  The  obligation  on 
the  parent's  part  to  maintain  the  child  continues  until  the  latter 
is  in  a  condition  to  provide  for  his  own  maintenance;  and  it 
extends  no  further,  at  common  law,  than  to  a  necessary  support.®" 
The  Roman  system  carried  this  obligation  so  far  that  it  would  not 
suffer  a  parent  at  his  death  totally  to  disinherit  his  child  without 
expressly  giving  his  reasons  for  so  doing.®^  And  the  laws  of 
Athens  were  to  the  same  purport,®^  Blackstone  does  not  appear  to 
approve  of  carrying  natural  obligation  so  far.  And  he  cites 
Grotius  in  support  of  a  distinction  which  limits  the  child's  natural 
right  to  necessary  maintenance ;  what  is  more  than  that,  depending 
solely  upon  the  favor  of  parents,  or  the  positive  constitutions  of 
the  municipal  law,^^  Coke  observes  that  it  is  "  nature's  provision 
to  assist,  maintain,  and  console  the  child."  '* 

§  781.  Father's  Support. 

The  father  is  liable  for  support  to  his  children,  usually  by 
statute  in  this  country,®^  but  equity  will  not  interfere  to  force  a 


59.  Cf.  Macphers.  Inf.  210,  and 
Fraser,  Parent  &  Child,  85. 

60.  Kent,  Com.  190;  1  Bl.  Com. 
448. 

61.  Dig.  28,  230;  Nov.  115,  c.  3. 
The  statutes  of  some  of  the  United 
States  favor  this  doctrine  to  nearly 
the  same  extent.  A  child  is  not  disin- 
herited, at  least  by  mere  omission 
from  the  will. 

62.  2  Potter,  Greek  Antiq.  351. 

63.  Grot.  De  J.  B.  et  P.,  I.  2,  e.  7, 
n.  3;  1  Bl.  Com.  448. 

64.  See  2  Kent,  Com.  190. 

65.  Cook  V.  Echols  (Ala.  App.),  80 
So.  680;  In  re  Guertin's  Child,  5 
Alaska,  1. 

In  a  suit  by  an  adult  invalid  child 
against  his  parents  for  maintenance, 
evidence  of  the  latter 's  ability  to  con- 
tribute to  complainant's  support  was 
admissible  on  a  preliminary  applica- 
tion for  maintenance,  costs,  and  coun- 
sel fees  pendente  lite.  Paxton  v.  Pax- 
ton,  150  Cal.  667,  89  P.  1083;  McKeon 
V.  Byington,  70  Conn.  429.  39  A.  853 ; 


State  v.  Miller  (Del.  1902),  3  Penne- 
will,  518,  52  A.  262;  McConnell  v. 
Bogaert,  208  111.  App.  582;  Wheeler 
V.  State,  51  Ind.  App.  622,  100  N.  E. 
25;  Guthrie  County  v.  Conrad,  133  la. 
171,  110  N.  W.  454;  Eounds  Bros.  v. 
MeDaniel,  133  Ky.  669,  118  S.  W. 
956;  Bailey  v.  Penick  (Ky.  Super. 
1888),  10  Ky.  Law,  239;  Burrill  v. 
Sermini,  229  Mass.  248,  118  N.  E. 
331;  Lufkin  v.  Harvey,  154  N.  W. 
1097;  Eobinson  v.  Robinson,  168  Mo. 
App.  639,  186  S.  W.  1032,  154  S.  W. 
162 ;  White  v.  Wliite,  180  S.  W.  1004 ; 
Walters  v.  Niederstadt  (Mo.  App.), 
194  S.  W.  514 ;  Pinkelstein  v.  Finkel- 
stein,  161  N.  T.  S.  166,  174  App.  Div. 
416;  State  v.  Langford  (Ore.),  176  P. 
197;  In  re  HenkePs  Estate,  13  Pa. 
Super.  Ct.  337;  Memphis  Steel  Con.^t. 
Co.  V.  Lister,  138  Tenn.  307,  197  S. 
W.  902 ;  White  v.  McDowell,  74  Wash. 
44,  132  P.  734  (although  mother  re- 
married) ;  In  re  Northcutt,  148  P. 
1133. 


§  782 


PARENT    AND    CHILD. 


858 


father  to  support  his  minor  child  in  the  absence  of  statutory  author* 
ity  as  no  legal  obligation  to  support  is  recognized.®^ 

Where  a  father  abuses  his  children  thev  mav  under  statute  be 
released  from  parental  control,®'  but  this  does  not  release  him  from 
the  duty  to  support,®*  and  although  the  child  has  left  home  this 
does  not  revoke  an  order  he  has  given  for  support.®' 

The  father's  obligation  to  support  must  be  governed  by  the  law 
of  the  domicile  of  the  father.  So  where  an  adult  son  was  a  pauper 
living  in  a  jurisdiction  where  an  adult  pauper  son  is  entitled  to 
support  from  his  father,  but  the  father  lived  in  a  jurisdiction 
where  there  is  no  such  obligation  the  father  is  not  bound  to  support 
the  son.'° 

§  782.  Mother's  Support 

The  mother  is  not  at  common  law,  during  the  life  of  the  father, 
bound  to  support  the  child,''^  even  if  the  father  is  imprisoned  for 
crime/^  and  the  mother  can  compel  the  father  to  support.^' 

The  mother,  however,  after  the  death  of  the  father,  becomes  the 
head  of  the  family.  She  has  the  like  control  over  the  minor  chil- 
dren as  he  had  when  living;  and  she  is  then  bound  to  support 
them,  if  of  sufficient  ability."*  This  we  hold  to  be  the  rule  most 
conformable  to  natural  justice ;  though  there  are  cases  and  statutes 
which  would  seem  to  exempt  her  from  such  obligations.''^  A  court 
of  chancery  will  not  readily  make  the  support  and  education  of 
infant  children  a  charge  upon  the  property  of  their  widowed 
mother,  nor  upon  that  of  a  stepfather  who  has  not  undertaken  to 
stand  in  place  of  a  father,  while  their  own  means  are  ample."®     In 


66.  Rawlings  v.  Eawlings  (Miss.), 
83  So.  146;  Huke  v.  Huke,  44  Mo. 
App.  308.  See  Ailing  v.  Ailing,  52  X. 
J.  Eq.  92,  27  Atl.  655. 

67.  Hutchinson  v.  Hutchinson,  124 
€al.  677,  57  P.  674. 

68.  Leibold  v.  Leibold,  158  Ind.  60, 
62  N.  E.  627;  Rankin  v.  Rankin,  83 
Mo.  App.  335. 

69.  McKeon  v.  Byington,  70  Conn. 
429,  39  A.   853. 

70.  Coldingham  Parish  Council  v. 
Smith  (1918),  2  K.  B.  90. 

71.  Leake  v.  J.  R.  King  Dry  Goods 
Co.,  5  Ga.  App.  102,  62  S.  E.  729;  In 
re  Lyons'  Estate,  137  N.  T.  S.  171. 
See  State  v.  Beslin,  19  Ida.  185,  112  P. 
1053    (mother's  duty  under  statute). 


72.  Gleason  v.  City  of  Boston,  144 
Mass.  25,  10  N.  E.  476. 

73.  Alvey  v.  Hartwig,  106  Md.  254, 
67  A.  132,  11  L.  R.  A.  (X.  S.)  678. 

74.  Dedham  v.  Natick,  16  Mass. 
140;  Missouri  Pac.  Ry.  Co.  v.  Palmer, 
55  Xeb.  559,  76  X.  W.  169. 

75.  "Whipple  v.  Dow,  2  Mass.  415; 
Dawes  v.  Howard,  4  Mass.  97 ;  2  Kent, 
Com.  191,  and  cases  cited;  supra,  § 
237. 

76.  Mowbray  t.  Mowbray,  64  lU. 
383.  A  widow,  on  her  remarriage,  is 
not  liable  for  the  maintenance  of  a 
child  by  a  former  husband.  Besondy, 
He,  32  Minn.  385.  Where  a  mother 
has  maintained  her  infant  child  with- 
out the  order  of  the  court,  it  is  held 


859 


DUTY    OF    SUPPORT. 


■83 


such  connection,  again,  it  is  worth  considering  whether  the  child 
renders  any  valuable  services  to  a  remarried  mother  or  stepfather, 
or  confers  a  right  to  such  services."^  In  general,  a  married  woman 
is  not  liable  for  the  support  and  education  of  her  children  during 
the  lifetime  of  a  husband ;  and  if  she  renders  such  support  she  is 
entitled,  at  all  events,  to  an  allowance  from  the  estates  of  the  chil- 
dren,^^  or  if  she  dies  her  estate  is  not  to  be  charged  at  the  husband's 
instance/* 

If  the  father  is  alive  and  unable  to  maintain  his  child,  main- 
tenance will  be  allowed  without  considering  the  ability  of  the 
mother,  though  she  may  have  a  separate  income.®" 

§  783.  Mother's  Pension  Acts. 

The  so-called  mother's  pension  acts  are  upheld  in  a  recent  case. 
A  statute  authorizing  the  court  to  find  that  children  are  dependent 
and  peiTuitting  them  to  remain  in  the  custody  of  the  mother,  and 
fixing  the  amount  that  the  county  shall  contribute  to  their  support, 
is  valid.  The  State  as  parens  patriae  has  the  power  to  assume  the 
custody  and  control  of  a  child  upon  the  sole  gTound  of  the  parent's 
inability  to  support  it.  In  a  state  of  organized  society  the  rights 
of  the  parent  are  largely  subordinate  to  those  of  the  community, 
and  whenever  a  breach  of  the  parental  trust  occurs,  no  matter  from 
what  cause,  of  such  a  nature  that  the  fundamental  welfare  of  the 
child  is  endangered,  at  that  moment  the  State's  right  to  assume  its 
guardianship  arises.  The  State  has  power  in  the  premises  when- 
ever the  child's  poverty  reaches  a  menacing  stage.^^ 


that,  upon  his  decease,  she  can  claim 
for  past  maintenance  only  such  sum 
as  will  effectually  indemnify  her  for 
what  she  has  spent,  -without  reference 
to  the  amount  of  his  fortune.  Bruin 
V.  Knott,  9  Jur.  970.  She  may  have 
made  a  gift  of  maintenance  to  him 
so  as  to  be  precluded  from  claiming 
anything  afterwards  by  way  of  rec- 
ompense. In  re  Cottrell's  Estate,  L. 
E.  12  Eq.  566.  But  in  any  case  the 
widowed  mother  is  entitled  to  a  rea- 
sonable allowance  out  of  her  chil- 
dren's estate  for  their  maintenance, 
where  her  own  means  are  limited. 
Wilkes  V.  Bogers,  6  Johns.  566 ;  Hey- 
ward  V.  Cuthbert,  4  Desnus.  44.'>;  Os- 
borne V.  Van  Horn,  2  Pla.  360;  Brad- 


shaw  V.  Bradshaw,  1  Russ.  528 ;  Pyatt 
V.  Pyatt,  46  N.  J.  Eq.  285.  But  the 
widowed  mother  who  undertakes  to 
support  the  children  from  her  own 
means  cannot  be  compelled  by  her 
creditor  to  charge  their  fund.  Han- 
ford  V.  Prouty,  133  111.  339. 

77.  Englehardt  v.  Yung,  76  Ala. 
534. 

78.  Gladding  v.  Follett,  95  N.  T. 
652. 

79.  Phelps  V.  Daniel,  86  Ga.  363. 

80.  Macphers.  Inf.  224;  Haley  v. 
Bannister,  4  Madd.  275. 

81.  State  V.  Klasen,  123  Minn.  382, 
143  X.  W.  984,  49  L.  R.  A.  (X.  S.) 
597. 


§  786 


PARENT    AND    CHILD. 


860 


§  784.  Ability  of  Parent  to  Support  Child. 

Where  tbe  inability  of  the  father  to  comply  with  an  order  of 
the  court  to  support  children  is  bona  fide  the  court  cannot  compel 
the  father  to  learn  a  new  trade  or  to  acquire  a  profession  or  find 
employment  where  his  own  trade  becomes  temporarily  unprofitr 
able/^  but  the  fact  that  the  father,  a  mining  engineer,  is  unable  to 
get  work  in  his  profession  is  no  defence  to  a  charge  for  failure  to 
provide  for  his  child,  as  he  should,  if  he  cannot  get  the  kind  of 
work  which  he  wants,  do  any  kind  of  work  he  can  get.** 

§  785.  Duty  to  Stepchildren. 

In  absence  of  special  statutes  to  the  contrary,  the  father-in-law 
is  not  obliged  in  this  country  to  maintain  his  stepchildren,  and 
consequently  is  not  entitled  to  their  earnings,**  but  if  a  husband 
adopts  a  minor  child  of  his  wife  by  a  former  marriage,  and  holds 
him  out  to  the  world  as  his  own,  he  will  be  liable  for  his  support.®^ 

A  stepfather  may  be  held  liable  for  necessary  medical  attention 
furnished  his  stepson  where  the  stepson  was  treated  at  the  home  of 
a  relative  and  the  defendant  had  paid  other  bills  for  him,  and  the 
boy  lived  with  the  defendant  before  and  after  the  illness  and  dur- 
ing the  illness  the  defendant  visited  the  boy  and  saw  the  plaintiff 
attending  him  there  and  made  no  complaint  although  he  had  not 
hired  him.  Under  these  facts  the  jury  might  well  find  that  the 
defendant  stood  in  the  relation  of  a  parent  to  the  boy  and  had 
assumed  the  obligation  of  providing  him  with  necessaries.*' 


§  786.  Value  of  Parental  Education,  Support,  &c. 

In  assessing  damages  recoverable  by  a  minor  child  for  the  death 
of  a  parent  by  the  negligence  of  carriers,  courts  incline  sometimes 
to  consider  the  reasonable  prospective  expectation  of  pecuniary 
benefit  to  that  child  by  way  of  education  and  support,  and  physical 
and  moral  training,  had  that  parent  survived.*^ 


82.  Well3  V.  Wells  (Wash.),  169 
Pac.  970,  L.  E.  A.  1918C,  291. 

83.  Hunter  v.  State  (Okla.  Crim. 
Eep.),  134  Pac.  1134,  L.  E.  A.  1915A, 
564. 

84.  Commonwealth   v.   Hamilton,   6 
Mass.  253,  275;  Frcto  v.  Brown,  4  lb 
675 ;  Worcester  v.  Marchant,  14  Pick. 
510;  Be.sondy,  Ee,  32  Minn.  385;  Mc- 
Mahill   V.    Estate    of   McMahill,    113 


111.   461;    Bond  v.   Lockwood,   33  111. 
212;  §  273,  post. 

85.  Murray  v.  Eedell,  21  Hun,  409. 
See  Monk  v.  Hurlburt,  151  Wis.  41, 
138  N.  W,  59. 

86.  Monk  v.  Hurlburt  (Wis.),  138 
N.  W.  59,  42  L.  E.  A.  (N.  8.)  535. 

87.  Tuteur  v.  Chicago  E.,  77  Wis. 
505;  Eailway  Co.  v.  Maddry,  57  Ark. 
306. 


861  DUTY    OF    SUPPORT.  §    787 

§  787.  Liability  of  Parents  to  Third  Persons  in  Absence  of 
Agreement. 

Th-ere  can  be  no  doubt  that  a  parent  is  under  a  natural  obliga- 
tion to  provide  necessaries  for  bis  minor  children.  But  how  that 
obligation  is  to  be  enforced  is  not  &o  clear.*^  In  fine,  either  an 
express  promise,  or  circumstances  from  which  a  promise  by  the 
father  can  be  inferred,  is  essential.*' 

The  English  decisions  are  clearly  against  allowing  the  child  to 
pledge  his  father's  credit  for  necessaries  to  enforce  a  moral  obliga- 
tion- There  must  be  some  contract,  express  or  implied,  in  order 
to  charge  him.  If  a  child  be  turned  upon  the  world  by  his  father, 
he  can  only  apply  to  the  parish,  and  they  will  compel  the  father, 
if  of  ability,  to  pay  for  his  support.  Says  Lord  Abinger:  "  In 
point  of  law,  a  father  who  gives  no  authority,  and  enters  into  no 
contract,  is  no  more  liable  for  goods  supplied  to  his  son,  than  a 
brother,  or  an  uncle,  or  a  mere  stranger  would  be.  From  the  moral 
obligation  a  parent  is  under  to  provide  for  his  children,  a  jury  are, 
not  unnaturally,  disposed  to  infer  against  him  an  admission  of  a 
liab:  i  ly  in  respect  of  claims  upon  his  son,  on  grounds  which  war- 
rant no  inference  in  point  of  law."  ®° 

Yet  the  rule  of  principal  and  agent  is  to  be  reasonably  enforced ; 
and  in  all  cases  where  there  appears  neither  palpable  moral  delin- 
quency on  the  part  of  the  parent,  nor  evidence  of  authority  actually 
conferred  upon  his  son,  nor  a  contract  by  the  parent  himself  or  his 
other  agents,  the  parent  cannot  be  held  liable  for  the  general  con- 
tracts of  the  child.  A  conditional  offer  to  pay  for  goods  ordered 
of  a  stranger  by  the  child  musit  have  been  clearly  accepted  in  order 

88.    1    Bl.    Com.    447;    Edwards   v.  89.   McMillen   v.   Lee,   78   111.   443; 

Davis,  16  Johns.  285;  In  re  Eyder,  11  Freeman  v.  Eobinson,  38  N.  J.  L.  383; 

Paige,   188;    2   Kent,   Com.    190.      In  Tomkins   v.   Tomkins,   3    Stockt.   517. 

New  York  there  is  some  confusion  of  As   to   the   wife's   authority   to   bind 

opinion.      Cf.    Eaymond    v.    Loyl,    10  her    husband    for    the    child's    neees- 

Barb.    483,    with    New    York    cases,  saries,  see  Schouler,  Hus.  &  Wife,  § 

gupra.    But  the  doctrine  of  an  implied  101 ;  supra,  §§  61,  237,  239.    One  who 

agency  of  necessity,  upon  the  minor  encourages    wife    and    child    to    live 

child's    pledge,    was    applied    in    the  apart  from  the  husband  and  father  is 

late  case  of  Porter  v.  Powell,  79  la.  the   less   entitled    to   recover   for   the 

151,  where  the  minor  daughter  while  necessaries    of    either.      Schnuckle    v. 

living  away  from  home,  and  support-  Bicrman,  89  111.  454. 

ing   herself   by   permission   from   her  90.   ^Mortimore  v.   Wright,   6   M.   & 

own  earnings,  fell  sick  and  incurred  a  W.   482.     And  see   Shelton  v.   Sprin- 

bill   for    medical    attendance    without  gett,  11   C.  B.   452,  20  E.  L.   &  Eq. 

her    father's    knowledge.      And    see  281;  Seaborne  v.  Maddy,  9  Car.  &  P. 

Cooper  V.  McNamara  (1894),  la.  497.                                                        ^ 


§  T87 


PAKEXT    AND    CHILD. 


862 


to  con'Stitute  such  ratification  as  will  bind  the  parent  who  makes 
it.®^  And  in  numerous  instances  have  courts  refused  to  make  the 
father  liable  on  the  ground  of  an  implied  agency  to  the  child.'* 
Under  the  most  favorable  aspect  of  the  infant's  right  to  bind  his 
father  as  agent,  a  third  person  furnishing  goods  must  take  notice, 
at  his  peril,  or  what  is  necessary  for  the  infant  according  to  his 
precise  situation.®^  And  the  oral  promise  of  a  father  to  pay  a 
debt  of  his  child  not  incurred  for  necessaries,  in  consideration  of 
the  creditors  forbearing  to  sue  the  child,  must  be  treated  as  a 
promise  to  pay  the  debt  of  another,  and  hence,  imder  the  Statute 
of  Frauds,  not  enforceable.^* 

There  is  a  strong  current  of  American  authority  holding  the 
father  liable  in  such  cases  on  the  theory  of  quasi-contract.  A  par- 
ent is  under  a  natural  duty  to  furnish  necessaries  for  his  infant 
children ;  and  if  the  parent  neglect  that  duty,  any  other  person  who 
supplies  them  is  deemed  to  have  conferred  a  benefit  on  the  delin- 
quent parent  for  which  the  law  raises  an  implied  promise  to  pay 
on  the  part  of  the  parent.®^  The  liability  at  common  law  of  the 
parent  to  support  the  child  was  not  well  defined,  but  in  most 
American  States  it  has  been  held  that  the  obligation  is  not  merely 
moral  but  legal  and  enforceable  as  a  legal  common-law  duty.  It 
follows,  therefore,  that  if  the  parent  neglects  that  duty  any  other 
person  who  supplies  such  necessary  attention  to  the  child  is  deemed 
ordinarily  to  have  conferred  a  benefit  on  the  delinquent  parent  for 
which  the  law  raises  an  implied  promise  to  pay  on  the  part  of  the 
parent.'® 

Parents  are  bound  to  supply  a  minor  child  with  the  neoessaries 


91.  Andrews  v.  Garrett,  6  C.  B.  (N. 
S.)  262. 

92.  Eitel  V.  "Walter,  2  Bradf.  Sur. 
287;  Eaymond  v,  Loyl,  10  Barb.  483; 
Bushnell  v.  Bishop  Hill  Colony,  28 
111.  204;  Tyler  v.  Arnold,  47  Mich. 
5G4.  See  Loomis  v.  Newhall,  15  Pick. 
159. 

98.  Van  Valkenburg  v.  "Watson,  13 
Johns.  480;  Gotts  v.  Clark,  78  111.  229, 
Cf.  Murphy  v.  Ottenheimer,  84  111. 
39. 

94.  Dexter  v.  Blanchard,  11  Allen, 
365.  Goods  being  sold  to  the  minor 
■without  the  father 's  kno"!vledge,  order, 
or  consent,  his  subsequent  promise  to 
paj  therefor  is  without  binding  con- 


sideration.    Freeman  v.  Eobinson,  38 
X.  J.  L.  383. 

This  rule  of  agency  is  sometimes 
allowed  to  operate  for  the  parent's 
own  benefit  as  against  a  third  party; 
the  child  who  could  not  bind  himself 
being  treated  as  the  parent's  agent. 
Darling  v.  Xoyes,  32  la.  96. 

95.  "Van  Valkinburgh  v.  "Watson,  13 
Johns.  480,  7  Am.  Dec.  395;  De  Brau- 
were  v.  De  Brauwere,  203  X.  T.  460, 
96  N.  E.  722. 

96.  "Wallace  v.  Cox  (Tenn.),  188  8. 
"W.  611,  L.  R.  A.  1917B,  6?0  (medi- 
cal services). 

Where  ihe  parental  duty  is  not  neg- 
lected   there    is    no    liability    on    th© 


SQZ  DUTY    OF    SUPPORT.  §    78T 

of  life.  Tliey  may  be  held  liable  to  pay  for  necessaries  furnished 
by  a  third  person  to  a  minor  child  without  their  contract  or  consent 
where  there  is  an  omission  of  duty  on  their  part  to  furnish  neces- 
saries, as  where  the  need  exists  and  the  parents  refuse  or  n^lect 
to  act,  or  in  case  of  some  special  exigency  rendering  the  interfer- 
ence of  the  third  person  reasonable  and  proper,  as  in  case  of  illness 
at  a  distance  from  the  parental  home.®^  So  where  a  stranger  took 
a  child  under  an  agreement  by  the  father  to  leave  it  with  the 
stranger  until  the  child  came  of  age,  and  the  father  after  a  time 
took  the  child  back  in  breach  of  his  agreement,  the  stranger  can 
recover  in  quantum  meruit  for  maintenance  already  furnished  to 
the  child,^*  but  a  stranger  attempting  to  recover  from  a  father  for 
support  to  a  minor  child  must  prove  the  father's  neglect  to 
provide.®' 

The  father  has  a  right  to  furnish  the  support  at  his  own  home, 
and  hence  a  child  who  leaves  his  home  without  good  cause  cannot 
pledge  his  father's  credit  even  for  necessaries.^  Whenever  a  minor 
son  or  daughter  has  left  the  father's  home,  the  cause  should  be 
ascertained ;  for  the  disobedience  of  children  is  not  to  be  encour- 
aged in  any  event,^  and  the  father  has  also  a  right  to  furnish  the 
support  in  his  own  way,  hence  is  not  liable  where  the  child  has 

father  in  the  absence  of  express  con-  126    N.   Y.    S.    221,    69    Misc.    472)  ; 

tract.      So    where    a    minor    son    left  Loucks  v.  Butcher,  112  N.  Y.  S.  269; 

home  to  attend  school  contrary  to  his  Snell  v.  Ham   (Tex.  Civ.   App.),  151 

father's  wishes  the  father  is  not  liable  S.  W.  1077;  Gordon  v.  Potter,  17  Vt. 

for  medical  services  furnished  to  the  348. 

son  without  his  knowledge  where  in-  1.  Glynn  v.  Glynn,  94  Me.  465 ;  48 

formation   of   the   son's  illness  could  A.  105;  Dyer  v.  Helson,  117  Me.  203, 

easily  have  been  given  to  the  father.  103   A.   161 ;    Brosius  v.   Barker,   154 

Sassaman   v.   "Wells,    178    Mich.    167,  Mo.  App.   657,   136   S.  W.   18.     See, 

144  N.  W.  478.  however,    Bradley    v.    Keen,    101    111. 

97.  Huffman  v.  Hatcher,  178  Ky.  App.  519.  See  Miller  v.  McKinney, 
8,  198  S.  W.  236,  L.  E.  A.  1918B,  484 ;  45  111.  App.  447.  Where  parents  after 
Lufkin  V.  Harvey,  131  Minn.  239, 154  divorce  agreed  that  the  father  should 
N.  W.  1097,  L.  R.  A.  1916B,  1112.  have  custody  of  the  minor  son,  and 

98.  Gordon  v.  Wyness,  155  N.  Y.  the  latter  goes  to  live  with  his  mother 
Supp.  162.  without    good    cause    or   consent,    the 

99.  Smith  v.  Gilbert,  80  Ark.  525,  mother  cannot  render  the  father  liable 
98  S.  W.  115;  Dumser  v.  Underwood,  for  hh  son's  board  against  the  fa- 
68  111.  App.  623;  Sassaman  v.  Wells,  ther's  refusal.  Cushman  v.  Hassler, 
178     Mich.     167,     144     N,     W.     478;  82  la.  295. 

(1911),  De  Brauwere  v.  De  Brauwere,  2.  Raymond  v.  Loyl,  10  Barb.  483; 

96  N.  E.  722,  203  N.  Y.  460  (affirming  Angel    v.    McLellan,    16    Mass.    28; 

order  129  N.  Y.  R.  587,  144  App.  Div.  Weeks  v.  Merrow,  40  Me.  151. 
521,    which    affirms    judgment,    1910, 


§  788  PAEENT  AND  CHILD.  864 

services  performed  bj  a  person  different  from  the  one  authorized 
by  the  father.^  A  claim  against  a  parent  for  his  minor  child's 
necessaries  may  be  outlawed  by  limitations.* 

§  788.  Child  as  Agent  for  Parent. 

Let  us  here  inquire  how  far  the  child  may  bind  his  father  aa 
agents  A  father  is  not  bound  by  the  contracts  or  debts  of  his  son 
or  daughter,  even  for  necessaries,  as  a  rule,  unless  the  circum- 
stances show  an  authority  actually  given  or  to  be  legally  inferred." 
The  principles  of  agency  as  between  father  and  child  might  seem 
analogous  to  those  which  govern  the  relation  of  husband  and  vnf e ; 
which  last  have  already  been  considered  at  some  length.  On  the 
one  hand,  the  father  should  be  compelled  to  discharge  his  legal  and 
moral  obligations  as  a  parent,  by  providing  suitable  necessaries; 
on  the  other,  he  should  not  be  prejudiced  by  the  acts  of  his 
imprudent  child. 

If,  then,  the  infant  child  resides  at  home,  it  is  to  be  presumed 
that  the  father  furnishes  whatever  is  necessary  and  proper  for  his 
maintenance;  and  a  proper  support  being  rendered,  under  such 
circumstances,  a  third  person  cannot  supply  necessaries  and  charge 
the  father.  So  far,  all  is  clear.  Wherever  the  infant  is  svh 
potesiate  parentis  in  fact,  there  must  be  a  clear  and  palpable  omis- 
sion of  duty  in  this  respect,  on  the  part  of  the  parent,  to  render 
him  chargeable,  unless  he  has  conferred  actual  authority  or  made 
express  contract.®  The  converse  of  this  rule  has  more  than  once 
been  suggested  in  our  American  courts;  namely,  that  where  the 
father  abandons  his  duty,  so  that  his  infant  child  is  forced  to  leave 
his  house,  he  is  liable  for  a  suitable  maintenance  furnished  the 
child  elsewhere.''  And  upon  this  doctrine  was  a  Connecticut  case 
Teased  many  years  ago,  where  an  infant  child  had  "  eloped  "  from 

3.  Sullivan  v.  Liggins,  149  N.  Y.  S.  27 ;  Clinton  v.  Eowland,  24  Barb.  634 ; 
517.  Keaton  v.  Davis,  18  Ga.  457;  Gotta  v. 

4.  Pryor  v.  West,  72  Ga.  140.  Clark,  78  111.  229-;  Rogers  v.  Turner, 

5.  2  Kent,  Com.  192;  Cromwell  v.  58  Mo.  116.  The  parent's  contract 
Benjamin,  41  Barb.  558;  Gordon  v.  or  failure  to  supply  must  be  averred 
Potter,  17  Vt.  348;  Pidgin  v.  Cram,  and  shown  by  the  claimant.  Mc- 
8  N.  H.  350;  Raymond  v.  Loyl,  10  Laughlin  v.  McLaughlin,  159  Pa.  St. 
Barb.  483;  Tomkins  v.  Tomkins,  3  489;  Conboy  v.  Howe,  59  Conn.  112. 
Stockt.  512;  Van  Valkenburg  v.  Wat-  And  ratification  by  allowing  the  child 
son,  13  Johns.  480;  Mortimore  v.  to  wear  or  consume  requires  suitable 
Wright,    6   M.   &  W.   482;    Kelley  v.  proof.    Ih. 

Davis,  49  N.  H.  187.  7.  Owen  v.  Wliite,  5  Port.  435,  and 

6.  Tomkins  v.  Tomkins,  3  Stockt.  cases  cited  in  the  two  preceding  notes. 
512 ;  Townsend  v.  Bumham,  33  N.  H. 


865 


DUTY    OF    SUPPORT. 


§  788 


his  father's  house  for  fear  of  personal  violence  and  abuse ;  and  his 
necessary  support  and  education  were  furnished  by  a  stranger.* 

The  child  may  be  the  agent  of  the  parent  as  shown  by  the  cir- 
cumstances,* but  the  acts  of  the  child  do  not  make  the  parent  liable 
in  the  absence  of  special  authority/"  and  the  mere  relationship  of 
parent  and  child  does  not  authorize  a  presumption  of  general 
agency  between  them,"  although  the  child's  agency  as  to  necessaries 
may  be  implied  in  case  of  abandonment  by  the  parent.^^ 

A  child  dealing  at  a  store  as  a  known  agent  for  the  parent  does 
not  become  personally  liable  although  he  has  come  of  age/^  but  a 
special  power  of  attorney  given  by  a  parent  to  a  child  does  not 
authorize  the  child  to  make  a  conveyance  to  herself  of  the  parent's 
property." 

The  mere  relationship  of  parent  and  child  is  not  enough  to 
8.   Stanton   v.   Wilson,    3   Day,   37.       purchase,  or  that  plaintiff  was  justi- 


But  the  point  decided  was  a  different 
one. 

9.  Apgar  v.  Connell,  140  N.  Y.  S. 
705,  79  Misc.  531;  Center  v.  Eush,  71 
N.Y.S.  767,35  Misc.  294;  A.  Alschu- 
ler  &  Sons  v.  Anderson,  142  111.  App. 
323;  Anderson  v.  Lemker  (la.),  162 
X.  W.  7  (father  liable  to  tradesman 
furnishing  goods  ■R'hich  he  had  au- 
thorized son  to  order  whether  trades- 
man knew  of  authority  and  whether 
or  not  goods  were  necessaries). 

10.  Doyle  v.  Peerless  Motor  Car  Co. 
of  New  England,  226  Mass.  561,  116 
N.  E.  257;  Eishworth  v.  Moss  (Tex. 
Civ.  App.),  191  S.  W,  843;  Hood  & 
Johnson  v.  Pelham,  Sitz  &  Co.,  5  Ala. 
App.  471,  59  So.  767. 

Plaintiff  sold  a  piano  to  defend- 
ant's infant  son,  who  did  not  state 
that  he  bought  as  agent,  but  merely 
stated  that  he  had  to  consult  his  folks 
before  buying.  A  receipt  for  a  part 
payment  was  issued  to  the  infant  in 
his  own  name,  and  plaintiff  took  the 
infant's  individual  note  for  the  bal- 
ance, and  brought  suit  thereon,  which 
he  discontinued  when  learning  of  the 
infancy.  Defendant  had  paid  for 
necessary  articles  for  use  on  his  farm 
bought  by  the  infant  son.  Held,  not 
to  show  that  the  son  acted  as  the 
agent    of    defendant    in   making    the 

55 


fied  in  assuming  that  he  so  acted,  pre- 
cluding a  recovery  from  him  for  the 
balance  due.  Fisher  v.  Lutz,  146  Wis. 
664,  132  N.  W.  592;  McMahon  v. 
Smith,  121  N.  Y.  S.  736,  136  App. 
Div.  839 ;  Cousins  v.  Boyer,  100  N.  Y. 
S.  290,  114  App.  Div.  787;  Peacock 
V.  Linton,  22  E.  I.  328,  47  A.  887,  52 
L.  E.  A.  192  (tutoring  in  vacation)  ; 
Hickox  V.  Bacon,  17  S.  D.  563,  97  N. 
W.  847 ;  Cox  v.  W.  A.  Chanslor  &  Son 
(Tex.  Civ.  App.),  181  S.  W,  560. 

Where  the  parent  sends  the  child 
to  a  particular  dentist  and  he  goes  to 
another,  he  is  a  special  agent  only  and 
the  dentist  cannot  recover.  Dumser 
V.  Underwood,  68  111.  App.  121;  Coe 
V.  Moon,  260  111.  76,  102  N.  E.  1074 ; 
Starcher  v.  Thompson,  35  S.  D.  311, 
152  N.  W.  99. 

11.  Mott  V.  Scholes,  131  N.  Y.  S. 
811,  147  App.  Div.  82;  Habhegger  v. 
King,  149-  Wis.  1,  135  N.  W.  166; 
McDonald  v.  City  of  Spring  Valley 
(111.),  120  N.  E.  476,  209  HI.  App.  7 
(parent  not  agent   of  child). 

12.  Finn  v.  Adams,  138  Mich.  258, 
131  X.  W.  533,  11  Det.  Leg.  N.  552. 

13.  Emery-Bird-Thayer  Dry  Goods 
Co.  V.  Coomer,  87  Mo.  App.  404. 

14.  In  re  Acken's  Estate,  144  Ala. 
519,  123  N.  W.  187. 


§  789 


PAEENT    AND    CHILD. 


see 


charge  tne  parent  on  contracts  not  for  necessaries  entered  into  by 
the  child,  and  some  express  or  implied  authority  must  be  shown. 
So  a  minor  son  operating  his  father's  car  for  his  own  pleasure  who, 
without  fault  on  his  part,  injures  a  boy,  has  no  authority  to  engage 
a  doctor  to  attend  the  boy  so  as  to  render  the  father  liable  for  the 
doctor's  fees.^^ 

The  son's  purchases  may  be  ratified  by  the  father  ^'  by  his 
promise  to  pay  for  it,^'  but  where  a  son  did  not  assume  to  act  a& 
the  agent  of  the  father  in  a  transaction,  and  he  had  no  authority 
to  act  therein,  there  can  be  no  ratification.^* 

§  789.  Agreements  to  Support. 

An  agreement  by  the  father  to  pay  another  for  support  of  the 
children  is  enforceable,'®  and  such  an  agreement  may  bind  the 
father  although  no  specific  sum  for  support  is  named  in  it,"°  and 
he  is  also  liable  for  purchases  made  by  the  child  with  the  father's 
knowledge  and  consent.^^ 

But  very  slight  evidence  may  sometimes  warrant  the  inference 
that  a  contract  for  the  infant's  necessaries  is  sanctioned  by  the 
father ;  so  zealous  is  the  court  to  enforce  a  moral  obligation  where- 
ever  it  can.  English  authority  to  the  same  effect  is  not  equally 
pointed ;  ^^  but  the  American  rule  is  certainly  humane  and  liberal 
in  this  respect.     Thus,  the  father  is  held  bound  for  necessaries, 


15.  Habhegger  v.  King  (Wis.),  135 
N.  W.  166,  39  L.  E.  A.   (N.  S.)    881. 

16.  White  V.  King,  133  N.  Y.  S.  962 ; 
Poe  V.  Pevsner,  175  111.  App.  394. 

17.  Smith  V.  Church,  5  Hun,  109; 
Bisbee  t,  McManus,  229  Mass.  124, 
118  N.  E.  192;  Vv^ells  v.  Scofield,  141 
N.  T.  S.  657,  157  App,  Div.  8. 

18.  Fisher  v.  Lutz,  146  Wis.  664, 
132  N.  W.  592. 

19.  William  &  Vashti  College  v. 
Shatford,  203  111.  App.  390;  Myers  v. 
Saltry,  173  S.  W.  1138,  163  Ky.  481 
(motion  to  file  record  denied,  Myers 
V.  Same,  164  Ky.  350,  175  S.  W.  626)  ; 
Medlock  v.  Isaacs,  144  Ky.  787,  139 
S.  W.  948;  Marks  v.  Wooster  (Mo. 
App.),  199  S.  W.  446;  Maxwell  v. 
Boyd,  123  Mo.  App.  334,  100  S.  W. 
540;  Johnson  v.  Johnson,  142  N.  Y.  S. 
416,  157  App.  Div.  289. 

20.  Flugel  V.  Henschel,  6  N.  D.  205, 
69  N.  W.  195. 


21.  Auringer  v.  Cochrane,  225  Mass. 
273,  114  N.  E.  355. 

Where  children,  while  members  of 
their  father 's  family,  acted  for  him 
in  the  purchase  of  necessaries,  or 
where  the  necessaries  were  purchased 
by  the  children  without  his  authority, 
'lut  were  used  by  members  of  his 
household,  with  his  knowledge,  or 
where  the  necessaries  were  purchased 
without  his  authority,  but  brought  to 
his  home  by  his  children,  and  he  knew 
the  facts,  and  made  no  objection 
thereto,  he  was  liable  for  reasonable 
value  of  the  goods.  Martz  v.  Full- 
hart,  142  Mo.  App.  348,  126  S.  W. 
964;  Armstrong  Clothing  Co.  v. 
Boggs,  90  Neb.  499,  133  N.  W.  1122. 

22.  Blackburn  v.  Mackey,  1  Car.  & 
P.  1;  Law  V.  Wilkin,  6  Ad.  &  El.  781; 
cases  of  doubtful  legal  authoritiy. 
See  Macphers.  Inf.  514,  515. 


86; 


DUTY    OF    SUPPORT. 


§  T91 


where  lie  knows  the  circumstances,  and  makes  no  objection.^'  And 
for  the  expenses  of  education  and  maintenance  furnished  on  his 
general  consent,  and  in  his  negligence.^*  So,  too,  being  liable  once 
to  a  third  person,  the  father  may  be  held  liable  afterwards  by 
implication,  unless  his  revocation  is  made  clear  and  consistently 
adhered  to.*^  Doubtless  any  father  may  contract  for  supplies, 
necessary  or  unnecessary,  on  his  child's  account,  if  he  chooses  to.*' 

§  790.  What  Constitutes  Support  or  "  Necessaries." 

''  Necessaries  "'  for  the  furnishing  which  a  tradesman  can  hold 
the  father  include  food,  clothing,"^  washing,  medicines,  instruction 
and  suitable  places  of  residence.  The  tradesman  must  show  that 
the  goods  were  such  as  children  in  like  condition  of  life  are  usually 
supplies  with.** 

§  791.  Medical  Expenses. 

Maintenance  and  care  include  the  duty  to  furnish  proper  med- 
ical attendance,'^  including  even  a  surgical  operation  of  doubtful 
advantage  which  the  mother  alone  ordered.^"  The  duty  of  the 
parent  to  care  for  the  child  involves  the  duty  of  procuring  for  him 
when  seriously  ill  proper  medical  attendance,  and  religious  belief 


23.  Swain  v.  Tyler,  26  Vt.  9; 
Thaver  v.  White,  12  Met.  343; 
Fo-wlkes  V.  Baker.  29  Tex.  135.  As 
where  he  knew  that  another  was 
boarding  his  minor  child  with  expect- 
ation of  reward.  Clark  v.  Clark,  46 
Conn.  586.  Or  upon  written  agree- 
ment with  his  divorced  wife,  who  re- 
tains the  children.  Courtright  v. 
Courtright,  40  Mich.  633.  Cf.  Bald- 
win V.  Foster,  138  Mass.  449. 

24.  Thompson  v.  Dorsey,  4  Md.  Ch, 
149. 

25.  Plotts  V.  Eosebury,  4  Dutch. 
146:  Murphy  v.  Ottenheimcr,  84  111. 
39.  And  see  Deane  t.  Annis,  14  Me. 
26.  Notice  to  a  third  person  may  be 
waived  afterwards  by  the  parent 's 
acts.     Bailey  v.  King,  41  Conn.  365. 

26.  Bryan  v.  Jackson,  4  Conn.  288. 
And  see  Brown  v.  Deloach,  28  Ga. 
486;  Deane  v.  Annis,  14  Me.  26;  Har- 
per V.  Lemon,  38  Ga.  227. 

27.  Bisbee  v.  McManus,  229  Mass. 
124.  118  N.  E.  192  (hats  and  veils 
necessaries) . 


Unnecessary  hats  and  gowns  for 
minors  cannot  be  charged  to  father 
without  his  consent.  Auringer  v. 
Cochrane,  225  Mass.  273,  114  N.  E. 
355. 

28.  Dembinski's  Case  (Mass.),  120 
X.  E.  856;  Gately  Outfitting  Co.  v. 
Vinson,  182  S.  W.  133;  Cheever  v. 
Kelly,  96  Kan.  269,  150  P.  529. 

29.  Simoneau  v.  Pacific  Electric  Ey. 
Co.,  159  Cal.  494,  115  P.  320;  Leach 
V.  Williams,  30  Ind.  App.  413,  66  N. 
E.  172;  Lamson  v.  Varnum,  171  Mass. 
237,  50  N.  E.  615;  Sassamen  v.  Wells, 
178  Mich.  167,  144  N.  W.  478;  Des 
Mond  V.  Kelly,  163  Mo.  App.  205,  146 
S.  W.  99;  Ketchem  v.  Marsland,  42 
N.  T.  S.  7,  18  Misc.  450  (person  with 
whom  child  is  temporarily  residing 
cannot  pledge 's  father 's  credit  for 
dentist 's  bill  which  is  not  a  matter 
of  immediate  necessity) ;  Homeopathic 
Hospital  of  Albany  v.  Chalmers,  137 
X.  T.  S.  1000,  94  Misc.  600:  Howell 
V.  Blesh,  19  Okla.  260,  91   P.   P93. 

30.  French  v.  Burlingame,  155  Mo. 


§  792  PAKENT  AND  CHILD.  868 

is  no  excuse  for  failure  to  do  so.  The  correct  rule  requires  medical 
attendance  in  such  a  manner  and  on  such  occasions  as  an  ordinarily 
prudent  person  solicitous  for  the  welfare  of  his  child  and  anxious 
to  promote  its  recovery  would  provide.  Religious  belief  can  never 
be  an  excuse  for  omitting  any  legal  duty.^^ 

Gross  neglect  of  a  parent  to  procure  medical  attention  to  a  child 
whose  feet  are  frozen,  as  a  result  of  which  neglect  the  child  died, 
is  murder.  The  fact  that  defendant  was  a  laboring  man  with  no 
means  to  pay  for  medical  attendance  is  no  defence  where  his  neigh- 
bors were  all  ready  to  help  him  if  called  upon  and  the  city  fur- 
nished a  competent  city  physician  and  the  defendant  made  no 
request  to  anyone  for  over  ten  days,  at  the  end  of  which  time  it  was 
too  late  to  save  the  child's  life.^^ 

§  792.  Funeral  Expenses. 

A  father  is,  in  general,  liable  for  the  decent  funeral  expenses  of 
his  deceased  minor  child,^^  or  even  of  an  adult  child  who  is  incom- 
petent.^* A  father  is  liable  for  the  burial  expenses  of  his  minor 
son,  incurred  without  his  express  authority,  if  the  son  had  been 
living  with  the  father  at  the  time  of  his  death;  and  there  is  no 
liability  if  the  son  leaves  the  home  of  the  father  voluntarily  and 
without  fault  on  the  part  of  the  father.  Where,  however,  the 
father  drove  the  son  from  home,  he  had  lost  the  right  to  his  earn- 
ings, but  there  would  be  no  emancipation  which  would  relieve  the 
father  from  the  duty  of  providing  necessities  for  the  son  in  the 
event  of  his  illness  and  the  father  remains  liable  for  his  burial 
expenses. 

At  common  law  a  father  is  bound  only  to  give  his  child  decent 
burial.  There  is  no  rule  of  law  prescribing  what  is  decent  burial. 
A  poor  man  commits  no  crime  where  he  clothes  the  corpse  and 
puts  it  in  a  paper  box  and  digs  a  grave  in  a  wood  lot  and  buries  it 
there  without  religious  ceremony  of  any  kind.  He  is  left  to  deter- 
mine what  kind  of  a  casket  shall  be  used  and  what,  if  any,  cere- 

App.   548,   134   S.  W.   1100.     Contra,  33.   P.   J.   Hunycutt   v.   Thompson, 

Dctwiler  v.  Bo-n-ers,  9  Pa.  Super.  Ct.  159  N.  C.  29,  74  S.  E.  628;  Gobber  v. 

473.  Empting,  129  N.  Y.  S.  4.     See  Sulli- 

81.  People   V.   Pierson,   176   N.   T.  van    v.    Horner,    41    N.   J.    Eq.   299; 

201,  68  N.  E.  243,  63  L.  R.  A.  187;  Bair  v.  Eobinson,  108  Pa.  St.  247. 
Owens  V.   State    (Okla.   Crim.   Eep.),  34.  In  re  Van  Denburgh,  164  N.  T. 

116  Pac.    345,   36   L.   E.   A.    (N.   S.)  S.  966,  178  App.  Div.  237. 
€33.  35.  P.  J.  Huneycutt  &  Co.  v.  Thomp- 

32.  Stehr  v.  State,  92  Neb.  755,  139  son  (N.  C),  74  S.  E.  628,  40  L.  R.  A. 

N.  W.  676,  45  L.  E.  A.   (N.  S.)    559.  (X.  S.)  488. 


869 


DUTY    OF    SUPPOKT. 


■93 


monies  stould  be  tad.  He  also  commits  no  crime  in  refusing  to 
invite  his  wife's  relatives  or  friends,  as  they  had  no  legal  right  to 
be  present.     There  is  also  no  law  requiring  a  religious  ceremony.^' 

§  793.  Maintenance,  &c.,  in  Chancery;   Allowance  from  Child's 
Fortune. 

We  pass  from  maintenance  under  statute  to  chancery  main- 
tenance, a  topic  considered  in  connection  with  education.  Main- 
tenance as  ordered  by  courts  of  equity,  or  allowed  in  settlement  of 
a  trust  account,  has  grown  into  a  topic  of  considerable  magnitude, 
especially  under  the  English  system.  The  rule  is,  that  where  an 
infant  has  property  of  his  own,  and  his  father  is  dead,  or  is  not 
able  to  support  him,  he  may  be  maintained  and  educated  as  may  be 
fit,  out  of  the  income  of  property  absolutely  his  own,  by  the  person 
in  whose  hands  the  property  is  held ;  and  a  court  of  equity  will 
allow  all  payments  made  for  this  purpose,  which  appear  upon 
investigation  to  have  been  reasonable  and  proper.^^  As  a  general 
rule,  the  father  must,  if  he  can,  maintain  as  well  as  educate  his 
infant  children,  whatever  their  circumstances  may  be;  and  no 
allowance  will  be  made  him  out  of  their  property  while  his  own 
means  are  adequate  for  such  purposes,^*  and  especially  not  where 

36.  Seaton  v.  Comm.,  149  Ky.  498,       Nunnelly's  Guardian  v.  Nunnelly,  180 


149  S.  W.  871,  42  L.  E.  A.   (N.  S.) 
211. 

37.  Macphers.  Inf.  213;  2  Story, 
Eq.  Juris.,  §  1354;  Williams  v.  Wil- 
liams (Ala.),  81  So.  41;  Cooley  v. 
Stringfellow,  164  Ala.  460,  51  So. 
321;  State  v.  Layton  (Del.  Super. 
1834),  1  Har.  324;  First  Nat.  Bank 
V.  Greene  (Ky.  1908),  114  S.  W.  322; 
Funk's  Guardian  v.  Funk,  130  Ky. 
354,  113  S.  W.  419;  Commonwealth  v. 
Lee,  120  Ky.  433,  86  S.  W.  990,  27 
Ky.  Law,  806,  120  Ky.  433,  89  S.  W. 
731,  28  Ky.  Law,  596 ;  Riley  v.  Riley 's 
Adm'r,  11  Ky.  Law,  859;  (1906), 
Peters  v.  Scoble,  28  Ohio  Cir.  Ct.  R. 
541  (judgment  affirmed,  In  re  Peter's 
Estate  (1907),  76  Ohio  St.  564,  81 
N.  E.  1193)  (stepmother).  See  Coler 
V.  Callahan,  174  N.  Y.  S.  504. 

38.  In  re  Harris,  16  Ariz.  1,  140  P. 
825;  Rowe  v.  Raper,  23  Ind.  App.  27, 
54  N.  E.  770,  77  Am.  St.  R.  411; 
Cox's  Guardian  t.  Storts,  77  Ky.  502; 


Ky.  131,  201  S.  W.  976;  Clay  v.  Clay, 
27  Ky.  Law,  1020,  87  S.  W.  807;  Mil- 
liken  V.  Deming,  15  Ky.  Law,  332; 
Burba  v.  Richardson,  14  Ky.  Law, 
233;  In  re  Wilber's  Estate,  57  N.  Y. 
S.  942,  27  Misc.  53;  In  re  Davis'  Es- 
tate, g'O  N.  Y.  S.  244,  98  App.  Div. 
546,  184  N.  Y.  299,  77  N.  E.  259;  In 
re  Jeffrey's  Estate,  137  X.  Y.  S.  168; 
Exchange  Banking  &  Trust  Co.  v. 
Finley,  73  S.  C.  423,  53  S.  E.  649; 
Hollingsworth  v.  Beaver  (Tenn.  Ch. 
App.  1900),  59  S.  W.  464. 

It  is  the  duty  of  a  father  to  support 
his  minor  children  out  of  his  own  es- 
tate, though  they  have  some  property 
of  their  o^vn.  United  States  Fidelity 
&  Guaranty  Co.  v.  Hall  (Tex.  Civ. 
App.),  173  S.  W.  892;  Macphers.  Inf. 
154,  219,  Wellesley  v.  Beaufort,  2 
Russ.  28;  Butler  v.  Butler,  3  Atk.  60; 

2  Kent,  Com.  101;   Darley  v.  Darley, 

3  Atk.  399;  Cruger  v.  Heyward,  2 
Desaus.  94;  Matter  of  Kane,  2  Barb. 


§    793  PABEXT    AXD    CHILD.  870 

the  child's  services  rendered  to  the  parent  were  equal  in  value  to 
the  cost  of  maintenance,^^  and  where  the  family  is  living  on  land 
belonging  to  the  minor  child  this  fact  should  be  considered/'  And 
the  strict  rule  of  the  common  law  regarded  the  parent  as  without 
legal  rio-ht  to  reimbursement  for  his  outlav  in  this  direction. 

But  if  the  father  is  unable  to  maintain  his  children,  the  court  of 
chancery  will  order  maintenance  for  them  out  of  their  own  prop- 
erty,*^ and  where  a  child  marries  and  leaves  the  parent's  home 
recovery  may  be  had  by  the  parent  if  the  child  later  returns  and 
lives  with  him.*^  And  where  the  question  turns  upon  the  father's 
ability,  maintenance  is  given,  not  only  in  case  of  his  bankruptcy 
or  insolvency,  but  whenever  it  appears  that  he  is  so  straitened  in 
his  circumstances  that  he  cannot  give  the  child  a  maintenance  and 
education  suitable  to  the  child's  fortune  and  expectations.*^  The 
amount  of  such  fortune,  as  well  as  the  situation,  ability,  and  cir- 
cumstances of  the  father,  will  be  taken  into  account  by  the  court 
in  all  such  cases.  And  where  a  father  has  himself  made  no  charge 
for  maintaining  his  infant  children,  the  court  will  not  make  it  for 
him  in  order  to  benefit  his  creditors.** 

The  estate  of  the  child  cannot  be  charged  with  services  rendered 
on  the  credit  of  the  father,  the  child  having  no  estate  at  the  time.** 

Courts  now  look  with  great  liberality  to  the  state  of  facts  in  each 
particular  case  of  this  kind  before  them.  Thus,  there  are  prece- 
dents in  the  English  courts  where  the  father  had  a  large  income, 

Ch.  375;   Addison  v.  Bowie,  2  Bland,  433,  89  S.  W.  731,  28  Ky.  Law  Eep. 

606;    Harland's  Case,    5  Kawle,   323;  596;    Bell  t.   Dingwell,   91   Xeb.   699, 

Myers  v.  Myers,  2  McCord,  Ch.  255;  136  X.  W.  112S. 

Tompkins  v.  Tompkins,  3  C.  E.  Green,  40.  Commonwealth  v.  Lee,  120  Ky. 

303;  Tanner  v.  Skinner,  11  Bush,  120;  433,  86  S,  W.  930,  27  Ky.  Law  Eep. 

Buckley  v.  Howard,  35  Tex.  565;  Ela  806,   120   Ky.   433,  89   S.  W.   731,  23 

V.   Brand,    63    N.    H.    14 ;    Dessenger  Ky.  Law  Rep.   596. 

Case,   39   N.   J.   Eq.    227;    Kinsey   v.  41.    2    Kent,   Com.    191;    Macphers. 

State,      98    Ind.    351;    Beardsley    v.  Inf.  220. 

Hotchkiss,  96  N.  Y.  201;   Bedford  v.  42.  Bell  v.  Moon,  79  Ya.  341. 

Bedford,  136  111.  354.     As  to  liability  43.  Buckworth  v.  Buckworth,  1  Coi, 

in  cultivating  a  plantation,  owned  in  SO;   Macphers.  Inf.   220;   Ne^vport  v. 

common  by  father  and  child,  see  Sue-  Cook,  2  Ashm.  332;  Matter  of  Kanr, 

cession  of  Trosclair,  34  La.  Ann.  326.  2   Barb.  Ch.   375;   Lagger  v.  Mutual 

39.  Leake  t.  Goode,  96  S.  TV.  565,  Loan   Co.,    146   HI.   283;    Bedford   v. 

29     Ky.    Law    Eep.     793;     Same    v.  Bedford,  136  111.  354. 

Ehodes,  29  Ky.  Law  Eep.  793,  96  S.  44.   Beardsley  v.   Hotchkiss,   96   N. 

W.  566;  Hamilton's  Adm'r  v.  Einey,  Y.  201. 

140  Ky.  476,  131  S.  W.  287;  Common-  45.    Gaston    v.    Thompson,    129    Ga. 

wealth  V.  Lee,  120  Ky.  433,  86  S.  W.  754,  59  S.  E.  799. 
990,  27   Ky.  Law  Eep.   806,  120  Ky. 


871 


DUTY    OF    SUPPORT. 


§  T9:3 


and  yet  was  allowed  for  the  maintenance  of  his  infant  children, 
thej  having  an  income  still  larger ;  *^  though  the  increasing  liberal- 
ity of  the  courts  in  that  country  is  now  chiefly  exhibited  in  their 
construction  of  written  directions  for  maintenance  now  so  common 
in  deeds  of  settlement  and  other  instruments,  by  which  property 
is  secured  to  the  infant.'*'  In  this  country  there  are  many  in- 
stances where  the  father  has  been  allowed  for  his  child's  main- 
tenance, tJiough  not  destitute.  As  in  a  case  where  the  father  was 
guardian  of  his  children,  labored  for  their  support,  and  had  been 
put  to  increased  expense  by  the  death  of  their  mother.*^  And 
again,  where  his  resources  were  very  moderate,  and  the  two  chil- 
dren, young  ladies,  had  a  comfortable  income  between  them.*'  So 
where  the  father  was  poor  and  disabled,  and  his  daughter  lived 
with  him.'^'^ 

Chancery  in  all  such  cases  endeavors  to  pursue  the  course  which 
is  best  calculated  to  promote  the  permanent  interest,  welfare,  and 
happiness  of  the  children  who  come  under  its  care.  "And  these," 
says  Chancellor  Walworth,  "  are  not  always  promoted  by  a  rigid 
economy  in  the  application  of  their  income,  regardless  of  the  habits 
and  associations  of  their  period  of  minority."  ^^  In  other  words, 
to  liberally  educate  and  make  due  use  of  such  social  advantages  as 
the  child's  own  means  permit  is  incumbent  upon  every  judicious 
parent,  since  each  child  should  be  trained  with  reference  to  his  own 
opportunities ;  and  hence  a  child  with  fortune  should  not  be 
straitened  in  his  bringing  up  because  the  parent  is  without  one. 
One  may  maintain  suitable  to  his  own  condition  in  life,  while  it  is 
fair  that  his  children  should  be  supported  according  to  theirs.''^ 

The  father  may  be  allowed  for  the  expenses  of  past  maintenance 
and  education,  if  special  circumstances  exist ;    not  otherwise,  ac- 


46.  2  Kent,  Com.  191;  Jervois  v. 
Silk,  Coop.  Eq.  52,  2  Story,  Eq.  Juris., 
§  1354  et  seq. ;  Greenwcll  v.  Green- 
Tvell,  5  Yes.  1?4;  Hoste  v.  Pratt,  3 
Ves.  730;  Ex  parte  Penleaze,  1  Bro. 
C.  C.  387,  71. 

47.  See  Macphers.  Inf.  221-223; 
Heysham  v.  Heysham,  1  Cox,  179, 
And  see  Allen  v.  Coster,  1  Beasl.  201. 

48.  Harring  v.  Coles,  2  Bradf.  Sur. 
349. 

49.  Matter  of  Burke,  4  Sandf.  Ch. 
617. 

50.  Watts   V.   Steele,    19    Ala.    6:.6. 


And  see  Godard  v.  "Wagner,  2  Strobh. 
Eq.  1;  Newport  v.  Cook,  2  Ashm.  332; 
Otte  V.  Becton,  55  Mo.  90;  Trimble 
V.  Dodd,  2  Tenn.  Ch.  500;  Holtzman 
V.  Castleman,  2  MacArthur,  555; 
Baines  v.  Barnes,  64  Ala.  375.  Cf. 
McKnight  v.  Walsh,  23  N.  J.  Eq. 
136,  296. 

51.  Matter  of  Burke,  4  Sandf.  Ch. 
G19. 

52.  See  Haase  v.  Roersehild,  6  Tnd. 
67;  Sparhawk  v.  Sparhawk's  Ex'r, 
9  Vt.  41. 


§  793  PAEENT  AND  CHILD.  872 

mording  to  the  Englisli  rule  of  the  present  day.°^  But  the  father's 
non-residence,  and  consequent  inability  to  make  a  seasonable  appli- 
cation for  maintenance,  is  held  a  special  circumstance  to  justify 
such  allowance.^*  While  the  old  rule  was  to  make  no  allowance 
for  past  maintenance,  that  rule,  with  the  increase  of  wealth  and 
liberal  living,  has  been  greatly  relaxed  in  modern  times.  In  this 
country,  too,  as  to  retrospective  allowance,  chancery  does  not  appear 
to  be  very  strict  as  concerns  the  parent,  though  special  circum- 
stances should  always  be  chosen  for  making  it.^^  Every  such  case 
must  depend  on  its  own  facts.  We  apprehend  that,  both  in  Eng- 
land and  America,  maintenance  would  be  allowed  the  parent  from 
the  estate  of  a  full-grown  child  only  on  proof  of  some  contract.''® 

A  father,  even  if  he  be  not  in  needy  circumstances,  may  main- 
tain his  children  out  of  any  fund  which  is  duly  vested  in  him  for 
that  express  purpose.^''  One  may  also  contract  that  certain  prop- 
erty shall  be  applied  to  the  maintenance  and  education  of  his  chil- 
dren, in  which  case  also  the  contract  may  be  enforced  in  his  favor, 
without  regard  to  the  question  of  ability;  and  on  this  ground 
provisions  for  maintenance  in  an  antenuptial  settlement  have  been 
construed  in  favor  of  the  husband  and  father.^*  But  it  is  clear, 
from  the  cases,  that  where  the  fund  is  given  as  a  mere  bounty, 
notwithstanding  a  provision  for  maintenance,  the  father,  if  of 
ability,  must  support  the  child ;  ^^  and  this  principle  is  extended 
to  the  father's  postnuptial  and  voluntary  settlement  upon  his  chil- 
dren as  distinguished  from  antenuptial  contracts.®"  This  will  not 
prevent  a  court  from  construing  such  provisions  in  a  father's  favor, 
where  the  facts  show  that  he  ought,  on  general  principles,  to  receive 

53.  2  Story,  Eq.  Juris.,  Eedf.  ed.,  E,  12  Eq.  566;  infra,  ch.  5;  Otte  v. 
§  1354a;  Carmichael  v.  Hughes,  6  E.       Beston,  55  Mo.  99. 

L.   &   Eq.   73;    per  Lord   Cranworth;  57.    Macphers.   Inf.    220;    Hawkins 

lEx  parte  Bond,   2    Myl.   &   K.    439;  v.    "Watts,    7    Sim.    199;    Andrews   v. 

Brown  v.  Smith,  L.  E.  10  Ch.  D.  377.  Partington,   2   Cox,   223 ;    Kendall   v. 

54.  Carmichael  v.  Hughes,  6  E.  L.  Kendall,  60  N.  H.  527. 

&  Eq.  71.    And  see  Stopford  v.  Lord  58.   Mundy  v.   Earl  Howe,   4  Bro. 

Canterbury,    11    Sim.    82;    Bruin    v.  C.  C.  224;  Stoeken  v.  Stoeken,  4  Sim. 

Nott,  1  Phill.  572;  Simon  and  Others  152;  Macphers.  Inf.  220;  Eansome  v. 

V.  Barber,  1  Tamlyn,  22.  Burgess,  L.  E.  3  Eq.  773. 

55.  Matter  of  Kane,  2  Barb.  Ch.  59.  Hoste  v.  Pratt,  3  Ves.  729; 
375;  Matter  of  Burke,  4  Sandf.  Ch.  Hamley  v.  Gilbert,  Jac.  354;  Myers 
619;  Myers  v.  Meyers,  2  McCord  Ch.  v.  Myers,  2  McCord,  Ch.  255;  Jones 
214;    Trimble  v.   Dodd,   2    Tenn.   Ch.  v.  Stockett,  2  Bland,  403. 

500;  Otto  V.  Pecton,  55  Mo.  99.  60.  In  re  Kennison's  Trusts,  L.  R. 

56.  See  In  re  Cottrell's  Estate,  L.       12  Eq.  422. 


873  DUTY    OF    SUPPOKT.  §    794 

assistance.®^  It  will  presently  appear  that  the  parent's  right  to  his 
child's  services  becomes,  as  the  child  grows  older,  a  partial  offset  to 
the  cost  of  supjK>rt;  and  there  can  be  no  justice  in  letting  the 
father  receive  the  child's  useful  services  at  home,  or  his  earnings, 
and  charge  an  allowance  out  of  the  child's  property  at  the  same 
time,  regardless  of  that  pecuniary  advantage.®^ 

§  794.  Chancery  Maintenance ;  Out  of  Income  or  Principal. 

Courts  of  chancery,  following  a  well-known  principle,  usually 
restrict  the  extent  of  a  child's  maintenance  to  the  income  of  his 
property.®^  But  where  the  property  is  small,  and  the  income  in- 
sufficient for  his  support,  the  court  will  sometimes  allow  the  capital 
to  be  broken ;  ®*  though  rarely  for  the  purpose  of  a  child's  past 
maintenance  when  his  future  education  and  support  will  be  left 
thereby  unprovided  for.®^ 

We  have  assumed,  in  the  cases  already  considered,  that  there 
was  some  fund  in  which  the  infants  had  an  absolute  right  or  inter- 
est. Where  the  interest  is  merely  contingent  the  rule  is  necessarily 
strict.®*  Maintenance  cannot  be  allowed  to  infants  out  of  a  fund 
■which,  upon  the  happening  of  the  event  contemplated  by  the  tes- 
tator in  the  bequest  of  the  fund,  will  not  belong  to  the  infants  but 
to  some  other  person.®^     The  right  to  charge  a  child's  fund  as 

61.   See  Andrews  v,  Partington,  2  253;    Osborne  v.  Van  Home,  2  Fla. 

Cox,   223,  commented  upon  in  Hoste  360;   Newport  v.  Cook,  2  Ashm.  332. 

V.  Pratt,  3  Ve3.  729,  See  In  re  Coe's  Trust,  4   Kay  &  J. 

Where  the  trustee  for  an  infant,  in  199;  Matter  of  Bostwick,  4  Johns.  Ch. 
the  exercise  of  rightful  discretion,  100;  Donovan  v.  Needham,  15  N.  J. 
has  paid  over  to  the  father,  at  his  193.  The  terms  of  the  trust  may  im- 
request,  certain  sums  of  money  out  of  pose  special  restrictions.  McKnight 
the  income  of  the  trust  property,  the  v.  Walsh,  23  N.  J.  Eq.  136. 
father  being  a  bankrupt,  it  is  held  65.  See  Otte  v.  Becton,  55  Mo.  99; 
that  no  promise  can  be  implied  under  Cox  v.  Storts,  14  Bush,  502. 
such  circumstances,  on  the  part  of  the  66.  Ex  parte  Kebble,  11  Ves.  604. 
father,  to  repay  to  the  trustee  the  sums  67.  IT).;  Errat  v.  Barlow,  14  Ves. 
of  money  thus  applied  when  he  after-  202;  Turner  v.  Turner,  4  Sim.  430; 
wards  becomes  able  to  do  so;  there  Matter  of  Davison,  6  Paige,  136. 
ehould  be  something  to  show  an  ex-  Where  the  father  has  permitted  the 
press  promise  of  repayment.  Pearce  child  to  squander  sums  paid  regularly 
V.  Olney,  5  E.  I.  269.  See  In  re  for  maintenance,  he  cannot  claim  re- 
Stables,  13   E.  L.  &  Eq.   61.  imbursement.    Smith  v.  Smith,  3  Dem. 

62.  Livernois,  Re,  78  Mich.  330.  (X.  Y.)  556.    As  to  rule  of  procedure 

63.  2  Story,  Eq.  Juris.,  §  1355;  in  securing  maintenance,  see  Maephera. 
Macphers.  Inf.  252.  Inf.  214  et  seq.,  and  works  on  equity 

64.  /&.,•  Barlow  v.  Grant,  1  Vem.  procedure.  ^Maintenance  is  further 
255-  Bridge  v.  Brown,  2  You.  &  C.  C.  considered  under  Guardian  and  Ward, 
181;    Ex  parte  Green,   1   Jac.  &  W.  post,   §   337. 


795 


PAKENT    AND    CHILD. 


874: 


guardian  for  his  education  or  maintenance  in  anj  case  is  at  the 
most  a  discretionary  right  and  not  to  be  compelled.^^ 

§  795.  When  Duty  Ceases. 

The  parent's  obligation  to  support  ceases  when  the  child  comes 
of  age,*®  as  where  a  child  has  attained  full  age,  the  presumption  is 
that  he  will  bind  himself  by  his  own  contracts.  Under  the  latter 
circumstances,  a  mere  request  to  furnish  necessaries  does  not  bind 
the  father,  though  the  son  be  living  with  him  ;  while  it  is  very  clear 
that  the  father  may  even  thus  bind  himself  by  his  own  independent 
promise. ''*'  In  general,  the  legal  obligation  of  the  father  to  main- 
tain his  child  under  the  common  law  ceases  as  soon  as  the  child  is 
of  age,  however  wealthy  the  father  may  be,  unless  the  child  be- 
^  comes  chargeable  to  the  public  as  a  pauper."^^ 

If  a  parent  gives  a  child  to  another,  who  takes  the  child,  this 

releases  the  parent's  duty  to  support,"  but  an  agreement  between 

.    the  father  and  another  by  which  the  other  person  for  consideration 

agrees  to  support  the  children  does  not  relieve  the  father  as  between 

himself  and  his  children.^^ 

Furthermore,  for  supplies  furnished  the  infant  after  the  parent's 


68.  Reynold  v.  Reynold,  92  Ky.  556; 
Hanford  v.  Prouty,  133  111.  339. 

69.  Voras  v.  Rosenberry,  85  111. 
App.  623;  Haynes  v.  Waggoner,  25 
Ind.  174;  Studebaker  Bros.  Mfg.  Co. 
V.  De  Moss,  62  Ind.  App,  635,  113 
N.  E.  417,  111  N.  E.  26. 

One 's  duty  to  care  for  his  child 
does  not  necessarily  terminate  when 
the  child  becomes  an  adult,  and  the 
parent  must  support  a  helpless  adult 
child,  if  able  to  do  so.  Grain  v.  Mal- 
Jone,  130  Ky.  125,  113  S.  W.  67;  Com- 
monwealth V.  Willis  (Ky.  Super.  1886), 
7  Ky.  Law  Rep.  677;  In  re  Willis' 
Estate,  158  N.  Y.  S.  985,  94  Misc. 
29;  Skidmore  v.  Skidmore,  145  N.  Y. 
S.  939,  160  App.  Div.  594. 

70.  Boyd  V.  Sappington,  4  Watts, 
247;  Patton  v.  Hassinger,  69  Penn. 
St.  311.  And  see  Mills  v.  Wyman,  3 
Pick.  207;  Wood  v.  Gills,  Coxe,  449; 
Norris  v.  Dodge's  Adm'r,  23  Ind. 
190;  Kernodle  v.  Caldwell,  46  Ind. 
153;   White  v.  Mann,  110  Ind.   74. 

71.  2  Kent,  Com.  192;  Parish  of  St. 


Andrew  v.  De  Breta,  1  Ld.  Raym. 
699.  The  father,  having  a  fair  capi- 
tal, may  be  liable  under  statute  for 
the  support  of  his  adult  pauper  daugh- 
ter as  of  "suflficient  ability,"  even 
though  his  income  be  less  than  his  ex- 
penses and  his  health  infirm.  Tem- 
pleton  V.  Stratton,  128  Mass,  137. 

72,  Davis  v,  Davis,  85  Ind,  157. 
Contra,  Murphy  v,  Riecks  (Cal,  App.), 
180  P.  15, 

73,  Hohenadel    v,    Steele,    237    111 
229,  86  N.  E.  717;   Edelson  v.  Edel 
son,    179    Ky.    300,    200    S.    W.    625 
Erice  v.  Brice,  50  Mont.  388,  147  P 
164;    Rennie   v.   Rennie,    95    A,    571 
Wright  v.  Leupp,  70  N.  ,T.  Eq,   130 
62  A,  464;   Hazard  v,  Taylor,  78  N 
Y,  S,  828,  38  Misc,  774;  Sanger  Bros 
V,    Trammcll    (Tex.    Civ.    App.),    198 
S.    W.    1175    (fact    that    father    has 
furnished    mother    with    money     for 
children    does   not    relieve    him   from 
duty  of  support).    See  In  re  Stowell, 
159  N.  Y.  S.  84,  172  App,  Div,  684. 


875  DUTY    OF    SUPPORT.  §    796 

death,  the  parent's  executor  or  administrator  should  not  be  sued ; 
it  is  rather  the  infant's  new  guardian,  and  the  fund  accruing  to 
the  child  on  distribution  of  the  parental  estate,  to  which  the  claim- 
ant must  look  for  indemnity.^* 

§  796.  Separation  or  Divorce  of  Parents. 

In  a  state  of  voluntary  separation,  the  husband  prima  facie,  and 
not  the  wife,  is  liable  for  the  support  of  children  living  with  her ; 
and  if  the  wife  be  justified  in  leaving  her  husband's  house  and 
taking  the  child  with  her,  she  may  pledge  his  credit  for  the  child's 
necessaries  as  well  as  her  o\vn,  so  long  as  he  neglects  to  make 
reasonable  effort  to  retrain  the  child''s  custody.''^ 

Where  a  father  abandons  his  minor  children  and  thereby  compels 
the  divorced  wife  to  support  them,  the  law  implies  a  promise  on 
the  part  of  the  father  to  pay  for  the  nurture  of  his  children  by 
their  mother.''^  Where  the  husband  absconds  and  leaves  the  wife 
and  four  minor  children,  whom  she  supports  for  four  years  until 
she  obtains  a  divorce,  she  can  recover  from  the  husband  the  ex- 
pense of  supporting  them  up  to  the  time  of  her  divorce.  The 
obligation  of  the  father  being  personal,  it  must  be  enforced  where 
he  can  be  found  or  property  belonging  to  him  can  be  attached. 
But  since  the  obligation  does  exist,  and  exists  in  favor  of  the 
mother,  the  law  is  not  so  impotent  as  to  leave  her  remediless.^^ 
But  circumstances,  even  where  the  husband  deserts  his  wife,  may 
repel  the  idea  of  an  agency  thus  conferred  upon  her.'^* 

If  the  wife  leaves  her  husband  without  cause,  taking  the  minor 
child  with  her,  she  has  apparently  no  right  as  agent  to  pledge  her 
husband's  credit  for  the  child's  necessaries,  whatever  might  be  the 
husband's  legal  duty  of  providing  for  the  child's  support.""     For 

74.  Burns    v.    Madigan,    60    N.    H.       41;  Fitler  v.  Fitler,  33  Penn.  St.  50; 
197.     Slight  evidence  will  support  the       Burritt  v.  Burritt,  29  Barb.  124. 
allegation  of  a  promise  by  a  father  to  77.  Rogers  v.  Eogers,  93  Kan.  114, 
pav  for  his  child's  support.     Jordan       143  Pac.  410,  L.  R.  A.  1915A,  1137. 
V.  Wright,  45  Ark.  237,  p.  3S0.  78.  As  where  he  deserted  before  the 

75.  Rumney  v.  Keyes,  7  N.  H.  571 
Kimball  v.  Keyes,  11  Wend.  32 
Walker    v.    Laighton,    11    Fost.    Ill 


child  was  born.  Lapworth  v.  Leach, 
73  Mich.  16;  Ramsey  t.  Ramsey,  121 
Ind.  215. 

Gill  V.  Read,  5  R.  I.  343.     And  see  79.  "In  Bazeley  v.  Forder,  L.  B. 

Reynolds  v.  Swectser,  15  Gray,  78;  3  Q.  B.  559,  it  was  conceded  that  a 
Grunhut  v.  Rosenstein,  7  Daly,  164.  wife  had  no  power  to  charge  her  hus- 
76.  Beigler  v.  Chamberlin  (Minn.),  band  for  the  support  of  a  child,  un- 
165  N.  W.  128,  L.  R.  A.  1918B,  215;  less  she  was  living  apart  from  him 
e-onira,  Hancock  v.  Merrick,  10  Cush.       justifiably,  and  her  power  to  do  it  in 


§  796 


PARENT    AND    CHILD. 


876 


the  mother  has  her  own  moral  and  legal  obligation  to  support, 
nourish,  and  educate  her  o^vn  children  to  the  extent  of  her  ability 
and  means.  And  while  in  case  of  either  separation  or  divorce, 
without  orders  of  custody,  the  obligation  in  general  continues  as 
before,  it  may  be  materially  affected  by  the  special  circumstances 
of  each  case;  while  a  judicial  award  of  children  to  the  mother 
should  be  presumed  to  carry  with  it  a  transfer  of  parental  duties, 
as  well  as  of  parental  rights.®"  But  a  father,  as  against  the  public 
and  his  children,  cannot,  it  is  often  held,  escape  the  duty  of  pro- 
viding for  the  children's  support ;  not  even  if  they  remain  with 
their  mother  after  divorce.®^  And  although  a  wife  by  her  fault 
may  forfeit  her  own  claim  to  support,  she  cannot  forfeit  that  of  the 
children.®' 

The  courts  to-day  are  considering  the  good  of  the  children  rather 
than  protection  of  the  father,  and  it  seems  to  be  the  view  of  the 

that  case  was  put  on  the  ground  that  man  who  lived  apart  from  her  hus- 
the  reasonable  expenses  of  the  child 
were  part  of  her  reasonable  expenses. 
But  assuming  it  to  be  true,  as  laid 
down  in  several  more  or  less  consid- 
ered dicta,  that  the  law  of  Massachu- 
setts imposes  a  duty  upon  a  father 
to  support  his  children,  and  that, 
when  he  wrongfully  turns  his  wife  and 
children  out  of  doors,  his  liability  for 
the  latter  arises  out  of  that  duty 
(Eeynolds  v.  Sweetser,  15  Gray,  78; 
Brow  V.  Brightman,  136  Mass.  187), 
stiU  all  the  cases  show  very  plainly 
that,  when  the  wife  leaves  without 
cause,  taking  her  child  with  her,  the 
fact  that  her  husband  does  not  at- 
tempt to  compel  her  to  give  up  the 
custody  of  the  child  does  not  of  it- 
self authorize  her  to  bind  him  for  its 
support."  Holmes,  J.,  in  Baldwin 
V.  Foster,  138  ISIass.  449. 

The  father  is  liable  for  support 
although  the  wife  leaves  him  without 
just  cause.  Birdsong  v.  Birdsong 
(Ky.),206  S.  W.  22. 

80.  Brow  V.  Brightman,  136  Mass. 
187.  Stanton  v.  "Wilson,  3  Day,  37, 
appears  to  carry  the  mother's  right 
much  further;  but  its  authority  is 
questionable.  We  must  admit,  how- 
ever, that  in  a  late  English  case,  pre- 
senting a  strong  state  of  facts,  a  wo- 


band  for  sufficient  cause,  having  with 
her,  against  her  husband's  will,  their 
child,  of  whom  a  court  had  given  her 
the  custody,  was  allowed  (Cockbum, 
C.  J.,  dis.)  to  pledge  the  husband's 
credit  for  the  child's  reasonable  ex- 
penses ;  she  hfiving  no  adequate  means 
of  support.  Bazeley  v.  Forder,  L.  E. 
3  Q.  B.  559.  See  as  to  a  child's  right 
to  bind  as  agent,  ante,  §  788. 

81.  Courtright  v.  Courtright,  40 
Mich.  633 ;  Conn  v.  Conn,  57  Ind.  323 ; 
Thomas  v.  Thomas,  41  Wis.  229; 
Welch's  Appeal,  43  Conn.  342;  Buck 
V.  Buck,  60  111.  105.  Local  statutes 
affect  this  question  considerably;  and 
the  award  of  alimony  is  a  matter  of 
judicial  discretion  in  divorce  suits. 

When  custody  of  a  child  is  given  to 
the  mother  on  her  divorce  from  the 
child's  father,  the  latter,  having  no 
right  to  the  child's  services,  is  free 
from  liability  to  the  mother  for  the 
child 's  maintenance.  Husband  v.  Hus- 
band, 67  Ind.  583.  Especially  if  the 
mother  remarries,  and  her  second  hus- 
band assumes  the  place  of  father. 
Johnson  v.  Ousted,  74  Mich.  437,  121 
Ind.  215.    ' 

82.  But  alimony  decrees  may  regu- 
late such  matters.  Ex  parte  Gordon, 
95  Cal.  374. 


877 


DUTY    OF    SUPPORT. 


§  796 


most  recent  cases  on  the  subject  that  divorce  does  not  change  the 
father's  liability  to  support.  Hence  the  father  will  still  be  liable 
for  the  support  of  his  minor  child  although  the  parents  have  sep- 
arated and  the  mother  has  taken  the  children,®'  but  a  mother-in-law 
who  has  caused  tie  separation  by  interference  cannot  recover 
against  the  father  for  support  she  gave  the  children.®* 

In  a  state  of  separation  or  divorce,  too,  she  has  her  own  obliga- 
tions toward  the  minor  child  in  her  separate  custody.  The  statute 
of  Elizabeth,  to  which  we  have  already  referred,  expressly  includes 
ihe  mother.  And  since  the  tendency  of  the  day  is  to  give  the 
mother  a  more  equal  share  in  the  parental  rights,  it  follows  that 
she  should  assume  more  of  the  parental  burdens.  It  is  neverthe- 
less clear  that  the  courts  show  special  favor  to  the  mother,  as  they 
should ;  and  if  the  child  has  property  and  means  of  his  own  they 
will  rather  in  any  case  charge  the  expenses  of  his  education  and 
maintenance  upon  such  property  than  force  her  to  contribute ;  ®^ 
but  a  divorced  woman  to  whom  the  custody  of  the  child  has  been 
awarded  may  be  liable  for  their  support  primarily.®* 

It  seems  to  be  the  weight  of  authority  that  a  wife  who  obtains 
a  divorce  and  the  custody  of  her  child,  the  decree  being  silent  as 
to  its  maintenance,  can  recover  from  the  husband  the  expense  of 
caring  for  the  child  after  tho  divorce.®^    The  same  result  is  reached 


83.  Shields  v.  O'Eeilly,  68  Conii. 
256,  36  A.  49;  Eogers  v.  Eogers,  93 
Kan.  114,  143  P.  410;  McGarvey'a 
Guardian  v.  McGarvey's  Adm'r,  163 
Ky.  242,  173  S.  W.  765;  contra,  Brow 
V.  Brightman,  136  Mass.  187;  Assman 
V.  Assman,  179  S.  W.  957;  Ahrens  v. 
Ahrens  (Okla.),  169  P.  486;  Stock- 
^vell  V.  Stockwell,  87  Vt.  424,  89  A. 
478.  See  O'Brien  v.  Galley-Stock- 
ton Shoe  Co.  (Colo.),  173  P.  544 
(only  if  father's  promise  to  pay  can 
be  implied)  ;  Cowls  v.  Cowls,  3  Gilm. 
435;  McCarthy  v.  Hinman,  35  Conn. 
538.  Cf.  Harding  v.  Harding,  144  HI. 
589. 

84.  Howell  V.  Solomon,  167  N.  C. 
588,  83  S.  E.  609. 

85.  In  re  Eyan's  Estate,  174  Mo. 
App.  202,  156  S.  W.  759  (although 
divorced);  Ih.;  Haley  v.  Bannister, 
4  Madd.  275;    Hughes  v.  Hughes,  1 


Bro.  C.  C.  338.  And  see  Lanoy  v. 
Dutchess  of  Athol,  2  Atk.  447;  Ex 
parte  Petre,  7  Ves.  403 ;  Macphers. 
Inf.  224;  Beasley  v.  Magrath,  2  Sch. 
&  Lef.  35;  Pyatt  v.  Pyatt,  46  N.  J. 
Eq.  285;  Anne  Walker's  Matter,  Cas. 
temp.  Sugd.  2?9.  Mother's  discretion 
overruled.  In  re  Eoper  's  Trusts,  L.  R. 
11  Ch.  D.  272. 

86.  Ellis  V.  Hewitt,  15  Ga.  App. 
693,  84  S.  E.  185. 

87.  Bennett  v.  Eobinson,  180  Mo. 
App.  56,  165  S.  W.  856;  Winner  v. 
Shucart  (Mo.),  215  S.  W.  905;  Desch 
V.  Desch,  55  Colo.  79,  132  P.  60; 
Hall  V.  Hall,  141  Ga.  361,  80  S.  E. 
992  Stockwell  v.  Stockwell,  87  Vt. 
424,  89  Atl.  478;  contra,  Stone  v. 
Duffy  (Mass.),  106  N.  E.  595;  Bon- 
dies  V.  Bondies,  40  Okla.  164,  136 
Pac.  1089. 


§  797  PAEENT  AXB  CHILD.  878 

even  though  the  husband  obtains  the  divorce  where  the  wife  keeps 
and  cares  for  the  child.** 

Where  the  court  takes  away  from  the  father  the  care  and  custody 
of  the  children,  chancery  does  not  call  in  aid  of  their  own  means 
the  property  of  the  father,  and  it  directs  maintenance  out  of  their 
own  fortunes,  whatever  may  be  their  father's  circumstances.** 
Local  statutes  sometimes  affect  the  rule  in  this  country ;  while  in 
the  divorce  courts  an  order  of  maintenance  for  children  will  some- 
times be  made  on  somewhat  the  same  principle  as  alimony  for  the 
wife,  notwithstanding  the  guilty  husband  loses  their  custody.* 


90 


§  797.  Pleadings  and  Evidence  in  Actions  for  Support. 

The  complaint  in  an  action  by  a  stranger  against  a  father  to 
obtain  reimbursement  for  support  must  show  that  the  child  was  at 
the  time  under  age,®^  but  need  not  allege  a  special  promise  to  pay,®" 
if  the  allegation  is  made  that  the  support  given  was  necessary  and 
that  the  father  negligently  failed  to  furnish  it,"  and  the  burden  is 
on  the  plaintiff  to  show  that  there  was  a  necessity  for  articles  fur- 
nished without  express  order  of  the  parent,®*  but  there  can  be  no 
recovery  if  it  appears  that  the  father  sent  the  son  remittances  to 
pay  his  board,®^  and  these  questions  are  for  the  jury  to  decide.'* 

There  is  authority  that  equity  has  jurisdiction  independently  of 

88.  Schoennauer  v.  Schoennauer,  77  91.  Humphreys  v.  Bush,  118  Ga. 
Wash.  132,  137  Pac.  325.  The  628,  45  S.  E.  911  (failure  to  allege 
financial  ability  of  the  parties  to  sup-  minority  should  be  set  out  by  plea 
port  the  child  may  be  considered.  and  not  by  special  demurrer). 
White  V.  White,  169  Mo.  App.  40,  154  92.  Bradley  v.  Keen,  101  111,  App. 
S.  W.  872.  519;    MeCrady    v.    Pratt,    138    Mich. 

Where   a  divorce  decree  gives   the  203,  101  N.  W.  227,  11  Det.  Leg.  X. 

mother  the  custody  of  the  child  this  529   (burden  is  on  plaintiff  to  prove 

relieves  the  father  from  his  duty  to  that  the  father  authorized  the  son  to 

support,  but  he  remains  morally  bound  procure  credit  for  board), 

to    assist   it,    and    any    payments    he  93.  O  'Brien  v.  Galley-Stockton  Shoe 

makes    towards    the    support    of    the  Co.    (Colo.),    173    P.    544;    Davis    v. 

child  will  be  presumed  as  made  in  ful-  Davis,  85  Ind.  157;  Lamson  v.  Var- 

filment  of  this  moral  duty  and  can-  num,  171  Mass.  237,  50  N.  E.  615; 

not    be    charged    against    the    child's  Smith  v.  Church   (N.  T.  Sup.  1875), 

separate  estate.      Exchange  Banking  5    Hun,    109;    Cousins  v.   Boyer,    100 

&  Trust  Co.  V.  Finley,  73  S.  C.  423,  N.  Y.  S.  29-0,  114  App.  Div.  787. 

53  S.  E.  649,  94.   Dyer   v.   Helson,   117   Me.   203 

89.  Wellesley  v.  Duke  of  Beaufort,  103  A.  161. 

2  Euss.  1;  Maephers.  Inf.  224.  95,    McCrady   v.    Pratt,    138    Mich. 

90.  Milford  v.  Milford,  L,  R.  1  P.       203,  101  N.  W.  227,  11  Det.  Leg.  N. 
&  D.  715;   Schouler,  Hus.  &  Wife,  §       529. 

555;   Wilson  v.  Wilson,   45  Cal.  399;  96.  Kubic  v.  Zemke,  105  Iowa,  269, 

Holt  V.  Holt,  42  Ark.  495.  74  N.  W.  748;  Cory  v.  Cook,  24  R.  I. 


879  DUTY   OF   SUPPORT.  §    798 

statute  of  a  suit  by  a  wife  to  compel  her  husband  to  support  their 
minor  children.*'     A  judgment  for  support  renders  the  question 
of  paternity  res  judicata.^^ 
§  798.  English  Statute  Enforcing  Support. 

The  statute  43  Eliz.,  c.  2,  slightly  amended  by  5  Geo.  I.,  c.  8, 
points  out  the  English  policy  in  this  respect.     It  is  provided  by 
this  statute  that  the  father  and  mother,  grandfather  and  grand- 
mother, of  poor,  old,  blind,  lame,  and  impotent  persons  shall  main- 
tain them  at  their  own  charges,  if  of  sufficient  ability;    and  if  a 
parent  runs  away  and  leaves  his  children,  the  municipal  author- 
ities, by  summary  judicial  process,  may  seize  upon  his  rents,  goods, 
and  chattels,  and  dispose  of  them  toward  their  relief.®^    Xo  person 
is  bound  to  provide  a  maintenance  for  his  issue,  except  where  the 
children  are  impotent  and  unable  to  act,  through  infancy,  disease, 
or  accident,  and  then  is  only  obliged  to  furnish  them  with  neces- 
saries, the  penalty  on  refusal  being  no  more  than  twenty  shillings 
a  month.     "  For  the  policy  of  our  laws,  which  are  ever  watchful 
to  promote  industry,"  says  Blackstone,  "  did  not  mean  to  compel  a 
father  to  maintain  his  idle  and  lazy  children  in  ease  and  indolence ; 
but  thought  it  unjust  to  oblige  the  parent  against  his  will  to  pro- 
vide them  with  supei-fluities,  and  other  indulgences  of  fortune; 
imagining  they  might  trust  to  the  impulse  of  nature,  if  the  children 
were  deserving  of  such  favors."  ^     Lord  Eldon,  viewing  the  same 
subject  afterwards  in  the  light  of  equity  principles,  was  differently 
impressed  by  these  penal  provisions,  and  founded  the  jurisdiction 
of  chancery  upon  the  very  meagreness  of  the  common-law  remedies 
against  keeping  the  child  from  starvation." 

The  statute  43  Eliz.  may  be  considered  as  having  been  trans- 
ported to  the  United  States  as  part  of  our  common  law.     Its  pro- 

421,  53  A.  315.     (It  is  a  question  for  1.  1  Bl.  Com.  449;  "Winston  v.  New- 

the  jury  whether  a  commercial  educa-  comen,  6  Ad.  &  El.  301. 

tion  in  bookkeepina:  is  a  necessity.)  2.  "Is  it,"  say3  he,  "an  eligible 

97.  Leibold  v.  Leibold,  158  Ind.  60,  thing  that  children  of  all  ranks  should 
62  N.  E.  627.  be  placed  in  this  situation,  that  they 

98.  Commonwealth  v.  Bednarek,  62  shall  be  in  the  custody  of  the  father: 
Pa.  Super.  Ct.  118.  although  looking  at   the  quantum  of 

99.  1  Bl.  Com.  448;  Stubb  v.  Dixon,  .-illowance  which-  the  law  can  compel 
6  East,  166;  Macphers.  Inf.  210.  the  father  to  provide  for  them,  they 
These  statutes  did  not  extend  to  ille-  may  be  regarded  as  in  a  state  little 
gitimates  or  stepchildren.  Tubb  v.  better  than  that  of  starvation?  The 
Harrison,  4  T.  R.  118;  Cooper  v.  Mar-  courts  of  law  can  enforce  the  rights 
tin,  4  East,  76.  But  this  is  changed  of  the  father,  but  they  are  not  equal 
bv  statute   4   4:   5,  Will.   IT.,  ch.  76.  to   the   office   of  enforcing  the  duties 


§  799 


PAEENT    AND    CHILD. 


880 


visions  have  also  been  re-enacted  in  many  of  our  States,  as  in  Kew 
Hampshire,  Connecticut,  and  South  Carolina.  In  'New  York, 
Massachusetts,  and  some  other  States,  the  provision  as  to  grand- 
parents is  omitted.'  This  feeble  and  scanty  provision  of  statute 
law  was  intended,  as  Kent  observes,  for  the  indemnity  of  the  public 
against  the  maintenance  of  paupers.*  Some  local  statutes  at  this 
day  authorize  courts  and  magistrates  to  award  to  the  overseers  of 
the  poor  the  custody  of  children  who  are  found  to  be  neglected  by 
their  parents  and  growing  up  without  education  or  salutary 
control.'^ 

Under  the  pauper  acts  it  is  held  that  the  father's  obligation  to 
support  his  vagabond  son,  who  cannot  support  himself,  does  not 
accrue  until  after  legal  proceedings  have  been  instituted ;  and  the 
furnishing  of  previous  supplies  constitutes  no  legal  consideration 
to  support  a  new  promise.®  K^or  is  an  insane  mother,  herself  a 
pauper,  under  obligation  to  support  a  minor  child,  or  entitled  to 
his  earnings.^  And  as  the  language  of  statute  43  Eliz.  rendered 
it  inapplicable  to  stepchildren,  so  does  it  apply  to  blood  relations 
only ;  and  the  husband  is  not  liable  for  the  expense  of  maintaining 
his  wife's  mother;  ^  nor  the  father  for  his  daughter's  husband;  * 
nor  a  man  who  marries  for  his  pauper  stepchildren.^"  But  a  quasi 
parental  relation  may  sometimes  be  established;  and  one  may 
stand  in  loco  parentis  to  another,  and  thus  become  responsible  for 
the  maintenance  and  education  of  the  latter,  on  the  principle  that 
the  child  is  held  out  to  the  world  as  part  of  his  family." 

§  799.  American  Penal  Statutes  Enforcing  Support. 

Statutes  have  been  passed  in  many  States  making  desertion  and 
abandonment  of  children  an  indictable  offence,  and  all  the  elements 
of  such  offence  as  set  out  in   the  statutes  must  be  alle2:ed  and 


of  the  father. ' '    Wellesley  v.  Duke  of 
Beaufort,  2  Euss.  23    (1827). 

3.  2  Kent,  Com.  191,  and  note; 
Dover  v.  MeMurphy,  4  N.  H.  162; 
Comm'rs  of  Poor  v.  Gansett,  2  Bail. 
320.  And  see  Hayne  '3  Adm  'r  v.  Wag- 
goner, 25  Ind.  174. 

4.  2  Kent,  Com.  191. 

5.  Farnham  v.  Pierce,  141  Mass. 
203.  For  criminal  prosecution  under 
a  local  statute  for  failure  to  support, 
see  State  v.  Sutcliffe    (1894),  N.  J. 


6.  Mills  V.  Wyman,  3  Pick.  207 ; 
Loomis  V.  Newhall,  15  Ih.  159. 

7.  Jenness  v.  Emerson,  15  N.  H. 
486.  And  see  Sanford  v.  Lebanon, 
31  'Sle.  124;  Farmington  v.  Jones,  36 
X.  H.  271. 

8.  Eex  V.  Munden,  1  Stra.  190. 

9.  Friend  v.  Thompson,  Wright, 
636. 

10.  Brookfield  v.  Warren,  128  Mass. 
127. 

11.  See  as  to  stepchildren,  Ela  v. 
Brand,  63  N.  H.  14. 


881 


DUTY    OF    SUPPORT. 


§    799 


proved/"   including  a  lawful   marriage  between   the  father   and 
mother." 

The  crime  is  made  out  if  the  children  become  destitute  after  the 
father  leaves  them/*  and  although  the  child  is  born  after  deser- 


12.  State  V.  Garrison,  129  Minn.  389, 
152  N.  W.  762;  Floyd  v.  State,  86 
S.  E.  460  (demand  for  support  need 
not  be  shown)  ;  State  v.  Clark  (La.), 
80  So.  578;  State  v.  Langley,  248  Mo. 
545,  154  S.  W.  713;  Irving  v.  State 
(Tex.  Cr.  App.),  166  S.  W.  1166 
(name  of  son  must  be  proved) ; 
Moore  v.  State,  1  Ga.  App.  502,  37 
S.  E.  1016  (conduct  of  mother  no  de- 
fence) ;  Jackson  v.  State,  1  Ga.  App. 
723,  58  S.  E.  272;  Moore  v.  State, 
34  Ohio  Cir.  Ct.  E.  487  (notice  of 
necessity  not  essential).  See  State 
V.  Sparegrove,  134  Iowa,  599,  112  N. 
W.  83  (guilt  of  person  to  whom  par- 
ent gave  child) ;  State  v.  Teal,  77 
Ohio  St.  77,  83  N.  E.  304  (demand 
on  father  unnecessary)  ;  Ex  parte 
Mitchell,  19  Cal.  App.  567,  126  P. 
856;  Parrish  v.  State,  10  Ga.  App. 
836,  74  S.  E.  445;  Sanders  v. 
Sanders,  167  N.  C.  319,  83  S.  E. 
490;  In  re  Cordy,  146  P.  534  (af- 
firming judgment,  169  Cal.  150, 
Id.  532,  intent  necessary)  ;  judgment 
(1907),  103  N.  T.  S.  881,  119  App. 
Div.  143,  aff'd.;  Goetting  v.  Nor- 
moyle,  191  N.  Y.  368,  84  N.  E.  287 
(effect  of  bond  required)  ;  State  v. 
Langford  (Ore),  176  P.  197;  Daniels 
V.  State,  8  Ga.  App.  469,  69  S.  E. 
588;  Adams  v.  State,  164  Wis.  223, 
159  N.  W.  726;  State  v.  Gipson,  92 
Wash.  646,  159  P.  792;  State  v. 
Beers,  77  Conn.  714,  58  A.  745;  Gay 
V.  State,  105  Ga.  599,  31  S.  E.  569, 
70  Am.  St.  Rep.  68;  Dalton  v.  State, 
118  Ga.  196,  44  S.  E.  977;  Baldwin  v. 
State,  118  Ga.  328,  45  S.  E.  399; 
Williams  v.  State,  121  Ga.  195,  48 
S.  E.  938;  Brown  v.  State,  122  Ga. 
568,  50  S.  E.  378 ;  Mays  v.  State,  123 
Ga.  507,  51  S.  E.  503. 

Absence  is  a  necessary  element  in 
the    crime    of    abandoning    destitute 

56 


children.  Brown  v.  State,  122  Ga. 
568,  50  S.  E.  378;  Shannon  v.  People, 
5  Mich.  71. 

The  question  "by  whose  advice  the 
parent  left  the  place  where  his  chil- 
dren were  is  irrevelant.  State  v. 
Peabody,  25  E.  I.  544,  56  A.  1028; 
State  V.  Donaghy,  6  Boyce  (Del.),  344 
99  A.  720;  State  v.  Eckhardt,  232 
Mo.  49,  133  S.  W.  321  ("expose" 
defined);  People  v.  Schlott,  162  Cal. 
Cal.  347,  122  P.  846;  Eimes  v.  State, 
7  Ga.  App.  556,  67  S.  E.  223  "his 
child"  sufficient  description);  State 
v.  Shouse  (Mo.),  186  S.  W.  1064 
("necessary  food,  clothing  or  lodg- 
ing" defined). 

Where  the  child  had  the  same  sort 
of  food  and  lodging  as  defendant, 
who  had  not  deserted  her,  the  evidence 
of  neglect  is  insufficient.  State  v. 
Shouse  (Mo.),  186  S.  W.  1064;  State 
v.  Vogt,  141  La.  764,  75  So.  674; 
State  V.  Clark  (La.),  80  So.  578. 

13.  Cunningham  v.  State,  13  Ga. 
App.  80,  78  S.  E.  780;  Martin  v. 
People,  60  Colo.  575,  155  P.  318  (must 
show  that  mother  the  legal  wife  of 
father)  ;  Wynne  v.  State,  86  S.  E. 
823  (common-law  marriage).  See 
People  V.  Connell,  136  N.  T.  S.  912, 
151  App.  Div.  943  (paternity  must 
be  proved  where  defendant  marries 
mother  of  illegitimate  child).  See 
State  V.  Yeres,  75  Ohio  St.  138,  78 
N.  E.  1005  (pendency  of  bastardy 
proceeding  no  defence)  ;  People  v. 
Fitzgerald,  152  N.  Y.  S.  641,  167  App. 
Div.  85  (father  of  illegitimate  not 
guilty  under  statute  as  a  "parent"); 
Creisar  v.  State,  97  Ohio,  16,  119  N. 
E.  128  ("minor"  means  legitimate 
child). 

14.  Brown  v.  State,  122  Ga.  568, 
50  S.  E.  378;  People  v.  Lewis,  116 
N.   Y.    S.    893,   132    App.   Div.   256. 


800 


PAEEXT    AND    CHILD. 


882 


16 


tion/^  and  althougli  there  is  no  notice  or  demand  on  tlie  parent. 

Abandonment  has  two  elements :  separation  from  the  child  and 
failure  to  supply  its  needs/'  and  wilful  and  voluntary  abandon- 
ment includes  actual  desertion/* 

Where  the  custody  of  the  child  was  awarded  to  the  wife  in  her 
divorce  suit,  his  failure  to  support  will  not  make  him  criminally 
liable  under  the  statute/®  but  it  is  held  that  the  fact  that  the 
mother  improperly  keeps  the  children  does  not  relieve  him  of  re- 
sponsibility for  their  support.'*' 

Temporary  absences  leaving  the  child  in  charge  of  another  will 
not  constitute  abandonment,"^  but  a  father  cannot  relieve  himself 
by  contract  of  the  duty  of  supporting  his  children.^" 

The  father  cannot  be  imprisoned  for  neglect  to  provide  as  ordered 
by  the  court  unless  it  is  shown  that  he  has  the  ability  to  comply 
with  the  order."^    Support  may  include  proper  medical  treatment/* 

§  800.  Support  by  Others  as  a  Defence. 

Abandonment  under  some  statutes  is  not  proved  where  the  child 
is  supported  by  others/"  while  under  other  statutes  punishing  de- 

22.  Laws  V.  People,  5?  Colo.  562, 
151  P.  433. 

23.  Ex  parte  McCandless,  17  Cal. 
App.  222,  119  P.  199;  Eaborn  v. 
State,  71  Fla.  387,  72  So.  463;  Peo- 
ple V.  Forester,  29  Cal.  App.  460,  155 
P. 1022. 

24.  Owens  v.  State,  6  Okla.  Cr.  110, 
116  P.  345. 

25.  State  v.  Anderson,  189  Mo.  App. 
611,  175  S.  "W.  259;  Richie  v.  Com- 
monwealth, 23  Ky.  Law  Eep.  1237, 
64  S.  W.  979.  See  People  v.  Euben3, 
92  N.  T.  S.  121.  See  State  v.  Thorn- 
ton, 232  Mo,  298,  124  S.  "W.  519 
(defendant  is  not  guilty  where  mother 
supplies  child  with  "necessary 
food;")  State  v.  Neuroth,  181  S.  W. 
1061;  State  v.  Tietz,  186  Mo.  App. 
672,  172  S,  W.  474;  People  ex  rel. 
Mueller  v.  Mueller,  150  X.  T.  S.  204, 
164  App.  Div.  386;  People  v.  Smith, 
l.'O  N.  T.  S.  731,  88  Misc.  136; 
"Wheeler  v.  State,  51  Tnd.  App.  622, 
100  X.  E.  25;  Williams  v.  State,  126 
Ga.  637,  55  S.  E.  480;  People  v. 
Meads,  28  Cal.  App.  140.  151  P.  552 
(where      mother     left      him,      taking 


15.  Moore  v.  State,  1  Ga.  App.  502, 
57  S.  E.  1016;  Jackson  v.  State,  1 
Ga.  App.  723,  58  S.  E.  272;  Spieer  v. 
State  (Tex.  Cr.  App.),  179  S.  W. 
712;  Shelton  v.  State,  19  Ga.  App. 
618,  91  S.  E.  923  (if  father  persists 
in  abandonment  after  birth  of  child)  ; 
Campbell  v.  State,  20  Ga.  App.  190, 
?2  S.  E.  951. 

16.  Elem  v.  State,  5  Ohio  App.  12. 

17.  Phelps  V.  State,  10  Ga.  App. 
41,   72    S.   E.    524. 

18.  Gay  v.  State,  105  Ga.  599,  31 
S.  E.  569,  70  Am.  St.  Eep.  68. 

19.  People  V.  Hartman,  23  Cal.  App. 
72,  137  P.  611;  People  v.  Dunston, 
173  Mich.  368,  138  N.  W.  1047.  See, 
however.  Ex  parte  McMullin,  19  Cal. 
App.  481,  126  P.  368;  State  v.  Cool- 
idge,  72  Wash.  42,  129  P.  1088;  Ex 
parte  Perry  (Cal.  App.),  174  P.  105. 
See  People  v.  Champion,  30  Cal.  App. 
463,  158  P.  501. 

20.  Eeilfuss  v.  State,  142  Wis.  665, 
126  N.  W.  33;  Adams  v.  State,  164 
Wis.  223,  159  N.  W.  726. 

21.  In  re  Snowball's  Estate,  156 
Cal.  240,  104  P.  444. 


883 


DUTY    OF    SUPPORT. 


801 


sertion  the  fact  that  the  child  is  supported  hj  others  is  no  defence.^' 
The  question  whether  the  father  is  liable  under  a  penal  statute 
for  failing  to  contribute  to  the  support  of  his  children  when  they 
are  well  taken  care  of  by  others  may  depend  on  the  language  of  the 
statute.  Where  the  statute  defines  the  crime  as  failing  to  provide, 
leaving  the  child  destitute,  the  father  is  not  liable  where  others 
provide  for  it,^^  and  the  same  result  is  reached  where  the  statute 
includes  a  reckless  disregard  of  the  life  or  health  of  the  child.^* 
But  where  the  statute  punishes  mere  failure  to  provide  necessary- 
food,  clothing,  etc.,  the  crime  may  be  complete  although  the  child 
is  well  taken  care  of  by  others.'®  It  is  held  no  defence  to  a  prose- 
cution for  the  crime  of  non-support  of  children  that  their  neces- 
sities had  been  relieved  by  others  where  the  children  would  be  in 
necessitous  circumstances  if  they  had  not  been  so  provided  for,"*^ 
as  this  would  introduce  a  new  provision  into  the  statute  and  make 
a  parent's  guilt  depend  on  the  concurrent  failure  and  neglect  of 
other  persons  to  provide  for  his  child.  Men  cannot  shift  their 
burdens  upon  the  shoulders  of  others  in  this  way.^^ 

§  801.  Proceedings  to  Compel  Support. 

The  proceeding  for  non-support  is  criminal  in  nature  and  may 
be  prosecuted  by  the  public  authorities,^'  and  in  the  court  desig- 
nated by  the  statute,^^  under  an  indictment  detailing  the  offence 


child);  Order  (1906),  9S  N.  T.  S. 
S63,  112  App.  Div.  717,  aff'd.;  Peo- 
ple V.  Joyce,  189  N.  T.  518,  81  N.  E. 
1171. 

26.  Bowen  v.  State,  56  Ohio  St. 
235,  46  N.  E.  708;  State  v.  Stouffer, 
65  Ohio  St.  47,  60  N.  E.  985. 

In  a  place.  The  fact  that  the 
statute  provides  for  abandonment  "in 
a  place"  is  important  and  means 
that  the  child  must  be  left  in  some 
definite  place  and  it  is  not  enough 
to  show  that  the  child  was  left  in  the 
custody  of  the  mother.  People  v. 
Joyce,  98  N.  Y.  S.  863,  112  App.  Div. 
717,  20  N.  T.  Cr.  R.  101,  189  N.  T. 
518,  81  N.  E.  1171.  See  Goffe  v. 
State,  14  Ga.  App.  275,  80  S.  E.  519 
(child  need  not  be  destitute,  it  is 
enough  that  father  does  not  provide 
for  it)  ;  State  v.  Boss,  137  P.  829 ; 
State  V.  Waller,  90  Kan.  829,  136  P. 
215;    Hunter  v.   State,   10  Okla.   Cr. 


119,  134  P.  1134;  State  v.  Wellman, 
102  Kan.  503,  L.  R.  A.  1918D,  949, 
170  P.  1052. 

27.  Dalton  v.  State,  118  Ga.  196, 
44  S.  E.  977;  Williams  v.  State,  121 
Ga,  195,  48  S,  E.  138,  126  Ga.  637,51 
S.  E.  480. 

28.  Richie  v.  Comm.,  23  Ky.  L. 
Rep.  1237,  64  S.  W.  979';  State  v. 
Thornton  (Mo.),  134  S.  W.  519,  32 
L.  R.  A.   (X.  S.)   841. 

29.  State  v.  Stouffer,  65  Ohio  St. 
47,  60  N.  E.  985. 

30.  State  v.  Wellman  (Kan.),  170 
Pac.   1052,  L.   R.   A.   1918D,   949, 

31.  Hunter  v.  State  (Okla.  Crim. 
Rep.),  134  Pac.  1134,  L.  R.  A,  1W5A, 
564. 

32.  State  v,  Peabody,  25  R.  I.  178, 
55  A.  323. 

33.  Steele  v.  People,  88  111.  App. 
186.  See  Keller  v.  Commonwealth, 
71  Pa.  413   (as  to  proceedings  in  dif- 


801 


PAKEXT    AND    CHILD. 


884 


particularly/*  supported  by  competent  evidence  ^^  as  to  neglect 
before  and  after  tbe  time  set  in  the  indictment.^^ 

The  crime  of  failing  to  support  children  is  a  crime  of  omission, 
and  the  crime  occurs  where  the  omission  takes  place.  Therefore, 
where  a  man  deserts  his  family  and  removes  to  another  State  the 
crime  occurs  at  the  place  of  the  residence  of  the  children,  as  he  owes 
the  duty  of  support  at  that  point,  and  therefore  he  may  be  punished 
if  brought  there  although  the  non-support  charge  took  place  while 
he  was  in  another  State.^^  "Whether  a  father  can  be  prosecuted  in 
Kansas  for  not  taking  care  of  his  son  there  when  the  father  lived  in 
Texas  depends  on  whether  he  permitted  the  mother  to  remove  the 
son  to  Kansas  under  such  circumstances  that  he  was  obligated  for 
his  support  and  with  knowledge  or  reasonable  means  of  knowledge 
that  his  child  was  destitute  and  likely  to  become  a  public  burden. 
The  mere  fact  that  without  fault  of  the  parents  the  child  was 
brought  to  Kansas  by  his  mother  and  was,  at  some  time  after  the 
father  had  been  brought  to  Kansas  in  custody  of  an  officer,  actually 
in  destitute  circumstances,  would  not  of  itself  constitute  a  crime.^® 

The  judgment  of  the  court  may  be  conditional,^^  and  may  be 
modified  on  proof  of  change  of  circumstances,*"  and  the  court  may 


ferent  counties) ;  Commonwealth  v. 
Acker,  197  Mass.  91,  83  N.  E.  312 
(no  defence  that  child  living  in  for- 
eign country)  ;  In  re  Fowles,  89  Kan. 
430,  131  P.  598  (non-resident  parent 
must  te  shown  to  have  knowledge) ; 
State  V.  Barilleau,  128  La.  1033,  55 
So.  664;  State  v.  Sanner,  81  Ohio  St. 
393,  90  N.  E.  1007  (though  parent 
a  resident  of  another  State  at  the 
time) ;  State  v.  Tocum,  106  X.  E. 
705  (in  county  where  children  living). 
See  People  v.  Clairmont,  111  X.  T.  S. 
613,  58  Misc.  517  (no  jurisdiction 
where  offence  committed  outside  the 
State) ;  Noodleman  v.  State  (Tex.  Cr. 
App.),  170  S.  W.  710  (although  de- 
sertion in  another  State) ;  State  v. 
Tujague,  134  La.  576,  64  So.  417; 
Martin  v.  People  (Colo.),  168  P. 
1171. 

34.  Richie  v.  Commonwealth,  23 
Ky.  Law  Rep.  1237,  64  S.  W.  979; 
Shannon  v.  People,  5  Mich.  71 ;  State 
V.  Block   (Mo.  App.  1904),  82  S.  W. 


1103;  State  v.  Donaghy,  6  Boyce 
(Del.),  344,  99  A.  720;  Utsler  v. 
State  (Tex.  Cr.  App.),  195  S.  W. 
855. 

35.  Donaghy  v.  State,  6  Boyce 
(Del.),  467,  100  A.  69-6,  99  A.  722 
(marital  relations  between  father  and 
mother  immaterial)  ;  Campbell  v. 
State,  20  Ga.  App.  190,  92  S.  E.  951; 
Poindexter  v.  State,  137  Tenn.  386, 
193  S.  W.  126  (evidence  of  defend- 
ant's father's  efforts  to  induce 
mother  to  return  to  him  immaterial)  ; 
Joiner  v.  State  (Tex.  Cr.  App.),  196 
S.  W.  523. 

36.  Watke  v.  State  (Wis.),  163 
X.  W.  258. 

37.  State  v.  Wellman  (Kan.),  170 
Pac.  1052,  L.  R.  A.  1918D,  949. 

38.  :Re  Fowles,  89  Kan.  430,  131 
Pac.   598,  47   L.  R.  A.    (X.   S.)    227. 

39.  Spade  v.  State,  44  Ind.  App. 
529,  89  X.  E.  604. 

40.  Hirstius  v.  Gottschalt,  31  Ohio 
Cir.   Ct.  E.  406. 


885  DUTY    OF    SUPPORT.  §    801 

bj  statute  order  a  guaranty  bond  to  be  furnished,*^  with,  a  rigbt  of 
appeal  provided  by  statute.*^ 

41.  State   V.    Clark    (La.),   78    So.       (DeL),  344,  100  A.  696,  99  A.  720; 
742.  State  V.  Clark  (La.),  78  So.  742. 

42.  Donaghy    v.     State,    6     Boyc6 


§  803  PARENT  AND  CHILD.  886 


CHAPTER  XI. 

RIGHTS    OF    CHILDREN. 

Section  802.  Eights  of  Children  in  General. 

803.  Claims  Against  the  Parental  Estate  for  Services  Rendered. 

804.  Advancements. 

805.  Child's  Eights  of  Inheritance. 

806.  Eights  of  Full-grown  Children. 

§  802.  Rights  of  Children  in  General. 

The  rights  of  children  with  reference  to  their  parents  may  be 
considered  more  at  length.  We  have  already  had  occasion  to 
observe  that  the  child  may  to  a  certain  extent  bind  the  parent  as 
agent,  not  only  for  necessaries,  but  in  some  other  transactions, 
■where  the  child  acts  within  the  scope  of  authority  properly  con- 
ferred. But  general  transactions  require  proof  of  actual  author- 
ity; and  a  son  has  ordinarily  no  more  right,  as  such,  to  lend  his 
father's  goods  than  a  stranger.*^  And  proof  that  in  one  instance 
the  use,  by  a  son,  of  his  father's  name  upon  negotiable  paper  dis- 
counted at  a  bank,  was  known  and  acquiesced  in  by  the  father,  is 
not  proof  that  the  son  was  authorized  to  sign  subsequent  notes  in 
the  same  manner.**  The  principles  of  agency  are  here  applied.** 
A  child  cannot  recover  on  the  ground  of  relationship  upon  a  prom- 
ise made  for  his  benefit  to  his  parent,  if  the  consideration  came 
wholly  from  the  parent.*" 

§  803.  Claims  Against  the  Parental  Estate  for  Services  Rendered. 

Claims  for  services  rendered  to  a  parent,  or  to  some  one  standing 
in  place  of  a  parent,  are  not  unfrequently  presented  against  the 
parental  estate  after  decease.  Thus,  where  an  adult  child  resides 
with  and  performs  valuable  service  for  the  parent,  an  understand- 
ing may  bo  shown  between  them  of  recompense  either  in  money  or 
by  way  of  testamentary  provision  under  the  parent's  will.  In 
meritorious  instances,  and  particularly  whore  the  parent  was  long 
sick  and  infirm,  and  the  child,  or  some  particular  child,  performed 
indispensable  functions,  or  where  by  personal  labor  and  skill  the 

48.    Johnson    v.    Stone,    40    N.    H.  45.  See  also  Sequin  v.  Peterson,  45 

197;   supra,  §  788.     But  see  Bennett  Vt.  2r)5;  supra,  §  GS?. 

V.  Gillett,  3  Minn.  423.  46.  Marston  v.  Bigelow,  150  Mass. 

44.    Greenfield    Bank    v.    Crafts,   2  45. 
Alen,  269. 


8S7 


EIGHTS    OF    CIIILDREIf. 


804: 


child  enhanced  the  value  of  the  parental  estate,  a  mutual  intention 
to  this  effect  may  be  inferred  from  the  circumstances ;  and  where, 
from  some  consistent  cause,  no  such  testamentary  provision  has 
been  made,  compensation  will  be  allowed  out  of  the  deceased  par- 
ent's estate  upon  the  usual  footing  of  a  creditor's  claim.*'  Pre- 
sumptions, however,  as  we  have  seen,  are  unfavorable,  and  must 
be  overcome;  *®  and  especially  if  the  child  seeks  an  advantage  over 
other  heirs,  some  express  contract  or  affirmative  evidence  of  inten- 
tion ought  to  appear;  and  so,  too,  presumptions  are  against  the 
reimbursement  of  parental  care  and  trouble  bestowed  upon  one's 
offspring.** 

Where  the  relationship  was  more  distant,  or  the  parties  con- 
cerned were  not  kindred  at  all  or  united  by  marital  ties,  the  infer- 
ence of  a  promise  to  recompense  the  service  rendered  is  of  course 
more  readily  raised,  whether  the  claim  be  presented  against  the 
person  served,  or  against  his  estate,  upon  his  decease.^" 

§  804.  Advancements. 

If  the  father,  during  his  lifetime,  makes  an  advancement  to  any 
of  his  children,  towards  their  distributive  share  in  his  estate,  the 
rule  is  to  reckon  this  in  making  the  distribution."^     In  England  it 


47.  Freeman  v.  Freeman,  65  111. 
106;  Markey  v.  Brewster,  17  N.  T. 
Supr.  16.  Specific  performance  has 
been  decreed  of  a  promised  conveyance 
in  consideration,  even  though  the  will 
were  insufficient.  Hiatt  v.  Williams, 
72  Mo.  214.  As  to  persons  in  general 
performing  service  in  expectation  of 
a  legacy,  mere  expectation  cannot  cre- 
ate an  enforceable  contract;  but  a 
mutual  understanding,  if  shown,  may 
afford  the  basis  of  a  valid  claim 
against  an  estate.  See  Shakespeare 
V.  Markham,  17  N.  Y.  Supr.  311,  322, 
and  cases  cited.  Hudson  v.  Hudson, 
87  Ga.  678. 

48.  Zimmerman  v.  Zimmerman,  729 
Penn.  St.  229;  §  269;  Erhart  v.  Diet- 
rich, 118  Mo.  418;  Hudson  v.  Hud- 
son, 90  Ga.  581.  But  an  agreement 
to  make  a  will  in  the  child 's  favor, 
though  invalid  in  a  testamentary 
sense,  imports  a  contract  to  be  sued 
upon.      Ellis   V.    Gary.    74    Wis.    176. 

49.  Seitz's    Appeal,    87    Penn.    St. 


159.  See  supra,  %  238;  Reando  v.  Mis- 
play,  90  Mo.  251,  where  necessary 
services  were  rendered  to  an  insane 
mother. 

50.  Briggs  V.  Briggs,  46  Vt.  571; 
Morton  v.  Eainey,  82  111.  215;  Brod- 
erick   v.   Broderick,    28   W.    Va.    378. 

51.  Ehea  v.  Bagley,  63  Ark  374, 
38  S.  W.  103?,  36  L.  E.  A.  86; 
Hughes  V.  Nicholson,  105  P.  692, 
affd.  on  reh. ;  Plowman  v:  Nicholson, 
81  Kan.  210,  106  P.  279;  Brooks  v. 
Summers,  100  Ky.  620,  38  S.  W.  1047, 
18  Ky.  Law  Eep.  1026;  Ayler  v. 
Ayler  (Mo.),  186  S.  W.  1068;  Taylor 
V.  Draper,  71  N.  J.  Eq.  309,  63  A. 
844;  Cowden  v.  Cowden,  28  Ohio  Cir. 
Ct.  R.  71;  Kern  v.  Howell,  180  Pa. 
St.  315,  36  A.  872,  40  W.  N.  C.  93, 
57  Am.  St.  Rep.  641;  Schouler.  Ex- 
ecutors, §§  499,  500;  Edwards  v. 
Freeman,  2  P.  Wms.  435.  And  so  is 
it  with  one  standing  in  loco  parent ii^. 

The  father  must  acc<nint  for  the 
rents    and    profits    of    any    property 


804 


PAKENT    AND    CHILD. 


888 


would  appear  that  acts  of  the  father  have  often  been  so  construed, 
under  the  statute  of  distributions,  with  less  reference  to  intention 
of  the  parties  than  the  requirements  of  equal  justice.  Thus  annu- 
ities are  reckoned  an  advancement;  contingent  provisions;  large 
premiums  for  a  trade  or  profession;  and  loans  of  considerable 
importance  to  a  son.'^  But  small  and  inconsiderable  sums  for 
current  expenses,  ornaments,  and  the  education  of  children  are  not 
so  reckoned.'^*  ISTor  is  the  payment  to  the  daughter's  husband  of 
£1,000,  jocularly  stated  by  the  father  to  be  in  exchange  for  his 
snuff-box,  to  be  considered  an  advancement  to  the  daughter.^* 

The  rule  in  this  country  does  not  appear  to  be  very  strict ;  and 
in  some  States  the  statutes  of  distributions,  unlike  those  of  Eng- 
land, permit  nothing  to  be  reckoned  as  an  advancement  to  a  child 
by  the  father,  unless  proved  to  have  been  so  intended  and  charge- 
able on  the  child's  share  by  certain  evidence  prescribed."'^  And  it 
is  laid  down  that  whether  a  provision  of  the  deceased  in  his  life- 
time be  a  gift  or  an  advancement  is  a  question  of  intention ;  but 
that  if  it  was  originally  intended  by  both  as  a  gift,  it  cannot  subse- 
quently be  treated  by  the  father  as  an  advancement,  at  least  with- 
out the  son's  knowledge  or  consent ; "®   nor  set  off  as  an  advance- 


which  he  has  given  as  an  advance- 
ment; Guthrie  v.  Mitchell,  38  Okl. 
55,  132  P.  138. 

52.  Smith  v.  Smith,  3  Gif.  263; 
2  Wms.  Ex'rs,  1385;  Edward  v.  Free- 
man, 2  P.  "Wms.  435;  Boyd  v.  Boyd, 
L.  E.  4  Eq.  305. 

53.  2  Wms.  Ex'rs,  6th  Am.  ed.  1438- 
1505.  And  see  Miller's  Appeal,  40 
Pa.  St.  57. 

64.  MeCIure  v.  Evans,  29  Beav.  422. 
And  see  Stock  v.  McAvoy,  L.  R.  15 
Eq.  55. 

In  a  modern  English  case  a  father 
lent  the  sum  of  £10,000  to  his  son,  to 
assist  him  in  forming  a  partnership  in 
the  business  of  a  sugar-refiner,  and 
took  his  promissory  note  for  the  re- 
payment of  that  sum  on  demand.  It 
appeared  that  the  son  engaged  in 
business  at  the  urgent  desire  of  his 
father;  that  finding  it  was  a  losing 
concern  he  became  desirous  of  retir- 
ing, but  remained  at  the  urgent  re- 
quest of  his  father  and  continued  the 
business    with    reluctance,    sustaining 


heavy  losses.  The  father  on  his  death- 
bed caused  the  promissory  note  to  be 
burned,  and  died  intestate.  It  was 
held  that  although  the  circumstances 
under  which  the  note  had  been  de- 
stroyed amounted  to  an  equitable  re- 
lease of  the  debt;  yet  that  the  sum 
which  remained  due  on  it  must  be 
considered  an  advancement  to  the  son. 
Gilbert  v.  Wetherell,  2  Sim.  &  Stu. 
254,  per  Sir  John  Leach,  M.  R.  But 
see  Auster  v.  Powell,  31  Beav.  583, 
and  n.  And  see  Bennett  v.  Bennett, 
L.  E.  10  Ch.  D.  474. 

65.  Osgood  V.  Breed's  Heirs,  17 
Mass.  356.  Mere  declarations  of  a 
father  held  insufficient  to  raise  a  pre- 
sumption of  his  intention  to  treat 
money  paid  to  his  son  for  which  he 
had  taken  the  latter 's  notes  as  ad- 
vancements. Harley  v.  Harley,  57 
Md.  340. 

56.  Lawson's  Appeal,  23  Pa.  St. 
85;  Sherwood  v.  Smith,  23  Conn.  516. 
See  Black  v.  Whitall,  1  Stockt.  572; 
Storey's  Appeal,  83  Pa.  St.  89. 


889 


BIGHTS    OF    CHILDREN. 


§    804 


ment  to  the  son  in  settling  the  father's  estate."  Yet  it  is  also 
ruled  that  if  a  son  during  his  father's  life  receipts  for  and  actually 
receives  his  ''  full  proportion,"  he  can  claim,  nothing  more  from 
the  etsate  after  his  father's  death.^*  Advancements  do  not  bear 
interest,  unless,  at  all  events,  the  intention  to  that  efFect  be  very 
clear." 

"V\%ere  the  child  of  a  father  dying  intestate  has  received  an 
advancement,  in  real  or  personal  estate,  and  wishes  to  come  into 
the  general  partition  or  distribution  of  the  estate,  he  may  bring 
his  advancement  into  hotchpot  with  the  whole  estate  of  the  intes- 
tate, real  and  personal;  and  shall  thereupon  be  entitled  to  his  just 
proportion  of  the  estate.  This  is  the  English  rule,  and  it  prevails 
likewise  in  many  of  the  United  States.®"  In  such  case  the  value  of 
the  property  at  the  time  of  advancement  governs  in  the  distribu- 
tion.^^ The  principle  of  this  rule  is  equality  of  distribution  of 
the  ancestor's  personal  estate  among  his  children  and  their  de- 


67.  Thurber  v.  Sprague,  17  E.  I. 
€34.  The  suggestion  that  an  unequal 
distribution  among  children  results, 
will  not  avail.  Ih.,  Burt  v.  Quisen- 
berry,  132  111.  385.  And  see  Francis 
V.  Wilkinson,  147  111.  370.  But  cf. 
Gulp  V.  Wilson,  133  Ind.  294.  As  to 
insurance  on  his  own  life  for  the 
child's  benefit,  see  Cazassa  v.  Cazassa, 
92  Tenn.  573. 

58.  Gushing  v.  Gushing,  7  Bush, 
259. 

59.  Osgood  V.  Breed's  Heirs,  17 
Mass.  356;  Nelson  v.  Wyan,  21  Mo. 
347;  Porter's  Appeal,  94  Pa.  St.  232. 
A  transaction  between  parent  and 
child  may  constitute  a  loan  rather 
than  either  gift  or  advancement. 
Bruce  v.  Griscom,  16  N.  Y.  Super. 
280,  29  Beav.  422.  As  where  the 
parties  habitually  keep  memoranda  to 
this  effect,  67  Miss.  413.  As  to  proof 
of  an  advancement,  see  Bulkley  v. 
Noble,  2  Pick.  337;  and  see  HartweU 
V.  Rice,  1  Gray,  587;  Miller's  Ap- 
peal, 40  Pa.  St.  57;  Smith  v.  Smith, 
59  Me.  214;  Vanzant  v.  Davies,  6 
Ohio  St.  52;  2  Story,  Eq.  Juris.  § 
1202;  Brown  v.  Burk,  22  Ga.  574; 
Cleaver  v.  Kirk,  3  Met.    (Ky.)    270; 


Hodgson  V.  Macy,  8  Ind.  121;  Vaden 
V.  Hance,  1  Head,  300.  Fulton  v. 
Smith,  27  Ga.  413;  Montgomery  v. 
Chaney,  13  La.  Ann.  207.  A  convey- 
ance of  land  to  the  husband  of  a 
daughter  is  not  an  advancement  to 
the  daughter.  Eains  v.  Hays,  6  Lea, 
303.  But  where  an  adult  child  ac- 
cepts a  deed  which  explicitly  declares 
that  it  is  accepted  by  said  child  "as 
his  full  and  entire  share  of  his  fa- 
ther's estate,"  and  the  child  puts  the 
deed  on  record,  enters  into  possession, 
and  enjoys  the  property  thus  con- 
veyed, he  cannot  deny  the  deed  to  be 
binding  upon  him  to  that  effect.  Ker- 
shaw V.  Kershaw,  102  111.  307; 
Roberts  v.  Coleman,  37  W.  Va.  143. 
See  further,  2  Schouler,  Wills. 

60.  2  El.  Com.  516;  2  Wms.  Ex'rs, 
1386;  2  Kent,  Com.  421;  Jackson  v. 
Jackson,  28  Miss.  674;  Barnes  v. 
Hazleton,  50  111.  429;  Schouler,  Ex- 
ecutors, §§  493,  500. 

61.  See  Jenkins  v.  Mitchell,  4 
Jones,  Eq.  207.  For  the  New  York 
rule,  see  Terry  v.  Dayton,  31  Barb. 
519;  Beebe  v.  Estabrook,  18  N.  Y. 
Supr.  523. 


§  80: 


PARENT    AXD    CHILD. 


890 


scendants.     A  fiduciary  debt  from  parent  to  child  must  of  course 
be  separately  accounted  for  out  of  his  estate."^ 

§  805.  Child's  Rights  of  Inheritance. 

The  sale  of  expectant  estates  by  heirs  is  not  to  be  encouraged ; 
one  reason  being  that  it  opens  the  door  to  taking  undue  advantage 
of  an  heir  in  distressed  and  necessitous  circumstances ;  the  other 
that  public  policy  should  prevent  an  heir  from  shaking  off  his 
father's  authority  and  feeding  his  extravagance  by  disposing  of 
the  family  estate.^^  The  principle  was  formerly  laid  down  with 
much  emphasis  in  Massachusetts.'*  But  the  present  rule  of  chan- 
cery is  to  support  such  sales  to  others,  if  made  bona  fide,  and  for 
valuable  consideration;  and  in  case  of  an  heir  apparent,  if  the 
instrument  be  made  with  the  knowledge  and  consent  of  the  father.®^ 
Whether,  however,  the  son  can  release  to  the  father  himself,  so  as 
to  operate  further  than  as  a  receipt  for  property  advanced  to  him, 
is  more  doubtful.** 

Where  a  legacy  is  given  by  a  parent  to  his  child,  or  by  one  in 
loco  parentis,  by  way  of  maintenance,  the  child  as  legatee  is  priv- 
ileged in  being  allowed  interest  thereon  from  the  testator's  death ; 
this,  so  as  to  secure  the  child's  prompt  and  full  support.  And  the 
presumptive  right  to  interest  is  held  to  be  all  the  same,  notwith- 
standing the  child  has  no  guardian,*^  or  the  testator  was  not  obliged 
to  render  support ;  *^  but  not  where  the  will  makes  other  express 
provision  for  maintenance.*® 

The  child's  right  of  inheritance  from  his  parent,  it  may  be  added, 
is  strongly  favored  both  in  England  and  America.  But  while  in 
the  former  country  the  eldest  son  is  so  far  preferred  to  the  other 
children  that  he  shall  take  the  whole  real  estate  bv  descent  to  him- 
self,  the  American  rule  is  that  all  children  shall  inherit   alike, 


62.  Concha  v.  Murrieta,  40  Ch.  D. 
543. 

63.  Per  Lord  Thurlow,  1  Bro.  C.  C. 
10;  Co.  Litt.  265,  a;  Sugden,  Ven- 
dors, 314,  and  cases  cited;  1  Story, 
Eq.   Juris.    §§    336-339. 

64.  But  see  Trull  v.  Eastman,  3  Met. 
121 ;  contra,  Boynton  v.  Hubbard,  7 
Mass.  112.  See  Varick  v.  Edwards, 
1  Hoff.  Ch.  383;  2  Kent,  Com.  475, 
and  cases  cited. 

65.  Curtis  v.  Curtis,  40  Me.  24. 

66.  See  "Robinson  y.  Robinson, 
Brayt.  59;  Walker  v.  Walker,  67  Pa. 


St.  186.  The  agreement  of  children 
without  their  father's  knowledge  to 
release  all  rights  of  inheritance  in 
land  to  one,  if  that  one  would  main- 
tain the  father  for  life,  is  not  against 
public  policy,  but  may  be  upheld  in 
equity.    Walker  v.  Walker,  76. 

67.  Kent  v.  Dunham,  106  Mass. 
586 ;  Fowler  v.  Colt,  22  N.  J.  Eq.  44. 

68.  For  the  testator  might  have  in- 
tended support  from  the  legacy. 
Brown  v.  Knapp,  79'  N.  T.  136. 

69.  In  re  George,  47  L.  J.  Ch.  118. 


891  EIGHTS    OF    CIIIT.DKEX.  §    806 

whether  sons  or  daughters.  And  a  father's  will  is  to  be  construed 
with  favor  to  his  own  offspring;  indeed,  some  of  our  local  statutes 
expressly  provide  that  when  a  testator  omits  to  provide  for  any 
children,  they  shall  take  the  same  share  of  the  testator's  estate, 
Loth  real  and  personal,  that  would  have  passed  to  them  if  the 
parent  had  died  intestate,  unless  they  had  other  provision  during 
the  testator's  life,  or  it  clearly  appears  that  the  omission  was 
intentional  on  his  part/'* 

A  child  has  no  absolute  right  of  inheritance,  and  even  equity 
will  not  interfere  to  raise  a  constructive  trust  where  a  man  conveys 
land  to  his  second  wife,  even  though  the  result  is  to  deprive  his 
children  by  his  first  wife  of  all  rights  as  heirs  in  the  land.  The 
mere  fact  that  a  conveyance  works  apparent  injustice  is  not  enough 
where  the  father  was  the  owner  in  fee/^ 

§  806.  Rights  of  Full-grown  Children. 

A  child,  on  arriving  at  full  age,  becomes  emancipated,^*  and  the 
legal  rights  and  duties  existing  at  common  law  between  parent  and 
child  last  only  during  the  minority  of  the  child,  and  after  that  the 
duties  arising  from  the  relation  are  not  legal  but  moral  except  for 
statute." 

But  whether  son  or  daughter,  the  child,  by  continuing  with  the 
parent  and  living  at  the  same  home,  may  still  be  legally  in  the 
service  of  the  parent.  On  this  point  there  is  no  dispute ;  but  in 
settling  the  presumptions  of  law  there  is  apparently  some  conflict 
of  authorities.  Thus,  where  the  parent  sues  for  loss  of  services 
because  of  the  seduction  of  a  grown-up  or  minor  daughter,  a  strong 
disposition  is  frequently  manifested  to  rule  against  complete  eman- 
cipation so  as  to  give  damages.  Where,  however,  the  conflict  is 
between  parent  and  an  adult  child,  over  work  done  for  a  stranger, 
the  tendency  is  in  favor  of  complete  emancipation,  and  to  allow  the 
child,  attained  to  full  age,  the  right  to  control  his  own  wages ;  this 
being  for  the  child's  benefit.  So,  too,  a  parent  is  not  liable  to  third 
parties  for  the  board  or  necessaries  of  his  adult  children,  in  the 
absence  of  an  express  promise,  or  of  facts  from  which  an  implied 
promise  may  be  inferred;  ^*    while  as  between  a  parent  and  his 

70.  See  Mass.  Gen.  Stats,  ch.  92,  §  72.  2  Kent,  Com.  206;  Poultney  v. 
25;  2  Kent,  Com.  421;  4  Kent,  Com.  Glover,  23  Vt.  328;  Hardwick  v. 
471;   1  Jarm.  Wills,  5th  Am.  etl.  129,       Paulet,  36  Vt.  320;  supra,  §  252. 

«.;  Schouler,  Executors,  §§  499,  500.  73.  Appeal  of  Woodward,  81  Conn. 

71.  Clester  v.  Clestcr,  90  Kan.  63S,       152,  70  A.  453. 

135  P.  99G,  L.  R.  A.  IQrlSE,  648.  74.  Hawkins  v.  Hyde,  55  Yt.  55. 


§  806 


PARENT    AND    CHILD. 


892 


own  adult  cliildreii,  unless  peculiar  circumstances  have  arisen, 
courts  are  reluctant  to  infer  a  pecuniary  recompense  from  the  per- 
formance of  filial  or  parental  duties  such,  as  humanity  enjoins.'^ 

If  a  child,  then,  after  arriving  at  the  age  of  twenty-one  years, 
continues  to  live,  labor,  and  render  service  in  the  father's  family, 
with  his  knowledge  and  consent,  but  without  any  agreement  or 
understanding  as  to  compensation,  the  law  raises  no  presimiption 
of  a  promise  to  enable  the  child  to  maintain  an  action  against  the 
father  to  recover  compensation/*  The  presumption  here  is,  that 
the  parties  do  not  contemplate  a  payment  of  wages  for  sevrices, 
on  the  one  hand,  nor  a  claim  for  board  and  lodging,  on  the  other. 
For  where  the  relation  of  parent  and  child  exists,  the  law  will  not 
readily  assume  that  of  debtor  and  creditor  likewise;  and  board 
and  services  may  constitute  a  fair  mutual  offset  in  the  general 
household.  But  this  presumption  may  be  overthrown,  and  the 
reverse  established,  by  proof  of  an  express  or  implied  contract  to 
that  effect ;  an  implied  contract  being  proven  by  facts  and  circum- 
stances which  show  that  both  parties,  at  the  time  the  services  were 
performed,  contemplated  or  intended  pecuniary  recompense. 


TT 


^  75.  Zimmerman  v.  Zimmerman,  129 
Pa.  St.  229;  Switzer  v.  Ker,  146  111. 
577;  ante,  §  803.  Such  contracts  are 
strictly  personal,  and  no  specific  per- 
formance lies  against  the  personal 
representatives  of  one  deceased. 
Campbell  v.  Potter,  147  111.  576. 

76.  Dye  v.  Kerr,  15  Barb.  444;  Lipe 
V.  Eisenlerd,  32  N.  Y.  229;  Mostel- 
ler'3  Appeal,  30  Pa.  St.  473;  Eidg- 
"way  V.  English,  2  N.  J.  409 ;  Andover 
V.  Merrimack  County,  37  N.  H.  437; 
Williams  v.  Barnes,  3  Dev.  348; 
Prickett  v.  Prickett,  5  C.  E.  Green, 
478;  Perry  v.  Perry,  2  Duv.  (Ky.) 
312;  Heywood  v.  Brooks,  47  N.  H. 
231;  Wilson  v.  Wilson,  52  la.  44; 
Gardner  v.  Schooley,  25  N.  J.  Eq. 
150;  Guffin  v.  First  Nat.  Bank,  74 
111.  259;  Pellage  v.  Pellage,  32  Wis. 
136;  Eeynolds  v.  Eeynolds,  92  Ky. 
556. 

Whether  a  father  is  liable  for  nec- 
essaries (g.  g.,  medical  treatment) 
furnished  to  his  adult  daughter  at  her 
request  Trhile  she  is  a  member  of  his 
family,  and  the  extent  of  her  agency. 


see  Blachley  v.  Laba,  63  la.  22.  At 
common  law  a  father  is  not  liable  for 
necessaries  furnished  an  adult  child, 
even  though  the  child  be  at  the  fa- 
ther's home  when  the  necessaries  are 
furnished;  unless  at  least  a  suitable 
agency  to  bind  him  be  shown.  76.; 
Crane  v.  Baudoine,  55  N.  Y.  256 ; 
Mills  V.  Wyman,  3  Pick.  201;  Boyd 
V.  Sappington,  4  Watts,  247;  §  788. 
77.  Miller  v.  Miller,  16  111.  2g6; 
Fitch  V.  Peckham,  16  Vt.  150;  Hart 
T.  Hart,  41  Mo.  441;  Updike  v.  Ten 
Broeck,  3  Vroom,  105;  Freeman  v. 
Freeman,  65  111.  106;  Van  Schoyck 
V.  Backus,  16  N.  Y.  Supr.  68;  Hil- 
bish  V.  Hilbish,  71  Ind.  27;  Steel  v. 
Steel,  12  Pa.  St.  66;  Kurtz  v.  Hib- 
ner,  55  111.  514;  Young  v.  Herman, 
97  N.  C.  280.  See  Eeando  v.  Mis- 
play,  90  Mo.  251,  where  the  parent 
was  insane.  The  law  implied  here  a 
contract  by  the  insane  person  to  pay 
for  necessaries.  See  Tremont  t. 
Mount  Desert,  36  Me.  390;  Leidig  v. 
Coover's  Ex'rs,  47  Pa.  St.  534.  But 
see  Putnam  v.  Town,  34  Vt.  429. 


893  EIGHTS    OF    CHILDREN.  §    806 

Where  a  cliild  continues  after  his  majority  to  render  his  father 
services  of  the  same  character  as  rendered  while  a  minor  no  recov- 
ery can  be  had  for  them  in  the  absence  of  special  agreement,"  as 
the  mere  fact  that  the  child  after  becoming  of  age  continues  to  live 
with  his  parent  as  before  is  not  sufficient  to  create  an  expectation 
or  contract  to  pay."'  As  a  general  rule  even  an  adult  child  living 
with  his  parents  is  not  entitled  to  compensation  for  services  ren- 
dered to  the  parent.  Some  courts  have  held  that  to  entitle  recovery 
an  express  promise  by  the  parent  to  pay  must  be  proved,®"  but  the 
better  rule  is  that  recovery  may  be  had  even  though  there  was  no 
express  promise  of  compensation  if  the  services  were  of  such  a 
nature  as  to  lead  to  a  reasonable  belief  that  it  was  the  understand- 
ing of  the  parties  that  pecuniary  compensation  should  be  made  for 
them.®^  The  whole  question  is  properly  for  the  jury  to  consider, 
and  if  the  circumstances  authorized  the  person  rendering  the  ser- 
vices reasonably  to  expect  pa^Tuent  therefor,  by  way  of  furtherance 
of  the  intention  of  the  parties  or  because  reason  and  justice  require 
compensation,  the  law  will  imply  a  contract.*^ 

So  recovery  may  be  had  where  the  daughter,  a  nurse  by  profes- 
sion, goes  to  her  mother's  house  at  her  request  and  takes  care  of 
her  during  the  last  two  years  of  her  life  and  the  mother  remarks 
that  she  will  make  it  up  to  her  when  she  gets  ready.*^  So  where 
an  adult  daughter  is  living  with  her  parents  and  performing  house- 
hold services  for  them  gratuitously,  the  father  may  recover  for  loss 
of  services  caused  by  her  injury.®* 

If  a  daughter  lives  with  her  mother  after  marriage  and  performs 
household  duties  the  mother  cannot  recover  for  board  furnished 
the  daughter  in  the  absence  of  agreement.®' 

If  an  express  contract,  by  the  parent  to  pay  for  the  child's 
services  be  thus  shown,  but  not  the  rate  of  compensation,  a  recovery 
may  be  had  upon  a  quantum  meruit  for  what  these  services  were 

78.  Reser  v.  Johnson,  Smith  (Ind.),  40  X.  E.  583;  Crampton  v.  Logan,  28 
81.  Ind.  App.  408,  63  N.  E.  52;  Scully  v. 

79.  Heck  v.  Heck,  9  Ky.  Law  Kep.  Scully,  28  la.  548;  Sammon  v.  Wood, 
682.  107  Mich.  506,  65  X.  W.  529. 

80.  Hinkle  v.  Sage,  67  Ohio  St.  256,  83.  Mathias  v.  Tingey  (Utah),  118 
65   N.   E.    999;    Zimmerman   v.    Zim-  P.  781,  38  L.  R.  A.  (N.  S.)  749. 
merman,  129  Pa.  229,  18  Atl.  129.  84.  Union  Pac.  Ry.  Co.  v.  Jones,  21 

81.  Guild  V.  Guild,  15  Pick.  (Mass.)  Colo.  340,  40  P.  8?1. 

130.  85.   Terry  v.  Warder,  25   Ky.  Law 

82.  Heffron  v.  Brown,  155  HI.  326,       E*p.  I486,  78  S.  W.  154. 


§    806  PAKEXT    AND    CHILD.  894: 

fairly  worth.®*     That  valid  contracts  of  this  kind  between  parent 
and  adult  child  can  be  made  is  unquestionable.*' 

The  declarations  of  parents  in  matters  of  this  sort,  if  somewhat 
vague,  are  not  apt  to  be  construed  in  the  child's  favor.  And,  on 
the  other  hand,  the  presumption  is  equally  against  regarding  the 
services  of  a  father  who  lives  with  his  son,  and  does  work  for  him, 
as  rendered  for  compensation ;  although  here,  too,  the  reverse 
might  be  established  by  evidence  of  a  contract.®' 

Circumstances  which  show  an  unusual  burden  assumed  by  the 
son,  or  special  advantages  reaped  by  the  father,  are  sometimes 
favorably  construed  in  the  child's  favor.  As  where  a  grown-up 
son  purchases  his  father's  farm  and  continues  to  support  the  father 
and  an  adult  idiot  brother  upon  it.*®  So  where  the  adult  son 
assumes  entire  control  and  management  of  the  business,  works  the 
farm,  and  adds  largely  to  the  family  profits  by  his  extraordinary 
skill.'"  So  where  he  works  in  his  father's  general  business.'^  So 
where  the  son  takes  a  deed  of  the  farm  on  his  agreement  to  support 
his  parents  there  for  the  rest  of  their  lives.''  Such  cases  are  by  no 
means  uncommon  among  the  enterprising  settlers  of  our  Western 
country,  who  cultivate  the  soil  and  live  in  little  colonies;  and 
American  courts  cannot  be  insensible  to  the  merits  of  young  per- 
sons who  adorn  the  filial  relation.  As  to  use  and  occupation  of 
real  estate,  where  the  occupant  is  the  son  of  the  owner,  it  is  held 
that  while  payment  of  rent  may  be  presumed,  slight  evidence  is 
sufiicient  to  show  the  contrary."  But  the  rule  in  some  of  the  older 
States  is  rather  strict  as  against  inferring  that  either  support  or 
service  can  create  a  debt.'*  In  all  cases  of  this  kind  some  distinct 
understanding  is  always  desirable.'^     And  such  relation  may  ex- 

86.  Byrnes  v,   Clark,    57  Wis.   13;       Seavey  v.  Seavey,  37  N.  H.  125;  Dod- 
Friermuth  v.  Friermuth,   46  Cal.   42;        son  v.  McAdams,  96  N.  C.  149. 
Swartz  V.  Hazlett,  8  Cal.  118.  As  to   stepchildren,   grandchildren, 

87.  Ulrich  v.  Ulrich,  136  N.  Y.  120.       and  others  standing  in  a  quasi  filial 

88.  Harris  v.  Currier,  44  Vt.  468.  relation,    similar    considerations    will 

89.  House  v.  House,  6  Ind.  60.  apP^J-      §   785 ;   Broderick   v.  Broder- 

90.  Adams  v.  Adams,  23  Ind.  50.  ick,  28  "W.  Ta.  378;  Dodson  v.  Mc- 
And  see  Fisher  v.  Fisher,  5  Wis.  472.  Adams,  96  N.  C.  149. 

91.  Second  Nat.  Bank  v.  Merrill,  81  95.  Upon  the  marriage  of  a  daugh- 
Wie.   142.  ter,  all  obligation  of  her  parents  for 

92.  Pratt  v.  Pratt,  42  Mich.  174;  support  ceases;  yet  there  is  no  pre- 
Brown  v.  Knapp,  79  N.  T.  136.  sumption  of  liability  for  her  support 

93.  See  Oakes  v.  Oakes,  16  111.  106 ;  if  she  continues  in  the  parental  abode. 
Hays  T.  Seward,  24  Ind.  352.  And  Perkins  v.  "Westcoat,  3  Col.  App.  338. 
see  Whipple  v.  Dow,  2  Mass.  415.  There  ought  to  be  a  distinct  under- 

M.  Davis  V.  Goodenow,  27  Vt.  717;       standing  shown. 


895  RIGHTS    OF    CIULDEEN.  §    806 

tend,  as  with  natural  parents,  beyond  the  child's  minority  under 
suitable  circumstances.^® 

96,  Bixler  v.  Sellman,  77  Md.  494;       v.    Perkins,   43   Wis.   160;    Harris  v. 
Stock    V.    Stoltz,    137    111.    34?,    403;       Smith,  79  Mich.  54. 
Hogg  V.  Laster,  56  Ark.  382;  Wells 


§  807  PARENT  AND  CHILD.  896 


CHAPTER  XII. 

EMANCIPATION. 

Section  807.     The  Emancipation  of  a  Child. 

808.  "What  Constitutes  Emancipation, 

809.  Effect  of  Emancipation. 

§  807.  The  Emancipation  of  a  Child. 

A  father  may  emancipate  his  young  child  and  thus  give  him  a 
right  to  his  own  earnings.  What,  then,  is  emancipation  as  used 
with  reference  to  the  child  ?  Plainly,  the  term  "  emancipation  " 
is  borrowed  from  the  Roman  law,  and  may  be  referred  to  the  old 
formality  of  enfranchisement  by  the  father.  This  in  ancient  times 
was  done  by  an  imaginary  sale,  but  Justinian  substituted  the 
simpler  proceeding  of  manumission  before  a  magistrate.*^  At  the 
English  law,  the  term  "  emancipation "  is  generally  used  with 
reference  to  matters  of  parochial  settlement  and  the  support  of 
paupers.®*  But  in  American  cases  it  often  has  a  significance  more 
nearly  approaching  that  of  the  civil  law ;  though  we  are  apt  to  use 
the  word  without  much  regard  to  precision. 

We  find  in  the  English  books  little  said  as  to  the  emancipation 
of  minor  children  by  their  fathers.  In  fact,  the  English  municipal 
system  is  so  different  from  ours  that  the  paternal  authority  during 
the  period  of  minority,  except  as  to  custody,  gives  rise  to  little 
controversy.  But  there  is  a  case  where  an  infant  was  held  not  to 
have  been  emancipated  by  his  enlistment.®^  And  in  this  and  some 
other  instances  the  principle  of  emancipation  was  somewhat  dis- 
cussed ;  and  the  doctrine  has  been  maintained  by  Lord  Kenyon 
and  others,  that  during  the  minority  of  the  child  he  will  remain, 
under  almost  any  circumstances,  unemancipated  ;  that  in  fact  there 
can  be  no  emancipation  of  an  infant  unless  he  marries,  and  so 
becomes  himself  the  head  of  a  familv,  or  contracts  some  other 
relation,  so  as  to  whollj^  and  pennanently  exclude  the  parental 
control.^ 

Emancipation  is  not  so  strictly  construed  in  this  country.  The 
American  doctrine,   as  frei^uently  stated,   is  that  a  father  may 

97.  Burrill,  Law  Diet.  "Emancipa-  99.  Kex  v.  Rotherfield  Grays,  1  B. 
tion";  Bouvier,  /&.;  Inst.  1,  12.               &  C.  347. 

98.  See  7  Q.  B.  574,  n.  1.  Bex  v.  Roach,  6  T.  R.  247;  Rex 

V.  Wilmington,   5  B.  &  Ad.  525. 


897  EMANCIPATION.  §    808 

"  emancipate  "  his  child  for  the  whole  remaining  period  of  minor- 
ity, or  for  a  shorter  term ;  that  this  emancipation  may  be  by  an 
instrument  in  writing,  by  verbal  agreement  or  license,  or  by  impli- 
cation from  his  conduct;  and  that  emancipation  is  valid  against 
creditors,  and  to  some  extent  against  the  father." 

''  Emancipation  "  of  a  child  is  the  relinquishment  by  the  parent 
of  control  and  authority  over  the  child,  conferring  on  him  th© 
right  to  his  earnings  and  terminating  the  parent's  legal  duty  to 
support  the  child.  It  may  be  express,  as  by  voluntary  agreement 
of  parent  and  child,  or  implied  from  such  acts  and  conduct  as 
import  consent ;  it  may  be  conditional  or  absolute,  complete  or 
partial.  The  emancipation  of  a  minor  is  not  to  be  presumed  and 
must  be  proved ;  and  the  burden  of  proof  is  on  the  father  claiming 
immunity  because  of  it.^  This  doctrine  of  emancipation  is  pecu- 
liarly favored  where  both  the  child  and  parent  invoke  it  in  order 
to  protect  the  minor's  earnings  against  the  unfortunate  parent's 
creditors.  Let  us  see  then,  first,  how  emancipation  may  in  this 
country  be  legally  brought  about ;  second,  what  is  its  legal  effect 

§  808.  What  Constitutes  Emancipation. 

Under  the  English  common  law,  emancipation  of  children  by 
their  parents  was  quite  unknown.  In  the  United  States  the  doc- 
trine of  emancipation  has  been  applied  with  some  liberality. 
Emancipation  is  not,  however,  to  be  presumed.  It  must  be 
proved.* 

A  minor  may  be  emancipated  by  an  instrument  in  writing,  by 
verbal  agreement,  or  by  implication  from  the  conduct  of  the  par- 
ties.°  There  may  be  complete  emancipation  even  though  the  minor 
continues  to  reside  with  his  parents.*  Emancipation  may,  how- 
ever, be  partial.  A  minor  may  be  emancipated  for  some  purposes 
and  not  for  others.  The  parent  may  authorize  his  minor  child  to 
make  contracts  of  emplo^Tnent  and  collect  and  spend  the  money 

2.  Abbott  V.  Converse,  4  Allen,  530,  4.  Lisbon  v.  Lyman,  49  N.  H.  553. 

per  Chapman,  J.;   2  Kent,  Com.  194,  5.  Clav  v.  Shirley,  65  X.  H.  644,  23 

n.;   Whiting   v.   Earle,   3    Pick.    201;  Atl.  521. 

Burlingame  v.  Burlingame,  7  Cow.  92 ;  6.   Taubert  v.    Taubert,   103   Minn. 

Varney  v.  Young,  11  Vt.  258;  Rush  v.  247,  114  N.  W.  763;  Beaver  v.  Bare, 

Vought,  55  Pa.  St.  437.  104   Pa.   58,   49   Am.   E.    567. 

S.  Wallace  v.  Cox   (Tcnn.),  1S8  S. 
W.  611,  L.  R.  A.  1917B,  690. 

57 


§  808 


PARENT    AN*D    CHILD. 


898 


earned  and  still  not  emancipate  him  from  parental  custody  and 
control." 

Emancipation  may  be  express  or  implied,®  and  will  not  be  pi'e- 
sumed.®  Emancipation  may  take  place  by  parol  or  in  writing,  or 
may  be  shown  by  circumstantial  evidence,^"  and  may  take  place 
suddenly  by  express  arrangement  or  gradually  by  conduct  implying 
mutual  assent." 

Emancipation  may  he  either  by  instrument  in  writing  or  by 
imrol  agreement,  or  it  may  be  inferred  from  the  conduct  of  the 
parent.  As  to  instruments  in  writing,  usually  known  as  inden- 
tures, the  statutes  of  the  different  States  are  quite  explicit;  and 
the  same  general  doctrines  apply  to  children  who  are  bound  out  as 
to  apprentices  generally.^'  But  such  deeds,  so  far  as  they  derogate 
from  the  child's  personal  independence  and  welfare,  are  not  greatly 
favored;  they  are  usually  construed  with  great  strictness  as  be- 
tween the  minor  and  his  parent,  guardian,  or  master;  and  the 
policy  of  American  law  is  to  require  the  consent  of  the  child 
himself  to  the  instrument,  where  he  has  passed  the  period  of 
nurture.^^  The  subsequent  conduct  of  the  parent  and  child  may 
be  inquired  into  to  determine  this  question.^* 

Emancipation  occurs  where  the  parent  voluntarily  surrenders 


7.  Porter  t.  Powell,  79  la.  151,  44 
N.  W.  295,  7  L.  E.  A.  176;  Hunycutt 
&  Co.  V.  Thompson,  159  X.  C.  29,  74 
S.  E.   628,  40  L.  E.  A.    (X.  S.)    488. 

8.  Jackson  v.  Citizens'  Bank  & 
Trust  Co.,  53  Fla.  265,  44  So.  516; 
Donk  Bros.  Coal  &  Coke  Co.  v.  Eez- 
loff,  22?  111.  194,  82  X.  E.  214;  Long- 
hofer  V.  Herbel,  83  Kan.  278,  111  P. 
■iS3;  Le-wis  v.  Missouri,  K.  &  T,  Er. 
Co.,  82  Kan.  351,  108  P.  95 ;  Eounds 
Bros.  V.  McDaniel,  133  Ky.  669,  118 
S.  W.  956;  Sherry  v.  Littlefield 
(Mass.),  122  N.  E.  300;  Mcrithew  v. 
Ellis,  116  Me.  468,  102  A.  301  (where 
mother  conTeyed  homestead  to  daugh- 
ter) ;  Fox  V.  Schumann,  191  Mich. 
331,  158  N.  W.  168;  Taubert  v.  Tau- 
bert,  103  Minn.  247,  114  N.  W.  763; 
Erosius  v.  Barker,  154  Mo.  App.  657, 
136  S.  W.  18;  George  Adams  &  Burke 
Co.  V.  Cook,  lis  X.  W.  662 ;  Weese  t. 
Tokum,  62  W.  Va.  550,  59  S.  E.  514. 

9.  Winebremer    v.    Eberhardt,    137 


Mo.  App.  659,  119  S.  W.  530;  Wallace 
V.  Cox,  136  Tenn.  69,  188  S.  W.  611. 

10.  Bristor  v.  Chicago  &  X.  W.  Ey. 
Co.,  128  la.  479,  104  X.  W.  487. 

11.  Schoenberg  v.  Voight,  36  Mich. 
310. 

12.  4  Com.  Dig.  579;  State  v.  Tay- 
lor, 2  Penning.  467;  Bolton  v.  Miller, 
6  Ind.  262.  See  Master  and  Servant, 
infra,  §  457;  Xickerson  v.  Easton,  12 
Pick.  110. 

13.  The  minor  child  of  pauper  pa- 
rents is  not  emancipated  so  as  to  gain, 
a  settlement  by  the  indenture  of  the 
selectmen.  Frankfort  t.  Xew  Vine- 
yard, 48  Me.  565.  But  an  indenture 
inoperative  against  the  child  by  reason 
of  informality  may  yet  afford  proof 
that  the  parent  meant  to  relinquish 
the  child 's  earnings.  Kerwin  v. 
TVright,  59  Ind.  369. 

14.  Carthage  v.  Canton,  97  Me.  473, 
54  A.  1104. 


890  EMANCIPATI02f.  §    808 

control  over  the  minor  child  and  renounces  the  duties  of  his  posi- 
tion in  a  manner  inconsistent  with  any  further  performance  of 
them/^  and  may  he  shown  by  abandonment  of  the  child/'  or  by 
allowing  him  to  have  his  own  earnings/^  In  some  cases  a  mere 
waiver  by  the  parent  of  his  right  to  the  child's  earnings  will  not 
constitute  an  emancipation.^* 

Emancipation,  strictly  so  called,  is  not  to  be  presumed  ;  it  must 
be  proved.  It  is  a  question  of  fact  to  be  implied  from  the  circum- 
stances and  from  the  conduct  of  the  parties  interested.  Where  it 
appears  that  the  father,  by  parol,  places  his  daughter  in  a  certain 
family,  that  by  the  terms  of  the  agreement  the  employer  may  turn 
her  away  when  dissatisfied,  that  the  father  may  rescind  the  con- 
tract at  pleasure,  and  reclaim  his  daughter;  these,  and  similar 
circumstances,  may  be  sufficient  to  entitle  the  child  to  her  own 
wages  for  the  time  being,  but  they  cannot  constitute  emancipation 
as  against  the  father.^^  We  are  to  distinguish,  in  fact,  between 
a  license  for  the  child  to  go  out  and  work  temporarily,  and  the  more 
positive  renunciation  of  parental  rights.  Thus,  if  the  father 
agrees  to  pay  his  son  so  much  for  every  day  he  may  labor  for 
another,  but  without  intending  to  give  him  his  time,  and  merely 
as  an  incentive  to  industry,  this  is  not  to  be  construed  into  a  con- 

15.  Lafollett  v.  Kyle,  51  Ind.  446;  S.  W.  564;  McMorrow  v.  Dowell,  116 
Carthage  v.  Canton,  97  Me.  473,  54  A.  Mo.  App.  289,  90  S.  W.  728;  Ingram 
1104.  V.  Southern  Ky.   Co.,   152  N.  C.   762, 

Although    the    father    is    insolveiit  67  S.  E.  926;  Lowrie  v.  Oxendine,  153 

still  he  may  emancipate  the  son  and  N.  C.  267,  69  S.  E.  131;   Holland  v. 

will  then  not  be  entitled  to  his  wages.  Hartley,  171  N.  C.  376,  88  S.  E.  507; 

Trapnell  v.  Conklyn,  37  W.  Va.  242,  Crowley  v.  Crowley,  72  N.  H.  241,  56 

16  S.  E.  570,  38  Am.  St.  E.  30.     See  A.   190;    Berla  v.   Meisel    (N.  J.  Ch. 

Bristor  v.  Chicago  &  N.  W.  Ey.  Co.,  1902),  52  A.  999;   Giovagnioli  v.  Ft. 

128  la.  479,  104  N.  W.  487.  Orange  Const.  Co.,  133   N.  Y.  S.   92, 

16.  771  re  Eiff,  205  F.  406;  Swift  148  App.  Div.  489;  Turner  v.  Browu 
&  Co.  v.  Johnson,  71  C.  C.  A.  619,  (Tex.  Civ.  App.),  200  S.  W.  1161. 
138  F.  867;  Smith  v.  Gilbert,  80  Ark.  See  Livesley  v.  Heise,  48  Ore.  147, 
525,  98  S.  W.  115  ;  Eobinson  v.  Hatha-  85  P.  509. 

way,  150  Ind.  679,  50  N.  E.  883;  In-  18.  Smith  v.  Gilbert,  80  Ark.  525, 
habitants  of  Thomaston  V.  Inhabitants  98  S.  W.  115;  Taubert  v.  Taubert, 
of  Greenbush,  106  Me.  242,  76  A.  690;  103  Minn.  247,  114  N.  W.  763;  LufF- 
Gulf  Cooperage  Co.  v.  Abernathy,  5t  kin  v.  Harvey,  131  Minn.  238,  154  N. 
Tex.  Civ.  App.  137,  116  S.  W.  869.  W.  1097,  L.  E.  A.  1916B,  1111.  See 
See  Hunt  v.  State,  8  Ga.  App.  374,  Hill  County  Cotton  Oil  Co.  v.  Gath- 
er S.  E.  42  ingg  (Tex.  Civ.  App.),  154  S.  W.  664. 

17.  Mathews  v.  Fields,  12  Ga.  App.  19.  Sumner  v.  Scbcc,  3  Me.  223. 
225,  77  S.  E.  11;  Story  &  Clark  Piano  Soo  Clark  v.  Fitch,  2  Wend.  459; 
Co.  V.  r>av7   (Ind.  Apr.\  119  N.  E.  Clinton  v.  York,  26  Me.  167. 

177;  Mott  T.  Purcell,  98  Mo.  247,  11 


§  808 


PARENT    AND    CHILD. 


900 


tract  of  emancipation,  but  rather  as  a  mere  gratuity  to  encourage 
the  son  in  the  formation  of  industrious  and  useful  habits.^"  But 
other  circumstances  may  raise  a  special  contract  on  the  minor's 
bebalf,  or  indeed  be  beld  to  emancipate  bim  altogether.  It  is  a 
well-settled  rule  in  this  country  that  if  tbe  parent  absconds,  turns 
bis  cbild  out  of  doors,  or  leaves  him  to  shift  for  himself,  the  son 
is  entitled  to  his  own  wages ;  ^^  and  our  courts  are  very  liberal  in 
allowing  children  to  avail  themselves  of  any  breach  of  parental 
obligation  so  as  to  earn  an  honest  livelihood  by  their  own  toil.** 
The  presumption  raised  in  such  cases  may  be  termed  a  presumption 
of  necessity.  So  where  the  husband  abandons  his  child  to  the  care 
of  the  mother,  his  subsequent  claims  for  the  earnings  of  either  are 
to  be  regarded  with  very  little  favor.^*  Or  where  he  is  able  to 
support  the  child,  and  yet  forces  the  child  to  labor  abroad  unsuit- 
ably to  the  child's  social  position.^*  Even  slighter  circumstances, 
which  impute  no  misconduct  to  the  father,  but  evince  a  consent 
for  his  son  to  leave  the  parental  roof  and  go  into  the  world  to 
seek  his  own  fortune,  are  often  construed  into  emancipation.** 
But  the  desertion  of  a  minor  from  his  father's  home,  with  vagrancy 
and  crime,  does  not  of  itself  constitute  emancipation.^'^  The 
father  may  practically  emancipate  from  a  prudent  regard  to  his 
own  circumstances  and  the  child's  benefit ;  he  may  relinquish  all 
right  to  his  infant  child's  future  earnings  as  against  his  own 
creditors.*^  And  there  may  be  complete  emancipation,  although 
the  minor  continues  to  reside  with  his  father.**  In  general,  ac- 
cording to  modem  American  authorities,  a  parent's  relinquishment, 


20.  Arnold  v.  Norton,  25  Conn.  92. 

21.  And  an  insolvent  father  may 
give  his  son  his  time  and  future  earn- 
ings, so  as  to  benefit  the  child  as 
against  the  father's  own  creditors. 
Atveood  V.  Holcomb,  39  Conn.  270; 
supra,  §  754. 

22.  Clinton  v.  York,  26  Me.  167; 
Cloud  V.  Hamilton,  11  Humph.  104; 
Nightingale  v.  Withington,  15  Mass. 
275 ;  Stansbury  v.  Bertron,  7  W.  &  S. 
362;  Everett  v.  Sherfey,  1  la.  356; 
The  Etna,  Ware,  462;  Gary  v.  James, 
4  Desaus,  185;  Conovar  v.  Cooper,  3 
Barb.  115;  Jenison  v.  Graves,  2 
Blackf.  440;  Lyon  v.  Boiling,  14  Ala. 
753 ;  Eeam  v.  Watkins,  27  Mo.  516. 

23.  Wodell  v.  Coggeshall,  2  Met.  89. 


See   Dennysville   v.   Trescott,  30  Me. 
470. 

24.  Farrell  v.  Farrell,  3  Houst.  633. 

25.  Campbell  v.  Campbell,  3  Stockt. 
268 ;  Johnson  v.  Gibson,  4  E.  D. 
Smith,  231;  Dicks  v.  Grissom,  1 
Freem.  Ch,  428;  Dodge  v.  Favor,  15 
Gray,  82;  Boobier  v.  Boobier,  39  Me. 
406.  But  see  Stiles  v.  Granville,  6 
Cush.  458. 

26.  Bangor  v,  Readfield,  32  Me.  66. 

27.  Clemens  v.  Brillhart,  17  Neb. 
335 ;  Dickinson  v.  Talmadge,  138 
Mass.  249 ;  Atwood  v.  Holcomb,  39 
Conn.  270. 

28.  McClosky  v.  Cyphert,  27  Pa.  St. 
220;  Diorker  v.  Hess,  54  Mo.  246; 
Donegan  v.  Davis,  66  Ala.  362. 


901 


EMANCIPATION. 


§    808 


by  agreement  and  consent,  of  all  claims  to  the  earnings  of  his 
minor  child  in  any  particular  service,  may  be  implied  from  circum- 
stances ;  ^®  and  it  is  a  question  to  be  determined  by  the  given 
circumstances,  and  may  rest  in  parol.  But  there  is  such  a  thing 
as  partial  and  incomplete  emancipation  of  a  child,  even  though  the 
latter  he  allowed  by  the  parent  to  work  and  control  his  own 
earnings. 

The  marriage  of  an  infant  with  his  parent's  consent  removes 
him  from  parental  control,  and  gives  him  a  right,  as  against  the 
father,  to  apply  all  his  earnings  to  the  support  of  his  family ;  '^ 
but  whether  all  the  consequences  of  legal  emancipation  must  neces- 
sarily follow  has  been  held  doubtful.  Marriage,  without  the  con- 
sent of  the  parent,  ought  to  confer  the  same  right  upon  an  infant, 
inasmuch  as  the  claims  of  wife  and  child  in  either  case  are  para- 
mount, and  the  consequences  of  all  marriages  are  much  the  same, 
but  in  Maine  it  has  been  decided  otherwise,  and  that  the  disobedi- 
ent infant  is  punishable  by  being  compelled  to  pay  his  father  his 
earnings ;  though  what  is  to  become  of  the  wife  meantime  does  not 
clearly  appear.^^  A  minor  daughter  is  emancipated  by  her  mar- 
riage with  her  father's  consent ;   and  here,  at  least,  it  is  ruled  that 


29.  Supra,  §  754;  Monaghan  t. 
School  District,  38  Wis.  100;  Dier- 
ker  v.  He3S,  54  Mo.  246 ;  Clay  v.  Shir- 
ley, 65  N.  H.  644.  And  this  doctrine 
ia  applied  the  more  strongly  as  aginst 
a  parent's  creditors  and  others,  who, 
against  the  will  of  both  parent  and 
child,  maintain  that  the  child's  earn- 
ings are  not  his  own.  The  proof  should 
be  8ufl5cient  and  clear  as  against  the 
parent  who  denies  such  relinquishment. 
Monaghan  v.  School  District,  38  Wis. 
100.  And  see  West  Gardiner  v.  Man- 
chester, 72  Me.  509.  Where  the  son 
of  one  of  the  partners  was  appren- 
ticed to  the  firm,  it  was  held  a  ques- 
tion for  the  jury  (the  firm  having  as- 
signed to  creditors),  whether  the  fa- 
ther had  emancipated  his  son.  Beaver 
V.  Bare,  104  Pa.  St.  58.  An  indenture 
binding  out  his  son  so  that  compensa- 
tion shall  be  paid  to  the  son,  does  not 
emancipate  in  such  a  sense  as  to  de- 
bar the  father  from  suing  the  em- 
ployer for  breach  of  the  covenant;  at 


least  where  the  son,  having  joined  in 
the  indenture,  does  not  dissent.  Dick- 
inson V.  Talmadge,  138  Mass.  249. 

Eemarriage  of  a  widowed  mother, 
whose  new  husband  does  not  assume 
the  paternal  functions  towards  the 
child,  favors  the  idea  of  emancipa- 
tion. Hollingsworth  v.  Swedenborg, 
49  Ind.  378.  A  widowed  mother  may 
relinquish  all  claim.  Lind  v.  SuUe- 
stadt,  21  Hun,  364.  But  as  to  a 
second  marriage  affecting  the  child's 
pauper  settlement,  see  Hampden  v. 
Troy,  70  Me.  484. 

30.  §  809 ;  Porter  v.  Powell,  79  la. 
151;  Tennessee  Man.  Co.  v.  James,  91 
Tenn.  154. 

81.  Taunton  v.  Plymouth,  15  Mass. 
203;  Dicks  v.  Grisson,  1  Freem.  Ch. 
42S;  Craftsbury  v.  Greensboro' 
(1894),  Vt.;  157  Mass.  73;  Vanatta 
V.  Carr,  229  111.  47,  82  N.  E.  267. 

32.  White  v.  Henry,  24  Me.  531, 
doubted  by  Field,  C.  J.  in  157  Mass. 
73.     See  Burr  v.  Wilson,  18  Tei.  367. 


§  808  PARENT  AND  CHILD.  902 

his  consent  may  be  inferred  from  circumstances.^*  It  may  well 
be  stated,  as  the  later  and  truer  theory,  that  if  the  infant's  mar- 
riage be  a  legal  and  valid  one,  though  contracted  in  defiance  of  the 
parent's  wishes,  parental  rights  and  control  must  yield  to  the  new 
and  superior  status  which  the  child  has  thereby  assumed.** 

Evidence  short  of  this  will  not  show  an  emancipation.*'  So 
there  is  no  emancipation  sho\\ai  where  a  father  has  not  freed  the 
son  from  parental  control  but  supports  him,  although  the  father 
gives  the  son,  who  is  nineteen  years  of  age,  sums  of  money  from 
time  to  time  in  pay  for  work  done.  A  son  nineteen  years  old  is 
surely  entitled  to  some  spending  money,  and  as  his  earnings  be- 
longed wholly  to  his  father  it  would  be  strange,  indeed,  if  his 
father  did  not  give  him  such  sums  for  his  own  purposes.  Many 
fathers,  to  encourage  their  sons  to  form  habits  of  industrv  and 
frugality  and  to  learn  the  value  of  money,  make  these  donations 
dependent  to  a  greater  or  less  extent  upon  the  conduct  and  services 
of  the  child.  But  such  payments  in  no  sense  work  an  emancipa- 
tion of  the  child  himself.*®  Emancipation  does  not  appear  simply 
from  evidence  that  a  seventeen-year-old  daughter  lived  and  worked 
away  from  home,  thirty  miles  from  her  father's  home,  earning  and 
controlling  her  own  wages  with  the  consent  of  her  father.  This 
relieved  the  father's  burden  and  was  only  a  partial  emancipation 
from  service  for  an  indefinite  time.  The  father  had  a  right  at  any 
time  to  require  her  to  return  home  and  serve  him,  and  she  had  a 
right  at  any  time  to  return  and  claim  his  care  and  support.*' 

Evidence  that  a  minor  son  eighteen  years  old  was  living  at  home 
with  his  parents  and  had  worked  out  for  about  two  years  on  a  job 
which  he  had  secured  himself,  where  he  collected  his  own  wages, 
spent  his  own  money,  and  paid  board  at  home,  shows  only  a  partial 
emancipation,  consisting  only  of  an  assent  on  the  part  of  the  par- 
ents that  the  boy  should  hire  out  and  collect  and  spend  what  he 

38.  BuckspoTt  V.  Rockland,  56  Me.  10,   104  X.  W.  489,  114  Am.  St.  B. 

22.  402;    Nicholaus   v.    Synder,    56    Neb. 

34.  Aldricb  v.  Bennett,  63  N.  H.  531,  76  X.  W.  1083;  Hardy  v.  Eagle, 
415;  Commonwealth  v.  Graham,  157  54  X.  Y.  S.  1045,  25  Misc.  471  (affg., 
Mass.  73  ;  Sherburne  v.  Hartland,  37  51  X.  T.  S.  501,  23  Misc.  441)  ;  Blivin 
Vt.  528,  V.  Wheeler,  2.5  E.  I.  313,  55  A.  760. 

35.  Parrar  v.  Wheeler,  75  C.  C.  A.  36.  Aetna  Life  Ins.  Co.  v.  Industrial 
386,  145  F.  482;  Lockerby  v.  O'Gara  Accident  Commission,  175  Cal.  91,  165 
Coal  Co.,  147  111.  App.  311;   Guthrie  Pac.  15,  L.  R.  A.  1918F,  194. 
County   V.   Conrad,   133   la.   171,   110  37.  Wallace  v.  Cox  (Tenn.),  183  S. 
N.  W.  454;  Jacobs  v.  Jacobs,  130  la.  W.  611,  L.  R.  A.  1917B,  690. 


903 


EMANCIPATION. 


§  809 


earned.  Such  an  arrangement  does  not  destroy  the  filial  relation, 
but  a  gift  to  the  son  of  his  wages  has  no  more  effect  on  that  relation 
than  a  gift  of  money  would  have,  and  if  it  is  not  sufficient  to 
supply  the  son  with  necessaries  the  parents  remain  liable  for  any 
necessaries  which  the  wages  are  not  sufficient  to  supply.  They 
therefore  are  liable  for  medical  expenses  furnished  for  an  operation 
on  the  son  performed  with  their  knowledge  and  consent.^* 

In  some  States  by  statute  emancipation  may  take  place  by  court 
action  where  the  parental  authority  has  been  abused.^^  In  Louis- 
iana, the  emancipation  of  minors  is  expressly  recognized  and 
regulated  by  law,  and  decrees  of  emancipation  are  judicially 
made.**' 

In  a  well-considered  Massachusetts  case  it  is  decided  that  the 
emancipation  of  a  minor  child  by  parol  agreement  and  without 
consideration  is  revocable,  until  acted  upon,*^  but  an  agreement 
for  emancipation  is  irrevocable.*^ 

Yet  there  can  be  little  doubt  at  the  present  day  that  a  father  can 
verbally  sell  or  give  his  minor  son  his  time;  and  that  after  pay- 
ment or  performance  the  son  is  entitled  to  his  earnings.*^  A  spe- 
cial contract  with  a  third  person,  authorizing  him  to  employ  and 
pay  the  child  himself,  will  bind  the  parent,  and  payment  to  the 
<;hild  will  be  a  defence  against  any  action  brought  by  his  father 
against  the  employer.  Parol  agreements  are,  however,  within  the 
statute  of  frauds.** 


§  809.  Effect  of  Emancipation. 

As  to  the  effect  of  emancipation.  The  consequence  is,  on  the 
one  hand,  to  give  the  child  the  right  to  his  own  wages,  the  disposal 
of  his  o^vn  time,  and,  in  a  great  measure,  the  contxol  of  his  own 
person;     on  the  other  hand,   to  relieve  the  parent  of   all  legal 


38.  Lufkin  v.  Harvey  (Minn.),  154 
N.   W.   1097,   L.  K.   A.   IfflGB,   1111. 

39.  Sweet  v.  Crane,  39  Okla.  248, 
134  P.  1112. 

40.  Code,  art.  367  et  seq.;  Allison 
V.  Watson,  36  La.  Ann.  616. 

41.  Abbott  V.  Converse,  4  Allen, 
530.  See  Morris  v.  Low,  4  Stew.  & 
Port.  123.  But  see  Chase  v.  Smith, 
5   Vt.    556. 

42.  Weese  v.  Yokum,  62  W.  Va. 
550,   59   S.  E.    514;    conira.   Hood   & 


Johnson  v.  Pelham,  Sitz  &  Co.,  5  Ala. 
App.  471,  59  So.  767.  See  Ibanez  v. 
Hongkong  &  Shanghai  Banking  Corp., 
246  U.  S.  621,  38  S.  Ct.  410,  62  L. 
Ed.  903. 

43.  Shute  v.  Dorr,  5  Wend.  204; 
Snediker  v.  Everingham,  3  Dutch. 
143;  Gale  v.  Parrott,  1  N.  H.  28; 
United  States  v.  Metz,  2  Watts,  406; 
Corey  v.  Corey,  19  Pick.  29. 

44.  Shute  v.  Dorr,  5  Wend.  204. 


§  809 


PARENT    AND    CHIU). 


904 


obligation  to  support,*^  and  severs  all  filial  relations  as  if  the  child 
were  of  age.*^ 

Emancipation  gives  the  child  all  rights  he  would  have  if  of  age 
to  receive  his  own  earnings.*^  Moreover,  the  emancipated  child's 
earnings  go  to  his  administrator  upon  his  decease,  to  be  distributed 
according  to  law;  **  and  it  is  the  child's  legal  representative  and 
not  the  father  who  should  sue  for  arrears/®  and  a  father  who  has 
emancipated  his  son  is  not  liable  to  third  persons  for  his  board.'" 

In  brief,  the  minor  who  is  released  from  his  father's  service 
stands,  as  to  his  contracts  for  labor  either  with  strangers  or  with 
him,  upon  the  same  footing  as  if  he  had  arrived  at  full  age ;  and 
such  being  the  case,  the  father  may  himself  contract  to  employ  and 
pay  the  child  for  his  services,  and  be  bound  in  consequence  like 
any  sftranger  to  fulfil  his  agreement.^^ 

If  the  father  receives  his  son's  earnings  after  giving  the  son  his 
time,  it  will  be  a  good  consideration  for  any  promise  from  the 
father.*^  And  he  cannot  sue  for  the  services  of  such  son  performed 
within  the  period  embraced  by  the  agreement,  although  he  has 
given  notice  to  the  party  employing  the  son  not  to  pay  his  wages 
to  him/^  Still  less  can  the  father's  creditors  attach  such  earnings, 
or  property  which  was  purchased  therewith  for  the  infant's  ben- 
efit." But  the  child  sues  in  such  case  for  his  own  wages.^^  And 
if  he  is  actually  emancipated  by  his  father,  and  an  express  promise 


45.  Nightingale  v.  Withington,  15 
Mass.  272;  Corey  v.  Corey,  19  Pick. 
29;  Hollingsworth  v.  Swedenborg,  4& 
Ind.  378;  Vamey  v.  Young,  11  Vt. 
258;  Johnson  v.  Gibson,  4  E.  D. 
Smith,  231. 

46.  Memphis  Steel  Const.  Co.  v.  Lis- 
ter, 138  Tenn.  307,  197  8.  W.  902, 

47.  Kenure  v.  Brainerd  &  Arm- 
strong Co.,  88  Conn.  265,  91  A.  185; 
Wabash  E.  Co.  v.  MoDoniels,  107  N. 
E.  291 ;  Haugh,  Ketcham  &  Co.  Iron 
Works  V.  Duncan,  2  Ind.  App.  264, 
28  N.  E.  334;  Woodward  v.  Donnell, 
146  Mo.  App.  119,  123  S.  W.  1004; 
"Revel  V.  Pruitt,  42  Okla.  696,  142  P. 
1019. 

48.  Smith  v,  Knowlton,  11  N.  H. 
191. 

49.  Bell  V.  Bumpus,  63  Mich.  375. 
60.  Holland  v.  Hartley,  171  N.  C. 

376,  88  S.  E.  507. 


51.  Francisco  v.  Benepe,  6  Mont. 
243;   §  756. 

52.  Jenney  v.  Alden,  12  Mass.  375. 

53.  Morse  v.  Welton,  6  Conn,  547; 
Wodell  V,  Coggeshall,  2  Met.  89; 
Bray  v,  Wheeler,  29  Vt.  514, 

54.  Chase  v.  Elkins,  2  Vt.  290; 
Weeks  v.  Leighton,  5  N.  H.  343 ;  Mc- 
Closkey  v.  Cyphert,  27  Pa.  St.  220; 
Bobo  V.  Bryson,  21  Ark.  387;  Lord 
V.  Poor,  23  Me.  569;  Lyon  v.  Boiling, 
14  Ala.  753;  Johnson  v.  Silsbee,  49 
N.  H.  543;  Dierker  v.  Hess,  54  Mo. 
246;  Mott  v.  Purcell,  98  Mo,  247; 
Lind  V,  Sullestadt,  21  Hun,  364,  As 
to  an  infant's  suits,  see  post.  Part 
v.,  ch.  6.  And  see  Benziger  v.  Miller, 
50  Ala.  206.  Recovery  by  the  son  in 
a  suit  will  bar  an  action  by  the  fa- 
ther.    Scott  V.  White,  71  HI.  287. 

55.  Ream  v.  Watkins,  27  Mo.  516. 


905  EMANCIPATION.  §    809 

is  made  to  pay  him  for  his  labor,  with  the  consent  of  his  father,  no 
other  notice  of  his  emancipation  is  necessary  to  charge  the  defend- 
ant and  enable  the  minor  to  sue.^^  All  this  presupposes  that  the 
father  has  bona  fide  emancipated  the  child,  and  does  not  support 
and  claim  earnings  and  services  for  himself  in  fraud  of  his  own 
creditors.^'^ 

Property  purchased  by  the  emancipated  minor  with  his  own 
means,  too,  is  undoubtedly  his  own,  and  not  subject  to  the  parent's 
control  or  disposal.^* 

When  emancipation  of  the  minor  child  is  complete  the  father's 
right  to  recover  for  loss  of  services  due  to  injury  to  the  child  is 
cut  off,  as  the  emancipation  is  not  revocable,  but  when  the  emanci- 
pation is  partial  it  is  revocable,  and  the  parent's  right  to  recover 
for  loss  of  services  is  not  affected.  Emancipation  is  partial  only 
where  the  father  has  never  formally  set  the  child  free  and  permits 
him  to  work  and  keep  his  own  wages  where  the  child  lives  at  home 
and  contributes  to  the  family  support.^''  So  a  father  may  give  to 
his  son  a  part  instead  of  the  whole  period  of  his  minority,  in  which 
case  the  rights  of  the  latter  are  limited  accordingly,  and  the 
parental  control  and  duties  are  still  upheld.^" 

The  father  cannot  maintain  action  after  emancipation  for  injury 
to  the  child  involving  loss  of  services,  as  the  father  has  no  longer 
any  right  to  such  services,*^  and  emancipation  is  a  defence  which 

56.  Wood  V.  Corcoran,  1  Allen,  405.  to  sue  strangers  for  his  services  in 
The  earnings  of  an  emancipated  child  doing  so.  Grimm  v.  Taylor,  9&  Mich, 
cannot  be  attached  by  trustee  process       5. 

for   the   father's   debts.     Manchester  58.   Steel  v.  Steel,  12  Pa.  St.   64; 

V.  Smith,  12  Pick.  113,    And  see  Bray  Hall  v.  Hall,  44  N.  H.  293 ;  Wright  v. 

V.  Wheeler,  29  Vt.  514.  Dean,  79   Ind.   407;    Kain  v.   Larkin, 

The  father  cannot  retract  his  con-  131  N.  Y.  300.    An  emancipated  child 

sent  that  the  child  shall  have  his  own  ceases  to  follow  the  settlement  of  his 

wages,   after   the    wages    are    earned.  father.     Orneville     v.     Glenburn,     70 

Torrens  v.  Campbell,  74  Pa.  St,  470.  Me.    353.      Cf.    North    Yarmouth    v. 

57.  Moody  v.  Walker,  89  Ala.  619,  Portland,  73  Me.  108. 

Cf,    McCarthy    v,    Boston    &    Lowell  59.  Memphis  Steel  Construction  Co. 

Eailrcads,    148    Mass.    550.      But    an  v.  Lister   (Tenn.),  197  S.  W.  902,  L. 

insolvent    father's    emancipation    of  R.  A.  1918B,  406. 

his  child  is  not  unfavorably  regarded.  60.    Tillotson    v.    McCrillis,    11    Vt. 

Trapnell  v.  Conklyn,  37  W.  Va.  242.  477.    And  see  Porter  v.  Powell,  79  Ta. 

Even    though    the    child    should    then  151;    Winn  v.   Sprague,   35   Vt.   243; 

work  for  his  mother.    76.    Emancipa-  supra,  §  756;   Tennessee  Mfg.  Co.  v. 

tion  may  occur,  upon  the  divorce  of  .Limes,  91  Tenn.  154. 

parents,  so  far  as  the  father  is  con-  61.    Memphis    Steel    Const.    Co.    v. 

cerned,   so   as  to   give  the   child   the  Lister.  138  Tenn.  307,  197  S.  W.  902 

right  to  help  support  the  mother  and  (father     can     recover    after     partial 


§  809 


PAE^ENT    AND    CHILD. 


906 


may  be  set  up  by  one  sued  by  a  father  for  injury  to  the  minor 
child,""  but  must  be  pleaded  and  proved,"^  and  a  defendant  father 
claiming  emancipation  has  the  burden  of  proving  it. 


64 


emancipation)  ;  Arnold  v.  Norton,  25 
Conn.  92;  Texas  K.  v.  Crowder,  61 
Tex.  262. 

62.  Scott  V.  O'Leary,  157  la.  222, 
138  N.  W.  512;  Daly  v.  Everett  Pulp 
&  Paper  Co.,  31  Wash.  252,  71  P. 
1014,  But  see  Sawyer  v.  Sauer,  10 
Kan.  519;  Texas  &  P.  Ey.  Co.  v.  Ad- 
kins  (Tex.  Civ.  App.  1910),  126  S. 
W.  954. 


63.  McClellan  v.  Louis  F.  Dow  Co., 
114  Minn.  418,  131  N.  W.  485;  Singer 
V.  St.  Louis,  K.  C.  &  C.  Ry.  Co.,  119 
Mo.  App.  112,  gs  S.  W.  944;  Pecos  & 
N,  T.  Ry.  Co.  V.  Blasengame,  42 
Tex.  Civ.  App.  66,  93  S.  W.  187. 

64.  Holland  v.  Hartley,  171  N.  C. 
376,  88  8.  E.  507. 


PART  IV. 

aUAEDIAN    AND    WARD. 


CHAPTER  I. 


OF  GUARDIANS  IN  GENERAL  :    THE  SEVERAL  KINDS. 

Section  810.     Guardianship  Defined;  Applied  to  Person  and  Estate. 

811.  English   Doctrine;    Guardianship   by   Nature   and   Nurture. 

812.  Classification  of  Guardians  in  England;  Obsolete  Species. 


813.  English  Doctrine 

814.  English  Doctrine 

815.  English  Doctrine 

816.  English  Doctrine 


Guardianship   in   Socage. 
Testamentary   Guardianship. 
Chancery  Guardianship. 
Guardianship   by  Election   of  Infant. 

817.  Guardians  by  Nature  and  Nurture.     In  this  Country. 

818.  Chancery  and  Probate  Guardianship  in  this  Country. 

819.  Guardians  in  Socage  in  this  Country. 

820.  Testamentary  Guardians  in  this  Country. 

821.  Guardians  of  Idiots,  Lunatics,  Spendthrifts,  &c. 

822.  Guardians  of  Married  "Women. 

823.  Special  Guardians;   Miscellaneous  Trusts. 

824.  Guardian  ad  Litem  and  Next  Friend. 

825.  Guardians  de  Facto. 

826.  Guardianship  by  the  Civil  Law. 

§  810.  Guardianship  Defined;  Applied  to  Person  and  Estate. 

The  guardian  is  a  person  intrusted  by  law  with  the  interests  of 
another,  whose  youth,  inexperience,  mental  weakness,  and  feeble- 
ness of  will  disqualify  him  from  acting  for  himself  in  the  ordinary 
affairs  of  life,  and  who  is  hence  known  as  the  ward. 

Guardianship  usually  applies  to  minor  children ;  and  in  this 
:  sense  the  guardian  may  be  either  their  natural  protector,  whose 
authority  is  founded  upon  universal  law,  or  some  person  duly 
chosen  to  act  on  their  behalf.  Thus,  the  father  (and  sometimes 
the  mother)  exercises  the  right  of  custody  and  nurture  as  the 
child's  natural  guardian ;  while,  if  the  parents  are  dead,  someone 
must  be  selected  to  supply  their  place.  And  since  the  parental 
control  does  not  extend  to  the  estate  of  a  minor,  the  appointment 
of  a  guardian  may  be  both  necessary  and  proper,  when  property 
becomes  vested  in  a  child  under  age.  Guardianship  applies  also 
at  the  present  day  to  idiots,  lunatics,  spendthrifts,  and  the  like; 

007 


§    811  GUARDIAN    AND    WARD.  908 

and  the  guardian  of  such  person  derives  his  authority  from  statute 
law  and  a  special  appointment.  This  guardian  is  sometimes 
designated  as  the  committee. 

The  law  of  guardianship  is  most  naturally  divided  into  guardian- 
ship of  the  person  and  guardianship  of  the  estate.  Guardianship 
of  the  person  is  a  relation  essentially  the  same  as  that  of  parent 
and  child,  though  not  without  some  important  differences,  as  we 
shall  see  hereafter.  Hence  the  guardian  has  been  called  "  a  tem- 
porary parent."  ®^  Guardianship  of  the  estate  bears  a  closer 
resemblance  to  trusteeship;  guardians  and  trustees  being  alike 
bound  to  manage  estates  with  fidelity  and  care,  under  the  super- 
vision and  direction  of  the  chancery  courts.  The  same  person  is 
often  guardian  of  both  the  person  and  estate  of  the  ward ;  but  not 
necessarily,  for  these  may  be  kept  distinct.  So,  too,  there  may  be 
joint  guardians,  as  in  other  trusts. 

§  811.  English  Doctrine;   Guardianship  by  Nature  and  Nurture. 

Guardianship  by  nature  and  nurture  denotes  hardly  more  or 
less  than  the  natural  right  of  parents  to  the  care  and  custody  of 
their  children.  It  has  been  usual  to  treat  of  guardians  by  nature 
as  distinct  from  guardians  by  nurture;  but  in  reality  the  latter 
constitute,  for  practical  purposes,  only  a  species  of  the  former. 
Mr.  Macpherson  considers  them  together,  and  doubts  whether 
guardianship  by  nature,  as  known  in  the  old  law,  has  existed  since 
the  time  of  Charles  II.,  when  feudal  tenures  were  abolished ;  for 
it  appears  to  have  originated  in  the  practice  of  selling  the  marriage 
of  the  heir.^* 

Guardianship  by  nature  and  nurture  belongs  exclusively  to  the 
parents:  first,  to  the  father,  and,  on  his  death,  to  the  mother. 
The  father's  right  was  formerly  preferred  to  the  mother's  in  all 
cases ;  while  the  modem  tendency  is  otherwise.  The  office  of 
natural  guardian  lasted  during  the  minority  of  the  child ;  but 
guardianship  by  nurture  ceased  when  he  attained  the  age  of  four- 
teen. So  guardianship  by  nature  applied  to  the  heir  apparent  or 
presumptive,  and  guardianship  by  nurture  to  the  other  children. 
Guardianship  by  nature  was  something  higher  than  guardianship 

65.  1  Bl.  Com.  460;   2  Kent,  Com.       v.  ,  40  Minn.  7;  In  re  Rise, 

220.      A   money   corporation    may   be  42  Mich.  528,  4  N.  W.  284. 

guardian  in  modem  times,  under  ap-  68.  ]\facphers.  Inf.  52,  58.    See  also 

propriate     statutes,     notwithstandinpr  1   Bl.  Com.   461,    and  Harg.  notes  1 

the   ancient   objections  of   a   want  of  &  3;  2  Kent,  Com.  21,  220. 
conscience    or    of    parental    feelings, 


909  IN    GENEBAL.  §    812 

bj  nurture.'^  But  it  is,  nevertheless,  clear  that  the  father  has  a 
right,  recognized  hy  general  law,  to  the  custody  of  all  his  children, 
not  only  during  the  period  of  nurture,  but  until  the  age  of  majority. 
So,  too,  the  mother,  if  not  superseded  by  the  infant's  election  at 
fourteen,  or  by  the  appointment  of  a  new  guardian,  has,  in  the 
absence  of  a  father,  the  legitimate  care  of  the  child  for  the  same 
period.** 

The  authority  of  such  guardians  extends  only  to  the  ward's 
person.  They  have  no  right  to  intermeddle  with  his  property.** 
Blackstone  says  that,  if  an  estate  be  left  to  an  infant,  the  father 
is,  by  common  law,  the  guardian,  and  must  account  to  his  child 
for  the  profits.  But  this  is  only  because  the  law  holds  him  and 
all  others  responsible  as  a  quasi  guardian ;  and  it  is  well  settled 
at  the  present  day,  that  if  a  child  becomes  vested  with  property 
during  his  father's  lifetime,  there  is  no  one  strictly  authorized  to 
take  it  until  a  guardian  has  been  duly  appointed. 

Guardianship  by  nature  and  nurture  is  inferior  to  guardianship 
in  socage;  and  it  yields  to  every  kind  of  guardianship  which 
exists  by  strict  appointment,  so  far  as  the  ward's  property  is  con- 
cerned, though  not  necessarily  as  to  his  person. 

§  812.  Classification  of  Guardians  in  England ;  Obsolete  Species. 

The  law  of  guardianship,  in  England,  is  one  of  irregular  growth. 
Guardians,  until  chancery  jurisprudence  became  fnllr  developed, 
were  rerognized  only  for  certain  limited  purposes.  Their  powers 
were  restricted,  and  new  classes  were  created  from  time  to  time, 
as  the  exigency  arose.  One  species  of  guardianship  would  fall 
into  disuse  and  another  spring  up  in  its  place.  Hence  it  is  found 
difficult  to  attempt  a  classification,  or  reduce  the  general  authority 
of  guardians  to  a  definite  system.  An  English  text-writer  enume- 
rates no  less  than  eleven  different  kinds  of  guardians,  many  of 
which  are  obsolete,  and  others  of  merely  local  application. '''* 
Among  them  may  be  mentioned  guardmnship  in  chivalry,  an  inci- 
dent of  the  feudal  tenure,  more  in  the  nature  of  a  hardship  than  a 

67.  1  Bl.  Com.  461,  and  Harg.  631.  And  see  Wall  v.  Stanwick,  34 
notes;   2  Kent,  Com.  220,  221.  Ch.  D.   763,  as  to  liability  for  rents 

68.  Macphers.   Tnf.    61,   65;    supra.       nnd  profits  of  land. 

!?§  740,  756.  70.    Macpliers.    Tnf.    2    et    seq..    to 

69.  1  Bl.  Com.  461,  and  Harg.  notes:  Tvhich  the  reader  is  referred  for  a 
2  Kent,  Com.  220,  221 ;  Hyde  v.  Stone,  full  account  of  these  kinds  of  guard- 
7  Wend.  354:  Kline  v.  Beebe.  6  Conn.  ianship,  including  guardianship  under 
4&4;  Fonda  v.  Van  Home,  15  Wend.  Stat.  4  &  5  P.  &  M.,  ch.  8,  alluded  to 


§    813  GUARDIAN    AND    WAKD.  910 

privilege,  so  far  as  the  ward  was  concerned,  whicli  was  finally 
abolished  in  the  time  of  Charles  II. ;  guardianship  by  special 
custom,  which  was  confined  to  London  and  certain  other  localities, 
and  appears  to  exist  no  longer;  guardianship  by  appointment  of 
the  spiritual  courts,  traces  of  which  still  exist  in  the  appointment 
of  administrators  durante  minore  cetate;  guardianship  by  preroga- 
tive, applicable  only  to  the  royal  family;  and  guardianship  by 
election  of  the  infant,  which  appears  to  us  more  properly  consid- 
ered at  this  day  in  connection  with  the  appointment  of  chancery 
guardians.  But  guardianship  by  nature  and  nwture,  guAirdian- 
sliip  in  socage,  testamentary  guardianship,  and  chancery  guardian^ 
ship  require  special  consideration,  and  these  will  be  taken  up  in 
order. 

§  813.  English  Doctrine;    Guardianship  in  Socage. 

Guardianship  in  socage  arises,  at  common  law,  whenever  an 
infant  under  fourteen  acquires  title  to  real  estate ;  the  chief  object 
of  the  trust  being  the  protection  of  such  property  and  the  instruc- 
tion of  the  young  heir  in  the  pursuit  of  agriculture.'^  It  applies 
only  when  the  infant  inherits  land,  and  cannot  exist  if  his  estate 
be  merely  personal.  His  title,  too,  must  be  legal  and  not  merely 
equitable;  hence  it  would  seem  that  there  cannot  be  a  guardian  in 
socage  where  the  interest  of  the  ward  is  only  reversionary.'^^  This 
species  of  guardianship  was  anciently  assignable,  so  far  at  least  as 
the  custody  of  the  infant  was  concerned ;  but  by  the  doctrine  and 
practice  of  later  times  it  became  regarded  as  a  strictly  personal 
trust,  neither  transmissible  by  succession,  nor  devisable,  nor 
assignable. ''* 

The  duty  of  the  guardian  in  socage  is  to  take  possession  of  the 
heir's  person  and  real  estate,  to  receive  the  rents  and  profits  until 
the  heir  reaches  the  age  of  fourteen,  to  keep  his  evidences  of  title 
safely,  and  to  bring  him  up  well.''*  His  powers  are  commensurate 
with  his  duties.  He  acquires  by  virtue  of  his  office  an  actual 
estate  in  the  ward's  land,  though  not  to  his  own  use;''°    he  may 

in   1  Bl.  Com.  461,  and  repealed  by  73.    Macphers.     Inf.     20    et    seq.; 

9  Geo.  IV.,  ch.  31.     See  also  1   Bl.  2    Bl.    Com.    561,    and    Harg.    ».;    2 

Com.  461,  and  Harg,  notes.  Kent,  Com.  223. 

71.  1  Bl.  Com.  461,  and  Harg.    n.;  74.   Co.    LItt.    89;    Macphers.    Inf. 
2  Kent,  Com.  220 ;  Daglej  v.  Tolferry, .  28. 

1  P.  Wms.  285.  75.  Plowd.,  ch,  29^3 ;  Macphers.  Inf. 

72.  Macphers.  Inf.  19;  2  Bl.  Com.       28;  Rex  v.  Sutton,  3  Ad.  &  El.  597. 
88. 


^11  IN    QENEBAJL.  §    814 

gain  a  settlement  by  actual  residence  upon  it;  ^'  and  he  can  grant 
leases  terminable,  and  perhaps  even  void,  when  the  ward  reaches 
the  age  of  fourteen.''^  A  guardian  in  socage  cannot  be  removed 
from  office,  but  the  ward  may  supersede  him,  at  this  age,  by  a 
guardian  of  his  own  choice.^* 

Guardianship  in  socage  has  been  said  to  extend  to  the  heir's 
personal  property ;  but  there  is  insufficient  legal  authority  for  such 
a  supposition,  though  it  is  likely  that  the  farm-stock  and  house- 
hold chattels  of  the  ward  were  included ;  and  when  this  guardian- 
ship was  common,  personal  property  consisted  of  little  else/' 

One  peculiarity  of  this  guardianship  was  that  the  trust  belonged 
only  to  such  next  of  blood  to  the  child  as  could  not  possibly  inherit, 
and  it  de%'Olved  upon  him  without  appointment ;  the  common  law, 
with  a  characteristic  distrust  of  human  nature,  deeming  it  impru- 
dent to  confide  the  child's  interests  to  one  who  expected  the  succes- 
sion. For,  as  Fortescue  and  Sir  Edward  Coke  affirmed,  to  commit 
the  custody  of  the  infant  to  such  a  person  was  like  giving  up  a 
lamb  to  a  wolf  to  be  devoured.®"  Guardianship  in  socage  has 
passed  into  disuse,  though  it  cannot  be  said  to  have  been  actually 
abolished. 

§  814.  English  Doctrine;    Testamentary  Guardianship. 

Testamentary  guardianship  was  instituted  by  the  statute  of  12 
Car.  II.,  c.  24,  and  for  this  reason  testamentary  guardians  are 
sometimes  called  statute  guardians.*^  This  statute  provided  that 
any  father,  whether  an  infant  or  of  full  age,  might,  by  deed 
executed  in  his  lifetime,  or  by  his  last  will  and  testament,  dispose 
of  the  custody  and  tuition  of  his  child,  either  born  or  unborn,  to 
any  person  or  persons  in  possession  or  remainder,  other  than 
popish  recusants;  such  custody  to  last  till  the  child  attained  the 
age  of  twenty-one,  or  for  any  less  period,  and  to  comprehend, 
meantime,  the  entire  management  of  his  estate,  both  real  and  per- 
sonal. So  far  as  popish  recusants  are  concerned,  this  statute  has 
since  been  modified ;  and  all  religious  disabilities  as  to  the  office 
are  now  removed  ;  *"    and  since  the  statute  of  1  Vict.,  c.  20,  an 

76.  Eex   V.   Oakley,   10   East,   491;  Constable,  Vaupfh.  185.    But  see  Harg. 
Macphers.  Inf.  28.  n.,  67  to  Co.  Litt.  89. 

77.  Bac.   Abr.  Leases,  i.   9 ;    1   Ld.  80.  Co.  Litt.  88b:    1   Bl.  Com.  462. 
Raym.  131;   Bex  v.  Sutton,  f,  Nev.  &  81.   1  Bl.  Com.  462. 

M.  353;  Macphers.  Tnf.  35,  36.  82.  31  Geo.  ITT.,  ch.  32;  4  Mont.  Sr 

78.  Co.  Litt.  89a;  Macphers.  Tnf.  41.       C.  687;  Corbet  v.  Tottenham,  1  Ball 

79.  Macphers.    Tnf.    31 ;    Bedell    v.       v.  B.  59. 


§814  GUARDIAN    AND    WAED.  913 

infant,  though  the  father,  cannot  exerci&e  the  right  of  testamentary 
appointment ;  otherwise,  the  statute  remains  in  force.  Under  this 
English  law  it  matters  not  what  are  the  father's  religious  opinions." 
But  a  mother  cannot  appoint,  nor  a  putative  father,  nor  a  person 
in  loco  parentis.^* 

The  important  question  arises,  under  this  statute,  whether  the 
words  "  hj  deed  executed  in  his  lifetime  "  permits  the  father  to 
dispose  of  his  children  bj  any  instrument  not  testamentary  he 
may  see  fit  to  make.  Lord  Eldon  was  of  the  opinion  that  he 
could  not,  but  was  confined  to  a  testamentary  instrument  in  the 
form  of  a  deed,  which  cannot  operate  during  life  and  may  be 
revoked  at  pleasure ;  or  to  a  will.*^  Such  is  doubtless  the  English 
law  at  the  present  day.^® 

Testamentary  guardianship  gives  the  custody  of  the  ward's 
person,  and  of  all  his  real  and  personal  estate ;  and  it  embraces 
not  only  such  property  as  comes  to  the  ward  through  descent, 
devise,  bequest,  or  inheritance  from  the  father,  but  all  that  he 
may  acquire  from  any  person  whomsoever,  and  whether  real  or 
personal.  This  shows  that  the  guardian's  interest  is  derived  not 
from  the  father,  but  from  the  law  itself,  for  the  father  could  give 
him  no  interest  over  that  which  was  never  his  own.*^ 

Besides  having  the  advantage  of  full  control  over  the  ward's 
entire  estate,  the  testamentary  guardian  stands  better  than  the 
guardian  in  socage,  inasmuch  as  his  power  lasts  until  the  ward 
reaches  his  majority,  unless  the  father  has  seen  fit  to  limit  his  trust 
to  a  less  period. 

Testamentary  guardianship,  as  now  understood,  was  unknown 
to  the  common  law.  Lord  Alvanley  said,  in  Ex  parte  Ilchester: 
"  It  is  clear,  by  the  common  law,  a  man  could  not,  by  any  testa- 
mentary disposition,  affect  either  his  land  or  the  guardianship  of 
his  children.  The  latter  appears  never  to  have  been  made  the 
subject  of  testamentary  disposition  till  the  statute  12  Charles 
IT.'"  ^*  But  it  seems  probable,  from  some  expressions  of  Lord 
Coke,  that,  so  far  as  the  custody  of  the  ward's  person  was  con- 

83.  Villareal  v.  Mellish,  2  Swanst,  86.  Macpherson  intimates  a  differ- 
538.  ent  opinion.     See  Macphers.  Inf.  84 ; 

84.  Macphers.  Inf.  83;  1  Bl.  Com.  Lecome  v.  Sheires,  1  Vern.  442.  And 
462,  Harg.  n. ;  Vaugh.  180;  3  Atk.  pee  Desribes  v.  Wilmer,  69  Ala.  25. 
519.  87.    Macphers.    Inf.    91.      See    also 

85.  Ex  parte  Earl   of   Ilchester,  7  Gilliat  v.   Gilliat,  3   Phillim.   222. 
Yes.  367 ;  Earl  of  Shaftesbury  v.  Lady  88.   7  Ves.  370. 

Hannam,   Finch.   Rep.   323. 


913  IN    GENERAL.  §    815 

cemed,  though  not  as  to  his  lands,  testamentary  dispositions  were 
not  unknown  to  the  old  common  law,  and  that  this  testamentary 
guardian,  sometimes  confounded  with  the  guardian  for  nurture, 
had  the  care  of  the  child  until  he  reached  the  age  of  fourteen,  with 
power  to  dispose  of  his  chattels." 

§  815.  English  Doctrine;    Chancery  Guardianship. 

Guardians  by  appointment  of  a  court  of  equity,  or  chancery 
guardians,  as  they  are  termed,  have,  within  the  last  century, 
assumed  such  importance  as  almost  to  supersede,  in  the  English 
practice,  the  other  kinds,  except  perhaps  the  testamentary  guardian. 
The  earliest  known  instance  of  such  an  appointment  occurred  in 
1696.®°  Blackstone  speaks  of  the  practice  in  his  day  as  applicable 
chiefly  to  guardians  with  large  estates,  who  sought  to  indemnify 
themselves  and  to  avoid  disagreeable  contests  with  their  wards,  by 
placing  themselves  under  the  direction  of  the  court  of  chancery.®^ 
The  origin  of  this  guardianship  is  obscure.  Mr.  Hargrave  con- 
sidered it  an  act  of  usurpation  by  the  Lord  Chancellor,  but  admitted 
the  jurisdiction  to  have  been  fully  established  in  his  time.®^ 
Fonblanque  warmly  controverts  the  charge  of  usurpation,  claiming 
that  the  jurisdiction  exercised  by  the  court  of  chancery  over  infants 
flows  from  its  general  authority,  as  delegated  by  the  crown.®^ 
This  latter  view  has  met  with  the  best  judicial  approval ;  for,  as 
Lord  Hardwicke  and  others  have  expressed  it,  the  State  must  place 
somewhere  a  superintending  power  over  those  who  cannot  take 
care  of  themselves ;  and  hence  chancery  necessarily  acts,  represent- 
ing the  sovereign  as  parens  patrice.^*^  From  the  peculiar  nature 
and  restrictions  of  the  other  kinds  of  guardianship,  many  orphans, 
whose  fathers  had  failed  to  appoint  a  testamentary  guardian  for 
them,  would  be  otherwise  without  protection  either  of  person  or 
property.  Whatever  may  be  the  origin  of  the  jurisdiction  by 
virtue  of  which  courts  of  chancery  appoint  guardians  in  such 
cases,  the  right  of  making  such  appointments,  and  in  general  of 
controlling  the  persons  and  estates  of  minors,  has  long  been  firmly 
established,  and  cannot  at  this  day  be  shaken. 

89.  Co.  Litt.  87b;   Co.  Cop.,  §  23;  93.  2    Fonb.   Eq.   228,  n..    5th   ed.; 
Macphers.  Inf.  68.  2  Story,  Eq.  Jur.,  §  1333. 

90.  Case  of  Hampden.    See  Co.  Litt.  94.  Butler  v.  Froeman,  Ambl.  301. 
88b,  Harg.  n.  See     Lord     Thurlow,     in     Powell     v. 

91.  1   Bl.  Com.   463.  Cleaver,   2   Bro.  C.  C.   499;   Lord  El- 

92.  Co.  Litt.   89a,  Harg.  n.  70.  don,  in  De  Manneville  v.  De  Manne- 


ville,  10  Ves.   52. 


58 


§815  GUAKDIAJSr    AND    WARD.  914: 

An  infant  is  constituted  a  ward  in  cliancery  whenever  anyone 
brings  him  in  as  party  plaintiff  or  defendant,  by  a  bill  asking  the 
directions  of  the  court  concerning  his  person  or  estate,  or  the 
administration  of  property  in  which  he  is  interested.^"  In  this 
character  he  is  treated  as  under  its  special  protection.  Again,  a 
petition  may  be  presented  for  the  appointment  of  a  chancery 
guardian,  alleging  that  the  infant  has  estate,  real  or  personal. 
But  the  mere  appointment  of  a  guardian,  in  this  instance,  will 
not  make  him  a  ward  in  chancery.^*^  Where  a  suit  is  pending,  the 
court  appoints  a  guardian  of  the  person  only ;  in  other  cases  a 
guardian  of  the  pej'son  and  estate.^"^  So  chancery  will  appoint  a 
guardian  on  petition,  where  testamentary  guardians  decline  to  act ; 
and,  if  necessary,  determine  on  petition  the  right  of  a  guardian 
already  appointed.®^ 

As  to  the  general  jurisdiction  of  chancery  over  infants,  it  may 
he  observed  that  in  the  appointment  and  removal  of  gTiardians, 
in  providing  suitable  maintenance,  in  awarding  custody  of  the 
person,  and  in  superintending  the  management  and  disposition 
of  estates,  the  chancery  court  wields  large  powers  for  the  benefit 
of  the  young  and  helpless.  This  jurisdiction,  being  clear  of  tech- 
nical rules  and  dependent  upon  the  discretion  of  the  Chancellor, 
adapts  itself  far  more  readily  to  the  various  grades  of  society,  the 
intention  of  testators,  the  wants  and  wishes  of  the  infants  them- 
selves, and  the  different  varieties  of  property,  than  all  the  other 
guardianships  combined.^  By  compelling  trust  officers  to  give 
security,  to  invest  under  its  direction,  and  to  keep  regular  accounts, 
the  court  exerts  a  wholesome  restraint  on  the  ward's  behalf,  while 
at  the  same  time  it  arms  the  guardian  against  all  attacks  of  a 
capricious  heir,  by  affording  its  sanction  to  his  official  acts. 

Chancery  guardians  are,  in  general,  only  appointed  where  there 
is  property;  but  this  is  because  guardianship  can  scarcely  be 
necessary  otherwise.  Chancery,  as  Lord  Eldon  observed,  cannot 
take  on  itself  the  maintenance  of  all  the  children  in  the  kingdom." 
Hence  persons  desiring  to  call  in  the  authority  of  the  court  for  the 
protection  of  an  infant  sometimes  resort  to  the  expedient  of  settling 
a  sum  of  money  upon  him.'      The  great  objection  to  chancery 

95.  Macphers.     Inf.     103;     Ambl.  1.  1  Bl.  Com.  463,  Harg.  n. 

302,  n.  2.   Wcllesley  v.  Duke   of  Beaufort, 

96.  Macphers.  Inf.  104.                              2  Euss.  21. 

97.  7b.   105.  3.  Macphers.   Inf.   103. 

98.  Ih.  104.  Though    doubts   were   formerly  en- 


915  Ilf    GENEBAI^  §    816 

guardianship  is  its  expense ;  and  the  lavish  outlay  of  money  which 
becomes  requisite  at  every  step  renders  the  practical  benefit  to  the 
minor  often  questionable.  Less  cumbrous  machinery  would  rem- 
edy this  evil.  There  are  some  English  statutes  relating  to  the 
poor,  the  employment  of  apprentices,  and  the  like,  which,  in  con- 
nection with  the  writ  of  habeas  corpus,  are  designed  to  supersede, 
in  a  measure,  the  necessity  of  personal  guardianship,  for  those  who 
are  without  property  and  yet  need  protection.* 

§  816.  English  Doctrine;   Guardianship  by  Election  of  Infant. 

Guardianship  by  election  of  the  infant  deserves  a  passing  notice. 
We  have  seen  that  the  infant  in  socage  had  the  right  of  choosing  a 
guardian  at  the  age  of  fourteen.  This  age  was  recognized  also  as 
the  limit  to  guardianship  by  nurture;  the  law  choosing  to  yield 
somewhat  to  the  ward's  discretion  thenceforth.  The  socage  ward 
might  therefore,  if  he  had  no  testamentary  guardian,  choose  one 
to  act  on  his  behalf  until  majority,  by  executing  a  deed  for  that 
purpose.  But  little  is  really  known  on  this  subject,  and  the  in- 
stances mentioned  in  the  books  are  exceedingly  rare.^  Blackstone 
again,  speaking  of  guardians  for  nurture,  adds  that,  in  default  of 
father  or  mother,  the  ordinary  usually  asigns  some  discreet  person 
to  take  care  of  the  infant's  personal  estate,  and  to  provide  for  his 
maintenance  and  education.^  The  practice  in  the  spiritual  court 
was  to  permit  the  minor,  when  of  suitable  age,  to  nominate  his 
guardian,  subject  to  its  approval.  This  was  but  a  limited  priv- 
ilege, after  all,  though  it  seems  to  have  been  granted  to  all  children 
between  seven  and  twenty-ona^  It  is  manifestly  different  from 
the  right  of  election  allowed  the  socage  ward.  The  authority  of 
spiritual  courts  to  appoint  a  guardian  of  the  person  and  estate  was 
emphatically  denied  by  Lord  Ilardwicke,  and  chancery  afterwards 
took  this  guardianship  completely  into  his  own  keeping.  The 
infant,  above  the  age  of  fourteen,  is  still  permitted,  to  nominate 

tertained,  it  appears  clear  that  Eng-  appointment    and    removal    of    guar- 

lish  chancery  could  exercise  some  very  dians,  and  does  not  extend  to  schemes 

limited    interference    over    the    guar-  for   their    maintenance    or   education. 

dians   of  children   who   had  no   prop-  McGrath  Be    (1S93),  1   Ch.   143. 

erty.    Spence  Se,  2  Ph.  247;  Scanlan  4.   1  Bl.  Com.   463,  Harg.  n..  and 

Se,  40  Ch.  D.  200.    By  virtue  of  this  acts  there  enumerated. 

power,  aided  by  the  Act  of  1886  (49  5.  Co.  Litt.  88b,  Harg  n.  16;  Mac- 

&  50  Vict.,  ch.  27),  chancery  has  now  phers.  Inf.  77. 

a   jurisdiction    over   infants   who    are  6.  1  Bl.  Com.  461. 

not  wards  of  the  court  and  have  no  7.  Fitzgib.  164 ;  Co.  Litt.  S8b,  Harg. 

property;    but    it    is    limited    to    the  n.  16, 


§  817 


GUARDIAN    AND    WAKD. 


916 


his  guardian  before  the  court  of  chancery;  but  his  nomination 
does  not  supersede  the  authority  of  the  court,  whether  he  be  a 
socage  ward  or  not.^  Guardianship  by  election  of  the  infant  has 
thus  become  a  misnomer,  for  he  does  not  absolutely  elect. 

§  817.  Guardians  by  Nature  and  Nurture  in  This  Country. 

Guardianship  in  the  United  States  differs  considerably  from 
guardianship  in  England.  Here  the  whole  subject  is  controlled  in 
a  great  measure  by  local  statutes.  There  are  fewer  kinds  of 
guardians  found  in  American  practice,  though  some  of  the  more 
important  classes  are  recognized  to  a  limited  extent.  Thus  guar- 
dianship by  nature  and  nurture,  or  the  parental  right  of  custody, 
prevails  in  most  of  the  States  with  the  restraints  upon  meddling 
with  a  child's  property  already  noticed.'  But  as  all  children,  male 
and  female,  inherit  alike  with  us,  guardianship  by  nurture  is  not 
here  so  clearly  distinguished  from  guardianship  by  nature,  as  in 
the  English  practice.^" 

The  father  is  the  natural  guardian  of  his  minor  child,^^  and  on 
his  death  the  mother,^^  and  on  death  of  both  parents  the  grand- 
father or  grandmother  when  next  of  kin,"  but  other  relatives  of 
the  child  have  no  natural  right  to  its  custody." 

The  natural  guardian  has  the  control  of  the  ward's  person  only 
and  not  of  his  property. 


15 


8.  Co.  Litt.  8Sb,  Harg.  n.  16; 
Hughes  V.  Science,  3  Atk.  631,  Mac- 
pherg.  Inf.  74,  78. 

9.  But  here  as  in  England,  inter- 
meddling with  the  ward's  property 
subjects  the  parent  to  the  qttasi  guar- 
dian's liability.  Bedford  v.  Bedford, 
136  111.  354. 

10.  2  Kent,  Com.  221;  Eeeve,  Dom. 
Rel.  315;  Macready  v.  Wilcox,  33 
Conn.  321.  That  the  grandfather  or 
grandmother,  when  the  next  of  kin, 
may,  on  the  death  of  father  or  mother, 
be  guardian  by  nature,  see  Darden  v. 
Wyatt,  15  Ga.  414;  Lamar  v.  Micou, 
114  TJ.  S.  218,  222, 

11.  In  re  Galleher,  8  Cal.  App.  364, 
84  P.  352;  Succession  of  Watt,  111 
La.  937,  36  So.  31  (father  cannot 
abdicate  his  guardianship)  ;  Smith  v. 
YounjT,  136  Mo.  App.  65.  117  S.  W. 
628;    Oehmcn   v.   Portmann,   153   Mo. 


App.  240,  133  S.  W.  104;  In  re  Knott, 
17  Det.  Leg.  N.  471,  126  N.  W.  1040; 
Jain  V.   Priest    (Idaho),   164   P.   364. 

12.  Smith  V.  Young,  136  Mo.  App. 
65,   117  'S.  W.  628. 

13.  Homes  v.  Derrig,  127  la.  625, 
103  N.  W.  973. 

14.  Wiliet  V.  Warren,  34  Wash.  647, 
76  P.  273. 

15.  McKinnon  v.  First  Nat.  Bank 
(Fla.),  82  So.  748;  Eingstad  v.  Han- 
son, 150  la.  324,  130  N.  W.  145; 
T.Tiles  V.  Boyden,  20  Mass.  (3  Pick.) 
213  (cannot  recover  legacy) ;  Power 
V.  Harlow,  57  Mich.  107,  23  N.  W. 
606 ;  In  re  Schuler  's  Estate,  94  N.  Y. 
S.  1063,  46  Misc.  373;  Vinyard  v. 
Heard  (Tex.  Civ.  App.),  167  8.  W. 
22;  Ferguson  v.  Phoenix  Mat.  Life 
Ins.  Co.,  84  Vt.  350,  79  A.  997;  Mc- 
Dodrill  V.  Pardee  &  Cnrtin  Lumber 
Co.,  40  W.  Va.  564,  Si  S.  E.  878. 


^^»  IN    GENEEAL.  §    818 

§  818.  Chancery  and  Probate  Guardianship  in  This  Country. 

Chancery  guardianship  may  be  considered  as  adopted  to  some 
extent  in  this  country.  The  supreme  courts  in  many  States  have 
now  full  chancery  powers,  as  in  England,  over  the  persons  and 
estates  of  infants ;  they  may  order  investments,  decree  care  and 
custody  of  the  person,  take  children  under  their  protection  as 
wards  of  the  court  in  certain  cases,  regulate  the  conduct  of  guar- 
dians, and  otherwise  exercise  the  important  functions  which  vest 
in  the  English  equity  courts.  But  English  chancery  jurisprudence 
is  one  thing,  and  that  of  the  United  States  another.  "While  in  one 
country  the  appointment,  removal,  and  general  supervision  of 
guardians  belong  immediately  to  the  equity  courts,  in  the  other 
a  special  tribunal  is  usually  created  by  local  statute  for  such 
matters.  It  is  this  special  tribunal  —  somewhat  resembling  the 
English  ecclesiastical  court  —  which  alone  issues  letters  of  guar- 
dianship, revokes  them,  and  superintends  trust  accounts  in  the  first 
instance.  The  guardians  thus  chosen  have,  in  general,  the  rights 
and  duties  of  chancery  guardians  of  the  person  and  estate. 

The  propriety  of  distinguishing  between  chancery  guardians  and 
those  appointed  by  the  special  courts  of  this  country  —  whether 
fcnown  as  the  probate,  orphans',  ordinary's  or  surrogate's  court  — 
is  obvious  when  the  origin  of  our  probate  jurisdiction  is  considered. 
At  the  time  America  was  colonized,  chancery  guardianship  was 
unknown  in  England.  The  ecclesiastical  or  spiritual  courts,  inde- 
pendent of  all  temporal  authority,  controlled  the  estates  of  orphans 
and  their  deceased  parents.  The  necessity  of  some  tribunal  with 
probate  jurisdiction  was  soon  apparent  to  our  ancestors ;  but,  re- 
jecting the  idea  of  a  church  establishment,  they  distributed  probate 
and  equity  powers  among  the  common-law  courts.  Their  judicial 
system  was  at  first  simple:  that  of  local  county  courts  with  a 
supreme  tribunal  of  appeal.  With  the  growth  of  population  came 
a  division  of  these  powers  in  the  inferior  court's.  New  county 
tribunals  were  erected  for  business  appertaining  to  estates  of  the 
dead,  testamentary  trusts,  and  the  care  of  orphans ;  a  blending,  as 
it  were,  of  ecclesiastical  and  equity  functions.  The  old  county 
courts  were  left  to  their  common-law  jurisdiction,  while  the 
supreme  tribunal  retained  control  over  them  all,  exercising  appel- 
late powers  in  common  law,  equity,  and  ecclesiastical  suits.  Such, 
in  a  word,  is  the  general  origin  of  guardianship  by  judicial  ap- 


§    818  GUARDIAN    AND    WARD.  918 

pointment  in  this  country.^"  While  the  English  chancery  court 
was  slowly  extending  its  rights  over  the  persons  and  estates  of 
infants,  another  system  was  in  process  of  growth  on  this  side  of  the 
water,  borrowing  from  English  law  as  occasion  offered,  and  adapt- 
ing itself  to  the  increasing  wants  of  our  o\\ti  community.  This 
system,  fostered  doubtless  by  a  strong  prejudice  against  chancery 
practice,  with  its  expensiveness  and  prolixity  of  pleadings,  a  preju- 
dice widely  prevalent  during  the  last  century,  especially  in  'New 
England,  spread  gradually  into  the  new  States  and  Territories, 
the  creature  of  statute  law  wherever  it  went. 

Much  confusion  has  arisen  in  our  courts  wherever  this  distinc- 
tion has  not  been  kept  in  view.  The  law  of  guardianship  is  often 
discussed  as  though  we  inherited  the  English  chancery  system, 
when  in  truth  our  usual  practice  is  without  its  counterpart  abroad. 
The  only  American  text-writers  of  authority  on  this  subject,  Reeve 
and  Kent,  have  contributed  to  this  perplexity.  The  former  was 
not  precise  in  his  classification.^'  The  latter  unwisely  confused 
American  and  English  appointments,  applying  the  term  chancery 
guardians  to  both.^*  But  the  courts  have  sometimes  perceived  the 
necessity  of  a  separate  name  for  guardians  appointed  by  courts  of 
probate  jurisdiction.  Accordingly,  they  have  been  called  guar- 
dians  of  the  person  and  estate;  ^®  but  this  name  is  quite  as  appro- 
priate to  others.  So,  too,  they  are  designated  as  statute  guardians; 
but  there  are  statute  modifications  applied  to  all  kinds  of  guardians, 
and  besides,  this  name  was  long  ago  bestowed  by  English  writers 
upon  testamentary  guardians.  We  shall  apply,  then,  in  these 
pages,  for  want  of  something  better,  the  distinguishing  term  pro- 
hate  guardians,  this  being  sufficiently  precise  and  suggestive ; 
though  it  is  admitted  that  the  appointing  power  is  not  lodged  in 
tribunals  styled  probate  courts  in  every  State,  nor  necessarily 
separated  from  courts  exercising  common-law  functions. 

Guardians  are  in  this  country  statutory  officers  having  no  inher- 
ent powers,  but  only  such  as  are  prescribed  by  statute,^"  and  are 
not  public  officers.^^ 

16.  See  Smith   (Mass.),  Prob.  Pract.  20.  Scott  v.  Royston,  223  Mo.  568, 
1-5;   9  Mackey   (Dist.  Col.),  134.  123     S.    W.     454.      See    Cobleigh    v. 

17.  Reeve,  Dom.  Eel.  311.  Matheny,  181  111.  App.  170  (guardian 

18.  2  Kent,  Com.  226.  is  an  oflBcer  of  the  court). 

19.  See  Arthur's  Appeal,   1   Grant  21.  Linderholm  v.  Ekblad,  92  Kan. 
(Pa.),    55.      See   Jordan  v.   Smith,   5  9,  139  P.  1015. 

Ga.  App.  559,  63  S.  E.  595   ("guar- 
dian of  the  person"  defined). 


919  I^    GEISEKAL.  §    820 


Gruardiansbip  is  a  trust  dual  in  nature  involving  two  separate 
functions,  the  control  of  the  person  and  of  the  estate." 

§  819.  Guardians  in  Socage  in  This  Country. 

Guardianship  in  socage  was  never  common  in  the  United  States. 
But  traces  of  its  existence  are  to  be  found  in  New  York  and  New 
Jersey.     Thus,  in  1809,  a  guardian  in  socage,  in  New  York,  wa8 
permitted   to  bring  trespass   and   ejectment.**      This   species   of 
guardianship  is  now  almost  wholly  superseded.     In  fact,  it  could 
seldom  have  arisen,  since  half-blood  and  whole-blood  relatives  in 
this  country  inherit  alike;    so  that  a  blood  relation  who  cannot 
possibly  inherit  could  rarely  be  found,  to  assume  the  duties  of  the 
office."     A  father  who  holds  lands  for  life,  with  the  remainder 
vested  in  his  children,  cannot  be  their  guardian  in  socage."     And 
the  lease  of  his  ward's  lands  by  any  such  guardian  may  be  defeated 
by  the  appointment  of  another  guardian,  pursuant  to  the  statute, 
who  elects  to  avoid  it.^*     The  powers  and  duties  of  the  guardian 
in  socage,  where  recognized  in  this  country,  have  been  limited  to 
the  ward's  real  estate  and  the  personalty  connected  therewith,  such 
as  animals  and  farm  implements,  and  do  not  extend  to  the  ward's 
general  personal  property ;  ^^    and  all  such  rights  are  superseded 
by  those  of  an  ordinary  legal  guardian.** 

§  820.  Testamentary  Guardians  in  This  Country. 

We  have  testamentary  guardians,  with  essentially  the  same 
powers  and  duties  as  in  England.  The  statute  of  12  Charles  II. 
has  been  enacted  in  most  of  the  United  States,  with  the  language 
somewhat  changed.  No  religious  disabilities  are  imposed  in  our 
law.  But  while  some  States  follow  the  words  of  the  ancient 
statute  as  to  minor  fathers,  the  right  is  elsewhere  restricted  to  such 
as  are  competent  to  make  a  will ;  and  this  is  a  preferable  expres- 
sion.    For  precise  modifications  the  student  should  consult  the 

22.  United  Statw  t.  Hall,  171  F.  84  Vt.  350,  79  A.  997   (guardianship 
214.  in  socage  defined). 

23.  Byrne  v.  Van  Hoesen,  5  Johns.  24.  2  Kent,  Com.  222,  223;   Reeve, 
66.     See  also  Jackson  v.  De  Walts,  7  Dom.  Eel.  315,  316. 

Johns.  157.     The  widowed  mother  of  25.  Graham  v.  Houghtalin,  1  Vroom, 

an  infant  who  owns  real  estate  is  in  552. 

this   State   a   general    guardian    with  26.  Emerson    v.    Spicer,    46    N.    T. 

the   rights,  powers,   and   duties  of  a  594. 

guardian  in  socage.     Hynea  He,  105  27.  Foley  v.  Mutual  Life  Co.,  138 

N.  Y.   560.      See  In  re  Wagner,   135  N.  Y.  333. 

K.  Y.  S.  678,  75  Misc.  419.    See  Fer-  28.  Stimson,  %  1103. 

guson  V.  Phoenix  Mut.  Life  Ins.  Co., 


§    819  GUARDIAN    AND    WAED.  920 

laws  of  his  own  State.  Some  statutes  use  the  worck  "  deed  or 
will."  The  Ohio  statute  drops  the  word  "  deed "  altogether. 
And  not  uncommonly  is  it  found  in  America  that  testamentary 
guardians  can  only  be  appointed  by  a  will  executed  with  the  usual 
solemnities.^^ 

The  right  of  testamentary  appointment  is  still  confined  to  the 
father  in  most  States.  But  an  Illinois  statute  permits  the  mother, 
if  not  remarried,  to  appoint  such  a  guardian,  provided  no  appoint- 
ment was  previously  made  by  the  father.  In  i^ew  York,  the  con- 
sent of  the  mother,  if  living,  was  lately  required  to  a  testamentary 
appointment  by  the  father,^"  a  provision  afterwards  repealed.*^ 
So,  too,  the  English  principle  prevails,  that  the  testator  can  appoint 
a  guardian  over  his  own  children  only ;  the  right  extending,  how- 
ever, to  posthumous  offspring.  He  cannot  appoint  guardians  for 
other  children,  though  he  give  them  his  property.^^  But  where  a 
statute  provides  that  a  child  may  be  adopted  by  one  with  the  same 
rights  as  if  the  offspring  were  his  own,  it  seems  just  that  the 
father,  thus  constituted,  should  have  the  right  of  appointing  a 
testamentary  guardian  for  his  adopted  child,  just  the  same  as  for 
other  children.^^  A  grandfather  has  no  right  to  appoint  a  testa- 
mentary guardian.^* 

29.  See  2  Kent,  Com.  225,  226;  gerald  v.  Fitzgerald,  31  N.  Y,  Supr. 
Hoyt  V.  Hellen,  2  Edw.  Ch.  202;  Mat-       370. 

ter  of  Pierce,  12  How.  Pr.  532;  Van-  32.    Brigham    v.    Wheeler,    8    Met. 

artsdalen  v.  Vanartsdalen,  14  Pa.  St.  (Mass.)   127;  2  Kent,  Com.  225. 

384;  Wardwell  v.  Wardwell,  9  Allen,  33.    As    to    divorced    parents,    the 

518.    In  New  York  the  father's  right  question    of    testamentary    guardian- 

to    appoint   a   testamentary   guardian  ship  is  presented  under  a  new  aspect, 

is  derived  exclusively  from  the  local  Where  a  mother  is  allowed  by  statute 

statute.      Thomson    v.    Thomson,    55  or  otherwise  to  dispose  of  the  guar- 

How.  (N.  Y.)  Pr.  494.    A  mother  has  dianship  of  her  minor  child,  by  will, 

no  power  to  appoint  unless  the   stat-  she  is  assumed  to  have  been  the  sur- 

ute    is    explicit.       Ex    parte    Bell,    2  vivor    of   her   husband.      A    divorced 

Tenn.  Ch.  27.     Even  in  apjKjintments  wife,  invested  with  the  custody  of  the 

by  "  deed,"  the  deed  does  not  take  minor   child   by    order   of   court,   has 

effect   until   the   parent's   death,   and  presumably,  as  such,  no  real  right  to 

the  guardian  named  must  then  qual-  appoint,  especially  if  divorced  for  her 

ify  like   any  testamentary   guardian.  fault.     McKinney  v.  Noble,  37  Tex. 

84  Cal.  592.  731.     Divorce,  it  would    appear,  does 

See  New  York  statute  authorizing  not   per   se   take    away   the    father's 

the    surviving    parent    to    appoint    a  power  to  appoint  a  testamentary  guar- 

testamentary  guardian,  77  Hun,   201.  dian.      See  Hill  v.  Hill,  49  Md.   450, 

30.  N.  Y.  Stat.  1862,  ch.  172.  And  where  custody  of  the  child  was  given 
see  Sackett's  Estate,  1  Tuck.  (N.  Y.  to  the  father  with  a  right  of  access 
Surr.)   84.  to   the  mother. 

81.   Stat.    1871,   construed  in  Fitz-  34.  FuUerton  v.   Jackson,  5  Johns. 


921  IN    GENERAL,.  §    821 

§  821.  Guardians  of  Idiots,  Lunatics,  Spendthrifts,  &c. 

The  different  kinds  of  guardianship  for  minors  having  been  con- 
sidered, we  proceed  to  speak  briefly  of  guardians  for  idiots,  luna- 
tics, and  spendthrifts,  though  this  subject  comes  hardly  within  our 
scope.  Under  the  king's  sign-manual,  the  Lord  Chancellor  was 
invested  with  jurisdiction  over  the  persons  and  estates  of  insane 
persons.  For  this  reason  did  chancery  claim  authority ;  not  by 
virtue  of  the  king's  prerogative  as  parens  patrice;  for  idiots  and 
lunatics,  it  is  said,  were  not  under  the  protection  of  the  sovereign 
until  the  time  of  Edward  11.^^  Lunatic  asylums  are  provided  by 
law,  and  regulated  from  time  to  time.  For  legally  determining 
the  question  of  insanity  in  any  case,  chancery  grants  a  commission 
in  the  nature  of  a  writ,  directed  to  masters  in  lunacy ;  and  if  the 
subject  be  found  non  compos,  the  court  commits  his  person,  to- 
gether with  a  suitable  allowance  for  his  maintenance,  to  some 
person  who  is  then  called  his  committee.^^  Blackstone  states  that 
the  rule  in  his  day  was  to  refuse  this  guardianship  to  the  lunatic's 
next  of  kin,  "  because  it  is  his  interest  that  the  party  should  die ;  " 
but  this  rule  has  long  been  disregarded  in  practice."  The  com- 
mittee manages  his  ward's  estate  much  the  same  as  other  guar- 
dians, being  held  to  a  strict  account  to  the  court  of  chancery,  and 
to  the  ward,  if  he  recovers,  or  otherwise  to  his  personal  representa- 
tives after  his  death.  There  are  receivers  appointed,  with  a  salary, 
in  case  others  refuse  to  act ;  but  such  officer  is  considered  as  a 
committee  and  gives  proper  security.^*  Guardians  of  insane  per- 
sons are  appointed  in  this  country;  but  in  general  by  the  courts 
exercising  jurisdiction  in  case  of  minors,  which  derive  also  their 
authority  from  local  statutes.^*  The  civil  law  likevdse  assigned 
tutors  and  curators  to  such  persons.*" 

Guardianship  for  spendthrifts  was  something  recognized  by  the 

Ch.  278;   Ex  parte  Bell,  2  Tenn.  Ch.  11  R.  I.  187.    Where  one  is  incapable 

327.  to  managje  his  ovra  estate  because  of 

85.  2    Story,    Eq.    Juris.,    §§    1335,  mental  unsoundness,  the  appointment 

1336;  1  Bl.  Com.  303,  3  P.  Wms.  108.  is   generally    authorized    without   rcf- 

36.  1  Bl.  Com.  306.  See  Lunacy  erence  to  the  cause  of  such  unsound- 
Reg:ulation  Act  1853,  16  &  17  Vict.,  ness.  Robertson  v.  Lyon,  24  S.  C. 
ch.  70.  266;    Barbo   v.   Rider,   67   Wis.    598; 

37.  Ex  parte  Cockayne,  7  Ves.  591.  108  Tnd.  545.    The  poneral  guardian's 

38.  1  Bl.  Com.  306.  See  Ex  parte  right  is  subject  to  the  superior  right 
Warren,  10  Ves.  622.  of  the  State  to  put  the  ward  into  an 

39.  See    Century    Digest    "Insane       asylum.     17  R.  I.  37. 
Persons."     Shroyer  v.  Richmond,   16  40.  1    Bl.   Com.    306. 
Ohio  St.  455  ;  Angell  v.  Probate  Court, 


§  823 


GUAEDIAN    AND    WARD. 


922 


civil  law.  Where  a  man  by  notorious  prodigality  was  in  danger  of 
wasting  his  estate,  he  was  looked  upon  as  non  compos,  and  com- 
mitted to  the  care  of  curators  or  tutors  by  the  praetor.*^  And  by 
the  laws  of  Solon,  such  persons  were  branded  with  perpetual 
infamy.*"  Such  guardianship  is,  however,  unknown  in  England, 
and  Blackstone  considered  it  unsuitable  to  the  genius  of  a  free 
nation.*^  It  has  nevertheless  been  introduced  into  several  of  the 
United  States.**  Being  the  creature  of  statute  law,  the  rights  and 
powers  of  such  a  guardian,  and  the  method  of  appointment,  are 
strictly  construed. 

Guardians  may  be  appointed  for  illegitimate  *^  or  neglected 
children,*®  or  for  aged  persons  incapable  of  managing  their 
property.*^ 

§  822.  Guardians  of  Married  Women. 

The  modern  statutes  relating  to  married  women  in  this  country 
have  rendered  some  special  provisions  necessary  for  their  benefit. 
While  their  husbands  had  the  full  enjoyment  of  their  property, 
no  guardian  was  necessary,  and  the  main  object  of  these  statutes 
seems  to  be  to  provide  a  suitable  trustee  of  the  estate,  in  caes  a 
minor  or  insane  wife  is  abandoned  by  her  husband,  or  he  is  like- 
wise mentally  unfitted  for  the  trust.  Such  statutes  are  to  be 
strictly  construed  as  in  derogation  of  the  common  law. 


43 


§  823.  Special  Guardians;  Miscellaneous  Trusts. 

Besides  guardians  with  general  powers,  there  are  guardians  cre- 
ated by  law  for  special  purposes.  Such  are  guardians  under  the 
English  Marriage  Act,  appointed  for  giving  formal  consent  to  the 


41.  Ff.   27,   10,  6,   16. 

42.  Potter,  Antiq.  b.   1,  ch.   26. 

43.  1  Bl.  Com.  306. 

44.  See  Mass.  Eev.  Laws,  ch.  145, 
§  7.  • 

45.  Ex  parte  Chambers,  221  Mass. 
178,  108  N.  E.  1070. 

46.  State  v.  Issenhuth,  34  S.  D.  218, 
148  N.  W.  9. 

47.  Kutzner  v.  Meyers,  108  N.  E. 
115. 

The  fact  that  a  man  seventy-six 
years  of  age  desires  to  marry  is  no 
reason  for  the  appointment  of  a  guar- 
dian for  him.  The  fact  that  the  old 
man  had  become  infatuated  with  a 
woman  is  no  reason   for  a  jniardian. 


There  is  no  reason  why  an  old  man 
has  not  the  same  right  to  be  infatu- 
ated with  a  woman  as  a  sixteen-year- 
old  boy  or  a  thirty -year-old  man.  Men 
of  all  ages  are  continually  becoming 
infatuated  with  all  sorts  of  women, 
and  unless  the  infatuation  goes  to  the 
extent  of  destroying  the  freedom  of 
will  and  reason,  it  furnishes  abso- 
lutely no  ground  for  the  appointment 
of  a  guardian.  Hogan  v.  Leeper 
(Okla.),  133  P.  190,  47  L.  R.  A. 
(X.  S.)   475. 

48.  Smith,  Prob.  Pract.  87.  See 
Pace  V.  Richardson  (Ark.),  202  S.  W, 
852. 


923  IN    GK-NERAL.  §    825 

marriage  of  a  minor,  and  guardians  to  release  dower  and  home- 
stead rights  of  insane  married  women.  All  such  guardians  derive 
their  sole  authority  from  statutes,  and,  having  performed  the  duty 
prescribed,  they  have  no  further  concern  with  the  ward.  Xor  do 
they  act  except  in  default  of  a  general  guardian.  There  are  also 
public  officers  appointed  for  charitable  purposes  on  behalf  of  the 
State,  sometimes  known  as  guardians, —  such  as  guardians  of  the 
poor;  but,  except  for  this  appellation,  they  have  no  connection 
whatever  with  our  subject,''^  Special  guardians,  too,  are  found 
under  some  statutes,  their  rights  and  duties  being  merely  tempo- 
rary, pending  some  controversy  over  the  appointment  of  a  general 
guardian;  just  as  special  administrators  are  sometimes  appointed 
in  a  case  of  emergency,  and  where  the  appointment  of  the  general 
administrator  is  necessarily  delayed. '*" 

§  824.  Guardian  ad  Litem  and  Next  Friend. 

Finally,  there  is  the  guardian  ad  litem,  who  is  simply  a  guardian 
for  a  special  purpose ;  being  one  chosen  to  represent  the  ward  in 
legal  proceedings  to  which  he  is  a  party  defendant,  and  where  he 
has  no  general  guardian  to  appear  on  his  behalf.  Where  the  ward 
is  plaintiff  he  appears  by  next  friend.  In  either  instance  the 
father's  natural  right  is  respected.^^  The  powers  and  duties  of 
guardians  ad  litem  are  similar  in  England  and  the  United  States.'* 

§  825.  Guardians  de  Facto. 

The  relationship  of  guardian  and  ward  may  arise  as  a  matter  of 
fact  where  one  not  duly  appointed  assumes  to  act  as  guardian,  and 
on  doing  so  will  be  held  liable  to  the  obligations  of  a  guardian. 
Hence,  one  who  enters  on  an  estate  of  an  infant  will  be  treated  as 
a  guardian  de  facto  de  son  tort,  and  will  be  held  acountable  for  the 
principal  and  interest  of  the  estate,**'  and  he  may  be  held  as  a  de 

49.  See  Macphers.  Inf.  164;  Smith,       son's)   guardian.     79  Wis.  465,     See 
Prob.  Pract.  87.  O'Reilly  v.  Heading  Trust  Co.   (Pa.), 

50.  Campau  v.  Shaw,  15  Mich.  226;        105  A.  542. 

Swartwout    v.    Oaks,    52    Barb.    622;  53.    Bedford    v.    Bedford,    136    111. 

Brown  v.  Snell,  57  N.  Y.  286;  Bond  354;   Smith  v.  Cameron,  16  Det.  Leg. 

V.    Dillard,    50    Tex.    302.       And    see  N.  563,  122  N.  W.  564,  158  Mich.  174 

Jn  re  Fortier,  31  La.  Ann.  50.  (entitled    to    credit    for    proper    ex- 

51.  See  Woolf  v.  Pemberton,  6  Ch.  penditures) ;  Zeideman  v.  Molasky, 
D.  19.  lis  Mo.  App.  106,  94  S.  W.  754   (lia- 

52.  Macphers.    Inf.    358;    2    Kent,  ble  for  services  of -ward)  ;  McClure  v. 
Com.  229.    9<eQ  post,  §  1058.     A  guar-  Commonwealth,   80  Pa.   St.   167;    An-_ 
dian  ad  litem's  special  functions  in  a  derson's    Adm'r    v.    Smith,    102    Va. 
suit    are   not   superseded   by   the   ap-  697,  48  S.  E.  29. 

pointment  of  a  general    (insane  per- 


§    826  GUARDIAN    AND    WAKD.  924 

facto  guardian  charged  with,  the  duty  of  caring  for  his  person,'** 
but  one  never  properly  appointed  has  no  authority  to  act  and  bind 
the  estate  as  guardian/^  or  to  act  so  as  to  bind  the  person  of  the 
ward  as  by  consenting  to  his  adoption.' 


56 


§  826.  Guardianship  by  the  Civil  Law. 

By  the  civil  law,  minority  was  divided  into  two  distinct  periods : 
the  first  lasting  until  the  age  of  puberty,  fourteen  in  males,  and 
twelve  in  females ;  the  second  continuing  from  that  time  until 
majority.  During  the  first  period  the  guardian  was  called  tutor, 
and  the  children  pupils.  During  the  second  period  the  guardian 
was  called  curator,  and  the  children  minors;  the  curator  being 
appointed  with  special  reference  to  the  management  of  property.'''^ 
The  same  general  divisions  are  to  be  found  in  the  law  of  conti- 
nental Europe  at  the  present  day,  though  modified  somewhat  by 
custom ;  also  in  Scotland ;  ^^  also  in  Louisiana,  and  other  parts  of 
this  country,  which  were  formerly  under  French  and  Spanish 
dominion.  But  the  term  curator  is  in  some  codes  applied  to  the 
guardian  of  the  estate  of  the  ward  as  distinguished  from  the 
guardian  of  the  person.^®  So  the  civil  law  recognized  three  kinds 
of  guardianship:  tuiela  testamentaria,  conferred  by  testament; 
legitima,  by  the  law  itself;  dativa,  by  the  authority  of  the  judge.'" 
These  divisions  have  their  corresponding  analogies  in  English  and 
American  law;  since  we  may  place  testamentary  guardians  in  the 
first  class,  socage  and  natural  guardians  in  the  second,  and  chan- 
cery and  probate  guardians  in  the  third. 

54.  In  re  Harris'  Guardianship,  17  57.  Story,  Confl.  Laws,  §  493;  3 
Ariz.  405,  153  P.  422.  See  Starke  v.  Burge,  Col.  &  For.  Laws,  930,  1001- 
Storm's  Ex'r,  79  S.  E.  1057   (master       1014. 

is  not   de  facto   guardian   of  infant  58.  Fraser,  Guardian  &  Ward,  145. 

servant).  59.  2   Kent,  Com.  224;    Duncan  v. 

55.  Young  V.  Downey,  150  Mo.  317,       Crook,  49  Mo.   116. 

51  S.  W,  751;  Stephens  v.  Hewett,  22  60.  Co.  Cop.,  ?  23;   Macphers.  Inf. 

Tex.  Civ.  App.  303,  54  S.  W.  301.  573 ;  3  Burge,  Col.  &  For.  Laws,  931. 

56.  Ex  parte  Martin,  29  Idaho,  716, 
161  P.  573. 


925  APPOINTMENT  OF  OUAEDIANS.  §  828 


CHAPTER  IL 

APPOINTMENT  OF  GUARDIANS. 

Section  827.  Constitutional  Power  of  Legislature. 

828.  Authority  of  Courts  in  General. 

829.  Jurisdiction  in  General. 

830.  What  Courts  May  Appoint. 

831.  Domicile   or  Residence  of  Minor. 

832.  Necessity  of  Property. 

833.  Where  Father  is  Alive. 

834.  Parents  or  Relatives  Preferred. 

835.  Testamentary   Guardianship ;    How   Constituted. 

836.  Parent's  Choice. 

837.  The  Best  Interest  of  the  Ward  as  a  Test. 

838.  Administrator:  One  Having  Adverse  Interest. 

839.  Married  Women. 

840.  Non-residents. 

841.  Corporations. 

842.  Prior  Petition  Preferred. 

843.  Guardians  by  Nature. 

844.  Guardianship  by  Appointment  of  Infant;   Eight  to  Nominate. 

845.  English  Practice. 

846.  American  Practice ;   Notice ;   Trial  by  Jury. 

847.  Effect  of  Appointment;   Conclusiveness  of  Decree,  &c. 

848.  Civil-law  Rule   of  Appointing  Guardian.s. 

§  827.  Constitutional  Power  of  Legislature. 

The  legislature  has  in  general  full  power  to  provide  for  control 
through  guardianship  of  the  person  and  estate  of  those  incom- 
petent to  act  for  themselves,  and  no  constitutional  right  of  the  ward 
is  thereby  infringed.®^  The  legislature  has  the  power  to  prescribe 
the  forms  of  guardianship.* 


62 


§  828.  Authority  of  Courts  in  General. 

The  proper  courts  have  in  general  authority  over  the  appoint- 
ment and  control  of  guardians  in  the  management  of  the  affairs 

61.  Ex  parte  Sharp,  15  Idaho,  120,  proper     restraint     is     constitutional. 

96  P.   563    (appointment  of  guardian  Lindsay  v.  Lindsay,  257  111.  328,  100 

is     constitutional     and     infringes    no  N.  E.  8?2,  45  L.  R.  A.   (N.  S.)   90S. 

right  of  minor').  62.  Duncan  v.  Mutual  Life  In?.  Co. 

A    statute    providing    for    the    ap-  of   New   York,    164   N.   T.   S.   97,   99 

pointment   of  a    guardian   over   a   de-  ifisc.  280. 
linquent  boy   and   subjecting  him  to 


§  829 


GUAKDIAN    AND    WAED. 


926 


of  the  ward,^'  and  the  courts  cannot  divest  themselves  of  this 
authority  and  duty. 


64 


§  829.  Jurisdiction  in  General. 

The  court  of  chancery  exercises  a  large  discretion.  Its  authority 
over  the  persons  and  estates  of  infants,  idiots,  and  lunatics  cannot 
be  questioned  elsewhere.  No  tribunal  short  of  the  legislature  can 
interpose  a  check  upon  its  povv^ers.  But  it  is  different  with  probate 
courts.  Their  jurisdiction  is  founded  upon  local  statutes,  main- 
tained in  derogation  of  the  common  law,  made  subject  to  the  super- 
vision of  supreme  tribunals,  and  confined  to  the  exercise  of  special 
powers  sparingly  conferred.  From  the  fact  that  the  English 
equity  courts  are  unfettered  in  their  authority,  chancery  courts  in 
this  country  incline  to  the  same  direction;  hence  they  construe 
strictly  the  powers  of  the  probate  courts,  while  maintaining  their 
own ;  a  matter  of  little  difficulty,  since  the  supreme  authority  is 
in  their  hands,  whether  fa.  matters  of  probate,  equity,  or  common 
law.  With  especial  strictness  are  the  powers  of  probate  tribunals 
scrutinized  in  matters  which  do  not  grow  out  of  the  settlement  of 
estates  of  deceased  persons.®^ 

It  may  devolve  on  chancery  to  appoint  guardians  where  testa- 
mentary guardians  decline  or  are  disqualified  to  act.  So  where 
there  are  two  or  more  testamentary  guardians  and  they  fail  to 


63.  In  re  Lundberg,  143  Cal.  402, 
77  P.  156;  Cobleigh  v.  Matheny,  181 
111.  App.  170  (guardian  an  officer  of 
court)  ;  Euler  v.  Euler,  102  N.  E.  856 ; 
Eeeves  v.  Hunter  (Iowa),  171  N.  W. 
567  (probate  court)  ;  Miller  v.  Milb 
(Ky.  Super.  1885),  7  Ky.  Law  Eep. 
221 ;  In  re  Stockman,  71  Mich. 
180,  38  N.  W.  876;  In  re  Brown,  141 
N.  T.  S.  193,  80  Misc.  4;  Strubbe  v. 
Kings  County  Trust  Co.,  169  N.  Y. 
603,  62  N.  E.  1100  (affg.  69  N.  Y.  S. 
1092,  60  App.  Div.  548). 

64.  Davis  v.  White  (Tex.  Civ. 
App.),  207  S.  W.  67??  (order  of  court 
divesting  itself  of  rental  of  estate  is 
void). 

65.  See,  for  instance,  as  to  insane 
persons  and  spendthrifts,  Holdcn  v. 
Scanlin,  30  Vt.  177;  Scars  v.  Terry, 
26  Conn. '273;  Strong  v.  Birchard,  5 
Conn.    357;    Cooper    v.    Summers,    1 


Sneed,  453;  Hovey  v.  Harmon,  49  Me. 
269.  And  see,  as  to  minors,  Ee  Hors- 
ford,  3  Eedf.  168,  There  are  many 
local  statutes  relating  to  the  appoint- 
ment of  guardians  over  persons  of  un- 
sound mind,  whose  consideration  is 
foreign  to  our  present  purpose.  See 
89  Ind.  300;  90  Ind.  417;  53  Wis. 
612,  625;  61  N.  H.  261;  58  Mich.  549. 
The  jurisdiction  of  a  probate  court 
to  appoint  such  guardians  is  wholly 
statutory,  and  the  formalities  of  the 
statute  should  be  carefully  observed. 
North  V.  Joslin,  59  Mich.  624.  Juris- 
diction may  also  arise  in  a  given  case 
to  appoint  a  guardian  both  on  the 
grounds  of  infancy  and  insanity. 
King  V.  Bell,  36  Ohio  St.  460.  The 
wife  rather  than  the  father  is  entitled 
to  the  control  of  an  insane  husband 
of  full  age.  Eobinson  v.  Frost,  54 
Vt.  105. 


927 


APPOI^'TME2^T    OF    GUAKDIANS. 


§    830 


66 


agree.""  And  it  is  the  English  rule  that  testamentary  guardian- 
ship does  not  go  over  upon  the  guardian's  death,  no  successor 
having  been  indicated  in  the  will ;  but  chancery  must  supply  the 
vacancy.®^  The  same  may  be  said  of  the  courts  in  this  country 
with  probate  jurisdiction,*'^ 

It  would  appear  to  be  the  general  rule  in  this  country,  that  a 
probate  or  statute  guardian  cannot  be  appointed  for  a  minor  where 
the  minor  is  not  within  the  jurisdiction  or  domiciled  there,  and 
has  no  property  therein ;  and  moreover,  that  bringing  an  infant 
into  the  State  by  stratagem  for  the  purpose  of  giving  a  colorable 
jurisdiction  will  not  avail.®^  And  in  general,  whether  a  guardian 
shall  be  appointed  or  not  for  an  infant  is  a  matter  resting  in  the 
sound  discretion  of  the  court ;  for  an  appointment  is  made  on  the 
supposition  that  occasion  at  least  exists  for  making  it. 


70 


§  830.  What  Courts  May  Appoint. 

It  may  be  premised  that  in  England  all  guardians  are  appointed 
by  the  court  of  chancery  in  the  exercise  of  inferior  or  appellate 
powers.  Chancery  guardians  have  been  appointed  in  this  country, 
but  not  frequently ;  and  county  courts  of  probate  jurisdiction  at 
the  present  day  generally  act  in  the  first  instance,  issuing  letters  of 
guardianship,  as  well  as  of  administration,  under  their  official  seal. 
Thus,  in  Xew  England  and  most  of  the  "Western  States,  probate 
guardians  are  appointed  by  the  judge  of  probate;  in  Xew  York, 
by  the  surrogate;  in  Xew  Jersey,  by  the  orphans'  court  or  the 
ordinary ;  in  Pennsylvania  and  Maryland,  by  the  orphans'  court ; 
in  Ohio,  by  the  court  of  common  pleas  with  chancery  powers ;  in 
California,  by  the  district  courts  possessing  a  similar  jurisdiction. 
In  Virginia,  North  and  South  Carolina,  the  chancery  and  county 
courts  have  ex^cised  a  sort  of  concurrent  jurisdiction ;  in  others 
of  the  Southern  States  there  are  orphans'  courts ;  in  Louisiana  the 
civil  law  has  prevailed.'^ 


66.  Macphers.  Inf.  113;  lb.  104. 

67.  Bac.  Abr.  Guardian  &  Ward,  A. 

68.  See  People  v.  Kearney,  31  Barb. 
430;  Judge  of  Probate  v.  Hinds,  4 
N.  H.  464^. 

69.  Be  Hubbard,  82  N.  Y.  90.  The 
status  of  an  Indian  tribe  does  not  in- 
Talidate  jurisdiction  in  appoinintg  a 
jTuardian.  Farrington  v.  Wilson,  29 
Wis.  383. 

70.  Vandewater  He,  US  N.  Y.  f.6P : 


Nekton  V.  Janvrin,  62  X.  H.  440. 
Where  a  testamentary  trustee,  though 
never  qualifying  as  guardian,  has  hon- 
estly and  faithfully  performed  those 
functions  while  the  children  most 
needed  them,  a  court  disinclines  to 
appoint  some  one  else  their  guardian 
from  merely  formal  considerations. 
80  Tenn.  63. 

71.  See  2  Kent,  Com.  226,  227,  and 
notes;    Glascott    v.    Warner.    20   Wis. 


831 


GUARDIAN    AND    WARD. 


928 


§  831.  Domicile  or  Residence  of  Minor. 

Most  important  is  the  requirement  of  an  actual  residence  within 
the  jurisdiction;  especially  for  a  general  guardianship  and  in 
States  where  the  authority  of  courts  with  probate  jurisdiction  is 
strictly  limited  to  their  respective  counties.  Letters  of  guardian- 
ship in  the  case  of  a  resident  person  obtained  in  the  wrong  county 
are  invalid ;  it  has  been  even  held  that  they  are  null  and  void,  and 
may  be  collaterally  impeached  in  any  court. '^^ 

The  court  of  the  domicile  of  the  ward  has  jurisdiction  over  his 
guardianship."     The  last  domicile  of  a  father  is  on  his  death  the 


654;  Herring  v.  Goodson,  43  Miss. 
392;  Duke  v.  State,  57  Miss.  22?. 
For  rules  which  prevail  in  California 
•while  under  Mexican  rule,  and  the 
powers  of  alcades  over  guardianship, 
see  Braly  v.  Eeese,  51  Cal.  447.  As 
between  a  limited  guardian  appointed 
by  chancery  and  a  general  guardian 
appointed  under  statute  by  the  local 
county  court,  see  Lake  v.  McDavitt, 
13  Lea,  26. 

Probate  court.  Hudson  v.  Von 
Weise,  7  Ind.  T.  238,  104  S.  W.  602; 
Brack  v.  Morris,  90  Kan.  64,  132  P. 
1185.  In  re  Dunlap,  100  Me.  397,  61 
A.  704;  De  Ferrari  v.  De  Ferrari,  220 
Mass.  38,  107  N.  E.  404  (not  in  su- 
perior court) ;  Ex  parte  Ingenboh-s, 
173  Mo.  App.  261,  158  S.  W.  878 
(Court  of  Appeals  has  no  power)  ; 
In  re  Breck,  252  Mo.  302,  158  S.  W. 
843;  State  ex  rel.  Tebbetts  v.  Holt- 
camp,  252  Mo.  333,  158  S.  W.  853; 
State  ex  rel.  Baker  v.  Bird,  253  Mo. 
569,  162  S.  W.  119;  Brewer  v.  Cary, 
148  Mo.  App.  193,  127  S.  W.  685; 
Brooks  V.  Brooks,  77  N.  H.  547,  94  A. 
196  (not  in  superior  court)  ;  Vtj  v. 
Brown,  129  N.  C.  270,  40  S.  E.  4 
(superior  court  on  appeal) ;  Mc- 
Adams  v.  Wilson  (Tex.  Civ.  App.), 
164  S.  W.  59  (administration  of  will 
by  an  independent  executor  does  not 
deprive  court  of  jurisdiction  to  ap- 
point guardian  over  minor's  interest 
in  estate). 

Surrogate's  Court.  In  re  Wagner, 
135  N-.  Y.  S.  678,  75  Misc.  419  (juris- 
diction not  affected  by  decree  of  for- 


eign court  or  by  agreement  of  par- 
ents) ;  In  re  Lamb's  Estate,  139  N. 
y.  S.  685;  In  re  De  Saulles,  167  N. 
Y.  S.  445,  101  Misc.  447  (chancery 
guardians) . 

Orphan's  Court.  In  re  Carter's 
Estate,   254   Pa.   518,   99   A.   58. 

In  equity.  Thomas  v.  Thomas,  250 
HI.  354,  95  N.  E.  345;  Hamerick  v. 
People,  126  HI.  App.  491.  See  Bell 
V.  Bell  Guardian,  167  Ky.  430,  180 
S.  W.  803  (only  imder  will  or  other 
instrument). 

County  court.  Parker  v.  Lewis, 
45  Okla.  807,  147  P.  310.  See  Stat© 
V.  Parsons,  131  Wis.  606,  111  N,  W. 
710   (special  guardian). 

Other  courts.  Eussner  v.  McMillan, 
37  Wash.  416,  79  P.  988  (superior 
court)  ;  In  re  Klein,  95  Wis.  246,  70 
N.  W,  64  (act  of  county  judge  in 
fixing  custody  is  no  bar  to  appoint- 
ment by  circuit  court  of  a  different 
person  as  guardian). 

72.  Ware  v.  Coleman,  6  J.  J.  Marsh. 
198;  Sears  v.  Terry,  26  Conn.  273; 
Dorman  v.  Ogbourne,  16  Ala.  759; 
Munson  v.  Munson,  9  Tex.  10?;  Lacy 
V.  Williams,  27  Mo.  280;  Herring  v. 
Goodson,  43  Miss.  392 ;  Duke  v.  State, 
57  Miss.  229. 

73.  Dunn  v.  Christian  (Ala.),  80 
So.  870  (although  ward  was  actually 
residing  elsewhere  at  time)  ;  Hayslip 
V.  Gillis,  123  Ga.  263,  51  S.  E.  325; 
In  re  Brady,  10  Idaho,  366,  79  P.  75 
(jurisdiction  retained  until  accounts 
rendered  and  he  is  discharged) ;  Con- 
nell  V.  Moore,  70  Kan.  88,  78  P.  164, 


929 


APPOINTMENT    OF    GDAEDIANS. 


§  831 


domicile  of  his  minor  children,  where  application  for  guardianship 
should  primarily  be  made.''*  After  the  death  of  both  parents, 
infants  who  take  up  their  residence  at  the  home  of  a  paternal 
grandparent  and  next  of  kin  in  another  State,  will  acquire  such 
grandparent's  domicile/^ 

A  natural  giiardian  may  in  good  faith  change  his  ward's  domi- 
cile, as  this  amounts  to  no  more  than  that  the  domicile  of  the 
parent  is  the  domicile  of  the  child,  but  where  the  parents  are  both 
dead  a  relative  has  no  right  to  change  the  domicile  of  the  infant, 
especially  where  he  has  not  given  bond  as  guardian.  Such  removal 
does  not  take  away  the  right  of  the  court  of  the  parent's  domicile 
to  appoint  a  guardian  for  him.^®  But  where  custody  of  an  infant 
whose  parents  are  dead  is  taken  by  a  relative  whose  custody  is  con- 
firmed by  the  court,  the  place  of  domicile  of  the  guardian  becomes 
the  domicile  of  the  child.^^ 

Where  a  person  has  left  a  domicile  with  no  intention  of  return- 
ing, and  dies  before  he  establishes  another,  the  court  of  the  old 
domicile  is  not  necessarily  the  only  court  which  can  appoint  a 
guardian  for  the  child."^  The  court  of  residence  of  the  ward  may 
by  statute  have  jurisdiction.'^'  And  statute  jurisdiction  is  taken 
where  minor  orphans  are  in  fact  resident  in  a  State  at  the  time. 


109  Am.  St.  Rep.  408;  Jewell  v.  De 
Blanc,  110  La.  810,  34  So.  7S7;  Sud- 
ler  V.  Sudler,  121  Md.  46,  88  A.  26 
(domicile  is  "residence");  Smith  v. 
Young,  136  Mo.  App.  65,  117  S.  "W. 
628;  In  re  Connor,  93  Neb.  118,  39 
N.  "W.  834  ;  hi  re  Wildberger  's  Estate, 
55  N.  Y.  S.  1135,  25  Misc.  582.  See 
Maloy  V.  Malor,  131  Ga.  579,  62  S.  E. 
991  (jurisdiction  on  formation  of  new 
county)  ;  Southwestern  Surety  Ins. 
Co.  V.  Taylor  (Okla.),  173  P.  831, 
835  (removal  of  case  to  another 
county)  ;  MaHarry  v.  Eatman,  29 
Okla.  46,  116  P.  935;  Domicile  of 
Infants,  see  49  L.  R.  A.  860,  note. 

74.  Hindorff  v.  Sovereign  Camp  of 
Woodmen  of  the  World,  150  la.  185, 
129  N.  W.  831  (although  minor  re- 
sided elsewhere)  ;  Fx  parte  ^NfcCoun, 
96  Kan.  314,  150  P.  516;  Wella  v. 
Andrews,  60  Miss.  373 ;  In  re  ^Mur- 
ray,  28  Ohio  Cir.  Ct.  R.  652.  See  Cot 
V.  Boyce,  152  Mo.  576.  54  S.  W.  467, 

59 


75  Am.  St.  Rep.  483;  Cox  v.  Hunter, 
152  Mo.  584,  54  S.  W.  1102  (where 
father  has  released  child  to  grand- 
father, the  latter 's  domicile  is  that 
of   the    ward). 

75.  Lamar  v.  Micou,  114  U.  S.  218. 

76.  Sudler  v.  Sudler,  121  Md.  46, 
88  Atl.  26,  49  L.  R.  A.  (N.  S.)  860. 

77.  Churchill  v.  Jackson,  132  Ga, 
666,  64  o.  E.  691,  49  L.  R.  A.  (N.  S.) 
875. 

78.  In  re  Rice,  42  Mich.  528,  4  N. 
W.  2S4. 

79.  Kelsey  t.  Green,  69  Conn.  291, 
37  A.  679,  38  L.  R.  A.  471 ;  Louisrille 
&  N.  R.  Co.  V.  Kimbrough,  115  Ky. 
512,  74  S.  W.  229,  24  Ky.  Law  Rep. 
2409  (abandoned  child  cared  for  by 
county  authorities) ;  South  Covington 
&  C.  St.  Ry.  Co.  V.  Lee,  153  Ky.  621, 
156  S.  W.  99;  Estes  v.  Presswood 
(Tex.  Civ.  App.  1911),  137  S.  W.  145; 
Hagan  v.  Snider,  44  Tex.  Civ.  App. 
139,  98  S.  W.  213.     See  Dickerson  v. 


§  832 


GUAKDIAJS^    AND    WAKD. 


930 


even  if  tlie  legal  domicile  be  elsewhere;  the  appointment  giving 
at  all  events  an  authority  to  he  recognized  within  such  State.*" 

Where  a  person  is  appointed  guardian  by  two  different  courts 
the  court  of  the  domicile  may  retain  exclusive  jurisdiction.*^  And 
letters  once  properly  issued  in  the  proper  county  of  residence  are 
not  revoked  by  the  ward's  removal  to  another  county  within  the 
same  general  jurisdiction.*" 

The  infant's  place  of  residence  at  the  time  when  a  guardian  is 
to  be  appointed  determines  the  jurisdiction  of  the  court.  Hence 
the  county  court  which  appointed  the  first  guardian  of  a  ward  may 
not  always  appoint  his  successor.*^ 

Where  the  domicile  of  the  minor  is  removed  out  of  the  jurisdic- 
tion of  the  court  pending  proceedings  for  guardianship,  an  order 
of  appointment  in  that  jurisdiction  cannot  be  made,**  as  the  court 
of  the  jurisdiction  to  which  a  ward  moves  may  have  jurisdiction 
over  the  appointment  of  a  guardian  for  him.*^ 

And  a  request  by  the  father  that  a  certain  person  be  appointed 
guardian  of  his  children  has  no  effect  after  his  death  to  change 
their  domicile  or  to  empower  a  court  out  of  their  domicile  to 
appoint  a  guardian.*® 

§  832.  Necessity  of  Property. 

Two  important  elements  enter  into  this  jurisdiction  over  the 
ward, —  possession  of  property  and  actual  residence  within  the 
judicial  limits.  Property  in  the  infant  has  usually  been  deemed 
essential  in  chancery  practice.*^  But  in  a  case  which  came  before 
Lord  Chancellor  Oottenham,  in  1847,  it  was  held  that  the  court 
should  interfere  on  behalf  of  infants  without  property,  so  as  to 


Bowen,  128  Ga.  122,  57  S.  E.  326 
(approval  of  ordinary  required  where 
appointment  outside  of  jurisdiction), 

80.  Ross  V.  Southwestern  R.,  53 
Ga.  514;   7?e  Hubbard,  82  N.  T.  90. 

81.  Cobleigh  v.  Matlieny,  181  111. 
App.  170. 

82.  Randall  v.  Wadsworth,  130  Ala. 
633,  31  So.  555;  Shorter  v.  Williams, 
74  Ga.  539 ;  Netting  v.  Strickland,  18 
Ohio  Cir.  Ct.  R.  136,  9  O.  C.  D.  841 
(or  even  the  removal  of  the  trust 
property). 

83.  Harding  v.  Weld,  128  Mass. 
587;  Brown  v.  Lynch,  2  Bradf.  (N. 
T.)    214. 


84  In  re  Taylor's  Estate,  131  Cal. 
180,  63  P.  345. 

85.  Cobleigh  v.  Matheny,  181  111. 
App.  170.  See  Landreth  v.  Henson, 
173  S.  W.  427.  See,  however,  Cros- 
bie  V.  Brewer  (Okla.),  158  P.  388 
(court  of  old  county  may  retain  juris- 
diction where  moves  after  removal  of 
guardian). 

86.  Modern  Woodmen  of  America 
V.  Hester,  66  Kan.  129,  71  P.  279; 
Royal  Neighbors  of  America  v. 
Same,  66  Kan.  764,  71  P.  1129.  See 
In  re  Majilton,  164  N.  Y.  S.  745,  9& 
Misc.  490   (testamentary  guardian). 

87.  See  Macphers.  Inf.  103. 


931 


APPOINTMENT  OF  GUARDIANS. 


§  832 


award  custody  of  the  person.  "  I  have  no  doubt  about  the  juris- 
diction," was  his  emphatic  language.^*  What  may  be  called  guar- 
dians of  the  person  and  estate  in  chancery  are  still  appointed, 
however,  on  the  allegation  of  property.  In  the  United  States 
letters  issue  to  probate  guardians,  whenever  there  is  occasion  for 
their  appointment,  the  statute  rarely  prescribing  narrower  limits 
to  the  judge's  authority ;  and  as  our  practice  is  simple  and  attended 
with  little  expense,  the  same  necessity  for  inquiry  into  the  means 
of  the  infant  does  not  manifestly  arise  as  in  the  case  of  chancery 
guardianship.  But  statute  and  practice  generally  have  reference 
to  cases  of  property.*® 

Where  the  minor's  only  property  is  left  in  the  hands  of  trustees 
for  him  there  is  no  need  for  the  appointment  of  a  guardian,  and 
one  should  not  be  appointed.®" 

Situs  of  Property  Giving  Jurisdiction. —  AMiere  the  ward  is  a 
non-resident,  guardianship  is  frequently  recognized  for  the  collec- 
tion and  preservation  of  his  estate  in  the  jurisdiction ;  and  in  such 
cases  the  court  where  the  property  is  situated,  upon  due  notice, 
appoints  some  friend  of  the  minor  on  his  behalf,  requiring  proper 
security ;  the  existence  and  situs  of  the  property  determining  the 
right  of  jurisdiction.®^    Such  cases  serving  some  special  emergency. 


88.  In  re  Spence,  2  Ph.  247.  In 
a  case  ■where  an  infant  grandchild 
■was  born  abroad  of  a  natural-born 
British  subject,  and  the  surviving  par- 
ent Avas  a  French  woman  to  whom  ob- 
jections were  entertained  and  who 
had  begun  proceedings  for  guardian- 
ship in  France,  the  English  chancery 
court  appointed  a  guardian  of  the 
child,  although  the  infant  was  resi- 
dent abroad  and  had  no  property  in 
Great  Britain.  Willoughby  Be,  30  Ch. 
D.  324,  40  Ch.  D.  200;  McGrath  Be 
(1893),  1  Ch.  143. 

89.  People  v.  Kearney,  31  Barb.  (N. 
T.)    430. 

90.  Studebaker  v.  Hogen  (Wash.), 
176  P.  339. 

91.  Nunn  v.  Robertson,  80  Ark.  350, 
9-7  S.  W.  293;  People  v.  Medart,  166 
111.  348,  46  N.  E.  1095  (affg.  63  111. 
App.  Ill)  ;  Williams  v.  Chicago,  B. 
&  Q.  Ry.  Co.,  169  Mo.  App.  468,  155 
S.    W.    64     (right    of    action    is    on 


"estate");    Hartung    v.    Northwest 
ern  Mut.  Life  Ins.  Co.,  174  Mo.  App 
289,  156,  S.  W.  980;  Clark  v.  Cordis 
4   Allen,   466;   Eice's  Case,  42   Mich 
528.     See  Hope  v.  Hope,  27  E.  L.  & 
Eq.  249;   Be  Horsford,  2  Eedf.  168 
tvTeal  V.  Bartleson,  65  Tex.  478.     This 
jurisdiction    is    often    conferred    by 
statute  as  to  personal  property.     Ih. 
So,   too,   as  to   real  property   at   the 
local  situs,  or  to  either  real  or  per- 
sonal  property.       Maxwell    v.    Camp- 
bell, 45  Ind.  360;   Seaverns  v.  Gerke, 
3   Sa^^Ayer,    353.      Such   statutory   au- 
thority  as   to   non-residents   is   valid. 
Davis  V.  Hudson,  2?  Minn.  27.     And 
while  it  only  aplies  to  a  non-resident 's 
local  property,  and  cannot  extend  to 
his  person,  informal  recitals  in  a  de- 
cree   to    the    latter    effect    may    be 
treated  as  surplusage,    45  Minn.  380. 
Where  the  land  of  a  minor,  not  resid- 
ing in  the  State,  is  to  be  sold,  see  40 
Minn.   254.      See  Andrews  v.   Town- 


§    833  GUARDIAN    AXD    WARD.  932 

a  general  guardian  need  not  first  be  appointed  invariably  where 
the  ward  is  domiciled.'^ 

§  833.  Where  Father  is  Alive. 

Where  the  father  of  an  infant  is  living,  and  in  charge  of  the 
child,  courts  have  ever  been  unwilling  to  assume  jurisdiction. 
Chancery,  according  to  the  old  rule,  as  we  understand  Blackstone 
to  mean,^^  could  not  appoint  a  guardian  except  for  fatherless  chil- 
dren. But  the  correctness  of  this  principle  was  afterwards 
doubted ;  and  when  the  rule  became  settled,  in  Lord  Thurlow's 
time,  that  the  father  could  not  give  a  valid  receipt  for  his  child's 
legacy,  the  necessity  of  appointing  a  guardian  to  collect  and  hold 
personal  property  was  apparent.®^  And  since  the  substitution  of 
chancery  and  probate  wards  in  practice  for  socage  wards,  guardian- 
ship of  the  minor  in  the  father's  lifetime  has  frequently  been 
sought  in  the  courts.®^ 

But  the  English  chancery  reluctantly  interferes  with  the  father's 
rights  in  such  cases.  Lord  Chancellor  Hart  in  1828  refused  to 
bestow  the  chancery  guardianship  of  a  minor  upon  a  third  person, 
on  the  ground  that  the  father  is  guardian  of  his  own  children  by 
paramount  title  and  common  right.  And  while  he  admitted  that 
the  court  should  in  all  cases  assume  the  superintendence  of  the 
child's  fortunes,  he  added,  that  during  the  father's  life  no  other 
could  be  placed  over  the  child,  except  under  very  peculiar  circum- 
stances, and  even  then  rather  as  a  curator  than  a  guardian.®*  And 
the  later  decisions  are  to  the  same  effect ;  as,  for  instance,  Fynn's 
Case,  where  Vice-Chancellor  Bruce  refused  to  make  the  mother  a 
chancery  guardian  of  her  children  against  the  father's  wishes, 
though  satisfied  that  the  latter  was  unable  to  maintain  them,  and 
was  such  a  person  as  would  not  have  been  selected  for  the  guardian- 
ship of  another  person's  children.* 


97 


shend,     53     N.    Y.     Super.     Ct.     522.  94.  Cooper  v.   Thornton,  3   Bro.  C. 

See  Modem  Woodmen  of  America  v.  C.  96;  Dagley  v.  Tolferry,  1  P.  Wm3. 

Hester,  66  Kan.  129,  71  P.  279;  Royal  285;    2    Kent,    Com.    220,    and    cases 

Neighbors   of   America   v.    Same,    66  cited;  Lang  v.  Pettus,  11  Ala.  37. 

Kan.   764,   71   P.   1129    (holding  that  95.  See  Ex  parte  Bond,  8  L.  J.  Ch. 

presence  of  an  insurance  certificate  in  252. 

a  State  will  not  give  jurisdict'.on  to  96.  Barry  v.  Barry,  2  Moll.  210. 

appoint  guardian).  97.  12  Jur.  713.     And  see  Spence's 

92.  "West   Land    Co.    v.    Kurtz,    45  Case,  2  Ph.  247;  Ball  v.  Ball,  2  Sim. 
Minn.  380.  35. 

93.  3   Bl.   Com.    427. 


933 


APPOINTMENT    OF    GUAKDIANS. 


§  834 


The  great  difficulty  which  arises  in  the  English  chancery  prac- 
tice, where  guardianship  is  sought  by  a  stranger,  namely,  that  a 
father's  custody  of  his  own  children  is  thereby  disturbed,  has  been 
frequently  obviated  in  this  country  by  statute.  And  in  many 
States,  while  the  father  is  living,  probate  guardians  are  appointed, 
whose  powers,  being  limited  to  the  infant's  estate,  do  not  come  in 
conflict  with  the  parental  right  to  the  ward's  person. ^^  Yet  in 
other  States  the  probate  courts  can  only  grant  guardianship  to 
orphans,  that  is,  to  fatherless  children ;  ^  and  where  this  is  the 
case,  chancery  might  assume  jurisdiction  in  an  extreme  case, 
though  the  father  were  living.  A  father  who  is  alive  is  not  bound 
usually  by  proceedings  for  the  guardianship  of  his  child,  to  which 
he  was  not  a  party.^ 
§  834.  Parents  or  Relatives  Preferred. 

The      court      should      appoint      a      parent      if      a      proper 
the      father,*      the      mother      on      death      of      the 

143;   In  re   Salter,   142   Cal.   412,  76 


person, 

98.  Clark  v.  Montgomery,  23  Barb. 
464.  See  In  re  Tombo,  149  N.  Y.  S. 
219,  86  Misc.  361,  judg.  rev.,  149 
N.  Y.  S.  688  (guardian  for  child  of 
insane  mother)  ;  In  re  De  Saulles, 
167  N.  Y.  S.  445,  101  Misc.  447 
(may  appoint  during  temporary  in- 
capacity  of   parents). 

1.  Poston  V.  Young,  7  J.  J.  Marsh. 
501;  Hall  v.  Lay,  2  Ala.  529-;  Fries- 
ner  v.  Symonds,  46  N.  J.  Eq.  521; 
Poston  V.  Young,  30  Ky.  501;  Jordan 
V.  Smith,  5  Ga.  App.  559,  63  S.  E. 
595  (unless  parental  rights  for- 
feited) ;  Williams  v.  Hewitt  (Okla.), 
181  P.  286  (unless  estate  being 
wasted  by  parents). 

2.  Bowles  T.  Dixon,  32  Ark.  92; 
Tong  V.  Marvin,  26  Mich.  35.  But  see 
58  N.  H.  15. 

3.  Campbell  v.  Wright,  130  Cal.  380, 
62  P.  613;  In  re  Mathews  (Cal.),  164 
P.  8;  In  re  Moore 'a  Guardianship 
(Cal.),  176  P.  461;  In  re  Wise's  Es- 
tate (Cal.),  177  P.  277;  Succession 
of  Haley,  49  La.  Ann.  709,  22  So. 
251.  See  Heinemeier  v.  Arlitt,  29 
Tex.  Civ.  App.  140,  67  S.  W.  1038 
("parent"  does  not  include  step- 
father). 

4.  In  re  Her,  16   Ariz.  323,  145  P. 


P.  51  (appointment  of  another  is  void 
though  temporary)  ;  In  re  Forrester, 
162  Cal.  493,  123  P.  283  (father  pre- 
ferred to  grandmother)  ;  In  re  Math- 
ews, 169  Cal.  26,  145  P.  503;  Andrino 
V.  Yates,  12  Idaho,  618,  87  P.  787; 
In  re  Alexander,  127  La.  853,  54  So. 
125  (no  abandonment  of  child  by 
leaving  with  grandparents)  ;  In  re 
Guardianship  of  Tully  Infants,  105 
N".  Y.  S.  858,  54  Misc.  Eep.  184 
(father  passed  over  only  if  not  a 
fit  person)  ;  In  re  Wagner,  135  N.  Y. 
S.  678,  75  Misc.  419  (although  di- 
vorced) In  re  Munn,  167  N.  Y.  S. 
443,  101  Misc.  171  (where  mother 
dead)  ;  In  re  Mancini,  178  N.  Y.  S. 
57.  See  Crosbie  v.  Brewer  (Okla.), 
158  P.  388  (waiver  by  parents  with- 
drawn). 

The  surviving  father  has  a  natural 
riffht  to  be  appointed  guardian  of  hi.? 
minor  children  unless  he  is  unfitted 
for  the  trust.  The  court  has  no  right 
to  appoint  another  simply  because  the 
father  is  lacking  in  integrity  —  does 
not  pay  his  debts — or  that  his  repu- 
tation for  sobriety  had  been  bad.  The 
court  cannot  deprive  the  fr.ther  of 
the   custodv   of   his   child   merelv   be- 


§  834 


GUAKDIAI^    A^'D    WAKD. 


934 


father.^  It  is  improper  to  appoint  the  mother  without  some 
information  as  to  the  father's  family.*^  On  the  other  hand,  the 
court  refuses  to  select  guardians  for  infants  residing  with  their 
mother  until  she  has  indicated  her  own  wishes,'  but  where  the 
mother  marries  again  she  will  not  necessarily  be  appointed.^  So 
a  grandparent  ^  or  the  nearer  relatives  may  be  preferred/ 


10 


cause  he  is  dishonest  in.  his  business 
transactions.  Intemperance  will  bar 
him  only  when  it  appears  that  he  is 
an  habitual  drunkard  and  that  his- 
conduct  would  have  a  tendency  to  de- 
moralize and  degrade  his  children. 
Mere  occasional  hilarity  is  insufficient. 
Where  the  father  is  able  to  transact 
his  ovm.  business  and  is  not  otherwise 
unsuitable  he  should  be  appointed. 
Ee  Crocheron,  16  Ida.  441,  101  Pac. 
741,  33  L.  E.  A.  (X.  S.)   868. 

5.  In  re  Snowball's  Estate,  156 
Cal.  240,  104  P.  444;  Chevalley  \. 
Pe-ttit,  115  La.  407,  39  So.  113;  In 
re  Burdick,  84  N.  Y.  S.  932,  41  Misc. 
346;  Studebaker  v.  Hogen  (Wash.), 
176  P,  339;  In  re  Tank's  Guardian- 
ship, 129  Wis.  629,  109  N.  W.  565 
(although  formerly  immoral). 

A  mother  may  he  appointed  guar- 
dian of  her  daughter,  three  years  old, 
where  a  stranger  might  not  be  ap- 
pointed, were  the  evidence  of  char- 
acter, affecting  suitableness,  the  same. 
Davis'  Adm'r  v.  Davis,  162  Ky.  316, 
172  S.  W.  665. 

6.  Cooke's  Case,  6  E.  L.  &  Eq.  47. 

7.  Lockwood  v.  Fenton,  17  E.  L.  & 
Eq.  90;  In  re  Thomas,  21  E.  L.  &  Eq. 
524.  As  to  other  relatives,  see  Mac- 
phers.  Inf.   112. 

The  American  rule  is  clearly  stated 
in  a  New  Jersey  case:  namely,  that 
the  mother,  and  after  the  mother  the 
next  of  kin  of  an  infant  under  four- 
teen is  entitled  to  preference  and  that 
such  claim  cannot  be  disregarded  un- 
less for  some  satisfactory  reason. 
Albert  v.  Perry,  1  McCart.  540.  Ac- 
cess of  the  mother  to  the  child  may 
be  made  a  condition  where  a  third 
person  is  appointed.  4  Dem.  295. 
And  see  Read  v.  Drake,  1  Green,  Ch. 


78;  Allen  v.  Peete,  25  Miss.  29';  Peo- 
ple V.  Wilcox,  22  Barb.  178;  Eam- 
say  V.  Eamsay,  20  Wis.  507;  Good 
V.  Good,  52  Tex.  1;  Leavel  v.  Bettis, 
3  Bush,  74;  Lord  v.  Hough,  37  Cal. 
657.  There  may  be  a  probate  guar- 
dian appointed  over  a  child  against 
the  wishes  of  a  man  and  wife  who 
have  agreed  in  writing  with  the 
mother  to  take  care  of  the  child  un- 
der certain  stipulations.  Gloucester 
V.  Page,  105  Mass.  231.  It  is  not 
proper  for  a  court  to  appoint  a 
mother,  and,  upon  her  failure  to  give 
bond  within  the  limited  time,  appoint 
a  stranger  without  notice  to  her. 
Weldon  v.  Keen,  37  N.  J.  Eq.  251 ;  cf. 
lb.  245. 

It  is  further  stated,  in  this  case, 
that  a  greater  latitude  is  allowed  to 
the  court,  as  between  relatives  having 
no  legal  claim  to  the  services  of  the 
child  and  the  natural  guardian;  and 
reasons  which  might  be  deemed  in- 
sufficient to  bar  the  mother's  rights 
might  decide  as  between  other  rela- 
tions.  Albert  v.  Perry,  1  McCart.  540. 

8.  Jewell  V.  De  Blanc,  110  La.  810, 
34  So.  787;  State  ex  rel.  Eutledge  v. 
Holman,  93  Mo.  App.  611,  67  S.  W. 
747. 

9.  Parker  v.  Lewis,  45  Okla.  807, 
147  P.  310  (where  father  relinquishea 
right). 

10.  In  re  Brinckwirth 's  Estate 
(Mo.),  186  S.  W.  1048;  Woodruff  v. 
Snoover  (N,  J.  Prerog.  1900),  45  A. 
980;  In  re  Curtin,  158  N.  Y.  S.  131, 
93  Misc.  394;  In  re  De  Saulles,  167 
N.  Y.  S.  445,  101  Misc.  447  (rights 
of  paternal  relatives  are  superior  to 
maternal  if  proper  persons)  ;  Jones  v. 
Bowman,  13  Wyo.  79,  77  P.  439,  67 
L.   E.   A.   860.      See   In  re  Eeimen- 


935 


APPOINTMENT    OF    GUAKDIANS. 


§    835 


In  case  of  adoption  the  adopting  parent  is  entitled." 

§  835.  Testamentary  Guardianship,  How  Constituted. 

Testamentary  guardianship  is  the  only  recognized  instance  of 
authority  derived  from  parental  appointment.  Guardians  thus 
appointed  require  at  the  old  law  no  further  qualification ;  not  even 
the  probate  of  the  will  which  appoints  them.^" 

At  common  law  the  father  had  the  exclusive  power  to  appoint 
a  testamentary  g-uardian  for  his  minor  children  even  to  the  exclu- 
sion of  the  surviving  mother.^^  But  testamentary  guardianship 
exists  in  this  country  chiefly  by  force  of  local  statutes,  which  also 
regulate  the  form  and  authentication  of  wills.  And  we  find  many 
modifications  of  the  old  English  rule ;  none  more  important  than 
those  of  several  States  which  render  a  probate  of  the  will  neces- 
sary before  a  testamentary  guardian  can  act ;  while  it  is  not  un- 
frequently  found  that  the  appointment  remains  subject  to  the 
approval  of  the  court,  and  requires  the  person  appointed  to  qual- 
ify with  or  without  sureties.^*  A  guardian  appointed  by  a  parent 
by  will  may  be  recognized  by  the  court  in  its  discretion,^^  but  in 
many  States  those  having  parental  power  over  a  minor  have  no 
power  to  appoint  a  testamentary  guardian. 


16 


Schneider  (la.),  164  N.  W.  736 
(maternal  aunt  not  removed  on  claim 
of  paternal  grandmother  that  she  has 
greater  rights). 

11.  Sucession  of  Haley,  49  La.  Ann. 
709,  22  So.  251;  In  re  Masterson's 
Estate,  45  Wash.  48,  87  P.  1047  (al- 
though interested  in  preventing  mar- 
riage of  ward) ;  contra,  In  re  Brown, 
120  La.  50,  44  So.  919. 

12.  Brigham  v.  Wheeler,  8  Met. 
127;  Hoyt's  Case,  2  Edw.  Ch.  113; 
In  re  Hart,  2  Con.  &  L.  375;  Lady 
Chester's  Case,  Vent.  207.  See  7  Ves. 
365;  Gilliat  v.  Gilliat,  3  Phillim.  222. 
The  validity  of  the  testamentary  ap- 
pointment being  in  dispute,  a  court  of 
common  law  over  a  question  of  cus- 
tody has  directed  an  issue  in  order  to 
establish  the  same.  In  re  Andrews, 
L.  K,  8  Q.  B.  153. 

13.  Kellogg  V.  Burdick,  96  N.  T.  S. 
965,  110  App.  Div.  472,  18  N.  Y.  Ann. 
Cas.  44,  187  N.  Y.  355,  80  N.  E.  207; 
People  v.  Small,  237  111.  169,  86  N. 


E.    733.      See    Dupuy    v.    Hardaway 
(Va.),  4  Leigh,  584. 

14.  Be  Taylor,  3  Redf.  (N.  Y.)  259; 
Wadsworth  v.  Connell,  104  111.  369; 
Buckley  v.  Herder  (Tex.  Civ.  App. 
1911),  133  S.  W.  703  (provision  that 
guardian  appointed  by  will  shall  not 
be  subject  to  control  of  court  is  void). 

15.  Ex  parte  McCoun,  96  Kan.  314, 
150  P.  516  (if  proper  person)  ;  Nation 
V.  Green  (Ind.),  123  N.  E.  163;  Hud- 
son's Guardian  v.  Hudson,  160  Ky. 
432,  169  S.  W.  891;  In  re  Stockman, 
71  Mich.  180,  38  N.  W.  876;  Henicle 
V.  Flack,  3  Ohio  App.  444  (must  be 
appointed  by  court). 

16.  Lamar  v.  Harris,  117  Ga.  993, 
44  S.  E.  866;  Succession  of  Le  Blanc, 
128  La.  1055,  55  So.  672;  Campbell 
V.  Mansfield,  104  Miss.  533,  61  So. 
593  (where  mother  living) ;  Kel- 
logg V.  Burdick,  96  N.  Y.  S. 
965,  110  App.  Div.  472,  18  N.  Y.  Ann. 
Cas.  44,  187  N.  Y.  355,  80  N.  E.  207; 
Stucbaker  v.  Hogen   (Wash.),  176  P. 


§  835 


GUARDIAN    AND    WARD. 


936 


An  appointment  by  the  mother  of  a  testamentary  guardian  may 
be  a  nullity,^^  By  statute  in  some  States  the  parent  has  the  right 
to  appoint  a  testamentary  guardian  for  his  minor  children  only 
with  the  consent  of  the  surviving  parent.^* 

Trustee. —  Where  a  will  appoints  one  a  testamentary  guardian 
for  the  children,  which  provision  is  ineffectual  by  reason  of  the 
fact  that  the  mother  is  still  living,  still  the  person  appointed  guar- 
dian holds  the  property  as  trustee  for  the  children.^^ 

A  decree  of  divorce  giving  one  parent  custody  of  the  child  may 
deprive  the  other  of  the  right  to  object  to  the  appointment  of  a 
testamentary  guardian  by  the  parent  given  custody.^" 

The  parol  appointment  of  a  testamentary  guardian  is  insuffi- 
cient.^^ But  the  instrument  which  designates  him  need  not 
invariably  be  executed  with  the  same  formality  as  a  will ;  for  the 
father,  as  the  old  statute  intimates,  may  appoint  by  testamentary 
deed.  It  has  been  held  that  the  appointment  of  guardians  by  a 
will  not  duly  attested  was  made  good  by  a  codicil  duly  attested, 
written  on  the  same  paper,  making  certain  alterations  in  the  will, 
and  confirming  it  in  other  respects. ^^ 


339.  See  Thompson  v.  Thompson,  20 
Ky.  Law  Eep.  979,  47  S.  W.  1088 
(testamentary  guardian  not  entitled 
to  land).  See  Otjen  v.  Frohbaeh,  148 
Wis.  301, 134  N.  W.  832  (appointment 
valid  in  so  far  as  property  is  con- 
cerned). 

17.  In  re  Moore  '3  Estate  and  Guar- 
dianship (Cal.),  176  P.  461  (where 
father  living  though  divorced)  ;  Her- 
nandez V.  Thomas,  50  Fla.  522,  39  So. 
641,  2  L.  K.  A.  203 ;  Edwards  v.  Kelly, 
83  Miss.  144,  35  So.  418  (father  and 
not  mother  may  appoint  guardian  by 
will)  ;  In  re  Waring 's  Will,  94  N.  Y. 
S.  82,  46  Misc.  222  (mother's  appoint- 
ment void   where   father  survives). 

18.  In  re  Baker's  Estate,  153  Cal. 
537,  96  P.  12  (consent  by  mother  af- 
ter death  of  father  is  sufficient)  ;  In 
re  Snowball's  Estate,  156  Cal.  240, 
104  P.  444 ;  In  re  Wagner,  135  N.  Y. 
S.  678,  75  Misc.  419;  In  re  Pearce, 
137  N.  Y.  S.  755,  77  Misc.  415;  In  re 
Tombo,  149  N.  Y.  S.  688  (reversing 
order  [Sur.]  149  N.  Y.  S.  219,  86 
Misc.  361)    (where  marriage  annulled 


for  insanity  of  mother) ;  In  re  Woh- 
lers,  164  N.  Y.  S.  936,  98  Misc.  500 
(only  during  minority) ;  Camp  v. 
Pittman,  90  N.  C.  615.  See  Heit- 
kamp  V.  Kagan  (La.),  76  So.  247;  In 
re  Gibbs,  160  N.  Y.  S.  686,  96  Misc. 
537.  See  Churchill  v.  Jackson,  132 
Ga.  666,  64  S.  E.  691  (guardian 
named  over  property  and  not  person)  ; 
In  re  Scoville,  131  N.  Y.  S.  205,  72 
Misc.  310. 

Consent  ty  a  Tnother  to  the  proT}ate 
of  the  will  does  not  waive  her  statu- 
tory right  to  object  to  the  testamen- 
tary guardian.  Ohrns  v.  Woodward, 
134  Mich.  596,  96  N.  W.  Q'SO,  10  Det. 
Leg.  N.  591. 

19.  Campbell  v.  Mansfield  (Miss.), 
61  So.  593,  45  L.  R.  A.   (N.  S.)  446. 

20.  People  v.  Small,  237  111.  169, 
86  N.  E.  733.  See  In  re  Allen's  Es- 
tate (Cal.),  124  P.  237  (divorced 
father  must  consent  to  appointment  by 
mother). 

21.  Macphers.  Inf.  84.  See  John- 
stone v.  Beattie,  10  CI.  &  Fin.  42. 

22.  De  Bathe   v.   Lord   Fingal,    16 


937  APPOINTMENT  OF  GUARDIANS.  §  835 

It  is  sometimes  difficult  to  determine  what  language  will  con- 
stitute testamentary  guardianship.  The  statute  uses  the  words 
"  custody  and  tuition  "  in  reference  to  the  children ;  and  such 
assignment  of  the  children  as  confers,  expressly  or  by  implication, 
a  power  thus  extensive,  ought  to  suffice.  Thus,  where  a  testator 
gives  the  "  care  and  custody  "  of  his  children,  further  directing 
that  the  person  so  intrusted  shall  be  guided  by  the  advice  of  his 
executors,  as  to  the  children's  education,  this  is  held  to  be  a  good 
appointment.^^  So  it  is  held  that  testamentary  guardianship  was 
constituted,  where  a  testator  directed  the  trustees  of  his  will  to 
procure  a  suitable  house  for  the  residence  of  his  children,  who 
were  infants,  and  to  engage  a  proper  person  for  the  purpose  of 
taking  the  management  and  care  of  the  house  and  of  his  children 
during  their  minority ;  and  requested  his  late  wife's  sister,  if  she 
should  be  alive  at  his  decease,  to  take  such  management  and  care 
on  herself.^*  And  in  general  testamentary  guardians  need  not  be 
expressly  designated  as  such ;  albeit,  in  order  to  constitute  them 
by  implication,  the  powers  essential  to  the  office  must  be  con- 
ferred.2' 

The  devise  of  certain  property  "  in  trust "  for  infants  is  not  a 
devise  of  guardianship.  Thus  it  was  said  by  Lord  Vaughan  that, 
where  a  testator  devised  land  to  a  trustee,  to  be  held  in  trust  for 
his  heir,  and  for  his  maintenance  and  education  until  he  should  be 
of  age,  this  was  no  devise  of  the  custody  within  the  statute,  for  he 
might  have  done  this  before  the  statute.^®  The  same  may  be  said 
generally  of  legacies  and  bequests  in  trust.^"  But  where  a  testator 
divided  the  residue  into  equal  parts,  a  certain  number  of  which  he 
gave  to  a  minor  child  and  appointed  the  executors  "  guardians  and 
trustees,"  there  was  really  no  trust,  in  effect,  and  the  executors 
were  not  constituted  trustees,  but  guardians  simply.'^ 

Ve3.  167.    But  see  Marshall,  C.  J.,  in  24.  Miller  v.  Harris,   14  Sim.  540. 

Gaines  v.  Spann,  2  Brock.  81 ;  Ward-  See  Mendes  v.  Mendes,  1  Ves.  89 ;  s. 

well   V.   Ward-well     9    Allen,   518.      A  c,  3  Atk.  619. 

testamentary    guardian    can    only    be  25.  Games  v.  Spann,  2   Brock.   81; 

appointed  by  an  instrument  admitted  Peyton  v.  Smith,  2  Dev.  &  Batt.  Eq. 

to  probate,  which  names  such  person,  325;    Johnstone  v.  Beattie,  10   CI.   & 

and  indicates  that  he  is  to  have  the  Fin.   42 ;    Balch   v.   Smith,    12   N.   H. 

care  and  nurture  of  the  infant.     Des-  437;  90  Ga.  236. 

ribes  v.  Wilmer,   69  Ala.   25;   Black-  26.  Bedell  v.  Constable,  Vaugh.  177. 

sher  Co.  v.  Northrup,   176   Ala.   190,  27.  Kevan  v.  Waller,  11  Leigh,  414; 

57  So.  743.  Dunham  v.  Hatcher,  31  Ala.  483. 

23.    See    Corrigan    v.    Kieman,    1  28.  Hawley,  iJe,  104  N.  Y.  250. 
Bradf.  208;   69  Ala.  25. 


835 


GUAKDIA2^    AiS'D    WAED. 


938 


Testamentary  guardians,  to  use  the  statute  expression,  may  be 
appointed  "  either  in  possession  or  remainder ;  "  that  is,  successors 
in  the  guardianship  may  be  designated.  So  they  may  be  author- 
ized to  act  during  the  full  term  of  the  infant's  minority  or  for  a 
less  period.  So  the  will  may  give  authority  to  the  surviving 
guardian  to  nominate  a  person  in  the  place  of  his  co-guardian  who 
has  died ;  although  it  appears  to  be  a  general  rule  that  one  testa- 
mentary guardian  cannot  appoint  another,  since  his  office  is  per- 
sonal, and  not  assignable.'*  In  other  words,  the  testator  is  allowed 
a  liberal  discretion  in  his  selection  and  in  limiting  authority.  The 
paper  which  creates  a  person  testamentary  guardian  becomes  thus 
the  test  of  his  official  powers  and  responsibility.  Letters  of  guar- 
dianship from  the  chancery  or  probate  court  give  his  appointment 
^  no  additional  force,  unless  required  by  statute.  In  fact,  such 
'  letters,  however  regarded  in  his  dealings  with  strangers,  are  as  a 
rule,  and  independently  of  positive  statute  expression,  issued  with- 
out jurisdiction.^"  In  general,  a  firm  cannot  be  made  testamen- 
tary guardian  of  an  infant ;  nor  could  formerly  a  corporation ;  ^^ 
though  financial  corporations  are  sometimes  chartered  at  this  day 
Avith  express  power  to  assume  fiduciary  trusts.^^ 

The  testator's  power  of  appointment  extends  to  all  his  lawful 


29.  Goods  of  Parnell,  L.  E.  2  P.  & 
D.  379;  Macphers.  Inf.  82;  Vaugh. 
177. 

30.  Robinson  v.  Zollinger,  9f  Watts, 
169;  Morris  v.  Harris,  15  Cal.  226; 
Holmes  v.  Field,  12  HI.  424 ;  Copp  v, 
Copp,  20  N.  H.  284,  See  Macphers. 
Inf.  84,  86 ;  Stone  v.  Dorrett,  18  Tex. 
700.  But  statutes  may  provide  that 
letters  of  guardianship  shall  issue  to  a 
testamentary  guardian  Tvho  must  first 
qualify.     Hence  a  non-resident  alien 

I  is  held  incapable  of  serving.  Be  Tay- 
■  lor,  3  Eedf.  (N.  T.)  259.  And  see 
post,  §  303,  If  the  testator's  will 
prescribes  that  the  Tvife  shall  be  tes- 
tamentary guardian  of  the  children, 
"as  long  as  she  shall  remain  his 
■widow,"  her  authority  ceases  on  her 
remarriage,  and  a  new  appointment 
becomes  necessary,  Corrigan  v.  Kier 
nan,  1  Bradf.  Sur.  208;  Holmes  v. 
Field,   12   111,   424. 

In  a  New  York  case,  it  was  held, 


on  appeal  from  the  surrogate,  that 
no  probate  guardian  could  be  ap- 
pointed after  the  fathers'  decease, 
where  the  father,  being  a  man  of  in- 
digent circumstances,  had  surrendered 
his  children  to  a  charitable  institution 
by  an  instrument  in  writing,  executed 
during  his  lifetime,  and  not  long  be- 
fore his  death,  in  presence  of  two  wit- 
nesses, which  purported  to  "commit 
and  surrender"  the  children  to  the 
said  institution  pursuant  to  its  char- 
ter. There  were  no  testamentary  ex- 
pressions used,  nor  did  the  instrument 
appear  to  have  been  executed  in  con- 
templation of  death.  The  decision  of 
the  court  appears  to  rest  on  statutory 
interpretation.  People  v,  Kearney, 
31  Barb.  430, 

31.  See  Macphers.  Inf,  109;  De 
Mazar  v.  Pybus,  4  Ves.  644, 

32.  Rice's  Case,  42  Mich.  528;  Re 
Cordova,  4  Redf,  66;  Minnesota  Co. 
V.  Beebe,  40  Minn.  7. 


939 


APPOINTMENT    OF    GUARDIANS. 


§  836 


children  surviving  at  his  decease,  being  still  minors  and  unmar- 
ried. Posthumous  children  are,  likewise,  included.  And  the 
testator's  appointment  of  his  wife  as  testamentary  guardian  is  not 
revoked  by  the  birth  of  such  issue,  subsequent  to  the  execution  of 
the  will  or  testamentary  deed  appointing  her ;  the  analogy  of  dis- 
tribution of  one's  property  failing  to  affect  this  case."^  A  testator 
cannot  appoint  a  testamentary  guardian  except  to  his  own  children; 
but  an  attempt  to  appoint  one  for  others  may  create  a  trust.^* 

§  836.  Parent's  Choice. 

The  father's  testament  constitutes  a  guardian;  but  when  the 
appointment  is  too  informal  to  take  effect  under  the  statute,  as 
constituting  testamentary  guardianship,  a  chancery  or  probate 
guardian  must  be  appointed.  In  such  case,  the  choice  thus  in- 
formally indicated  carries  great  weight  with  the  court.^^  And  on 
general  principle  the  death-bed  wishes  of  the  father  are  considered 
by  the  court ;  so  those  of  the  mother,  in  States  where  the  mother's 
choice  is  favored  at  all.^®  Such  wishes  are  not  conclusive  upon 
the  court;  and  yet  they  may  sometimes  be  sufficient  to  turn  the 
scales.^^  but  a  parent's  request  will  not  give  the  court  jurisdiction 
where  it  is  otherwise  lacking,^*  and  gives  the  person  suggested  by 
the  parent  no  legal  right  to  be  appointed.^^  The  nomination  of 
some  suitable  third  person  as  guardian  by  the  party  having  a  prior 
right  carries  weight;  but  one  who  has  thus  procured  another's 
appointment  cannot  claim  letters  for  himself.*" 


33.  HollingsTivorth 's  Appeal,  51  Pa. 
St.  518;  2  Bro.  C.  C.  538;  Macphera. 
Inf.  87. 

34.  Camp  v.  Pitman,  90  N.  C.  615. 

35.  Hall  V.  Storer,  1  Yo.  &  C.  556; 
Mareellin,  Matter  of,  31  N.  T.  Supr. 
207. 

36.  Knott  V.  Cottee,  2  Ph.  192; 
Kave's  Case,  L.  R.  1  Ch.  387;  Lady 
Teynham  v.  Lennard,  4  Bro.  P.  C. 
302;  s.  c,  cited  in  2  Atk.  315;  Ben- 
nett V.  Byrne,  2  Barb.  Ch.  216;  Co- 
zine  V.  Home,  1  Bradf.  143;  Watson 
V.  Wamock,  31  Ga.  716.  In  re  Tur- 
ner, 4  C.  E.  Green,  433;  Badenhoof 
T.  Johnson,  11  Nev.  87.  A  father  up- 
on his  ^vife's  death  placed  his  infant 
child  in  A.'s  care,  and  afterwards 
died ;  and  A.'s  claim  was  held  inferior 


to  that  of  an  aunt  of  the  child.  Cleg- 
horn  V.  James,  68  Ga.  87.  The  mo- 
ther's appointment  by  her  will  must 
not  disturb  a  guardian  appointed  at 
her  request  while  she  was  alive.  Potts 
V.  Terry  (Tex.  1894),  47  Ore.  242. 

37.  As  to  appointing  a  firm  of  a 
corporation,  see  He  Cordova,  4  Bedf. 
66;  40  Minn.  7;  42  Mich.  528;  In  re 
Wagner,  135  N.  Y.  S.  678,  75  Misc. 
419  (agreement  of  parents  is  not  bind- 
ing as  to  appointment  of  guardian). 

38.  Modem  Woodmen  of  America 
V.  Hester,  66  Kan.  129",  71  P.  279; 
Eoyal  Neighbors  of  America  v.  Hes- 
ter, 66  Kan.  764,  71  P.  1129. 

89.   Hutchins  v.  Brown,   77  N.  H. 
105,  88  A.  706. 
40.  Kahn  v.  Israelson,  62  Tex.  221. 


§  837 


GUAKDIA-N    AND    WAKD. 


940 


§  837.  The  Best  Interest  of  the  Ward  as  a  Test. 

In  selecting  the  proper  person  as  guardian,  the  judge  is  allowed 
to  exercise  a  liberal  discretion,  and  his  decision  will  not  be  dis- 
turbed on  appeal  except  for  good  and  sufficient  cause.  Such  is 
the  rule  both  in  England  and  America.*^ 

The  leading  consideration  for  the  court  should  be  the  interest 
and  welfare  of  the  child;  and  this,  which  becomes  almost  the 
only  rule  of  choice  between  distant  kindred,  may  control  even  the 
selection  of  the  father  himself.  The  courts  are  in  these  days  pay- 
ing more  and  more  attention  to  the  best  interests  of  the  ward  in 
making  appointments.  While  it  is  still  true  that  a  surviving 
parent  should  be  appointed  if  fit,  still  the  court  is  not  bound  to 
appoint  a  parent  or  relative  where  such  appointment  is  not  for  the 
best  interests  of  the  ward.*^  The  court  should  only  appoint  one 
physically  and  mentally  fit,*^  and  not  one  of  improper  life.** 
41.  Kaye's  Case,  L.  K.  1  Ch.  387;       N.  Y.  669.     Late  English  courts  show 


Battle  V.  Vick,  4  Dev.  294;  White  v. 
Pomeroy,  7  Barb.  640;  Nelson  v. 
Green,  22  Ark.  367. 

42.  In  re  Bedford's  Estate,  158  Cal. 
145,  110  P.  302;  In  re  Allen's  Estate, 
162  Cal.  625,  124  P.  237;  In  re  Lew 
Choy  Foon  (Cal.),  159  P.  440;  Hard- 
ing V.  Brown,  227  Mass.  77,  117  N.  E. 
638;  Taff  v.  Hosmer,  14  Mich.  249; 
In  re  Stockman,  71  Mich.  180,  38  N. 
"W.  876  (relatives  preferred  when  com- 
petent) ;  State  ex  rel.  Mills  v.  Mast, 
104  Mo.  App.  348,  78  S.  W.  833;  State 
ex  rel.  Young  v.  Cook,  183  S.  W.  365; 
Hutchins  v.  Erown,  77  N.  H.  105,  88 
A.  706  (uncle  no  legal  right  to  be  ap- 
pointed merely  because  deceased  fa- 
ther desired  it) ;  In  re  Lamb 's  Es- 
tate, 139  N.  Y.  S.  685;  (Sur.)  In  re 
Cross'  Guardianship,  155  N.  Y.  S. 
1020,  92  Misc.  Kcp.  89  (dee.  affd., 
Sup.,  In  re  Cross,  159  N.  Y.  S.  1108) ; 
In  re  Erickson  's  Estate,  175  N.  Y.  S. 
95;  In  re  White,  160  N.  Y.  685,  55  N. 
E.  1101  (affg.  57  N.  Y.  S.  862,  40 
App.  Div.  165)  (father  need  not  be  ap- 
pointed) ;  Bennett  v.  Byrne,  2  Barb. 
Ch.  216;  Compton  v.  Compton,  2  Gill, 
241;  Succession  of  Euqua,  27  La. 
Ann.  271 ;  Badenhoof  v.  Johnson,  11 
Nev.  87;  Janes  v.  Cleghorn,  63  Ga. 
335;  2  Dem.  43;  Vandewater,  Be,  115 


an  increasing  regard  for  the  child's 
welfare.  Violet  Nevins  Be,  (1891) 
2  Ch.  299;  §  886.  See,  however, 
Heinemeier  v.  Arlitt,  29  Tex.  Civ. 
App.  140,  67  S.  W.  1038, 

A  minor  child,  inheriting  from  his 
mother,  or  otherwise  acquiring  prop- 
erty independently  of  the  father,  may 
at  this  day  require  a  guardian  to  col- 
lect and  hold  such  property  for  him; 
and  while  ordinarily  a  father  will  be 
appointed  guardian  of  his  motherless 
child,  such  appointment  will  be  re- 
fused in  American  practice  where  it  is 
apparent  that  he  is  an  unsuitable  per- 
son and  that  the  child's  best  interests 
require  some  one  else  appointed,  whe- 
ther on  the  father 's  nomination  or  ad- 
versely to  him.  Heinemann  's  Appeal, 
96  Pa.  St.  112;  Griffin  v.  Sarsfield,  2 
Dem.  4 ;  58  N.  H.  15 ;  Prime  v.  Foote, 
63  N.  H.  52.  In  Heinemann 's  Ap- 
peal, supra,  a  father  neglected  to  pro- 
vide proper  medical  treatment  for  his 
wife  and  three  children,  all  of  whom 
died;  and  a  guardian  of  the  surviv- 
ing minor  children  was  appointed 
against  his  wishes. 

43.  Weil  V.  Schwartz,  51  La.  Ann. 
1547,  26  So.  475. 

44.  LeBlanc's  Succession,  37  La. 
Ann.   546;    Succession  of  Hoyle,   109 


941 


APPOINTMENT    OF    GUARDIANS. 


§  838 


Where  two  are  equally  qualified,  the  fact  that  the  child  has  lived 
with  one  of  the  applicants  and  is  attached  to  him  may  be  consid- 
ered.*"  The  appointment  of  one  who  holds  adverse  religious 
opinions  may  be  refused,  though  there  is  at  this  day  far  more 
toleration  than  formerly  on  this  point,  and  perhaps  more  still  in 
the  United  States  than  in  Great  Britain.*®  And  the  objection  that 
a  particular  appointment  will  subject  the  ward's  estate  to  extraor- 
dinary expense  ought  to  be  considered.*^  In  general,  it  is  the  duty 
of  the  court  to  regard  the  general  character  of  the  person  who 
applies  for  letters  of  guardianship;  the  influence  he  is  likely  to 
exert,  and,  if  the  estate  be  difficult  to  manage,  his  business  qualifi- 
cations and  financial  standing. 

On  the  other  hand,  no  fanciful  reasons  should  be  allowed  to 
determine  the  selection  of  the  court  between  distant  relations. 
The  circumstance  that  the  infant  inherited  the  principal  part  of  his 
property  through  one  line  of  the  family  is  not  to  prejudice  his 
next  of  kin  in  the  other.**  Although  the  prudent  choice  of  a  minor 
arrived  at  fourteen  may  be  almost  conclusive,  as  we  have  already 
seen,  yet  it  would  seem  that  while  under  that  age  his  preferences 
are  entitled  to  no  consideration.  The  separation  of  young  children 
from  one  another  is  to  be  avoided,  unless  in  other  respects  quite 
desirable.*' 


§  838.  Administrator ;  One  Having  Adverse  Interest. 

One  interested  adversely  to  the  minor's  estate  should  not  be 
appointed,^"  and  there  is  much  force  in  the  position  taken  by  many 
courts  that  they  will  not  appoint  as  guardian  of  an  infant  the 


La.  623,  33  So,  625 ;  Albert  v.  Perry, 
1  McCart.  (N.  J.)  540;  In  re  Jacquet, 
82  N.  Y.  S.  986,  40  Misc.  575  (father 
convicted  of  intoxication  and  lar- 
ceny) ;  Kussner  v.  McMillan,  37  Wash. 
416,  79  P.  988  (drinking  man)  ;  Mc- 
Chesney  v.  De  Bower,  106  Wis.  315, 
82  N.  W.  149  (father  who  had  treated 
family  cruelly  and  had  committed 
adultery,  etc.). 

45.  Albert  v.  Perry,  1  McCart.  (N. 
J.)  540;  Foster  v.  Mott,  3  Bradf.  (N. 
T.)  409;  Willett  v.  Warren,  34  Wash. 
647,  76  P.  273. 

46.  Undorhill  v.  Dennis,  9  Paige, 
202;    Maophers.   Inf.    113;    Ex  parte 


Whitfield,  2  Atk.  315;  Voullaire  v. 
Vonllaire,  45  Mo.  602.  See  Jones  v. 
Bowman,  13  Wyo.  79,  77  P.  439,  67 
L.  R.  A.  860  (religious  differences 
not  considered). 

47.  Bennett  v.  Bryne,  2  Barb.  Ch. 
(N.  Y.)   216. 

48.  Underbill  t.  Dennis,  9  Paige, 
202;  Albert  v.  Perry,  1  McCart.  540. 
See  58  N.  H.  15,  as  to  disregarding 
the  expectation  of  one  who  had  left 
the  child  a  legacy. 

49.  Marcellin,  Matter  of,  4  Eedf. 
(N.  Y.)  299. 

50.  Davis  v.  Hammack  (Tex.  Civ. 
App.  1908),  107  S.  W.  112. 


I    S39  GUARDIAN    AND    WARD.  942 

administrator  of  the  parent's  estate  as  administrators  settle  with 
the  guardians. ^^ 

§  839.  Married  Women. 

As  concerns  the  right  of  a  married  woman  to  be  appointed  guar- 
dian, there  is  doubt  and  uncertainty.  The  dicta  are  apt  to  go  one 
way  and  the  decisions  another ;  doubtless  out  of  judicial  deference 
to  the  sex.  Some  hold  that  married  women  are  at  common  law 
capable  of  becoming  guardians;  but  they  draw  their  conclusions 
rather  from  the  analogies  of  administration  than  from  positive 
authority  in  their  favor.  When  it  is  considered  that  chancery  and 
probate  guardians  are  a  modern  creation,  the  ancient  cases,  from 
such  species  of  giiardianship  as  are  now  extinct,  are  hardly  worth 
looking  after.  It  is  true  there  are  several  cases  which  sustain  the 
acts  of  married  women  while  acting  as  gaiardians,  or  rather  quasi 
guardians;  at  the  same  time  clear  precedents  for  their  actual 
appointment  are  wanting."  It  has  been  held  in  the  English  chan- 
cery court,  that,  while  a  married  woman  may  be  co-guardian  with 
a  man,  her  sole  appointment  is  improper.^^  In  spite  of  the  liberal 
tendency  of  the  age,  we  conclude  that  while  such  guardianship 
would  not  be  deemed  absolutely  void,  and  is  in  fact  sometimes 
sanctioned  without  investigation,  public  policy  is  decidedly  against 
the  appointment.  IsTot  the  least  important  objection  is  the  in- 
ability of  married  women  to  furnish  proper  recognizance  and  to 
manage   trust    property,    without   constantly   encountering   legal 

51.  Scobey  v.  Gano,  35  Ohio  St.  Sim.  346;  Gornall's  Case,  1  Beav.  347. 
550;  Kramer  v.  Mugell,  153  Pa.  St.  See  further,  Jarrett  v.  State,  5  Gill  & 
49-3.  But  cf .  17  E.  I.  480,  where  the  Johns.  27 ;  Palmer  v.  Oakley,  2  Doug, 
ward  was  sole  residuary  legatee;  433;  Farrer  v.  Clark,  29  Miss.  195; 
Crutchfield's  Case,  3  Yerg.  336;  Kettletas  v.  Gardner,  1  Paige,  488; 
Isaacs  V.  Taylor,  3  Dana,  600;  Mas-  Ex  parte  Maxwell,  19  Ind.  88.  Ee- 
singale  v.  Tate,  4  Hayw.  30;  Parker  cent  statutes  in  States  now  empower 
V.  Lincoln,  12  Mass.  17;  Sudler  v.  a  married  woman  to  serve  as  guar- 
Sudler,  121  Md.  46,  88  Atl.  26,  49  dian,  besides  so  increasing  her  powers 
L.  E.  A.  (N.  S.)  860.  See  Sparkman  and  liabilities  as  to  obviate  objections 
V.  Stout  (Tex.  Civ.  App.),  212  S.  W.  stated  in  the  text.  See  Beard  v. 
526.  Dean,  64  Ga.  248;  Goss  v.  Stone,  63 

52.  Wallis  V.  Campbell,  13  Ves.  517.  Mich.  319.  A  woman  may  be  ap- 
This  was  the  case  of  an  illegitimate  pointed  guardian  of  the  person  and 
child.      As    cited    in    Macphers.    Inf.  estate  of  her  child,  although  she  has 

•   111,  it  might  be  considered  authority  married  again  and  lives  with  her  new 

for  the  appointment  of  married  wo-  husband.     Hermance,  He,  2   Dem.   1, 

men  as  guardians.  overruling  Holley   v.    Chamberlain,   1 

53.  In  re  Kaye,  L.  E.  1  Ch.   387.  Eedf.  333. 
See    Macphers.    Inf.    Ill;    Anon.,    8 


943  APPOINTMENT  OF  GUARDIANS.  §  840 

obstacles,  all  the  more  troublesome  from  the  present  uncertainty 
of  the  law  of  husband  and  wife."  Hence  the  English  rule  has 
been,  on  the  marriage  of  a  female  guardian,  to  choose  another  in 
her  stead,  on  the  ground  that  she  is  no  longer  sui  juris,  and  has 
become  liable  to  the  control  of  her  husband ;  while  she  is  said  to  be 
still  at  liberty  to  go  before  the  master  to  propose  herself  as  her 
own  successor. 

In  this  country  it  has  been  held  that  a  married  woman  may  not 
be  guardian  of  a  minor,^^  but  the  Married  Woman's  Acts  have 
authorized  the  appointment  of  a  married  woman  as  guardian  either 
of  her  own  or  of  another's  child.^^ 

§  840.  Non-residents. 

Persons  residing  out  of  the  jurisdiction  will  not  usually  be 
appointed  guardians,  although  one  who  was  out  of  the  State  might 
yet  control  from  a  distance;  for,  it  is  said,  there  must  be  some 
one  answerable  to  the  court.^^  But  if  the  sureties  on  the  guar- 
dian's bond  reside  within  the  jurisdiction  and  are  pecuniarily 
responsible,  is  not  someone  answerable  to  the  court  ?  And  might 
not  one  have  an  attorney  within  the  jurisdiction  answerable  for 
process,  under  statute?  The  cases,  however,  are  rare  where  such 
an  appointment  wonld  be  advantageous  to  the  ward  for  business 
reasons;  and  hence  others  are  usually  chosen,  both  in  chancery 
and  probate.  In  some  of  the  United  States,  the  appointment  of 
non-residents  is  prohibited  by  statute ;  and  even  without  such  pro- 
hibition the  court  is  justified  in  withholding  letters  of  guardianship 
at  discretion,  where  the  petitioner  is  beyond  the  reach  of  State 
process.^^  But  the  person  selected  need  not  reside  within  the 
jurisdiction  of  the  county  court  making  the  appointment.  Where 
infants  are  domiciled  abroad,  someone  at  home  will  be  appointed, 
if  a  guardian  is  required,  even  though  the  father  wishes  it  other- 
wise.^' Exceptions  to  this  rule  have  been  made  in  strong  cases, 
and  a  non-resident  guardian  appointed.®"     So  it  has  been  held  that 

54.  Logan  v.  Fairlee,  Jacob,  193.  57.  Logan  v.  Fairlee,  Jacob,  1&3. 

55.  Campbell   v.    Scott,   3   Ind.   T.  58.    Finney    t.    State,    9    Mo.    227. 
462,  58  S.  W.  719 ;  Carolina  v.  Mont-  There  is  no  such  prohibition  in  Maine, 
gomery  (Okla.),  1~7  P.  612  (appoint-  Berry  v.  Johnson,  53  Me.  401. 
ment  voidable  and  not  void).  59.  Stephens  v.  James,  1  M.  &  K. 

56.  Byrom  v.  Gunn,  102  Ga.   565,  627;  Lethem  v.  Hall,  7  Sim.  141. 
31   S.   E.   560;    In  re  O'Connell,   102  60.  Daniel  v.  Newton,  8  Beav.  485; 
la.    355,    71   N.   W.   211 ;    Wright   v.  In  re  Thomas,  21  E.  L.  &  Eq.  524.   A 
Wright   (Tex.  Civ.  App.),  155  S.  W.  non-resident  alien  may  be  precluded. 
1015.  Be  Taylor,  3  Eedf.  (N.  T.)  259. 


§  843 


GUAKDIAJS'    AND    WABD. 


944r 


the  fact  that  an  applicant  is  a  non-resident  is  no  bar  where  other- 
wise qualified,®^  and  the  fact  tJaat  one  applying  for  guardianship 
is  a  resident  of  another  State  to  which  he  proposes  to  remove  the 
ward  is  no  ground  for  refusing  to  appoint  him  and  for  preferring 
a  resident/^ 

§  841.  Corporations. 

It  is  the  general  rule  that  corporations  will  not  be  appointed  as 
guardians  of  the  person  of  wards,®^  except  by  statute  permitting 
homes  or  other  charitable  corporations  to  act  as  guardians,"  and 
corporations  are  now  often  permitted  to  act  as  guardians  of  the 
estate,  but  not  of  the  person.* 


65 


§  842.  Prior  Petition  Preferred. 

Where  the  courts  of  two  or  more  counties  have  concurrent  juris- 
diction, as  if  a  non-resident  has  property  lying  in  different  places, 
the  general  principle  is  that  the  court  where  proceedings  are  first 
commenced  retains  jurisdiction.'® 

Where  two  persons  whose  petitions  are  equal  seek  guardianship 
the  first  may  be  preferred.* 


67 


§  843.  Guardians  by  Nature. 

Guardians  by  nature  and  nurture  act  under  authority  of  the 
law,  which  designates,  first,  the  father;  and,  after  his  death,  the 
mother.  These  are  the  only  natural  guardians  possible.'*  It  has 
been  said  that  the  infant's  next  of  kin  succeed  to  the  natural  guar- 
dianship when  both  parents  are  dead.'®  This  cannot  be  correct 
according  to  the  sense  of  the  term  as  used  at  this  day.  The  mother 
is  considered  the  natural  guardian  of  a  bastard,  in  this  country. 


61.  In  re  Dobb,  9  La.  Ann.  354; 
In  re  "Welsh's  Estate,  63  N.  Y.  S.  737, 
50  App.  Div.  189.  See  In  re  Zeller's 
Estate,  54  N.  Y.  S.  926,  25  Misc.  137, 
2  Gibbons,  577  (non-resident  alien 
barred). 

62.  Succession  of  Oliver,  113  La. 
877,  37  So.  862. 

63.  In  re  Eice,  42  Mich.  528,  4  N. 
W.  284. 

64.  Jain  v.  Priest  (Ida.),  164  P. 
364. 

65.  Murphree  v.  Hanson,  197  Ala. 
246,  72  So.  437  (by  statute  banking 
companies  may  act  as  guardian  of  the 
estate  but  not  of  the  person.    v. 


,  40  Minn.  7;  In  re  Buckler,  8? 

X.  Y.  S.  206,  96  App.  Div.  3&7  (may 
appoint  one  as  guardian  of  person  and 
corporation  as  guardian  of  estate) ; 
In  re  Wyckoff,  124  N.  Y.  S.  625,  67 
Misc.  1  (trust  company).  See  In  re 
Rice,  42  Mich.  528,  4  N.  E.  284. 

66.  Danneker,  Re,  67  Cal.  643. 

67.  Brugier  v.  Biron,  13  La.  77. 

68.  Co.  Litt.  88  6;  1  Bl.  Com.  461 
2  Kent,  Com.  220;  Macphers.  Inf.  52 
Jarrett  v.  State,  5  Gill  &  Johns.  27 
Eldridge    v.    Lippincott,    Coxe,    397; 
Fields  v.  Law,  2  Root,  320. 

69.  See  Reeve,  Dom.  Rel.  315. 


946  APPOINTME^'T    OF    GUARDIANS.  §    844r 

as  against  its  putative  father ; '°  though  the  common  law  regarded 
such  children  as  without  a  natural  guardian.'^  On  principle,  it 
would  seem  that  the  natural  guardianship  of  a  child  is  shifted  to 
the  mother  when  custody  is  awarded  her  because  of  her  husband's 
personal  unfitness.  And  the  modem  tendency  is  to  regard  both 
husband  and  wife  as  guardians,  by  nature,  of  their  own  children ;  '* 
at  the  same  time  that  this  gives  no  right  to  control  a  child's  prop- 
erty without  a  legal  appointment  such  as  we  shall  presently  notice. 
Socage  guardians  also  derived  their  authority  from  the  law,  and 
not  from  a  special  appointment." 

§  844.  Guardianship  by  Appointment  of  Infant;  Right  to 
Nominate. 
Guardianship  by  sole  appointment  of  the  infant  cannot  now  be 
said  to  exist.  But  at  the  common  law  there  was  one  instance 
where  it  arose;  namely,  when  the  heir  above  the  age  of  fourteen 
chose  to  supersede  his  guardian  in  socage  by  one  of  his  own  choice, 
under  a  deed  of  appointment.''*  Infants  ha%'e  still  the  privilege  of 
nominating,  though  not  appointing,  a  guardian  in  court,  after 
arriving  at  this  age ;  and  if  judicially  sanctioned,  their  choice  is 
good.  In  the  appointment  of  chancery  guardians,  the  custom  is 
for  the  court  to  approve  such  nomination  without  the  usual  refer- 
ence to  a  master."  But  this  is  not  an  invariable  rule.''®  Testa- 
mentary guardians  cannot  be  superseded  in  this  way,  nor  chancery 
guardians.''^  Statutes  giving  the  right  of  selecting  their  own  pro- 
bate guardians  to  infants  above  fourteen  have  been  enacted 
throughout  the  United  States,"  even  though  the  wards  are  non- 
70.  Wright  V.  Wright,  2  Mass.  109;  v.  Dean,  64  Ga.  258.  As  to  a  non- 
Hudson  V.  Hills,  8  N.  H.  417;  People  resident  father  whose  infant  son  of 
V.  Kling,  6  Barb.  366 ;  Dalton  v.  State,  fourteen  prefers  another  person,  see 
6  Blackf.  357.  4  Dem.  36. 

71.  Macphers.  Inf.  67.  78.  In  re  McSwain's  Estate  (Cal.), 

72.  People  v.  Boice,  39  Barb.   307.       168  P.  117;  In  re  Wyckoff,  124  N.  Y. 

73.  2  Kent,  Com.  223.  S.  625,  67  Misc.  1  (infant  cannot  pre- 

74.  Co.  Litt.  89  a.  vent  appointment  by  nominating  one 

75.  Ex  parte  Edwards,  3  Atk.  519;  not  acceptable  to  court,  and  in  case 
Macphers.  Inf.  78,  109.  of  controversy  a  trust  company  may 

76.  Ex  parte  Watkins,  2  Ves.  470;  be  appointed)  ;  Burns  v.  Parker  (Tex. 
Curtis  V.  Eippon,  4  Madd.  462;  Coham  Civ.  App.),  155  S.  W.  673.  See  Ham 
V.  Coham,  13  Sim.  639.  v.    Ham,    15    Gratt.    74;     Dibble    v. 

77.  Palmer,  22 ;  Andrew,  313 ;  Mat-  Dibble,  8  Ind.  307 ;  Pitts  v.  Cherr,  14 
ter  of  Dyer,  5  Paige,  Ch.  534;  Matter  Ga.  594;  Arthur's  Appeal,  1  Grant, 
of  Nicoll,  1  Johns.  Ch.  25;  Matter  of  55;  Sessions  v.  Kell,  30  Miss.  458; 
Reynolds,  18  N.  Y.  Supr.  41.  Nor  the  Montgomery  v.  Smith,  Z  Dana,  599; 
mother  as  natural  guardian.     Beard       Palmer  v.  Oakley,  2  Doug.  433,  C2  N. 

60 


§    845  GUARDIA^f    AA'D    WAKD.  946 

residents/^  Yet  the  ward  cannot  set  aside  a  testamentary  or  ciian- 
cerj  guardian  in  this  country;  nor,  on  principle,  should  he  be 
allowed  to  supersede  a  probate  guardian  properly  appointed,  un- 
less authorized  to  do  so  by  a  positive  statute.*°  Having  once 
exercised  his  right  of  choice,  he  is  bound  by  the  appointment,  and 
cannot  nominate  again,  as  his  fancy  pleases.*^  In  any  event  the 
court  must  sanction  the  infant's  selection,  and  issue  letters  before 
the  guardian  can  act ;  so  that  this  is  guardianship  by  appointment 
rather  of  the  court  than  of  the  infant,  but  not  of  course  by  judicial 
appointment  at  arbitrary  discretion. 

§  845.  English  Practice. 

The  usual  practice  in  chancery  is  for  the  court,  as  soon  as  the 
petition  is  presented,  to  make  an  order  for  a  reference  to  a  master 
to  approve  of  a  proper  person  for  the  guardianship.  For  this 
purpose,  the  master  is  attended  by  all  proper  parties ;  and,  after  a 
full  hearing,  he  makes  his  report,  in  which  he  mentions  the  infant's 
age  and  fortune,  the  evidence  and  legal  grounds  on  which  his 
approval  of  the  guardian  is  based,  and  the  maintenance  proper  for 
the  child.  The  Vice-Chancellor  confirms  or  varies  the  report  at 
his  discretion,  and  then  makes  the  appointment.  From  his 
decision  appeal  lies  to  the  full  court.*' 

The  guardian  thus  appointed,  if  guardian  of  the  person  and 
estate,  is  required  to  enter  into  a  recognizance,  with  sufficient  sure- 
ties, to  account  regularly  or  whenever  called  upon  by  the  court. 
But,  according  to  the  modem  English  practice,  guardians  of  the 
person  and  not  of  the  estate  are  exempted  from  this  requirement.*' 
In  some  cases,  guardians  are  appointed  by  the  court  without  refer- 
ence to  a  master.     Thus,  where  the  father  applies,  or  the  infant 

H.  440.    The  minor 's  choice  under  sta-  80.  Dyer's  Case,  5  Paige,  Ch.  534. 

tute  cannot  be  disapproved  at  the  ar-  81.  Lee's  Appeal,  27  Pa.  St.  229. 

bitrary  discretion  of  the  judge;   but  See  also  E.  B.  v.  E.  C.  B.,  28  Barb, 

if    one    choice    be    injudicious,    the  299.     But   see    Adams's    Appeal,    36 

minor  may  choose  another,  and  upon  Conn.    304,   showing   that   local   stat- 

the  choice  of  an  unobjectionable  per-  utes  vary  on  this  point.      The  court 

son  the  minor  has  a  right  to  have  him  has  sometimes  regarded  the  vrishes  of 

appointed.    Adams's  Appeal,  38  Conn.  a    child    under    fourteen    where    the 

304.  scales  are  balanced;   but  only  at  its 

79.  IMcVaw  v.  Shelby,  25  Ky.  Law  ample  discretion.     91  Ga.  90. 

Eep.  309,  75  S.  W.  227;  State  ex  rel.  82.    Macphers.   Inf.    106,   107,   and 

Pinger  v.  Reynolds,  121  Mo.  App.  699,  cases  cited;  2  Kent,  Com.  227. 

97    S.    W.    650    (although    attending  83.  Macphers.  Inf.  107,  108;  2  Kent, 

school  in  another  State) ;   Whittelsey  Com.  227. 
V.  Conniff,  182  S.  "W.  161. 


947 


APPOINTMENT    OF    GUARDIANS. 


§  846 


above  fourteen  makes  a  selection,  the  court  acts  without  reference, 
out  of  regard  for  their  special  privilege.^*  And  where  the  prop- 
erty of  the  infant  is  very  small,  the  same  favor  has  been  granted, 
in  order  to  save  legal  expense  to  the  estate.^^  The  child  should 
usually  be  present  at  the  hearing ;  but,  in  a  recent  Irish  case,  the 
court  dispensed  with  the  requirement,  on  evidence  that  the  child 
was  less  than  a  month  old  and  of  delicate  health.*® 

§  846.  American  Practice ;  Notice ;  Trial  by  Jury. 

Our  American  practice  in  the  appointment  of  probate  guardians 
is  usually  more  simple.  Petition  is  presented  by  the  person  desir- 
ing the  appointment,  whereupon  a  citation  is  issued,  for  all  parties 
interested  to  appear  on  a  certain  court  day.  The  judge,  upon  the 
day  specified,  after  a  summary  hearing,  appoints  the  guardian,  and 
issues  letters  of  guardianship  upon  filing  bond  with  proper  security. 
Appeal  may  be  taken  within  a  limited  time  by  any  person  ag- 
grieved, and  the  tribunal  of  last  resort  then  hears  the  parties, 
determines  the  choice,  and  makes  a  final  decree, —  to  which  the 
lower  court  conforms  and  issues  letters  of  guardianship  accord' 
ingly.  The  infant,  if  under  fourteen,  is  rarely  produced  in  court, 
nor  does  the  judge  make  an  order  of  reference.*^  Assent  or  attend- 
ance in  such  proceedings  dispenses  with  a  formal  notice  so  far  as 
those  interested  are  concerned.** 


84.  Macphers.  Inf.  78,  109. 

85.  Ex  parte  Bond,  11  Jur.  114, 

86.  Stutely  v.  Harrison,  1  Ired.  Eq. 
256;  13  Jur.  800.  And  see  Benison 
V.  Worsley,  15  E.  L.  &  Eq.  317. 

87.  For  practice  in  particular  States 
see  local  statutes;  also  Smith's 
(Mass.),  Prob.  Practice;  Comst.  Dig.; 
Eeese  (Ga.),  Manual;  Watson  v.  War- 
nock,  31  Ga.  716.  Next  of  kin  may 
appeal.  Taff  v.  Hosmer,  14  Mich. 
243.  And  see  Be  Feeley,  4  Eedf.  306. 
The  Georgia  code  requires  appoint- 
ment made  in  open  and  regular  court. 
72  Ga.  125. 

As  to  the  requisites  in  appointing 
gTiardian  for  an  insane  person,  see 
Angell  V.  Probate  Court,  11  R.  I.  187. 
Where  the  intended  ward  is  of  full 
age,  notice  to  him  is  the  only  notice 
needful,  unless  the  statute  prescribes 
otherwise.  Hamilton  v.  Probate  Court, 


9  R.  I.  204.  But  statutes  differ  on 
this  point.  Morton  v.  Sims,  64  Ga. 
298. 

A  minor  entitled  to  his  own  choice, 
or  fourteen  years  old,  may  appeal  if 
that  choice  is  not  respected  by  the 
court.  Adams's  Appeal,  38  Conn. 
304;  supra,  §  301;  Witham,  Be,  85, 
Me,  360;  128  Mass.  592.  Where  ap- 
pointment is  made  on  the  ground  of 
estate,  the  ward  being  non-resident, 
statute  requirements  as  to  notice  must 
be  strictly  pursued,  or  all  subsequent 
proceedings  may  be  rendered  void. 
Seaverns  v.  Gerke,  3  Sawyer,  353. 
Liberal  discretion  of  lower  court  in  a 
selection  or  deciding  to  appoint,  fa- 
vored in  115  N.  Y.  669. 

88.  83  Cal.  344.  A  master  is  not  en- 
titled to  notice  of  proceedings  for  the 
guardianship  of  his  apprentice.  62 
X.  H.  252. 


847 


GUARDIAN    AND    WARD. 


948 


No  notice  need  be  given  to  the  minor,  in  the  absence  of  a  statute 
requiring  it,  of  an  application  for  the  appointment  of  a  guardian 
of  the  minor,*®  and  a  sale  of  the  minor's  property  by  such  guardian 
is  not  a  deprivation  of  his  property  without  due  process  of  law."* 
Such  proceedings  are  not  regarded  as  adversary  in  character,  but 
are  intended  for  the  benefit  of  the  minor  and  simply  to  change  the 
investment  for  the  benefit  of  the  minor.  But  if  the  judge  appoint 
without  giving  reasonable  notice,  so  that  parties  interested  have 
not  a  fair  opportunity  to  be  heard  upon  the  petition,  his  appoint- 
ment may,  according  to  the  better  practice,  be  set  aside  on  appeal 
at  the  instance  of  an  aggrived  party ,®^  and  the  father  should  be 
notified.'^ 

A  trial  by  jury  need  not  be  provided  in  proceedings  for  the 
restraint  and  guardianship  of  a  delinquent  boy.  This  is  not  a 
proceeding  according  to  the  common  law,  in  which  a  trial  by  jury 
is  guaranteed,  but  the  proceeding  is  statutory.  Such  children  are 
properly  treated  as  wards  of  the  State,  and  this  duty  is  properly 
regarded  as  one  of  the  most  important  of  governmental  functions.'^ 

§  847.  Effect  of  Appointment ;  Conclusiveness  of  Decree,  etc. 

The  appointment  of  a  chancery  guardian  is  of  itself  an  act 
exercised  by  the  court  of  highest  authority  in  such  matters.  The 
appointment  cannot  be  impeached  elsewhere,  nor  set  aside  by  a 
common-law  tribunal.  The  court  which  creates  the  guardian 
superintends  his  acts  and  removes  him  if  necessary.  Such  is  the 
nature  of  chancery  jurisdiction  wherever  it  exists.     But  the  effect 


89.  Children 's  Guardians  v.  Shutter, 
139  Ind.  268,  34  N.  E.  665,  31  L.  E.  A. 
740;  Wallace  v.  Tiney,  145  la.  478, 
122  N.  W.  936,  139  Am.  St.  E.  448; 
Mahan  v.  Steele,  109  Ky.  31,  58  S.  W. 
446;  Peacock  v.  Peacock,  61  Me. 
211 ;  Packard  v.  Ulrich,  106  Md.  246, 
67  A.  246,  12  L.  E.  A.  (N.  S.)  895; 
Gibson's  Appeal,  154  Mass.  378,  28 
N.  E.  296;  Kurtz  v.  West  Duluth 
Land  Co.,  52  Minn.  140,  53  N.  W. 
1132;  Amy  v.  Bazille,  81  Minn.  370, 
84  N.  W.  120;  Whitelsey  v.  ConnifF, 
266  Mo.  567,  182  S.  W.  161,  1  A.  L. 
E.  913;  Hanley  v.  Eussell,  63  N.  H. 
614;  Credle  v.  Baagham,  152  N.  C. 
18,  67  S.  E.  46,  136  Am.  St.  E.  787; 
State  V.  Madden,  12  Ohio  S.  &  C.  P. 


Dec.  83;  Shroyer  v.  Eichmond,  16 
Ohio  St.  455;  Farrar  v.  Olmstead,  24 
Vt.  123. 

90.  Whittelsey  v,  Conniff,  266  Mo. 
567,   182  S.  W.  161,  1  A.  L.  E.  913. 

91.  TJnderhill  v.  Dennis,  9  Paige, 
202 ;  Bowles  v.  Dixon,  32  Ark.  92.  A 
maternal  grandparent  ought  not  to 
be  appointed  •without  notice  to  the 
paternal  grandparent,  if  there  be  one. 
IRe  Feeley,  4  Eedf.  306.  See  37  N.  J. 
Eq.  245,  251;   58  N.  H.  15. 

92.  Bowles  v.  Dixon,  32  Ark.  92; 
Tong  V.  Marvin,  26  Mich.  35. 

93.  Lindsay  v.  Lindsay,  257  El.  328, 
100  N.  E.  892,  45  L.  E.  A.  (N.  S.) 
908. 


949 


APPOINTMENT    OF    QUAKDIANS. 


§  847 


of  appointments  made  bj  probate  authority  is  not  the  same.  In 
general,  the  same  principles  apply  as  in  grants  of  administration ; 
probate  jurisdiction  being  much  the  same,  whether  over  the  estates 
of  deceased  persons  or  of  infants.  For  fraud  or  excess  of  jurisdic- 
tion, letters  of  probate  guardianship  may  be  attacked  collaterally ; 
not  otherwise.  But  a  person  sued  in  the  common-law  courts  can- 
not defend  on  the  ground  that  the  guardian  is  unsuitable  for  his 
trust ;  the  letters  of  guardianship  sufficiently  disprove  it ;  they  are 
the  guardian's  credentials  of  authority  everywhere,  and,  if  improp- 
erly issued,  should  be  revoked  by  the  court  which  issued  them.'* 
The  later  and  safer  tendency,  here,  as  in  grants  of  administration, 
is  to  sustain  the  court's  decree  against  indirect  and  collateral 
attacks.*^  An  oral  appointment  as  guardian  is  not  to  be  shown 
to  antedate  that  shown  by  judicial  records ;  but  the  records  them- 
selves, with  recorded  judicial  action  in  confirmation  of  the  recorded 
appointment,  should  be  respected  elsewhere." 

The  decree  of  the  court  appointing  a  guardian  is  prima  facie 
evidence  of  the  ward's  disability ;  ®^  and  is  even  held  conclusive  in 
some  cases.  It  would  be  unreasonable  to  compel  the  guardian  of 
an  insane  person  or  spendthrift  to  furnish  proof  of  his  ward's 
condition  in  every  collateral  suit  on  his  behalf,  and  to  encounter 


94.  Speight  v.  Knight,  11  Ala.  461; 
Kimball  v.  Fisk,  39  N.  H.  110;  Math- 
ews V.  Wade,  2  W.  Va.  464;  Warner 
V.  Wilson,  4  Cal.  310.  As  to  the  effect 
of  defective  notice  in  probte  appoint- 
ments, see  Davidson  v.  Johonnot,  7 
Met.  388;  Breed  v.  Pratt,  18  Pick. 
115 ;  Brigham  v.  Boston,  etc.  R. 
R.  Co.,  102  Mass.  14;  Cleveland  v. 
Hopkins,  2  Aik.  394 ;  Eedman  v. 
Chance,  32  Md.  42;  Chase  v.  Hatha- 
way, 14  Mass.  222;  People  v.  Wilcox, 
22  Barb.  178;  Palmer  v.  Oakley,  2 
r>oug.  433;  Sears  v.  Terry,  26  Conn. 
273;  Gronfier  v.  Puymirol,  19  Cal. 
629.  As  to  other  informalities,  see 
State  V.  Hyde,  29  Conn.  564;  Lee  v. 
Ice,  22  Ind.  384.  The  letter  of 
guardianship  need  not  recite  the  mode 
and  particular.?  of  nomination,  but  ia 
in  the  nature  of  a  certificate  or  com- 
mission. King  V.  Bell,  36  Ohio  St. 
460;  Burrows  v.  Bailey,  34  Mich.  64. 


A  guardian  appointed  by  the  probate 
court  of  a  State  in  rebellion,  must  be 
reappointed  when  the  rightful  gov- 
ernment is  re-established.  Troy  v. 
EUerbe,  48  Ala.  621. 

Where  there  was  jurisdiction  for 
appointment  both  on  grounds  of  lu- 
nacy and  infancy,  presumption  is 
favored  after  lapse  of  time  that  the 
court  made  the  appointment  cover 
both  grounds,  or  performed  its  full 
duty.  King  v.  Bell,  36  Ohio  St.  460. 
Here  a  new  bond  was  taken  after  the 
ward  arrived  at  full  age.  Under  the 
Georgia  code  an  appointment  made  in 
chambers  by  the  judge  is  void.  72 
Ga.  125.     Cf.  65  la.  629. 

95.  See  Schouler,  Executors,  §  160; 
153  Pa.  St.  493. 

96.  53  Ark.  37;  Holden  v.  Curry,  85 
Wis.  504. 

97.  White  v.  Palmer,  4   Mass.   147. 


§  848 


GUAKDIAJSr    AND    WAKD. 


950 


new  investigations  of  facts  already  established,  concerning  which 
men's  minds  greatly  differ.  But  the  prima  facie  evidence  of  in- 
fancy is  generally  simple  and  easily  obtained.  The  authority  of 
his  guardian  turns  upon  a  simple  question  of  fact, —  the  date  of 
birth.  And  while  we  apprehend  that  the  recitals  contained  in 
letters  of  guardianship  afford  prima  facie  proof  on  this  point,  in 
all  contests  involving  the  guardian's  authority,  the  presumption 
thus  raised  must  be  very  slight,  since  it  is  common  to  issue  letters 
of  probate  guardianship  upon  the  mere  allegation  of  infancy  in 
the  petition  and  without  special  proof. ®^ 

One  who  has  been  appointed  guardian,  and  acted  as  such,  cannot 
deny  the  jurisdiction  of  the  court  which  appointed  him  in  a  col- 
lateral suit.^^  If  he  ascertains  that  his  appointment  was  without 
jurisdiction,  he  should  surrender  his  letters  at  once  and  cease  to 
act.  But,  as  we  shall  presently  see,  a  liability  may  exist  from  the 
fact  that  one  irregularly  or  wrongly  appointed  undertakes  the 
office  of  guardian.^  The  court's  appointment  of  a  guardian  does- 
not  relate  back  like  that  of  an  executor  or  administrator.^ 

§  848.  Civil-law  Rule  of  Appointing  Guardians. 

The  principles  of  the  civil  law,  as  later  adopted  in  Holland, 
France,  and  Spain,  with  reference  to  the  jurisdiction  and  method 
of  appointing  guardians,  differ  not  greatly  from  ours.  The  juris- 
diction competent  to  make  the  selection  was  that  of  the  domicile  of 
the  minor,  or  in  which  his  property  was  situated.  Under  the 
French  Code,  a  family  council  is  called  together  at  the  instance 
of  the  parties  interested,  and  nominates  a  suitable  person  or  per- 
sons to  take  the  trust,  where  the  children  are  orphans  and  not 
otherwise  provided  for ;  and  these  persons,  when  they  are  approved 
by  the  judge,  take  an  oath  well  and  faithfully  to  discharge  their 


98.  Leonard  v.  Leonard,  14  Pick. 
280.  See  Chamberlayne,  Evidence, 
§§  1199,  1200. 

99.  Thurston  v.  Holbrook's  Estate, 
31  Vt.  354;  Hines  v.  Mullins,  25  Ga. 
696;  Fox  v.  Minor,  32  Cal.  Ill;  State 
V.  Lewis,  73  N.  C.  138. 

1.  A  general  appointment  will  be 
construed  as  an  appointment  with 
reference  to  certain  property  only, 
when  otherwise  it  would  not  be  valid. 
Davis  V.  Hudson,  29  Minn.  27. 


2.  Prior  acts  of  the  guardian  respect- 
ing the  ward's  property  are  not  vali- 
dated by  his  new  credentials.  Holden 
V.  Curry,  85  Wis.  504;  Huntsman  v. 
Pish,  36  Minn.  148,  Qu.  as  to  a 
testamentary  guardian.  Nor  do  the 
quasi  guardian's  mistaken  acts  or 
representations  estop  the  infant  or 
his  guardian  duly  appointed.  Sher- 
man V.  Wright,  49  N.  Y.  228;  78  Tex. 
378. 


951  APPOINTMENT  OF  GUAEDIANS.  §  848 

trust  and  complete  the  necessary  qualifications.     In  Louisiana,  the 
selection  is  made  bj  the  family  coimcil  in  a  similar  manner.^ 

8.  3  Burge,  Col.  &  For.  Laws,  938-  La.    944,   36   So.    41;    In   re   Supple 

943;  2  Kent,  Com.  231;  In  re  Stan-  Minors  for  Family  Meeting,  123  La. 

brough,  51  La.  Ann.  1324,  26  So.  276;  939,  49  So.  648;  Blandin  v.  Blandin, 

Succession  of  Fried,  106  La.  276,  30  53  So.  15,  126  La.  819. 
So.  839;  Succession  of  Carbajal  111 


§  850 


GUARDIAN    AND    WARD. 


952 


CHAPTER  III. 


TERMINATION  OF  THE  GUARDIAN  S  AUTHORITY. 


Section  849. 
850. 
851. 
852. 
853. 
854. 
855, 
856. 
857. 
858. 
859. 


How  the  Guardian's  Authority  is  Terminated. 

Natural  Limitation,  Ward  of  Age,  etc. 

Death  of  the  Ward. 

Marriage  of  the  "Ward. 

Death  of  Guardian. 

Eesignation  of  the  Guardian. 

Eemoval;  Who    May    Eemove. 

Kemoval;  Procedure. 

Removal;  Causes  of. 

Appointment  of  Successor  —  Duties. 

Marriage  of  Female  Guardian. 


860.     Other  Cases  "Where  a  New  Guardian  is  Appointed. 

§  849.  How  the  Guardian's  Authority  is  Terminated. 

Guardianship  lasts  until  the  end  of  the  period  for  which  it  was 
instituted.  But  it  may  be  sooner  terminated  by  the  death  or  mar- 
riage of  the  ward,  or  by  the  death,  resignation,  removal,  or  super- 
sedure  of  the  guardian  himself;  or,  if  the  guardian  be  a  female, 
by  her  marriage.     These  topics  will  be  considered  in  order. 

§  850.  Natural  Limitation;   Ward  of  Age,  etc. 

As  the  relation  of  guardian  and  ward  usually  exists  for  merely 
temporary  purposes,  it  is  plain  that,  when  those  purposes  are  ful- 
filled, the  trust  must  terminate.  The  object  of  guardianship,  in 
the  case  of  infants,  is  fulfilled  when  the  infant  becomes  of  age, 
for  he  is  then  free  and  competent,  under  the  law,  to  transact  his 
own  business  and  control  his  own  person.  No  guardian,  therefore, 
of  an  infant,  whether  a  socage,  natural,  testamentary,  chancery, 
or  probate  guardian,  can  act  in  such  capacity  after  the  ward  is 
twenty-one  years  old  or  has  reached  majority;  but  should  present 
his  account  and  settle  with  the  late  ward.*     Termination  thus  of 


4.  Jra  re  Kincaid's  Estate,  120  Cal.  - 
203,  52  P.  492;  Curtis  v.  Devoe,  121 
Cal.  468,  53  P.  936;  Coon  v.  Cook, 
6  Ind.  268  (although  ward  is  insane)  ; 
Jones  V.  Jones,  91  Ind.  37S;  Probate 
Judge  V.  Stevenson,  55  Mich.  320,  21 
N.  "W.  348;  State  ex  rel.  Scott  v. 
Greer,  101  Mo.  App.  669,  74  S.  W. 
881;    Lynch    v.    Munson     (Tex.    Civ. 


App.  1901),  61  S.  "W.  140  (though  no 
record  of  termination  of  guardian- 
ship) ;  Buckley  v.  Herder  (Tex,  Civ. 
App.  1911),  133  S.  "W.  703  (testament- 
ary guardians)  ;  American  Surety  Co. 
of  New  York  v.  Hardwick  (Tex.  Civ. 
App.),  186  S.  W.  804;  Armstrong's 
Heirs  v.  Walkup  (Va.),  12  Grat.  608; 
Lyons   v.   McElroy    ("Wash.),    177   P. 


953 


TERMINATION    OF    THE    GUABDIANSHIP. 


§    850 


the  guardianship  is  equivalent  to  the  discharge  of  the  guardian,  as 
various  codes  are  construed;  ^  subject,  however,  to  the  appointing 
court's  jurisdiction  over  the  guardian  to  compel  final  account  and 
settlement  of  his  trust.* 

But  the  natural  limitation  of  the  guardian's  authority  may  be 
even  sooner,  if  derived  from  testamentary  appointment.  For  the 
testator  may  designate  a  shorter  period  or  some  particular  event 
which  shall  determine  the  relation.  Thus,  if  he  appoints  his  wife 
to  be  guardian  until  her  marriage,  her  trust  terminates  on  marry- 
ing again.^  And  if  no  successor  was  indicated  in  the  will,  a  chan- 
cery or  probate  appointment  must  supply  the  vacancy.* 

The  legal  authority  of  guardians  in  socage  also  terminated, 
strictly  speaking,  when  the  infant  became  fourteen.'  So  did  that 
of  guardians  for  nurture,  as  distinguished  from  those  by  nature.^** 
This  was  because  the  ward  was  recognized  as  partially  qualified  to 
act  for  himself,  having  passed  through  the  period  of  nurture.  He 
was  then  allowed  to  elect  a  guardian.^^  Still  the  guardianship 
continued  effectual  during  minority  in  both  cases,  unless  a  new 
choice  was  made  by  the  ward.^^  But  no  guardians  in  socage,  for 
nurture,  testamentary,  or  by  judicial  appointment,  were  ever  ren- 
dered devoid  of  power  by  the  mere  fact  that  the  infant  had  passed 
the  period  of  nurture.  An  anomalous  exception  is  found  in  Ohio, 
where  it  has  been  held  that  probate  guardianship  wholly  ceases 
when  the  ward  reaches  twelve  if  a  female,  or  fourteen  if  a  male, 
and  that  a  new  appointment  must  then  be  made.^'  This  rule  is, 
however,  one  of  statutory  construction;  and  while  the  ward,  on 
arriving  at  fourteen,  may  have  the  statute  right  to  choose  a  new 
probate  guardian,  the  general  rule  is  that  such  guardian  should  be 
first    designated,    judicially    approved   and   qualified    before   the 


312  (court  cannot  order  compromise 
of  ward's  claim  after  he  becomes  of 
age)  ;  1  Bl.  Com.  461,  462,  Harg.  n.; 
2  Kent,  Com.  221-227.  Statutes  rela- 
tive to  guardianship  are  sometimes 
explicit  on  this  point.  Bourne  v.  May- 
bin,  3  Woods,  C.  C.  724;  Stroup  v. 
State,  70  Ind.  495. 

5.  Tate  v.  Stevenson,  55  Mich.  320. 

6.  People  V.  Scelye,  146  111.  189. 

7.  Selby  v.  Selby,  2  Eq.  Ca.  Ab. 
488;  Holmes  v.  Field,  12  HI.  424; 
Corrigan  v.  Kiernan,  1  Bradf.  208. 


8.  Macphers.  Inf.  104,  and  cases 
cited. 

9.  1  Bl.  Com.  461,  Harg.  n.;  2  Kent, 
Com.   222. 

10.  Ih. 

11.  1  Bl.  Com.  462,  Harg.  n. 

12.  Rex  V.  Pierson,  Andr.  313 ;  Men- 
des  V.  Mendes,  3  Atk.  624,  And  see 
Macphers.  Inf.  41,  65 ;  Byrne  v.  Van 
Hoesen,  5  Johns.  66. 

13.  Perry  v.  Brainard,  11  Ohio,  442; 
Maxson  v.  Sa^vyer,  12  Ohio,  195.  See 
Dibble  v.  Dibble,  8  Ind.  307;  Matter 
of  Dyer,  5  Paige,  534. 


§  852 


GUARDIAN    AND    WARD. 


954 


former  guardian  can  be  considered  as  discharged  from  his  trust." 
]^o  more  precise  limit  can  be  assigned  to  the  authority  of  guar- 
dians over  insane  persons  and  spendthrifts,  than  that  of  the  ward's 
necessities.  When  he  becomes  sufficiently  restored  to  reason,  or  is 
otherwise  fit  to  control  his  own  person  and  estate,  this  guardian- 
ship ceases ;  for  the  purposes  of  the  trust  are  felt  no  longer.  But 
a  period  so  difficult  to  fix  should  be  judicially  determined;  for 
which  cause  a  formal  discharge  from  guardianship  is  to  be  sought 
and  obtained,  and  meantime  the  guardian's  authority  will 
continue.  ^^ 

§  851.  Death  of  the  Ward. 

Death  of  the  ward  necessarily  terminates  guardianship.  And 
after  the  ward's  death  the  guardian's  only  duty  is  to  settle  up  his 
accounts  and  pay  the  balance  in  his  hands  to  the  ward's  personal 
representatives,  whereupon  his  trust  is  completely  fulfilled.^" 
Where  administration  is  granted  upon  the  estate  of  a  deceased 
ward,  the  assets  vest  at  once  in  the  administrator,  whose  title  dates 
back  by  relation  to  the  ward's  decease.^ 


17 


§  852.  Marriage  of  the  Ward. 

The  lawful  marriage  of  any  ward,  whether  male  or  female,  must 
necessarily  affect  the  rights  of  the  guardian.  So  far  as  the  ward's 
person  is  concerned,  there  can  be  no  question  that  the  guardianship 
ends.  Marriage  is  paramount  to  all  other  relations,  and  its  proper 
continuance  being  inconsistent  with  guardianship  of  the  person, 
the  latter  yields  to  it,  whichever  may  be  the  sex  of  the  ward.  But 
as  to  the  estate,  the  rule,  in  view  of  late  married  women's  statutes, 
is  not  so  clear.      If,  however,   a  male  ward  marries  a  female, 


14,  Bryce  v.  Wynn,  50  Ga.  332. 

15,  Dyce  Sombre 's  Case,  1  Phil.  Ch. 
437;  Hovey  v.  Harmon,  49  Me.  269; 
Wendell's  Case,  1  Johns.  Ch.  600; 
Kimball  v.  Fisk,  39-  N.  H.  110 ;  Chase 
T.  Hathaway,  14  Mass.  222;  Hooper 
V.  Hooper,  26  Mich.  435;  55  Mich. 
320.  The  issue  here  is  whether  the 
ward  has  sufficiency  of  reason  to  man- 
age his  own  estate.  Cochran  v.  Ams- 
den,  104  Ind.  282, 

16,  State  Fair  Ass'n  v,  Terry,  74 
Ark.  149,  85  S.  W.  87;  In  re  Liver- 
more 's  Estate,  132  Cal.  99,  64  P.  113, 
begun.      Richmond   v.    Adams   Bank, 


84  Am.  St.  R.  37;  Whittemore  v. 
Coleman,  239  111.  450,  88  N,  E,  228; 
Martin  v.  Caldwell,  49  Ind.  App,  1, 
96  N.  E.  660;  Hersey  v.  Purington, 
96  Me,  166,  51  A.  865.  In  some  States 
the  guardian  is  charged  with  admin- 
istering his  deceased  ward's  estate. 
Beavers  v.  Brewster,  62  Ga.  574. 

17,  Sommers  v,  Boyd,  48  Ohio  St. 
648.  A  guardian  cannot  sue  on  be- 
half of  his  ward  after  the  latter 's 
death.  Barrett  v.  Provineher  (1894, 
Neb.).  Nor  continue  a  auit  already 
152  Mass,  359.  And  see  Mechanics 
V.  Bank  v.  Waite,  150  Mass.  234. 


955 


TEKMINATION    OF    THE    GUARDIANSHIP. 


852 


whether  she  be  minor  or  adult,  his  guardian  retains  power  over  his 
estate,  as  before,  until  he  becomes  of  age.^^ 

Hence  arises  a  difficulty  where  a  male  and  female  ward  marrv, 
both  being  minors  and  having  estates  in  the  hands  of  their  respec- 
tive guardians.  Does  the  husband,  though  imder  age,  take  all  the 
rights  of  an  adult  husband  ?  Or  does  the  wife's  estate  remain  in 
keeping  of  her  guardian  until  the  husband  is  old  enough  to  control 
it  in  person  ?  The  better  opinion  is  that  it  goes  to  the  husband, 
whatever  his  age.  The  inevitable  consequence  is  that  the  hus- 
band's guardian  must  take  it  from  the  wife's  guardian,  and  hold 
both  estates  during  minority.  This  seems  an  awkward  arrange- 
ment, but  it  is  nevertheless  the  lawful  one.  More  troublesome 
would  be  a  case  under  the  recent  statutes  in  this  country  relative  to 
married  women,  concerning  which  we  do  not  find  an  important 
decision.  But  it  seems  the  technical  rule  applies,  as  before,  to 
the  detriment  of  the  female  ward's  interests.  It  might  be  well 
to  declare  by  statute  that  the  wife's  guardian  shall  continue  to 
manage  her  estate  during  her  minority.^® 

The  marriage  of  the  female  ward,  it  is  said,  does  not,  ipso  facto, 
determine  the  authority  of  her  guardian  over  her  estate.  Hence 
an  order  of  court,  transferring  the  custody  of  the  property  to  the 
husband,  is  first  necessary;  to  which  order  the  husband  will  be 
entitled  upon  motion.  Such  is  the  rule  declared  in  Xew  York.*" 
But  while  in  England  the  court  of  chancery  never  appoints  a  guar- 
dian for  a  female  infant  after  marriage,  neither  does  it  discharge 
an  order  for  a  guardian  because  of  marriage ;  because,  as  Mr. 
Macpherson  thinks,  the  marriage  of  a  female,  if  valid,  supersedes 
guardianship,  of  its  own  force."^  Probate  wards  in  this  country 
are  frequently  married,  and  their  guardians  settle  their  accounts 
without  order  of  court  or  revocation  of  letters,  on  the  supposition 
that  the  marriage  ipso  facto  puts  an  end  to  their  authority.  In 
some  cases  of  alleged  trespass  on  a  female  infant's  lands,  it  has 


18.  Eeeve,  Dom.  Eel.  328;  2  Kent, 
Com.  226;  Bae.  Abr.  Guardian  (E.)  ; 
Eyre  v.  Countess  of  Shaftesbury,  2  P. 
Wms.  103 ;  Mendes  v.  Mendes,  3  Atk. 
619;  Ih.,  1  Ve3.  89;  Jones  v.  Ward, 
10  Terg.  160.  The  guardian  of  an  in- 
fant husband  is  clothed  with  the  hus- 
band's  power  of  reducing  to  posses- 
sion.    Ware  v.  Ware,  28  Gratt.  670. 


19.  See  Eeeve,  Dom.  Eel.  328;  2 
Kent,   Com.   226;    Anon.   8   Sim.   346. 

20.  Whitaker's  Case,  4  Johns.  Ch. 
376.  But  see  contra,  Jones  r.  Ward, 
10  Terg.  160;  Nicholson  v.  Wilborn, 
13  Ga.  467;  Anon.  8  Sim.  346;  Arm- 
strong V.  Walkoup,  12  Gratt.  608. 

21.  Macphers.  Inf.  113,  citing 
Eoach  V.  Garvan,  1  Ves.  160;  8  Sim. 
336. 


§    853  GUAEDIAN    AND    WAED.  956 

been  ruled  that  the  adult  husband  succeeds  to  the  place  of  her 
guardian,  all  other  guardianship  ceasing  at  her  marriage.^^  And 
it  is  held  that  a  female  infant's  guardian  is  not  responsible  to  her 
for  money  which  was  hers,  and  which  he  has  paid  over  to  her  adult 
husband,  in  good  faith,  without  any  notice  or  presumption  of  her 
non-concurrence.^^  The  local  statute  is  sometimes  explicit  enough 
to  relieve  one  of  doubt  on  the  main  question.^* 

The  recent  cases  hold  that  the  guardianship  of  an  infant  female 
terminates  on  her  marriage  ^^  to  a  man  of  full  age,^'  and  the  hus- 
band succeeds  to  his  place  as  guardian.^^ 

§  853.  Death  of  Guardian. 

On  death  of  a  guardian  the  relationship  ceases,^*  and  the  ward's 
relation  to  the  estate  of  his  former  guardian  becomes  that  of 
creditor.^®  But  the  ward  does  not  thereby  necessarily  become 
free,  for  a  successor  in  the  trust  continues  to  control  him.  The 
executor  or  administrator  of  the  guardian,  as  such,  has  no  author- 
ity; for  guardianship  is  a  personal  trust  and  not  transmissible. 
But  he  should  close  the  accounts  of  the  deceased  guardian  in  court, 
and  pass  the  balance  over  to  the  successor.  This  successor  is  the 
person  next  indicated  in  the  will  appointing  testamentary  guar- 
dians, or  the  survivor  of  joint  guardians,  or  some  one  appointed  in 
chancery  or  probate  to  fill  the  vacancy,  as  the  case  may  be.^ 


30 


22.  Porch  V.  Fries,  3  C.  E.  Green  Decker  v.  Fessler,  146  Ind.  16,  44  N. 
(N.  J.)  204;  Bartlett  v.  Cowles,  15  E.  657  (may  appoint  guardian  for 
Gray   (Mass.),  445.  female   minor   married   to   a  minor)  ; 

23.  Beazley  v.  Harris,  1  Bush,  533.  State  v.  Parrish,  1  Ind.  App.  441,  27 
See,  as  to  the  wife's  remedies,  Story  N.  E.  652. 

V,  Walker,  64  Ga.  614.  27.  Bartlett    v.    Cowles,    81    Mass. 

24.  Some  local  codes  declare  that  445;  Fowler  v.  McLaughlin,  131  N.  C. 
■when    the    female    ward    marries    an  209,  42  S.  E.  589. 

adult    the    guardianship    shall    cease.  28.  Koe  v.   Caldwell,  138  La.  652, 

Bourne   v.    Maybin,   3    Woods,   C.   C.  70  So.   548. 

724 ;    Kidwell   v.    State,   45    Ind.   27 ;  29.  American  Bonding  Co.  of  Balti- 

State  V.  Joest,  46  Ind.  235.     In  Ala-  more  v.  Logan  (Tex.  Civ.  App.  1910), 

bama  the  married  ward  may  call  her  132  S.  W.  894. 

guardian  to  account.      Wise  v.  Nor-  30.  Co.  Litt.  89 ;  Bac.  Abr.  Guardian 

ton,   48   Ala.   214.      See,   as  to   adult  (E.)  ;  Connelly  v.  Weatherly,  33  Ark. 

husband's     settlement,     60     Ind.     41.  658.    When  a  guardian,  whose  author- 

And     see     as     to     intermarriage     of  ity  has  terminated  on  the  ward's  ar- 

guardian  and  his  ward,  1   Ind.  App.  rival  at  majority,  becomes  administra- 

441.  tor    of    the    ward's   estate,   the   ward 

25.  Mouser  v.  Nunn,  142  Ky.  656,  dying  soon  after  and  before  the 
134  S.  W.  1148 ;  contra.  Mayo  v.  Bank  guardianship  accounts  are  closed,  his 
of   Gleason    (Tenn.),  205   S,  W.   125.  liability   for  the   property  is  that  of 

26.  State  v.  Joest,  46  Ind.  233,  235 ;  administrator.      Hutton   v.   Williamg, 


957  TEEMINATION    OF    THE    GUABDIANSHIP.  §    854: 

On  death  of  a  guardian  his  executx)r  should  pay  over  funds  of 
the  estate  into  court,^^  but  the  administrator  will  not  be  liable  for 
the  devastavit  of  the  decedent.^^ 

The  executors  of  a  deceased  guardian  may  be  ordered  to  account 
-and  to  pay  the  amount  due  by  sale  of  property  if  necessary." 

§  854.  Resignation  of  the  Guardian, 

The  office  of  a  guardian  was  regarded  as  something  so  honorable 
at  the  common  law  that  it  could  not  be  easily  refused,  much  less 
resigned.  Natural  guardians,  of  necessity,  could  not  resign.  We 
have  seen,  in  another  connection,  how  far  the  natural  guardian 
may  practically  surrender  his  children's  custody,  by  allowing  others 
to  adopt  them,  by  placing  them  in  a  charitable  institution,  and  the 
like ;  which  is  the  only  sense  in  which  this  guardianship  may  be 
considered  as  voluntarily  transferred.  So  guardians  in  socage, 
being  designated  by  the  law,  could  not  in  strictness  resign ;  if  they 
could  shift  their  authority  at  all,  it  must  have  been  by  assignment. 
There  is  reason  to  believe  that,  before  the  statute  of  Marlbridge,^* 
they  could  assign,  but  only  to  the  extent  of  placing  the  ward's  body 
in  custody  of  another.  In  later  times,  no  assignment  whatever  has 
been  permitted.  For,  as  Lord  Commissioner  Gilbert  observed, 
guardianship  in  socage  is  an  interest,  not  of  profit,  but  of  honor, 
committed  to  the  next  of  kin,  inherent  in  the  blood  ;  and  therefore 
not  assignable.^'* 

The  resignation  of  a  testamentary  guardian  is  not,  as  a  rule, 
permitted.  In  1752  the  guardians  of  the  young  Earl  of  Spencer, 
who  was  then  in  his  eighteenth  year,  petitioned  the  court  of  chan- 
cery that  they  might  be  discharged  from  their  trust,  as  he  was  then 
going  abroad  on  his  travels,  and  would  not  be  under  their  care. 

60  Ala.   107.     As  to  settlement  of  a  116  S.  W.  890;  Allen  v.  Conklin,  112 

guardian's    account    by   his    adminis-  Mich.  74,  70  N.  W.  339,  3  Det,  Leg. 

trator,  see  66  Ala.  283;   156  Pa.  St.  N.  813. 

297.       Or    where   the    guardian    died  Contra.      After    the    death    of    a 

without    making    a    settlement,    and  guardian    without    having    accounted 

long   after  the  ward's  minority.      65  after  his  wards  had  reached  majority, 

Cal.  228.  his  executors  had  no  authority  to  pre- 

31.  In  re  Hicks,  170  N.  Y.  195,  63  sent  his  account  to  the  probate  court. 

Ti.  E.  276.     See  McKay  v.  IMcKay's  Miller  v.   Ash,   156   Cal.    544,   105   P. 

Adm'rs,  33  W.  Va.  724,  11  S.  E.  213.  600. 

22.  Newberry  v.  Wilkinson,  199  F.  34,  52  Hen.  III.,  ch.   17. 

673,  118  C.  C.  A.  Ill,  affirming  decree  35.   Gilb.   Eq.   Rep.   175.      For   full 

(C.  C.)    190  F.   62.      See  Mitchell  v.  discussion,  see  Macphers.  Inf.  25-27; 

Kelly,  82  Kan.  1,  107  P.  782.  Co.   Litt.   88b,  Harg.  n.   13,  and  au- 

83.  Nelson  v.  Cowling,  89  Ark.  334,  thorities  cited. 


g    854  GUAKDIAN    AND    WAKD.  958 

Lord  Hardwicke  (as  the  reporter  says)  refused  it  with  some 
warmth,  as  a  thing  which  had  never  been  done  at  the  request  of  the 
guardians  themselves ;  and  added,  that,  if  they  would  not  continue 
to  act  in  the  trust,  as  they  had  accepted  it,  he  should  compel  them. 
But  afterwards,  at  the  importunity  of  counsel,  finding  that  the 
mother  and  the  infant  also  acceded  to  the  request,  he  yielded  so 
far  as  to  allow  a  petition  to  be  filed  on  behalf  of  the  infant,  upon 
which  he  made  an  order  that  the  care  and  direction  of  the  infant's 
education  and  person  should  be  committed  to  two  near  relatives 
until  further  order,  and  that  the  allowance  for  his  maintenance 
and  education  should  be  paid  to  them.  But  in  doing  so  the  Lord 
Chancellor  declared  that  while  the  special  circumstances  of  this 
case  justified  his  action,  he  would  not  in  general  comply  with  such 
petitions,  nor  should  this  case  be  dra^vn  into  precedent.  The 
court,  he  added,  must  take  care  of  the  infant,  even  though  it  did 
not  punish  the  guardian  for  not  doing  so.^®  Though  this  was  a 
case  of  testamentary  guardianship,  we  presume  the  rule  to  be 
equally  strict,  or  nearly  so,  in  case  of  a  chancery  guardian.  In 
either  instance  the  court  can  make  an  order,  as  deemed  best  for  the 
infant's  interests.  There  need  be  no  summary  removal.  Chan- 
cellor Kent,  in  Ex  parte  Crumh,  claimed  that  chancery  could  doubt- 
less discharge  or  charge  a  guardian,  even  if  appointed  by  a  surro- 
gate; but  that  in  the  case  of  a  testamentary  guardian  there  should 
be  very  special  reasons  for  interference.  He  refused  here,  how- 
ever, to  make  any  change,  there  being  no  special  cause  shown.^^ 

It  is  now  frequently  provided  by  statute  that  probate  guardians 
and  other  trust  officers  may,  in  the  discretion  of  the  court,  be 
allowed  to  resign.  But  in  absence  of  such  legislation  it  would 
appear  that  no  such  guardian  can  resign  as  a  matter  of  right; 
nor  can  the  probate  court  legally  accept  his  resignation  and  appoint 
a  successor.  Yet  it  is  held  in  Illinois  that,  imder  a  statute  which 
permits  the  judge  "  to  remove  guardians  for  good  and  sufficient 
cause,"  he  may  consider  resignation  a  sufficient  cause,  and  there- 
upon discharge  the  guardian.^^  There  is  something  harsh  and 
offensive  in  the  removal  of  a  guardian  from  office.  Moreover, 
nimierous  unforeseen  emergencies  may  arise,  so  as  to  render  the 

36.  spencer  v.  Earl  of  Chesterfield,  62  S.  E.  991;  Wackerle  v.  People,  168 
Ambl.  146.  111.  250,  48  N.  E.  123;  In  re  Minors 

37.  Ex  parte  Crumb,  2  Johns.  Ch.  Long,  118  La.  683,  43  So.  279;  Young 
439,    See  2  Kent,  Com.  227.  v,  Lorain,  11  111.  624.    See  Pepper  v. 

38.  Maloy  v.  Maloy,  131  Ga.  579,  Stone,  10  Vt.  427. 


909 


TEKMINATlOlir    OF    THE    GUARDIANSHIP. 


854 


continuance  of  the  trust  improper;  as  if  the  guardian  should 
become  a  confirmed  invalid,  or  make  himself  obnoxious  to  the  ward 
and  his  relations,  or  display  a  want  of  prudence  in  managing  the 
estate  not  inconsistent  with  good  intentions  nor  sufficiently  gross 
to  justify  a  court  in  removing  him.  He  might  be  fully  aware  of 
the  advantage  of  a  change  to  all  parties  concerned,  and  might 
desire  to  be  relieved,  provided  he  could  withdraw  with  honor,  and 
without  submitting  to  a  humiliating  investigation  of  petty  and 
insufficient  grounds  of  complaint.  This  opportunity  is  afforded  in 
allowing  him  to  resign.  So,  too,  the  gTiardian's  convenience,  apart 
from  all  other  considerations,  might  lead  him  to  withdraw.  And 
further,  as  one  has  observed  of  testamentary  appointees,  "  it  can 
never  be  for  the  infant's  benefit  to  continue  him  in  the  care  of 
a  negligent  or  reluctant  guardian."  ^^ 

A  valid  resignation  accepted  will  be  operative  although  the  new 
guardian  has  not  qualified,*^  but  although  the  resignation  has  been 
accepted  and  a  new  guardian  appointed  and  qualified,  the  old 
guardian  may  still  be  authorized  to  enforce  a  judgment  he  had 
obtained  before  his  accounts  are  settled.*^ 

AVliere  the  resignation  of  the  guardian  is  accepted  and  a  new 
guardian  appointed,  the  liability  of  the  old  guardian  to  account 
and  on  his  bond  continues.*^ 

The  court  may  have  authority  to  discharge  a  guardian,*^  and 
an  order  discharging  a  guardian  on  payment  of  court  costs  is  valid 
only  on  showing  that  the  costs  were  paid.** 

A  judgment  discharging  a  guardian  may  be  operative  although 
defective  in  f orm.*^ 


39.  Macphers.  Inf.  128,  commenting 
upon  Spencer  v.  Earl  of  Chesterfield, 
svpra.  As  to  a  guardian 's  resigna* 
tion,  see  King  v.  Hughes,  52  Ga.  600 
(guardianship  of  a  lunatic).  Where 
a  guardian  tenders  his  resignation, 
the  more  correct  form  of  judicial  or- 
der would  be  that  the  resignation  is 
accepted;  yet  it  is  held  that  the  pro- 
bate court  may  without  error  enter 
an  order  removing  such  guardian. 
Brown   v.   Huntsman,   32   Minn.    466. 

40.  Smiley  v.  Mcintosh,  129  la. 
337,  105  N.  W.  577.  See  Weil  v, 
Schwartz,  51  La.  Ann,  1547,  26  So. 
475. 


41.  Longino  v.  Delta  Bank,  75  Miss. 
407,  23  So.  178. 

42.  Fresno  Estate  Co.  v.  Fiske,  172 
Cal.  583,  157  P.  1127.  See  Puckett  v. 
Glendenning    (Ark.),  205  S.  W.   454. 

43.  Jain  v.  Priest  (Idaho),  164  P. 
364;  Fidelity  &  Deposit  Co.  of  Mary- 
land V.  Husted,  128  Md.  275,  97  A. 
370. 

44.  Gillean  v.  Witherspoon  (Tex. 
Civ.  App.  1909),  121  S.  W.  909. 

45.  Stewart  v.  Eobbins,  27  Tex.  Civ. 
App.  188,  65  S.  W.  899;  Meeker  v. 
Mettler,  50  Wash.  473,  97  P.  507. 


§  855 


GUAKDIAN    AND    WARD. 


d60 


§  855.  Removal ;  Who  May  Remove. 

The  chancery  court  may  undoubtedly  remove  all  guardians  of 
its  own  appointment,  and  substitute  others  at  discretion  for  proper 
cause.  This  rule  extends  still  further ;  for,  according  to  Ameri- 
can authority,  chancery  may  remove  all  guardians,  whether  ap- 
pointed by  the  court  itself,  by  probate  tribunals,  by  testament,  or 
even  by  express  act  of  the  legislature,  whenever  the  guardian 
abuses  his  trust  or  the  interests  of  the  ward  require  it.*^  This 
statement  is  somewhat  too  sweeping,  so  far  as  the  English  courts 
are  concerned.  So,  too,  probate  tribunals  are  authorized  in  most 
if  not  all  of  the  States  to  remove  guardians  of  their  own  appoint- 
ment on  good  and  sufficient  cause*^  And  the  removal  of  a  guar- 
dian by  a  decree  of  the  appellate  probate  tribunal  terminates 
summarily  the  guardianship  granted  below.** 

And  as  two  persons,  or  sets  of  persons,  cannot  at  the  same  time 
hold  the  same  trust,  it  follows  that  one  guardian  must  be  removed, 
or  a  vacancy  otherwise  created,  before  the  court  can  make  a  new 
appointment.  This  principle,  apparently  simple,  has  sometimes 
been  overlooked ;  when,  for  instance,  a  court  has  issued  new  letters 
without  revoking  the  old,  or  seeks  to  supersede  a  testamentary  by 
a  probate  guardian.  The  appointment  of  a  new  guardian  does  not 
of  itself  terminate  the  authority  of  one  previously  chosen.  It  is 
an  act  without  jurisdiction,  and  void.  But  natural  guardians  need 
not  be  formally  removed,  nor  guardians  in  socage.  The  rule  ap- 
plies only  to  guardians  testamentary  and  guardians  by  judicial 
appointment,  who  hold  by  a  higher  authority  than  either  of  these.** 


46.  Murphee  v.  Hanson,  197  Ala. 
246,  72  So,  437  (may  be  removed  in 
equity  though  appointed  by  jjrobate 
court).  Cowls  V.  Cowls,  3  Gilm.  435. 
See  Ex  parte  Crumb,  2  Johns.  Ch. 
439;  Disbrow  v,  Henshaw,  8  Cow,  349. 
A  testamentary  guardian,  in  many 
States,  may  now  be  removed  on  the 
same  grounds  which  warrant  the  re- 
moval of  a  probate  guardian.  Dama- 
rell  V.  Walker,  2  Redf.  198.  But 
Round  discretion  should  be  used. 
Sanderson  v.  Sanderson,  79  N,  C.  369. 
See  Champlin  v,  Slocum  (R.  I,),  103 
A.  706, 

47.  Simpson  v.  Gonzales,  15  Fla. 
?r;  Re  Clement,  25  N.  J.  Eq.  508; 
McPhillips  V.  McPhillips,  9  E.  I.  536, 


An  order  of  removal,  where  the  court 
may  remove  at  its  own  instance,  is 
not  invalid  because  based  on  a  de- 
fective petition.  Cherry  v,  Wallia,  65 
Tex,  442,  See  State  v,  Kelly,  — 
S.  D.  — ,  143  N.  W.  953  (guardian 
appointed  by  circuit  court  cannot  be 
removed  by  county  court). 

48,  Willwerth  v,  Leonard,  156  Mass, 
277,  31  N,  E,  299  (even  though  the 
case  is  sent  back  to  the  lower  tribunal 
for  further  proceedings).  When  a 
guardian  who  has  been  removed  from 
office  appeals,  and  another  has  been 
appointed  and  qualified  in  his  stead, 
the  office  devolves,  pending  a  final  de- 
cision.    State  V.  McKown,  21  Vt.  503. 

49.  Bledsoe  v,  Britt,  6  Yerg.  458; 


961  TEEMINATION  OF  THE  GUARDIANSHIP.         §  856 

If  a  guardian  does  not  behave  to  the  satisfaction  of  the  court  of 
chancery,  orders  regulating  his  conduct  are  frequently  made  upon 
him;  and  if  any  such  steps  be  taken  as  to  induce  suspicion  that 
the  infant  will  suffer  by  the  conduct  of  the  guardians,  the  court 
will  interpose.^"  This  is  the  English  rule  as  to  guardians  in  gen- 
eral. But  in  this  country  probate  guardianship  is  usually  deter- 
mined for  misconduct  by  a  summary  removal. 

We  have  seen  that  chancery  courts  in  this  country  claim  the 
right  of  removing  testamentary  guardians.  In  England,  the  rule 
i8  not  laid  down  so  strongly.  Testamentary  guardians  are  not 
removed,  but  superseded  in  their  functions :  a  refinement  adopted, 
it  is  said,  out  of  deference  to  the  act  of  Parliaments^  In  this  sense 
are  to  be  understood  certain  expressions  of  Lord  Hardwicke  and 
Lord  Redesdale,  which  would  seem  to  extend  the  authority  of  the 
court  to  actual  removal  from  office.^^  Lord  IN'ottingham,  in  Foster 
V,  Denny,  said  that  he  could  not  remove  a  guardian  constituted  by 
act  of  Parliament.^^  This  is  still  the  doctrine  of  the  English 
chancery ;  but  it  exercises  full  jurisdiction  in  ordering  infants  to 
be  made  wards  of  court,  with  suitable  directions  for  their  main- 
tenance and  education ;  and  it  will  restrain  the  testamentary  guai^ 
dian  from  interference  with  the  person  and  estate  of  wards  thus 
taken  under  its  protection.^* 

§  856.  Removal;   Procedure. 

The  removal  may  take  place  at  the  instance  of  the  infant  or 
someone  representing  him  or  upon  the  court's  own  motion.^^  A 
mere  stranger  cannot  apply  to  have  a  guardian  removed ;  it  must 
be  a  party  in  interest.^®  Nor  can  one  who  has  been  properly  re- 
Grant  V.  Whitaker,  1  Murph,  231;  Ingham  v.  Bickerdike,  6  Madd.  275. 
Robinson  v.  Zollinger,  9  Watts,  169 ;  See  also  McCullochs,  In  re,  1  Dru. 
Fay  V.  Hurd,  8  Pick.  528 ;  Thomas  v.       276 ;   12  Jur.  100. 

Burrus,  23  Miss.  550;  2  Ch.  Cas.  237;  55.  Dickerson    v.    Bowen,    128    Ga. 

Morgan  v.  Dillon,  9  Mod.  141;  Copp       122,    57    S.    E.    326    (ward    by    next 
V.  Copp,  20  N.  H.  284.  friend)  ;  Clay 's  Guardian  v.  Clay,  28 

50.  Roach  v.  Garvin,  1  Ve3.  160;  Ky.  Law  Rep.  398,  89  S.  W.  500; 
Duke  of  Beaufort  v.  Berty,  1  P.  Wms.  King  v.  King,  73  Mo.  App.  78 ;  7;i  re 
705.  Ford,  157  Mo.  App.  141,  137  S.  W.  32. 

51.  Macphers.  Inf.   128.  See  Gray  v.  Parke,  155  Mass.  433,  29 

52.  Lord  Hardwicke,  in  Roach  v.  N.  E.  641  (effect  of  motion  to  dis- 
Garvan,  1  Ves.  160;  Lord  Redesdale,  miss  petition  because  petitioners  are 
in  O'Keefe  v.  Casey,  1  Sch.  &  Lef.       not  next  friends). 

106.  56.    Colton     v.     Goodson,    1     How. 

58.  2  Ch.  Cas.  237.  (Miss.)   295;   In  re  Murray,  28  Ohio 

54.  Smith    v.    Bate,    2    Dick.    631;       Cir  Ct.  R.  652   (uncle). 

61 


856 


GITAEDIAX    AXD    WARD. 


963 


moved,  thougli  the  mother  herself,  claim  any  right  of  recommend- 
ing a  successor.^' 

Removal  can  be  ordered  only  on  a  ground  alleged  in  the  peti- 
tion/* But  the  guardian  is  entitled  to  notice  before  removal,  that 
he  may  appear  in  defence;  and,  if  removed  'without  such  notice, 
unless  he  has  waived  it  by  his  voluntary  appearance  in  court,  he 
has  good  ground  for  appeal ;  and  it  is  doubtful  whether  a  new 
appointment  under  such  circumstances  has  any  validity  whatever/' 
The  authorities  are  clear  in  requiring  notice  wherever  proceedings 
for  removal  involve  the  guardian's  personal  character ;  but  where 
the  discharge  is  sought  on  other  grounds,  and  the  ward's  rights  are 
deemed  of  paramount  importance,  as  when  one  under  guardianship 
for  insanity  is  restored  to  reason,  or  a  ward  arrived  at  fourteen, 
wishes  to  exercise  the  privilege  of  nominating  a  successor,  remov- 
als without  notice  are  sometimes  sustained ;  ^°  still  the  better 
opinion  is  in  favor  of  notice  in  all  cases/^ 

As  in  making  appointments,  the  court  is  allowed  a  liberal  dis- 
cretion over  removals,  and  its  decision  will  not  be  reversed  on. 
appeal  unless  palpable  injustice  has  been  done/"     And  the  judge 


The  surety  cannot  compel  the 
guardian  to  give  additional  security 
or  be  removed.  Kaspar  v.  People,  230 
m.  342,  82  X.  E.  816,  affg.  132  111. 
App.  1. 

57.  Hamilton  v.  Moore,  32  Miss. 
205. 

58.  Hopkins  v.  Richmond,  29  E.  I. 
527,  73  A.  308. 

59.  Martin  v.  Moore,  20  Ga.  App. 
5e9,  93  S.  E.  223;  Jain  v.  Priest 
<Ida.),  164  P.  364  (charitable  cor- 
poration) ;  "Wackerle  v.  People,  168 
m.  250,  48  X.  E.  123,  reversing  65 
111.  App.  423;  Smith  v.  Haas,  132  la. 
4G3,  109  N.  W.  1075;  Phillips  v. 
Williams,  118  Ky.  757,  82  S.  W.  379, 
26  Ky.  Law  Eep.  654;  In  re  Guar- 
dianship of  McCloskey,  76  Minn.  323, 
79  N.  W.  176  (unless  his  residence 
is  unknown)  ;  United  State  Fidelity 
&  Guaranty  Co.  v.  Jackson,  111  Miss. 
752,  72  So.  150  (in  vacation)  ;  State 
ex  rel.  Mount  v.  Smith,  171  Mo. 
App.  67,  153  S.  W.  494;  In  re  Car- 
ter's Estate,  254  Pa.  518,  99  A.  58; 
Hart   V.    Gray,    3    Sumn.    339";    Gwin 


V.  Vanzant,  7  Yerg.  143 ;  Myers  v. 
Pearsall,  17  Ind.  405;  Croft  v.  Ter- 
rell, 15  Ala.  652.  An  order  of  re- 
moval for  embezzlement  ex  parte  and 
without  notice  is  void.  Colvin  v. 
State,  127  Ind.  403.  As  to  a  revoca- 
tion of  letters  where  the  trust  has 
never  been  fully  assumed,  or  the  ap- 
pointment was  illegal,  less  strictness 
is  requisite.  See  Scobey  v.  Gano,  35 
Ohio  St.  550. 

60.  Hovey  v.  Harmon,  49  Me.  269. 

61.  Montgomery  v.  Smith,  3  Dana, 
599;  Copp  V.  Copp,  20  X.  H.  284; 
Lee  V.  Ice,  22  Ind.  384.  But  see 
Cooke  V.  Beale,  11  Ired.  36. 

62.  Johnson  v.  !Metzger,  95  Ind. 
307;  Runnels  v.  Clark  —  la.  — , 
146  X.  W.  462;  In  re  Spurling's 
Guardian,  165  Ky.  349,  176  S.  W. 
1139;  Macgill  v.  McEvoy,  85  Md. 
286,  37  A.  218  (legal  and  not  arbi- 
trary discretion  granted)  ;  Owen  v. 
Pye,  115  Md.  400,  SO  A.  1007;  Xich- 
olson's  Appeal,  20  Pa.  St.  50; 
Isaacs  v.  Taylor,  3  Dana,  600;  Young 
V.  Young,  5  Ind.  513. 


963 


TEEMINATIOX    OF    THE    GUAKDIANSIUP. 


§  S57 


may  exercise  a  liberal  discretion  in  taking  evidence  for  his  own 
information.®^ 

A  receiver  appointed  on  removal  of  a  guardian  and  before  tho 
appointment  of  a  new  guardian  has  not  the  authority  of  a  guardian 
but  must  act  only  as  given  specific  authority  by  the  court."  The 
right  of  the  guardian  to  appeal  from  an  order  for  his  removal  is 
doubtful  as  he  is  not  considered  to  have  any  pecuniary  interest  in 
his  office.'^ 

§  857.  Removal ;  Causes  of. 

There  can  be  no  removal  of  a  probate  guardian  without  cause 
shown.^®  Courts  of  chancery  are  equally  boimd  to  observe  this 
principle;  but  their  discretion  is  absolute.  Some  of  our  codes 
make  it  imperative  that  a  statutory  ground  exist  for  removing  one 
guardian  and  appointing  another ;  ^''  and  where  a  statute  enume- 
rates the  gTounds  of  removal,  grounds  not  enumerated  authorize 
no  removal.®®  Eemoval  may  be  ordered  on  failure  after  order  to 
give  a  sufficient  bond,®^  or  to  file  an  inventory/"  or  to  account/^  or 
where  the  guardian  has  moved  out  of  the  State. '^ 


63.  He  may  consider  material  facts 
bearing  upon  the  issue  at  the  date  of 
the  hearing,  though  not  existing  when 
the  petition  was  filed.  Gray  v.  Parke, 
155  Mass.  433,  29  N.  E.  641. 

64.  Temple  v.  "Williams,  91  N.  C. 
82. 

65.  People  v.  Buck,  149  111.  App. 
283. 

66.  Whitney  v.  Whitney,  7  S.  &  M. 
740. 

67.  2  Dem.  (N.  Y.)  439;  4  Dem. 
153.  Mere  delay  or  omission  to  file 
an  inventory  or  account  which  in- 
volves no  injury  is  insufficient  ground 
for  removal ;  the  guardian  should 
first  be  ordered  at  least  to  file  them. 
2  Dem.  439;  Johnson  v.  Metzger,  95 
Tnd.  307.  Nor  misconduct  of  others, 
at  which  the  guardian  himself  did  not 
connive.     4  Dem.  153. 

68.  State  v.  Bird,  253  Mo.  569,  162 
S.  W.  110 ;  Kahn  v.  Israelson,  62  Tex. 
221;   2  Dem.  430. 

69.  Gill  V.  Riley,  28  Ky.  Law  Rep. 
639,  90  S.  W.  2. 

70.  People  v.  Buck,  149  111.  App. 
283;  Brown  v.  Brown  (Tex.  Civ.  App. 


1911),  142  S.  W.  23  (in  discretion  of 
court). 

The  failure  to  file  an  inventory  may 
be  justifiable.  Johnson  v.  Metzger, 
95  Ind.  307;  Succession  of  Burrell, 
lis  La.  1076,  43  So.  882  (where 
property  is  of  small  value  and 
guardian  did  not  know  of  its  exist- 
ence). 

71.  Kimmel  v.  Kimmel,  48  Ind.  203 ; 
Dickerson  v.  Dickerson,  31  N.  J.  Eq. 
652;  7)1  re  Nelson,  148  la.  118, 
126  N.  W.  973  (may  refuse  to  remove 
where  account  filed  late) ;  Clay's 
Guardian  v.  Clay,  28  Ky.  Law  Rep. 
398,  89  S.  W.  500;  In  re  Dixon,  156 
N.  C.  26,  72  S.  E.  71;  contra.  Smith 
V.  Young,  160  S.  W.  822  (where 
guardian  has  not  mismanaged,  but 
has  increased  estate).  See  Heath  t. 
Maddock,  81  N.  J.  Eq.  469,  86  A.  945 
(failure  unattended  by  fraud  to  file 
accounts  is  not  ground  for  removal). 

72.  Watts  V.  Hicks,  —  Ark.  — , 
178  S.  W.  924;  Dickerson  v.  Bowen, 
128  Ga.  122,  57  S.  E.  326;  Mahan  v. 
Steele,  109  Ky.  31,  58  S.  W.  446, 
22    Ky.    Law    Rep.    546;    Estridge   v. 


§  857 


GUARDIAN    AND    WAKD. 


964 


For  the  same  reason  that  non-residents  are  held  incompetent  for 
appointment,  guardians  must  surrender  their  authority  when  they 
move  out  of  the  jurisdiction,  or  the  court  will  take  it  from  them. 
This  rule  is  not  uniform,  however,  in  all  the  States.  Under  the 
statutes  now,  as  formerly,  in  Indiana,  Alabama,  and  some  other 
States,  removal  from  the  State  constitutes  per  se  a  ground  for 
displacement  from  office.'^  But  since,  as  we  have  seen,  non-resi- 
dents may  sometimes  be  appointed  guardians  on  filing  security,  the 
more  reasonable  rule  is  to  make  them  liable  to  displacement  when- 
ever, as  non-residents,  they  could  not  have  been  appointed  in  the 
first  instance.''* 

Letters  of  guardianship  are  not  ipso  facto  revoked  by  the  re- 
moval of  the  guardian  from  the  jurisdiction."  Removal  from  the 
jurisdiction  with  the  ward's  funds  may  justify  summary  proceed- 
ings ;  "  and  so  may  allowing  the  wards  to  go  into  another  Stato 
by  themselves  and  neglecting  their  interests.'^' 
Eemoval  maybe  ordered  whenever  the  guardian  is  not  a  fit  person,^* 

T.    Sweet,   Speers   Eq.    309;    O 'Neil's 
Case,  1  Tuck.   (N.  Y.  Surr.)   34;  Cot- 
trell  V.  Booth,  166  Ind.  469,  76  N.  E. 
546;  Davis'  Adm'r  v.  Davis,  162  Ky. 
316,  172  S.  W.  665   (lack  of  interest 
in  ward);  Chew '3  Estate,  4  Md.  Ch. 
60;    Cooper's  Case,   2   Paige,  Ch.   34. 
See  Lord  Thurlow,  in  Smith  v.  Bates, 
2   Dick.   631;    Slattery   v.   Smiley,  25 
Md.   389;   Gray  v.  Parke,  155  Mass. 
433;     Clark    v.     Smith     (Miss.),    70 
So.    897    (convicted   of  embezzlement 
despite    appeal)  ;    King  v.    King,   73 
Mo.    App.    78     (when    insolvent    and 
wasting   estate    of   ward)  ;    Kettletas 
v.  Gardner,  1  Paige,  Ch.  (N.  Y.)  488 
(habits  of  intoxication);  Nicholson's 
Appeal,    20    Pa.    St.     50     (ignorance 
or  imprudence)  ;  13  Phila.  402   (crim- 
inal conviction).      See   Gill  v.   Riley, 
2a   Ky.   Law   Rep.   639,    90   S.   W.   2. 
Such    conduct    of    a    guardian    as 
tends   to   alienate   his  infant   ward's 
arffections    from    the    mother,   who   is 
a    person    of    good     character,    will 
justify   his   removal,   notwithstanding 
the     mother     may     have     remarried. 
Perkins  v.  Pinnegan,  105  Mass.   501. 
Where   dereliction   of   duty   as  to  the 
person   of  the   ward   is  charged,   and 


Estridge,  28  Ky.  Law  Rep.   1076,   76 
S.  W.  1101. 

73.  Xettleton  v.  State,  13  Ind.  159; 
Cockrell  v.  Cockrell,  36  Ala.  673. 

74.  See  Speight  v.  Knight,  11  Ala. 
461;  also  supra,  §  840;  Succession  of 
Bookter,  IS  La.  Ann.  157.  Going  into 
the  Confederate  lines  during  the  war 
did  not  forfeit  tutorship.  Clement  v. 
Sigur,  29  La.  Ann.  798. 

75.  Watts  V.  Hicks,  178  S.  W.  924; 
Becnel  v.  Louisiana  Cypress  Lumber 
Co.,  134  La.  467,  64  So.  380. 

76.  State  v.  Engelke,  6  Mo.  App. 
356.  Under  Alabama  Code,  if  the 
surviving  mother  of  minor  children 
for  whom  a  guardian  is  appointed  in 
the  county  of  the  late  father's  domi- 
cile, removes  with  them  into  another 
county,  another  guardian  may  be 
there  appointed  for  them  who  will 
supersede  the  former.  Moses  v,  Faber, 
81  Ala.  445. 

77.  Watt  V.   Allgood,  62  Miss.   38. 

78.  In  re  Harris'  Guardianship, 
17  Ariz.  405.  153  P.  422;  Voliva  v. 
Moffit,  30  Ind.  App.  225,  65  N.  E. 
754;  Morgan  v.  Anderson,  5  Blackf. 
503;  West  v.  Forsythe,  34  Ind.  418; 
Barnes  v.  Powers,  12  Ind.  341;  Sweet 


965 


TBEMINATION    OF    THE    GUARDIANSHIP. 


§  857 


or  has  interests  adverse  to  the  ward." 

On  the  question  of  his  fitness  evidence  may  be  put  in  shovt^ing 
his  unfitness  down  to  the  time  of  the  hearing.^"  He  may  be  re- 
moved where  he  mingles  guardianship  funds  with  his  own  or  uses 
them  for  his  own  profit,*^  or  sells  the  ward's  property  without 
leave/^  or  failure  to  support  the  ward  with  income  ample  for  doing 
eo,  especially  if  the  guardian  be  the  father ;  "  appointment  to  the 
trust  without  proper  notice  to  other  parties  interested,**  or  aban- 
donment of  the  trust.®^  Guardians  may  in  some  States  be  removed 
wherever  it  will  be  for  the  ward's  interest.*® 

No  removal  will  be  ordered  unless  it  clearly  appears  that  the 
guardian  is  acting  contrary  to  the  best  interests  of  the  ward.*^ 
Nor  is  intermeddling  with  the  estate  before  qualification  as  guar- 
dian a  ground  for  removal,  if  in  good  faith  and  by  advice  of 
counsel.**  Different  local  codes  will  be  found  to  prescribe  varying 
rules  in  this  respect. 

Religious  opinions  were  formerly  made  a  test  of  the  guardian's 
capacity  to  act.  But  such  conflicts  seldom  arise  at  the  present  day, 
and  now  difference  of  belief  on  religious  subjects  constitutes  no 


not  mismanagement  of  the  estate, 
this  is  insufficient  as  to  guardianship 
of  estate.     66  Cal.  240. 

Where  affection  has  sprung  vp  be- 
tween the  guardian  and  ward  the 
guardian  should  not  be  removed  ex- 
cept for  the  most  cogent  reasons. 
State  V.  Baker,  253  Mo.  56?,  162  S. 
W.   119. 

79.  Succession  of  Desina,  135  La. 
402,  65  So.  556;  In  re  Padgett's  Es- 
tate, 114  Mo.  App.  307,  89  S.  W.  886 
(one  making  adverse  claim)  ;  In  re 
Mansfield's  Estate,  206  Pa.  64,  55 
A.  764  (where  guardian  adverse  to 
minor). 

Though  adverse  interest,  such  as 
being  executor  or  administrator  of  an 
estate  in  -which  the  ward  was  inter- 
ested, is  an  objection  to  appointing 
one  guardian,  it  is  not,  after  long 
lapse  of  time,  to  be  set  up  equally  as 
a  cause  of  removal.  Dull's  Appeal, 
108  Pa.  St.  604. 

80.  Gray  v.  Parke,  155  Mass.  433. 
29  N.  E.  641. 

81.  In  re  Allard,  49  Mont.  219,  141 


P.  661;  Dickerson  v.  Dickerson,  31 
N.  J.  Eq.  652;  Ury  v.  Brown,  129 
N.  C.  270,  40  S.  E.  4  (guardian  using 
ward 's  money  in  his  own  business) ; 
In  re  Guardianship  of  Chambers,  148 
P.  148  (wasting  assets)  ;  Snavely  v. 
Harkrader,  2?  Gratt.   (Va.)    112. 

82.  Macgill  v.  McEvoy.  85  Md.  286, 
37  A.  218  (not  where  guardian  acted 
honestly  and  his  bond  protects  estate 
from  loss). 

83.  Fe  Swift,  47  Cal.  429. 

84.  Morehouse  v.  Cooke,  Hopk.  226; 
Ramsay  v.  Eamsay,  20   Wis.   507. 

85.  Lefever  v.  Lefever,  6  Md.  472. 

86.  Ex  parte  Crutchfield,  3  Terg. 
(Tenn.)    336. 

87.  Bell  V.  Bell's  Guardian,  167  Ky, 
430,  180  S.  W.  803  (overcharging 
estate)  ;  Clay  v.  Cunningham,  26  Ky. 
Law  Pep.  .'i20,  82  S.  W.  973;  Hickey 
V.  Kimball,  109  Me.  433,  84  A.  943; 
Kester  v.  Alexander.  47  W.  Va.  329, 
34  S.  E.  819.  Pee  In  re  La  Plant, 
83   Minn.   366.   86  N.  W.   351. 

88.  Stone  v.  Dorrett,  18  Tex.  700. 


§  858 


GUARDIAIs"    AND    WARD. 


966 


cause  for  a  guardian's  removal,  if  no  harsh  or  unfair  means  have 
been  used  to  erase  the  impressions  left  by  the  parents  on  the  child's 
mind.®*  English  cases  sometimes  present  such  conflicts  over 
religious  influence.®" 

By  the  common  law,  certain  persons,  as  idiots,  lunatics,  deaf 
and  dumb  persons,  persons  under  outlawry  or  attainder,  and  lepers 
removed  by  writ  of  leprosy,  were  passed  over  in  the  guardianship. 
And  where  a  guardian  became  incapable  of  acting,  the  office  de- 
volved upon  the  next  person  to  whom  the  inheritance  could  not 
descend.®^  Such  guardians  do  not  appear  to  have  been  removed 
from  office.  But  there  can  be  little  doubt  that  the  insanity  of  a 
probate  or  chancery  guardian  would  be  good  cause  for  his  removal 
or  supersedure ;  and  a  final  settlement  of  his  guardianship  accounts 
would  properly  be  required  from  his  own  guardian.®'  It  appears 
that  there  may  be  a  combination  of  circumstances  to  justify  the 
removal.®^ 

§  858.  Appointment  of  Successors  —  Duties. 

A  new  guardian  cannot  be  appointed  imtil  the  removal  of  the 
previous  guardian,®*  and  the  effect  of  an  appeal  from  an  order  of 
removal  of  a  guardian  is  to  stay  proceedings  and  prevent  the 
appointment  of  a  new  guardian.®^ 

The  old  guardian  will  not  be  allowed  to  contest  the  appointment 
of  his  successor  especially  where  it  appears  that  he  is  doing  this  in 
order  to  delay  passing  over  the  money.*^  A  guardian  may  be 
charged  with  loss  caused  by  his  failure  to  collect  money  of  the 
estate  due  from  a  former  guardian,®^  and  a  guardian  succeeding 


89.  State  ex  rel.  Baker  v.  Bird,  253 
Mo.  569,  162  S.  W,  119;  In  re  Dixon, 
254  Mo.  663,  163  S.  W.  827;  Nichol- 
son's Appeal,  20  Pa.  St.  50.  See  In  re 
McConnon,  112  N.  Y.  S.  590,  60  Misc. 
22  (reli<?ious  differences  may  be  good 
reason  for  removal). 

90.  McGrath  Be  (1892),  2  Ch.  496. 

91.  Co.  Litt.  88,  89;  Macphers.  Inf. 
24,  25. 

92.  Modawell  v.  Holmes,  40  Ala. 
39ri;  Damarell  v.  Walker,  2  Redf. 
198, 

93.  Windsor  v.  McAtee,  2  Met. 
(Ky.)   430. 

94.  Gilbert  v.  Stephens,  106  Ga. 
753,  32  S.  E.  849;  Cotton's  Guardian 


V,  Wolf,  77  Ky.  238;  Estridge  v, 
Estridge,  25  Ky.  Law  Eep.  1076,  76 
S.  W,  1101;  Brown  v.  Fidelity  &  De- 
posit Co.  of  Maryland,  —  (Tex,)  — , 
76  S,  W.  944;  In  re  Guardianship 
of  Chambers  (Okla.),  148  P.  148; 
Crosbie  v.  Brewer  (Okla.),  158  P. 
388  (without  notice).  See  In  re 
White,  57  N.  Y,  S,  862,  40  App.  Div. 
165,  160  N.  Y.  685,  55  N.  E,  llOi. 
See  In  re  Henning's  Estate,  128  Cal. 
214,  60  P.  762,  79  Am.  St.  Rep.  43. 

95.  In  re  Van  Loan,  142  Cal,  429, 
76  P.  39. 

96.  In  re   Twichell,    102   N.   Y.   S. 
163,  117  App.  Div.  301. 

97.  Title  Guaranty  &  Surety  Co.  v. 


967  TEKMi>rATio>r  of  the  guaediaxship,  §  859 

another  will  be  charged  with  a  loan  made  to  him.  by  his  prede- 
cessor.** 

§  859.  Marriage  of  Female  Guardian. 

The  marriage  of  a  female  guardian  may  terminate  one's  author- 
ity, though  that  of  a  male  guardian  never  does.  The  old  rule  of 
the  common  law  appears  to  have  been,  that  when  a  female  guardian 
in  socage  married,  her  husband  became  guardian  in  right  of  his 
wife;  but  that  on  her  death  guardianship  ceased  on  his  part,  and 
went  to  the  infant's  next  relation.**  Testamentary  guardianship 
in  England  seems  to  be  left  to  the  operation  of  the  will  in  such 
cases:  chancery  refusing  to  interfere  with  the  testator's  own 
directions.^  But  it  is  customary  for  the  father  to  designate  suc- 
cessors in  the  event  of  marriage.  What  has  already  been  said  on 
the  subject  of  appointing  married  women  guardians  applies,  like- 
wise in  this  connection."  Certainly,  if  marriage  does  not  abso- 
lately  put  an  end  to  the  guardian's  authority,  it  has  the  common- 
law  effect  of  joining  her  husband  in  the  trust ;  *  and  yet,  according 
to  some  American  statutes,  the  fact  of  marriage  would  only  render 
her  liable  to  removal,  and  the  courts  would  protect  such  guardian's 
iona  fide  acts  against  collateral  attack.*  In  Louisiana  the  widow 
by  marrying  again  forfeits  her  rights  as  guardian,'  but  by  the 

Cowen    (Okla.),    177    P.    563;    In    re  Helton,   50  Ind.   319.     In  New  York 

Schenkel's    Estate,    250    Pa.    504,    95  sembJe  the  >^-idovred  mother's  remar- 

A.  703 ;  Kunz  v.  Ragsdale   (Tex.  Civ.  riage    terminates    her    guardianship, 

App.),  200  S.  W.  269.  and  under  the  statute  she  can  be  re- 

98.  In  re  Ward,  98  X.  Y.  S.  923,  moved.  Swartwout  v.  Swartwout,  2 
49  Misc.  181.  Eedf.  52.     The  female  guardian  who 

99.  Co.  Litt.  89a;  Bac.  Abr.  marries  must  not  abandon  her  rights 
Guardian  &  Ward  (E.).  See  7  Vt.  of  custody;  her  marriage  does  not,  in 
372.  Kentucky,    extinguish    her    authority. 

1.  Macphers.   Inf.   129;    Morgan  v.       Cotton  v.  Wolf,   14  Bush,  238. 
Dillon,  9  Mod.   135;    Dillon  v.   Lady  4.  See  Hood  v.  Perry,  73  Ga.  319; 
Mount  Cashell,  4  Bro.  P.  C.  306.    See       §  825;  54  Ark.  480. 

Corbet  v.  Tottenham,  1  Ball  &  B.  59.  The  marriage  of  a  female  guardian 

2.  Martin  v.  Foster,  38  Ala.  688;  does  not  terminate  the  office  of 
Elgin's  Case,  1  Tuck.  (Ts.  Y.  Surr.)  guardian,  but  with  the  consent  of  her 
97;  Leavel  v.  Bettis,  3  Bush.  74.  husband,  she  may  remain  as  guardian. 

8.  Wood  V.  Stafford,  50  Miss.  370.  Brimingham  Coal  &  Iron  Co.  v.  Doe 

Statutes  in   some   States  change  the  ex  dem.  Amett,  181  Ala.  621,  62  So. 

old    rule,    and    expressly    authorize    a  26;    Cotton's    Guardian   v.    Wolf,    77 

married     woman     to     be     guardian.  Ky.  238. 

Schouler,  Hus.  &  Wife,  appendix.    As  5.    Succession    of    Marinovich,    105 

to    requiring   in    such    case    the    hus-  La.    106,   29   So.    500 ;    Succession   of 

band's  written  consent  to  the  wife's  Carbajal,  111  La.  944,  36  So.  41, 
«ontinuance   in   office,   see   Hardin  v. 


§    880  GUARDIAN    AND    WABD.  968 

advice  of  a  familj  meeting  previous  to  her  remarriage,  she  may 
be  retained  in  the  tutorship  of  her  minor  children,  notwithstanding 
her  remarriage ;  *  but  if  she  fails  to  procure  such  advice,  she  loses 
the  tutorship.'' 

§  860.  Other  Cases  Where  a  New  Guardian  is  Appointed. 

There  are  some  other  cases  in  which  it  is  said  that  a  new  guar- 
dian may  be  appointed,  as  though  guardianship  had  already  deter- 
mined. Thus,  where  a  testamentary  guardian  has  not  acted,  and 
declines  to  act,  chancery  may  appoint  a  successor.^  So  in  other 
cases  where  the  guardian  renounces  his  appointment.*  Filing  a 
bond,  with  proper  security,  is  sometimes  regarded  as  the  condition 
precedent  to  a  probate  appointment,  and  it  is  thought  that  letters 
need  not  be  revoked  in  such  a  case.  But  this  is  by  no  means  a 
settled  rule.^°  Letters  of  guardianship  obtained  through  m>aterial 
false  representations  may  be  revoked.^^ 

Outlawry  and  attainder  of  treason  —  or  what  is  known  as  civil 
death  —  did  not  put  an  end  to  guardianship  in  socage ;  because, 
it  was  said,  the  guardian  had  nothing  to  his  own  use,  but  to  the 
use  of  the  heir.^^  The  same  principle  doubtless  applies  to  other 
guardians.  But  a  guardian  might  be  properly  removed  on  such 
grounds.  In  the  United  States,  local  statutes  largely  regulate  the 
general  subject  of  terminating  a  guardian's  authority. 

6.  Gaudet  v.  Gaudet,  14  La.  Ann.  Branch,    3    McCord,    19;    Clarke    v. 
112.  DameU,   8   Gill   &   Johns.    111.      See 

7.  Keene  v.  Guier,  27  La.  Ann,  232.  West  v.  Forsythe,  34  Ind.  418;  Fant 

8.  Ex  parte  Champney,  1  Dick.  350;  v.  McGowan,  57  Miss.  779. 
O'Keefe  v.  Casey,  1  Sch.  &  Lef.  106.  11.  Re  Clement,  25  N.  J.  Eq.  508. 

9.  MeAlister  v.  Olmstead,  1  Humph.  The  Orphans'  Court  may  thus  revoke. 
210;  Lef  ever  v.  Lef  ever,  6  Md.  472;  76. 

Simpson  v.  Gonzalez,  15  Fla.  9.  12.   Co.   Litt.   88b;    Macphers.   Inf. 

10.  Russell  V.   Coffin,   8   Pick.   143;       25. 
Fay    V.    Hurd,    J&.    528;    Barns    v. 


3G&  NATURK    OF    OFFICE.  §    861 


CHAPTER  IV. 

NATURE  OF  THE  GUAEDIAn's  OFFICE. 

Section  861.  Guardianship  Relates  to  Person  and  Estate. 

862.  Whether  a  Guardian  is  a  Trustee. 

863.  Joint  Guardians. 

864.  Judicial  Control  of  the  Ward's  Property. 

865.  Guardianship  and  Other  Trusts  Blended. 

866.  Administration  Durante  Minore  Aetate. 

867.  Guardians  de  facto. 

868.  Extra-territorial  Rights  of  Guardians  in  General. 

869.  Rights  of  Foreign  Guardian  as  to  Ward's  Person. 

870.  Rights  of  Foreign  Guardian  as  to  Ward's  Property. 

871.  Constitutional  Questions  Relating  to  Guardianship. 

§  861.  Guardianship  Relates  to  Person  and  Estate. 

The  powers  and  duties  of  a  guardian  relate  either  to  the  person 
of  the  ward,  or  to  the  ward's  estate,  or  to  both  person  and  estate. 
As  guardian  of  the  person,  he  is  entitled  to  the  custody  of  the 
ward  ;  he  is  bound  to  maintain  him  in  a  style  suitable  to  the  latter's 
means  and  condition  in  life ;  if  the  ward  be  a  minor,  he  superin- 
tends his  education  and  directs  him  in  the  choice  of  a  pursuit; 
and  in  general,  he  supplies  the  place  of  a  judicious  parent.  As 
guardian  of  the  estate,  he  manages  the  ward's  property,  both  real 
and  personal,  with  faithfulness  and  care,  changes  investments 
whenever  necessary,  with  permission  of  the  court,  pays  the  just 
debts  of  the  ward,  collects  his  dues,  puts  out  his  money  on  interest, 
manages  his  investments,  keeps  regular  accounts,  and  is,  in  effect, 
the  ward's  trustee."  Whether  the  guardianship  be  in  socage, 
testamentary,  or  by  chancery  or  probate  appointment,  these  powers 
and  duties  are  essentially  the  same;  although,  as  we  have  seen, 
socage  guardianship  was  created  with  special  reference  to  the 
ward's  real  estate.^*  Moreover,  as  will  fully  appear  in  the  suc- 
ceeding chapters,  chancery  and  probate  guardians  are  brought  more 
closely  under  judicial  control  and  supervision  than  either  guardians 
in  socage  or  testamentary  guardians. 

But  while  guardianship  of  the  person  resembles  the  relation  of 
parent  and  child,  it  is  not  altogether  like  it.  The  parent  must 
support  his  child  from  his  own  means ;    and  in  return  the  child's 

18.  2  Kent,  Com.  230-233.  14.  In  re  Stockman,  71  Mich.   180, 

38  N.  W.  876;  Supra,  ch.  1,  §  813. 


§    861  GUARDIAN    AKD    WARD.  970 

labor  and  services  belong  to  bim.  But  tbe  guardian  is  not  bound 
to  supply  tbe  wants  of  bis  ward,  except  from  tbe  ward's  own  estate 
in  bis  bands  and  tbe  liberality  of  otbers,  tbougb  it  were  to  keep 
tbe  cbild  from  starving.  On  tbe  otber  hand,  tbe  guardian  bas  no 
more  rigbt  to  tbe  labor  and  services  of  bis  ward  tban  any  stranger. 
Nor  are  guardians  of  tbe  estate  vested  with  an  interest  precisely 
like  that  of  trustees ;  for  while  tbe  latter  may  sue  and  be  sued  in 
their  official  capacity,  suits  by  and  against  infants  are  brought  in 
the  name  of  the  ward  and  not  the  guardian, ^^ 

Guardians  in  socage  acquired  authority  as  guardians  of  tbe 
ward's  estate ;  and  guardianship  of  the  estate  drew  after  it,  in  such 
case,  guardianship  of  the  person ;  so  that  they  were  guardians  of 
both  person  and  estate.^®  Testamentary  guardians  under  the 
■tatute  of  Charles  II.  acquire  authority  through  the  father's  devise 
to  them  of  tbe  "  custody  and  tuition  "  of  his  children ;  and  this 
devise  of  the  person  carries  with  it,  as  incident,  a  devise  of  the 
estate;  so  that  they,  too  (subject  to  statute  modifications),  are 
guardians  of  both  person  and  estate.^^  But  chancery  guardians 
are  not  always  invested  with  such  powers ;  for  the  court  will  make 
such  orders  as  are  needful  in  all  cases.  Chancery  sometimes  ap- 
points a  guardian  of  the  person  only,  for  a  special  and  temporary 
purpose.^*  Where  a  suit  is  pending,  and  it  becomes  necessary  to 
appoint  a  guardian,  chancery  appoints  a  guardian  of  the  person 
only,  the  estate  being  under  the  direction  of  the  court.  But  where 
no  suit  is  pending,  and  proceedings  are  commenced  by  petition,  the 
guardian  is  appointed  for  both  person  and  estate.^'  Probate  guar- 
dianship is  subject,  in  great  part,  to  local  legislation ;  but  it  may 
be  safely  asserted,  as  a  general  principle,  that  all  probate  guardians 
are  guardians  of  both  person  and  estate,  save  so  far  as  a  natural 
.  guardian's  rights  over  the  person  are  reserved  by  express  statute  or 
Jtberwise,  and  that  the  court  cannot  commit  guardianship  of  the 
person  to  one  and  guardianship  of  the  property  to  another. 


20 


15.  See  infra,  §  1055.  20.  See    Tenbrook    v.    McColm,    7 

16.  But  see  Bedell  v.  Constable,  Halst.  97.  But  some  State  codes  per- 
Vaugh.  185.  mit  a  separation  of  the  functions  vrith 

17.  Stat.  12,  Car.  II,  ch.  24,  §§  8,  separate  guardians  accordingly.  84 
9,  Vaugh.  178.  Iowa,   362.      And   see   17   E.   I.   760; 

18.  Macphers.  Inf.  114;  Ex  parte  Order,  110  N.  T.  S.  622,  126  App. 
Becher,  1  Bro.  C.  C.  556;  Ex  parte  Div.  155,  affd.;  In  re  McMillan,  ID'S 
Woolficombe,  1  Madd.  213.  N.  Y.  651,  86  N.  E.  1127   (committee 

19.  Macphers.  Inf.  105;  2  Kent,  of  person  and  estate  of  infant  not 
Com.  229.  needed). 


971  NATURE    OF    OFFICE.  §    802 

The  guardian  is  not  always  entitled  to  the  custody  of  the  infant's 
person ;  but  chancery  will  exercise  its  discretion  for  the  benefit  of 
the  latter,  as  to  delivering  him  up  to  the  guardian  or  permitting 
him  to  remain  elsewhere,  and  as  to  the  persons  who  are  to  have 
access  to  him,  and  the  circumstances  attending  such  access,  and 
generally  as  to  his  education."^  And  it  is  the  policy  of  our  legis- 
lation to  leave  the  child's  person  in  his  parents'  keeping  so  far  as 
possible.  But  the  guardian  may  be  a  "  guardian  of  the  person  and 
estate  "  notwithstanding. 

The  guardian  may  act  through  an  agent  where  necessary,'* 

§  862.  Whether  a  Guardian  is  a  Trustee, 

In  discussing  the  rights  and  duties  of  a  guardian,  this  question 
next  meets  us  at  the  outset :  Is  or  is  not  the  guardian's  oflBce  sub- 
stantially that  of  a  trustee  in  interest  ?  This  will  be  best  seen  by 
examining  the  different  kinds  of  guardians,  as  they  respectively 
arose. 

Guardianship  in  socage  arose  very  early  at  common  law,  and  is 
the  first  in  order.  These  guardians  were  considered  as  trustees. 
According  to  the  old  authorities,  the  guardian  in  socage  had  not 
a  bare  authority,  but  an  actual  estate  and  interest  in  the  land, 
though  not  to  his  own  use,^^  Hence  he  might  elect  whether  to  let 
the  estate  or  occupy  it  for  the  ward's  benefit.  He  was  considered 
as  entitled  to  the  possession  of  the  ward's  property,  and  incapable 
of  being  removed  from  it  by  any  person.  In  other  words,  this 
guardian  had  the  legal,  but  not  the  beneficial  interest.  Xot  long 
after  the  statute  of  Charles  II.  chancery  was  called  upon  to  deter- 
mine the  nature  of  testamentary  guardianship.  Lord  Maccles- 
field, in  the  case  of  Duke  of  Beauford  v.  Beriy,'*  stated  that  testa- 
mentary guardians  were  but  trustees:  that  the  statute  merely 
■  empowered  the  father  to  appoint  a  different  person  as  guardian 
and  to  continue  the  relation  beyond  the  age  of  fourteen,  and  until 
the  ward  became  twenty-one ;  and  that  both  socage  and  testamen- 
tary guardians  were  equally  trustees.  And  in  the  important  case 
of  Eyre  v.  Countess  of  Shaftshury,"  this  principle,  though  A^-ith 
another  admitted  difference  as  to  succession,  was  again  affirmed. 

21.  Macphere.    Inf.    119;    Anon.    2  See,  however,  Simpson  v.  Eoberts,  205 
Ves.  Sen.  374.  HI.  App.  35. 

22.  Bccnel    v.     Louisiana    Cypress  23.  Co.  Litt.  90a;   Plowd.,  ch.   23. 
Lumber  Co.,  134  La.  467,  64  So.  380;  v<?ee  ante,  §  813. 

Flach   v.    Faasen,    3    Mo.    App.    562.  24.  1  P.  Wms.  703, 

25.  2  P.  Wms.  102. 


§    863  GUABDIAN    AND    WARD.  972 

This  general  rule  has  received  judicial  sanction  in  England  mucli 
more  recently.^® 

Chancery  guardianship,  of  still  later  origin,  resembles  in  its 
nature  testamentary  guardianship.  The  same  principles  are  con- 
stantly asserted  in  regard  to  both.  In  either  case,  the  guardian 
has  a  vested  interest  in  his  ward's  estate,  may  bring  actions  relative 
thereto,  and  make  leases  during  the  minority  of  the  infant.  He 
has  in  all  respects  the  dominion  pro  tempore  of  the  infant's  estate, 
and  possesses  more  than  a  naked  authority.^^  The  same  may  be 
said  of  probate  guardianship  in  this  country,  which,  under  statute 
modifications,  has  become,  if  anything,  more  like  trusteeship  than 
the  other  kinds.  '*  And  in  Thompson  v.  Boardman'°  the  analogies 
of  the  old  law  have  been  extended  to  the  case  of  a  spendthrift's 
guardian. 

It  is  often  difficult  to  say  what  in  strictness  is  a  trustee,  since 
every  trust  is  limited  by  the  instrument  which  creates  it.  The 
powers  of  a  guardian  differ  greatly  from  those  of  an  executor  or 
administrator.  But  so  far  as  guardianship  of  the  estate  is  con- 
cerned, a  guardian  is  in  fact  a  trustee;  for  he  holds  the  legal 
estate  for  the  benefit  of  another.^"  To  apply  the  term  "  agent " 
to  the  guardian's  office  seems  therefore  harsh  and  unnatural,  what- 
ever may  be  the  ward's  position.^^ 

§  863.  Joint  Guardians. 

Where  there  are  two  or  more  testamentary  guardians,  and  one 
of  them  dies  or  is  removed,  the  survivor  or  survivors  shall  continue. 

26.  Gilbert  v.  Schwenck,  14  M.  W.  In  re  Pinchefski,  166  N.  Y.  S.  204, 
488;  B.  c,  9  Jur.  693.  179   App.   Div.    578.      See   Walker   v. 

27.  People  v.  Byron,  3  Johns.  Cas.  Thompson,  145  Ky.  597,  140  S.  W. 
(N.  Y.)    53.  1045. 

28.  See  Truss  v.  Old,  6  Rand.  556;  31.  But  see  dictum  of  Shaw,  C.  J., 
Isaacs  v.  Taylor,  3  Dana,  600;  Alex-  in  Manson  v.  Felton,  13  Pick.  206; 
ander  v.  Alexander,  8  Ala.  796;  Pep-  Muller  v.  Benner,  69  111.  108.  And 
per  V.  Stone,  10  Vt.  427;  Lincoln  v.  Soule,  J.,  observes,  in  EoUins  v.  Marsh, 
Alexander,  52  Cal.  482.  128    Mass.    116,    that    guardians    of 

29.  1  Vt.  370.  minor  spendthrifts  or  insane  persons 

30.  See  Wall  v.  Stan  wick,  34  Ch.  have  only  a  naked  power  not  coupled 
D.  765,  citing  with  approval  Mathew  with  an  interest. 

V.  Brise,  14  Beav.  341.  As  the  rights  and   duties  of  such 

The  guardian  is  a   trustee   of  the  guardians,  probate  guardians  included, 

estate  of  the  ward  and  held  accounta-  depend  so  greatly  upon  local  statutes, 

ble  for  prudent  management.     Smith  local   jurisdictions   may   be   found   to 

V.    Smith,    210    F.    947;    Reynolds    v.  differ     as     to     the     nature     of     the 

Garber-Buick  Co.,  183  Mich.  157,  149  guardian's  office,   which,  after  all,  is 

N.    W.    985,    L.    R.    A.    1915C,    362;  SMX  generis. 


973  NATURE    OF    OFFICE.  §    86 


The  very  nature  of  the  trust  demands  it.^^  In  England,  it  is 
otherwise  with  joint  guardians  by  chancery  appointment;  for  if 
one  dies,  the  office  determines."  But  the  survivors  will  be  ap- 
pointed without  a  reference,^*  so  that  after  all  the  rule  is  only 
formal.  In  this  country  the  more  reasonable  doctrine  prevails, 
as  to  both  chancery  and  probate  guardianship,  that  the  survivors 
shall  continue  the  trust,  like  co-executors,  and  on  the  same  prin- 
ciple. This  was  declared  to  be  the  rule  as  to  joint  chancery  guar- 
dians in  a  leading  New  York  case.°°  And  a  Vermont  court  ap- 
plies it  likewise  to  probate  guardians.^*  The  statutes  enacted  in 
many  of  the  States  remove  all  further  doubt  on  the  subject. 

Of  two  or  more  persons  appointed  joint  guardians  under  a  will, 
one  may  qualify  without  the  other ;  ^^  and  where  one  declines  to 
act,  all  the  rights  and  powers  created  by  the  appointment  under 
the  will  may  devolve  upon  the  other.^^  But  while  a  joint  guardian 
who  had  once  declined  the  trust  has  no  further  right  to  be  ap- 
pointed, he  may  yet  be  selected  in  preference  to  others  to  fill  a 
vacancy  Thus  it  has  been  held  that  where  three  testamentary 
guardians,  one  of  whom  was  the  mother,  were  named  by  the  father 
in  his  will,  and  the  mother  became  sole  guardian  by  the  refusal  of 
the  others  to  act  with  her,  they  were  properly  selected  by  the  court, 
after  the  mother's  death,  on  their  own  application,  in  preference 
to  the  person  nominated  in  her  will.^^ 

The  authority  of  joint  guardians  must  in  general  be  exercised 
by  both  together,^"  and  on  the  principle  that  guardians  are  trus- 
tees, it  is  held  that  joint  guardians  may  sue  together  on  account  of 
any  joint  transaction  founded  on  their  relation  to  the  ward,  even 
after  the  relation  ceases.'*^  Also  that  the  receipt  of  one  is  the 
receipt  of  all/^  Also  that  one  can  maintain  trespass  against  the 
other  for  forcibly  removing  the  child  against  his  wishes ;    as  one 

32.  See  Bac.  Abr.,  Guardian    (A.).  37.  Kevan  v.  Waller,  11  Leiph,  414. 

33.  Bradshaw  v.  Bradshaw,  1  Eus3.  38.  Matter  of  E^ynolds,   18   N.   Y. 
528,  Supr.  41. 

34.  Hall  V.  Jones,  2  Sim.  41.  39.  Johnston's  Case,  2  Jones  &  Let. 

35.  People  v,  Byron,  3  Johns.  Cas.  222. 

53.  40,  Sargent  v.  Shaver   (Okla.),  172 

36.  Pepper   v.    Stone,    10   Vt.    427.       P.  445. 

See  also  remarks  of  Chancellor  San-  41.  Shearman  v.  Akins,  4  Pick.  283. 

ford,  in  Kirby  v.  Turner,  Hopk.  309,  42.    Alston    v.    Munford,    1    Brock, 

as  to   the  nature   of  joint  guardian-  266. 
Bhip. 


§    864:  GUAEDIAX    AKD    WAKD.  974 

of  two  joint  trustees  cannot  act  in  defiance  of  tlie  other/^  And 
where  one  guardian  consents  to  his  co-guardian's  misapplication 
of  funds,  he  is  liable.**  The  fact  that  one  joint  guardian  is  dead 
will  not  prevent  the  co-guardian's  prior  accounts  from  being  opened 
on  a  final  settlement  in  court.*^  Guardians,  like  other  trustees, — 
executors  and  administrators  excepted, —  may  portion  out  the  man- 
agement of  the  property  to  suit  their  respective  tastes  and  qualifi- 
cations, while  neither  parts  irrevocably  with  the  control  of  the 
whole;  and  in  such  case  each  is  chargeable  with  no  more  than 
what  he  received,  unless  unwarrantable  negligence  in  superintend- 
ing the  other's  acts  can  be  sho\vn.*^  And  the  discharge  of  one  who 
has  received  no  part  of  the  estate  relieves  him  from  liability.*^  On 
the  other  hand,  it  is  presumed  that  the  survivor  of  joint  guardians 
received  the  whole  estate,  in  absence  of  proof  to  the  contrary.** 

Guardianship  over  several  minors  is  not  a  joint  relationship, 
but  involves  duties  that  are  several.** 

§  864.  Judicial  Control  of  the  Ward's  Property. 

In  English  practice,  the  court  of  chancery  holds  the  ward's 
property  within  its  grasp  with  a  tightness  unknown  to  American 
tribunals.  The  regular  course  is  to  get  in  all  the  money  due  the 
infant,  and  to  invest  it  in  the  public  funds.  A  receiver  is,  if 
necessary,  appointed  to  facilitate  collections,  and  generally  the 
same  person  is  made  a  permanent  receiver  of  the  ward's  real  estate, 
to  collect  all  rents.  Where  there  is  an  executor  he  will  not  be 
interfered  with,  except  under  strong  circumstances  of  suspicion, 
but  an  administrator  is  treated  with  less  consideration.'**  Even 
executors  who  are  also  testamentary  guardians  must  bring  their 
funds  into  court  after  settling  up  the  estate  of  their  testator.'^ 
Chancery,  thus  managing  actively  the  ward's  property,  makes  its 
own  scheme  for  maintenance,  and  allows  the  guardian  a  certain 
fixed  income  accord ingly.^- 

Probate    guardianship    in    this    coimtry    is    quite    different. 

43.  Gilbert  v.  Schwenk,  14  M.  &  W.  48.  Graham  v.  Davidson,  2  Dev.  & 
488.  Bat.  Eq.  155. 

44.  Pim  V.  Downing,  11  S.  &  E.  66,  49.  Probate  Judge  v.  Stevenson,  55 
See  Clark's  Appeal,  18  Pa.  St.  175.  Mich.  320,  21  N.  W.  348. 

45.  Blake  v.  Pegram,  101  Mass.  592.  50.  Macphers.  Inf.  268,  and  cases 

46.  Jones's  Appeal,  8  Watts  &  S.  cited. 

143.  51.    Macphers.   Inf.   118;    Blake  v. 

47.  Hocker  v.   Woods,   33    Pa.   St.       Blake,  2  Sch.  &  Lef.  26. 

466.  52.  Macphers.  Inf.  213  ei  seq. 


975 


NATURE    OF    OFFICE. 


§  865 


Schemes  of  maintenance  are  seldom  heard  of.  Nor  are  receivers 
appointed.  The  guardian  usually  collects  his  ward's  dues,  whether 
from  the  executor  of  the  parent  or  others,  and  manages  the  prop- 
erty on  his  own  responsibility,  with  little  judicial  interference. 
He  regulates  at  discretion  the  sum  proper  for  annual  expenditure, 
and  changes  the  rate  when  expedient.  Of  course  he  is  held  ac- 
countable, on  legal  principles,  much  the  same  as  those  of  the 
English  chancery;  but  he  seldom  applies  to  the  court  for  direc- 
tions, unless  some  perplexity  arises,  or  it  becomes  expedient  to  sell 
real  estate,  or  when  the  ward  cannot  be  supported  without  break- 
ing in  upon  the  principal  fund. 

§  865.  Guardianship  and  Other  Trusts  Blended. 

The  same  person  is  frequently  executor  under  the  parent's  will 
and  also  guardian  of  the  minor  children.  Hence  the  question  will 
sometimes  arise  whether  he  holds  the  fund  in  the  one  or  the  other 
capacity.  It  is  clear  that  where  one  is  both  guardian  and  execu- 
tor, he  cannot  be  sued  in  both  capacities ;  nor  are  both  sets  of 
sureites  liable.^^  He  is  in  the  first  instance  liable  as  executor; 
and  in  general,  to  render  him  liable  as  guardian,  there  should  be 
some  distinct  act  of  transfer.  His  plain  duty  is  to  keep  the  trusts 
distinct  and  not  blend  them.  In  the  former  case,  his  accounts 
rendered  will  show  the  transfer  of  the  legacy  or  distributive  share 
from  his  account  as  executor  to  his  account  as  guardian ;  and 
thereby  his  liability  as  guardian  will  become  fixed."^*  But  in  the 
latter  case,  or  if  no  clear  evidence  appears  elsewhere  of  an  actual 
transfer,  can  it  be  presumed  ?  The  better  opinion  is  that,  after 
the  time  limited  by  law  for  the  settlement  of  the  estate  has  elapsed, 
and  there  is  no  evidence  of  intent  to  hold  longer  as  executor,  he 
shall  be  presumed  a  guardian ;  on  the  principle  that  what  the  law 
enjoins  upon  him  to  do  shall  be  considered  as  done.^''  And  cer- 
tainly very  slight  evidence  would  confirm  any  possible  doubt ;  such 
as  the  division  of  the  parent's  estate  among  other  heirs,  the  pay- 


58.  Wren  v.  Gayden,  1  How.  (Miss.) 
365. 

The  court  may  decline  to  appoint 
au  executor  guardian  of  a  child  in- 
terested in  the  estate  on  account  of 
the  fact  that  the  executor  must  ac- 
count to  the  guardian,  see  anie,  §  838. 

54.  Alston  V.  Munford,  1  Brock. 
266;    Burton   v.   Tunnell,    4  Harring. 


(Del.)  424;  contra,  Conkey  v.  Dickin- 
son, 13  Met.  51;  Stillman  v.  Toung, 
16  111.  318;  Foteaux  v.  Lepage,  6 
Clarke  (la.),  123;  Scott's  case,  36 
Vt.  297. 

55.  Watkins  v.  State,  4  Gill  & 
Johns.  220;  Karr  v.  Karr,  6  Dana, 
3;  Crosby  v.  Crosby.  1  S.  C.  (N.  S.) 
337;    Wilson   v.   Wilson.    17   Ohio   St. 


§    865  GUAEDIAN    AND    WAED.  97(5 

ment  of  legacies,  or  where  he  has  placed  some  of  the  chattels  on  the 
ward's  farm,^*^  or  has  charged  himself  in  the  new  capacity,  credit- 
ing himself  in  the  former  one."*^  But  the  rule  may  be  otherwise 
with  joint  executors  or  administrators;  ^*  and  we  need  hardly  add 
that  this  doctrine  applies  in  strictness  only  to  personal  assets  which 
pass  through  administration ;  since  real  estate,  ordinarily,  goes  at 
once  to  the  heir.  Acts,  too,  inconsistent  with  the  purpose  of  hold- 
ing as  guardian,  and  consistent  with  that  of  continuing  adminis- 
trator or  executor,  should  not  readily  be  construed  to  a  ward's 
prejudice;  but  rather,  if  need  be,  serve  to  repel  the  presumption 
of  guardianship,  and  in  any  event  to  aid  the  beneficiary  who  seeks 
redress."® 

If  a  legacy  is  given  under  a  will  to  an  infant,  which  he  is  not  to 
receive  unless  he  attain  full  age,  it  would  appear  that  the  simpler 
course  is  for  the  executor  to  retain  the  fund  during  the  infant's 
minority ;  yet  it  is  held  that  a  probate  guardian  may,  at  the  court's 
discretion,  be  appointed  to  receive  the  fund  and  hold  it  subject  to 
the  restriction  contained  in  the  will.®"  If  a  guardian  has  duly 
qualified,  the  child's  legacy  or  distributive  share  should  be  paid 
over  to  the  guardian.  A  guardian  of  the  estate  of  minors  may 
contest  the  account  of  an  executor  or  administrator  in  an  estate 
where  his  wards  are  interested.*^ 

A  guardian  cannot  blend  distinct  trusts  of  guardianship  by 
appointment.  Thus,  where  a  person  was  appointed  guardian  of 
an  infant  who  became  insane  shortly  before  reaching  his  majority, 
and  the  same  guardian  continued  to  act,  styling  himself  guardian 
of  "A.  B.,  an  idiot,"  it  was  held  that  his  trust  properly  expired 

150;  Townsend  v.  Tallant,  33  Cal.  45;  v.  Harrison,  78  N.  C.  202.     And  see 

He    Wood,    71    Mo.    623;    Weaver    v.  Coleman  v.  Smith,  14  S.  C.  511.     So, 

Thornton,  63  Ga.  655.  too,    where    a    gTJardian    subsequently 

56.  Johnson  v.  Johnson,  2  Hill,  Ch.  becomes  trustee.  State  v.  Jones,  68 
277;  Drane  v.  Bayliss,  1  Humph.  N.  C.  554;  Perry  v.  Carmichael,  95 
174.  111.  519. 

57.  Adams  v.  Gleaves,  10  Lea,  367.  60.  Gunther  v.  State,  31  Md.  21; 
And  see  Thurston  v.  Sinclair,  79  Va.  Moody  Me,  2  Dem.  624.  For  the  rule 
101.  concerning  money  paid  under  rules  of 

58.  Watkins  v.  State,  4  Gill  &  the  U.  S.  Treasury,  see  Low  v.  Han- 
Johns.  220;  Coleman  v.  Smith,  14  S.  son,  72  Me.  104.  See  also  Landis  t. 
C.  511.  Eppstein,   82   Mo.   99. 

59.  In  doubtful  cases  of  this  kind,  61.  Appointment  of  an  attorney  to 
the   modern   inclination  is   to   let   the  represent  the  minors  does  not  super- 
ward    sue    both    sets    of    sureties,    or  sede  the  guardian 's  rights  in  this  re- 
either,  leaving   them   to   adjust  their  spect.     Rose's  Estate,  66  Cal.  241. 
equities    among    themselves.       Harris 


977  NATURE    OF    OFFICE.  §    867 

with  the  infancy  of  the  minor.®^  Nor  does  it  matter  that  the  pro- 
bate court  recognizes  a  continuation  of  the  trust  by  passing  his 
accounts;  for  an  actual  appointment,  after  the  regular  form,  is 
always  essential  to  a  guardian's  authority.®*  But  the  guardian  of 
a  minor  has  sufficient  authority  to  act  during  the  ward's  minority, 
whether  the  ward  be  of  sound  or  unsound  mind ;  and  those  things 
which  a  guardian  may  lawfully  do  for  his  infant  ward  are  none 
the  less  lawful  because  it  turns  out  afterwards  that  the  ward  was 
insane."* 

§  866.  Administration  Durante  Minore  Aetate. 

Where  the  person  designated  as  executor  of  a  will  is  under  age, 
it  becomes  necessary  to  appoint  an  administrator  during  minority, 
which  appointment  was  at  common  law  denominated  durante 
minore  cetate.^^  So  when  the  next  of  kin  is  under  age,  the  English 
practice  in  such  cases  is  to  appoint  the  infant's  guardian,  unless 
there  be  some  other  next  of  kin  competent  to  act ;  though  the  rule 
is  not  invariable.®*  And  in  the  English  case  of  John  v.  Bradhury 
it  is  affirmed  that  the  guardian  of  an  infant  sole  next  of  kin  shall 
not  only  administer  in  preference  to  creditors,  but  shall  be  ex- 
empted from  security,  except  in  very  strong  cases,  notwithstanding 
the  creditors  request  it.®^  So  he  is  preferred  to  the  husband  of  a 
married  woman  who  died  after  a  judicial  separation.®*  But  in 
this  country,  while  there  are  statutes  in  some  States  favoring 
similar  doctrines,  in  others  the  court  has  full  discretion  in  selecting 
a  substitute  for  the  child.®^  Such  administrator  has  for  the  time 
being  all  the  powers  of  a  general  administrator,  but  his  term  of 
office  is  restricted  to  the  infant's  minority.''" 

§  867.  Guardians  de  Facto. 

A  qvxisi  guardianship  often  arises  at  law  where  there  has  been 
no  regular  appointment,  or  an  appointment  without  jurisdiction  or 
some  intermeddling;    or  even  where  the  minor's  property  is  pur- 

82.  Coon  T.  Cooke,  6  Ind.  268.  67.  John  v.   Bradbury,   L.   R.   1   P. 

63.  But  Bee  King  v.  Bell,  36  Ohio       &  t).  245. 

St.  460.  68.   Goods   of  Stephenson,   L.   R.    1 

64.  Francklyn  v.  Sprague,  121  U.  S.  P.  &  B.  287.  But  the  husband  usually 
215.  administers.     See  post,  Vol.  11. 

65.  1    Wms.    Bx'rs,    419,    420;     2  69.   1  Wms.  Ex'rs,  419. 

Redf.  Wills,  92,  93.  70.   1  Wms.  Ex'rs,  428,  and  notes; 

66.  Ih.  Schouler.  Executors,  §§  132,  135. 

62 


§  868 


GUARDIAN    AND    WARD. 


9Y8 


chased  bj  one  confldentiallj  related  to  him.'^  Tlie  general  prin- 
ciple thus  recognized  is  that  any  person  who  takes  possession  of  an 
infant's  property  takes  it  in  trust  for  the  infant.  Hence  courts  of 
equity  will  always  protect  the  helpless  in  such  cases  by  holding  the 
person  who  acts  as  guardian  strictly  accountable.  The  father  may 
thus  be  a  quasi  guardian."  So  may  a  step-parent,"  or  a  step- 
grandparent/*  or  a  widowed  mother  who  marries  again/^  or  one 
whose  appointment  as  guardian  was  irregular  or  null ;  ^®  but  not 
an  executor  or  administrator  in  rightful  possession  of  the  infant's 
property,  for  he  holds  in  a  different  capacity.'^^  A  son  who  takes 
charge  of  an  incompetent  father's  estate,  with  the  latter's  acqui- 
escence, may  make  his  father  an  equitable  ward."  Chancery  has 
full  jurisdiction  over  the  transactions  of  all  persons  standing  in 
loco  parentis,"^  and  a  guardian  de  facto  may  be  ordered  to  account 
in  equity  but  not  in  the  probate  court.*" 

On  the  same  principle,  one  regularly  appointed  guardian  of  an 
infant  is  held  responsible  for  acts  committed  before  qualifying  as 
such  by  giving  bonds.*^  And  although  his  authority  ceases  when 
the  ward  attains  majority,  he  continues  personally  responsible  so 
long  as  his  possession  and  control  of  the  property  continues.* 


82 


§  868.  Extra-territorial  Rights  of  Guardians  in  General. 

The  guardian's  authority  is  limited  to  the  jurisdiction  which 
appoints  him,  and  does  not  extend  to  foreign  countries,  unless 
permitted  by  foreign  laws.  Every  nation  is  sovereign  within  its 
own  borders,  but  powerless  beyond  them.  The  rights  of  foreign 
guardians  have  been  to  some  extent  admitted,  however,  on  the 


71.  See  Hindman  v.  O'Connor,  54 
Ark.  627,     See  supra,  §  825, 

72.  Pennington  v.  Fowler,  3  Halst, 
Ch.  343 ;  Alston  v.  Alston,  34  Ala.  15. 

73.  Espey  v.  Lake,  15  E.  L.  &  Eq. 
579, 

74.  54  Ark.  627. 

75.  Wall  V.  Stanwick,  34  Ch.  D. 
763. 

76.  Crooka  v.  Turpin,  1  B.  Monr. 
185;  Earle  v.  Crura,  42  Miss,  165; 
McClure  v.  Commonwealth,  80  Pa. 
St.  167 ;  State  v.  Lewis,  73  N,  C,  138, 

77.  Bibb  V.  McKinley,  9  Port,  636; 
Minfee  v.  Ball,  2  Eng,  520. 

78.  Jacox  V,  Jacox,  40  Mich,  473. 


See  also  Munroe  v.  Phillips,  64  Ga. 
32;  Sherman  v.  Wright,  49  N.  Y. 
227. 

79.  Espey  v.  Lake,  15  E,  L.  &  Eq, 
579, 

80.  Campbell  v.  O'Neill,  69  W,  Va, 
459,  72  S.  E.  732. 

81.  Magruder  v.  Dam  all,  6  Gill 
(Md.)  269. 

82.  Mellish  v.  Mellish,  1  Sm,  & 
Stu.  138;  Armstrong  v,  Walkup,  12 
Gratt.  608,  Whether  a  woman's  let- 
ters abate  or  not  on  her  marriage,  she 
is  liable  if  she  allows  her  husband  to 
use  the  ward's  property.  Hood  v. 
Perry,  73  Ga,  319. 


^79 


NATURE    OF    OFFICE. 


§    869 


principle  of  comity.®^     These  rights  may  be  considered,  first,  as  to 
the  person  of  the  ward ;  second,  as  to  his  estate. 

§  869.  Rights  of  Foreign  Guardian  as  to  Ward's  Person. 

I^rst,  as  to  the  ward's  person.  Many  writers  on  public  law 
claim  that  the  guardian's  authority  extends  everywhere.  Others 
again  deny  that  it  extends  beyond  the  jurisdiction  which  appoints.** 
In  England,  the  paternal  authority  is  recognized,  even  in  aliens ; 
but  if  an  infant  has  a  guardian  appointed  by  any  other  authority 
out  of  the  jurisdiction,  the  appointment  fails  as  soon  as  the  infant 
comes  to  England,  and  the  court  of  chancery  will  thereupon  appoint 
a  guardian  on  petition.*'^  Yet  in  an  English  case  liberal  favor  was 
shown  toward  the  foreign  guardian  of  wards  domiciled  abroad. 
He  had  sept  them  to  England  to  be  educated,  and  wished  to  remove 
them  to  their  own  country  in  order  to  complete  their  education. 
The  court  refused  to  interfere  with  their  removal,  and  allowed  the 
exclusive  custody  to  the  foreign  guardian ;  at  the  same  time,  how- 
ever, refusing  to  discharge  an  order  appointing  English  guar- 
dians."* 

Tn  this  country,  the  rights  and  powers  of  guardians  over  the 
ward's  person  are  considered  strictly  local,  even  as  between  differ- 
ent States,*^  though  the  paternal  right  would  probably  be  recog- 
nized as  in  England.**  But  the  custody  of  a  child  may  be  awarded 
to  a  foreign  guardian,  as  while  he  has  no  absolute  right  to  the 
child,  his  office  will  be  deemed  an  important  element  in  determin- 
ing to  whom  custody  should  be  given.*' 


85.  See  Story,  Confl.  Laws,  §§  492- 
529.  Interference  by  English  ap- 
pointment with  a  French  guardian- 
ehip  declined,  where  the  infant  lived 
in  France.    41  Ch.  D.  310. 

»4.  See  Story,  Confl.  Laws,  §§  495- 
497,  and  authorities  cited. 

85.  Macphera.  Inf.  577;  Ex  parte 
"Watkins,  2  Ves.  470. 

86.  Nugent  v.  Vetzera,  L.  R.  2  Eq. 
704.    See  27  E.  L.  &  Eq.  451. 

87.  Story,  Confl.  Laws,  §  499;  Mor- 
rell    V.    Dickey,    1    Johns.    Ch.    153 
Kraft  V.  Wickey,  4  Gill  &  Johns.  332 
Burnet  v.  Burnet,  12  B.  Monr.   323 
Boyd   V.   Glass,  34   Ga.   253;    Whart 


Confl.  Laws,  §§  261-264;  Rice's  Case, 
42  Mich.  528.  "We  have  seen  that  the 
courts  of  a  State  or  country  will  take 
jurisdiction  for  the  time  being  where 
the  ward  "bona  fide  resides  in  the 
jurisdiction,  though  not  perhaps  domi- 
ciled there.  Supra,  §  831.  Such  ap- 
pointment may  not  clothe  the  guar- 
dian with  extra-territorial  authority, 
yet  it  is  not  void. 

88.  See  Townsend  v.  Kendall,  4- 
Minn.  412. 

89.  Woodworth  v.  Spring,  4  Allen 
(Mass.),  321;  In  re  Crosswell'a  Peti- 
tion, 28  B.  I.  137,  66  A.  55. 


§  870 


GUAKDIAN    Ai^D    WAKD. 


980 


§  870.  Rights  of  Foreign  Guardian  as  to  Ward's  Property. 

Secondj  as  to  the  ward's  property.  A  distinction  has  been  made 
between  movables  and  immovables.  As  to  immovable  property, 
such  as  real  estate,  it  is  almost  universally  admitted  that  the  law 
rei  Slice  shall  govem.*°  But  writers  do  not  agree  as  to  movable 
property,  such  as  goods  and  personal  chattels,  whether  the  law  of 
the  domicile  shall  prevail  over  that  of  the  situation.  Judge  Story 
considered  the  weight  of  foreign  authority  in  this  respect,  in  favor 
of  admitting  the  guardian's  rights  to  prevail  everywhere  to  the 
same  extent  as  they  are  acknowledged  by  the  law  of  the  domicile.*^ 
And  this  seems  to  be  the  Scotch  doctrine.*^  But  according  to  the 
doctrine  of  the  common  law,  now  fully  established  both  in  England 
and  America,  the  rights  of  a  guardian  over  all  property  whatsoever 
are  strictly  territorial,  and  are  recognized  as  having  no  influence 
upon  such  property  in  other  countries  where  different  systems  of 
jurisprudence  are  established.  No  foreign  guardian  can,  by  virtue 
of  his  office,  exercise  his  functions  in  another  country  or  State, 
without  taking  out  other  letters  of  guardianship  or  otherwise  con- 
forming to  the  local  law;  while,  on  the  other  hand,  local  courts 
consider  their  own  authority  competent  within  the  jurisdiction,  if 
the  ward's  property  be  located  there.  Such  is  the  rule  in  both 
countries.®'  And  hence  a  foreign  general  guardian  is  often  re- 
quired to  take  out  ancillary  letters  in  the  courts  of  a  State  in  which 
he  desires  recognition. 


94 


90.  Story,  Confl.  Laws,  §§  500-502. 
And  see  post,  §  943.  As  between. 
West  Virginia  and  Virginia,  see 
Einker  v.  Streit,  33  Gratt.  663. 

91.  Story,  Confl.  Laws,  §  503; 
Schouler,  Pers.  Prop.  347-385;  Whar- 
ton, Confl.  Laws,  §§  265,  266. 

92.  Story,  Confl.  Laws,  §  503; 
Fraser,  Parent  &  Child,  604. 

93.  Story,  Confl.  Laws,  §  504 ;  supra, 
§  303;  Rice's  Case,  42  Mich.  528; 
Weller  v.  Suggett,  3  Redf.  249;  Hoyt 
V.  Sprague,  103  TJ.  S.  Supr.  613; 
Leonard  v.  Putnam,  51  N.  H.  247. 
A3  to  a  contract  by  a  person  under 
guardianship,  made  in  another  State 
and  valid  there,  see  Gates  v.  Bing- 
ham, 49  Conn.  275.  Where  an  infant, 
domiciled  and  having  a  guardian  in 
one  State,  is  taken  to  another  State 


without  the  guardian 's  assent,  the 
courts  of  the  former  State  incline  to 
uphold  the  guardian  of  their  jurisdic- 
tion against  a  guardian  appointed  in 
the  other  State  as  to  rents  of  lands. 
Munday  v.  Baldwin,  79  Ky.  121.  Be- 
fore permitting  an  infant's  property 
to  be  transferred  beyond  the  State 
limits,  the  court  must  be  satisfied  that 
the  guardian  has  been  regularly  ap- 
pointed according  to  the  laws  of  the 
State  where  the  ward  resides,  that 
the  guardian  is  fit  for  the  appoint- 
ment, and  that  sufficient  security  has 
1  een  given.  Cochran  v.  FiDans,  20 
S.  C.  237.  A  guardian  properly  con- 
stituted in  the  State  of  the  ward's 
residence  is  favored.  Watt  v.  All- 
good,  62  Miss.  38, 

94.  Gunther  Be,  3  Dem.  386. 


981 


NATUEE    OF    OFFICE. 


§  870 


But  the  rigor  of  this  rule  is  sometimes  abated.  In  England, 
personal  property  will,  under  certain  circumstances,  be  paid  to  an 
owner  who,  if  domiciled  and  resident  in  that  country,  would  not 
be  allowed  to  receive  it.®'  In  this  country  there  are  local  statutes 
which  permit  non-resident  guardians  to  sue  on  compliance  with 
certain  formalities,  or  even  without  them,"  and  it  is  commonly 
provided  by  statute  that  a  non-resident  guardian  may  be  appointed 
guardian  in  the  State  by  filing  a  transcript  showing  his  appoint- 
ment,'^ which  transcript  must,  however,  show  whether  he  is  guar- 
dian of  the  person  or  of  the  estate,**  but  a  foreign  guardian  has  no 
greater  authority  than  a  domestic  guardian  and  cannot  sell  the  real 
estate  without  special  license.^® 

Letters  of  guardianship  have  no  extra-territorial  effect,  and 
hence  a  guardian  cannot  bring  suit  in  one  State  by  virtue  of  foreign 
letters,^  unless  admitted  to  do  so  on  compliance  with  local  statute 
or  possibly  by  comity.^  And  this  seems  to  be  the  English  rule 
likewise.^  Xor  will  the  courts  of  one  State  enforce  the  obligation 
of  a  probate  guardian's  official  bond  with  sureties  given  in  another 


95.  Macphers.  Inf.  577 ;  Goods  of 
Countess  Da  Cunha,  1  Hag.  237. 

96.  Ex  parte  Heard,  2  Hill  Ch.  54 ; 
Hines  v.  State,  10  S.  &  M.  529 ;  Sims 
V.  Renwick,  25  Geo.  58;  Grist  v. 
Forehand,  36  Miss.  69;  Martin  v.  Mc- 
Donald, 14  B.  Monr.  544;  Carlisle  v. 
Tuttle,  30  Ala.  613;  Warren  v.  Hofer, 
13  Ind.  167;  Ee  Fitch,  3  Eedf.  457; 
Shook  V.  State,  53  Ind.  403. 

97.  Ex  parte  Huffman,  167  F.  422; 
McGoodwin  v.  Shelby  (Ky.),  206  S. 
W.  625;  Orr  v.  Wright  (Tex.  Civ. 
App.  1898),  45  S.  W.  629. 

98.  Gill  V.  Everman,  94  Tex.  209, 
59  S.  W.  531,  60  S.  W.  913;  Orr.  v. 
Wright  (Tex.  Civ.  App.  1898),  45 
S.  W.  629. 

99.  Woolridge  v.  Woolridge,  26  Ky. 
Law  Eep.  97,  80  S.  W.  775;  Curtis  v. 
TTnion  Homestead  Ass'n,  126  La.  959, 
53  So.  63;  Adkins  v.  Loucks,  107 
Wis.  587,  83  N.  W.  934.  See  Landreth 
V.  Henson,  173  S.  W.  427. 

1.  In  re  Kingsley,  160  F.  275;  Pul- 
ver  V.  Leonard,  176  F.  586;  Hoffman 
V.    Watkins    (Tex.    Civ.    App.    1910), 


130  S.  W.  625;  Morrell  v.  Dickey,  1 
Johns.  Ch.  153;  Kraft  v.  Wickey,  4 
Gill  &  Johns.  322 ;  Eogers  v.  McLean, 
31  Barb.  304.  This  is  the  rule,  too, 
in  Louisiana.  Succession  of  Shaw,  18 
La.  Ann.  265;  Succession  of  Stephens, 
19  La.  Ann,  499.  But  as  to  institut- 
ing proceedings  to  call  the  resident 
g^aardian  to  account,  see  109  111.  294; 
33  S.  C.  350. 

2.  Miller  v.  Cabell,  81  Ky.  178,  4 
Ky.  Law  Eep.  9*62;  Berluchaux  v. 
Berluchaux,  7  La.  545;  Curtis  v. 
Union  Homestead  Ass'n,  126  La.  959, 
53  So.  63;  In  re  Eice,  42  Mich.  528, 
4  N.  W.  284;  Hanrahan  v.  Sears,  72 
N.  H.  71,  54  A.  702;  Pennsylvania 
Co.  V.  Eaub,  30  Ohio  Cir.  Ct.  R.  542; 
In  re  Crosby,  42  Wash.  366,  85  P.  1. 
See  Smith  v.  Madden,  78  F.  833  (in 
federal  court). 

3.  Story  considers  it  doubtful. 
Beattie  v.  Johnston,  1  Phillips,  Ch. 
17;  10  CI.  &  Fin.  42;  contra,  Mor- 
rison's Case,  cited  in  4  T.  E.  140,  and 
1  H.  Bl.  677,  682. 


§  870 


GUABDIAN    AND    WAKD. 


982 


State.*  The  question  whether  the  foreign  jurisdiction  has  con- 
ferred similar  privileges  upon  citizens  of  the  local  forum  carries 
some  weight.^  But  a  court  having  general  chancery  jurisdiction 
over  matters  of  guardianship  may,  it  appears,  in  the  exercise  of 
sound  discretion,  and  upon  principles  of  comity,  equity,  and  jus- 
tice, order  assets  of  the  ward  in  the  possession  of  a  guardian 
resident  within  its  jurisdiction  to  be  delivered  to  the  guardian 
abroad." 

A  foreign  guardian  has  no  authority  to  settle  a  cause  of  action 
of  the  ward  in  the  State.^  A  foreign  guardian  may  be  sued  in 
the  foreign  State  only  if  qualified  to  sue  in  the  foreign  State,*  and 
not  otherwise.' 

Though  the  power  of  the  guardian  is  local  to  the  State  in  which 
he  receives  his  appointment,  yet  he  is  competent  to  receive  the 
property  or  custody  of  the  ward  in  a  foreign  State  to  be  taken  to 
the  State  where  both  belong  if  he  makes  proof  of  his  guardianship,^' 
although  the  guardian  obtains  no  title  to  the  property  which  re- 
mains in  the  ward,^^  but  the  transfer  to  the  foreign  jurisdiction  is 
not  a  matter  of  strict  right,  but  rests  in  the  sound  discretion  of 


4.  Probate  Court  v.  Hibbard,  44  Vt. 
597. 

6.  13  Phila.  385,  389.  The  authority 
of  a  guardian  of  a  non-resident  minor 
is  limited  usually  to  the  particular 
local  property  which  confers  a  juris- 
diction.    Linton  v.  First  Nat.  Bank, 

10  Fed.  E.  894.    See  Hart  v.  Czapski, 

11  Lea,  151.  But  in  accounting  for 
his  investments  a  non-resident  guar- 
dian should  not  be  held  to  a  narrower 
range  of  securities  than  the  law  of 
the  ward's  domicile  allows.  Lamar  v. 
Micou,  114  TJ.  S.  218. 

6.  Earl  v.  Dresser,  30  Ind.  11. 

7.  Devine  v.  American  Posting  Ser- 
rice,  174  111.  App.  403;  McGoodwin 
V.  Shelby   (Ky.),  206  S.  W.  625. 

8.  Fenner  v.  Succession  of  McCann, 
49  La.  Ann.  600,  21  So.  768. 

9.  Boyle  v.  Griffin,  84  Miss.  41,  36 
So.  141. 

10.  Carlisle  v.,  Tuttle,  30  Ala.  613; 
Sturtevant  v.  Eobinson,  133  Ga.  564, 
66  S.  E.   890;   Warren  v.  Hofer,  13 


In.  167;  Vick  v.  Hibbs,  18  Ky.  Law 
Rep.  820,  38  S.  W.  711  (even  where 
ward  has  removed  after  appointment 
of  guardian  in  the  State  where  the 
property  still  remains) ;  McKee  v. 
Stein's  Guardian,  4  Ky.  Law  Eep. 
900;  Boyle  v.  Griffin,  84  Miss.  41, 
36  So.  141  (without  filing  letters  in 
this  State) ;  Mitchell  v.  People's  Sav. 
Bank,  20  E.  I.  500,  40  A.  502  (notice 
need  not  be  served  on  ward,  nor  a 
guardian  ad  litem  appointed)  ; 
Snavely  v.  Harkrader,  29  Grat.  (Va.) 
112;  Fidelity  Trust  Co.  v.  Davis  Trust 
Co.,    74    W.    Va.    763,    83    S.    E.    59. 

An  amended  petition  for  the  trans- 
fer of  property  out  of  the  resident 
guardian's  hands,  pursuant  to  Code 
1913,  ch.  84,  §§  3,  5  (§§  3981,  3983), 
held  not  vitiated  by  its  failure  to 
refer  to  the  original  petition.  Id. 
See  Central  Trust  Co.  of  Illinois  v. 
Hearne,  78  W.  Va.  6,  88   S.  E.   450. 

11.  Williams  v.  Cleaveland,  76  Conn. 
426,  56  A.  850. 


983 


JSATUKE    OF    OFFICE. 


§  871 


the  court/"  which  may  require  good  security/^  or  direct  the  pay- 
ment of  a  regular  allowance/*  or  refuse  payment  altogether;  ^'^ 
the  welfare  of  the  infant  being  always  considered  in  such  cases. 

A  foreign  guardian  who  improperly  removes  funds  of  his  ward 
out  of  the  State  may  be  ordered  to  bring  them  back  if  jurisdiction 
over  them  can  be  obtained.^® 

The  principles  applicable  to  non-resident  guardians  in  this 
country  appear  in  many  respects  similar  to  those  in  case  of  foreign 
executors  and  administrators,  and  the  rules  we  have  stated  might 
be  subjected  to  modification  by  the  mutual  treaty  stipulations  of 
two  independent  governments.^^  The  law  of  domicile  controls 
properly  as  to  the  ward's  capacity  and  the  time  when  the  law  frees 
him  from  the  disabilities  of  infancy.^* 

§  871.  Constitutional  Questions  Relating  to  Guardianship. 

As  each  legislature  in  this  country  derives  its  authority  from 
a  written  constitution,  questions  sometimes  arise  in  our  courts 
as  to  the  validity  of  certain  statutes,  which  in  Great  Britain  are 
of  no  importance,  since  there  an  act  of  Parliament  is  the  supreme 


12.  Earl  v.  Dresser,  30  Ind.  11,  95 
Am.  Dee.  660;  Marts  v.  Brown,  56 
Ind.  386;  Blanchard  v.  Andrews,  90 
Mo.  App.  425;  Banning  v.  Gotshall, 
62  Ohio  St.  210,  56  N.  E.  1030. 

13.  Hoffman  v.  Watkins  (Tex.  Civ. 
App.  1910),  130  S.  W.  625  (must 
give  bond  to  pay  local  debts) ;  Case 
of  Andrews'  Heirs,  3  Humph.  592; 
Martin  v.  McDonald,  14  B.  Monr. 
544;   Be  Fitch,  3  Redf.  457. 

14.  McNeely  v.  Jamison,  2  Jones, 
Eq.  186.  And  see  Ex  parte  Dawson, 
3  Bradf.  130;  McLiskey  v.  Eeid,  4 
Bradf.    334. 

15.  See  2  Story,  Eq.  Juris.,  §  1354b; 
Stephens  v.  James,  1  M.  &  K.  627. 
Letters  are  thus  granted  in  the  State 
having  property,  ancillary  to  the 
guardianship  in  child's  domicile  or 
residence.  Metealf  v.  Lowther,  56 
Ala.  312;  Marts  v.  Brown,  56  Ind. 
386.  As  to  the  right  of  foreign  guar- 
dian to  petition  for  appointment  of 
guardian  ad  litem  without  ancillary 
letterg,  see  'Fround  v.  Washburn,  17 
Hun,    543;    Shook    v.    State,    53    Ind, 


403.  As  to  a  foreign  gfuardian's  right 
to  transfer  stock,  see  Ross  v.  South- 
western R.,  53  Ga.  514,  An  order  of 
court  does  not  authorize  a  foreign 
guardian  beyond  its  own  terms.  Wil- 
liams V.  Duncan,  92  Ky.  125.  Suit 
cannot  be  brought  in  a  federal  court, 
Morgan  v.  Potter,  157  U.  S.  195. 

16.  Clendenning  v,  Conrad,  91  Va. 
410,  21   S.   E.   818. 

17.  Comomnwealth  v,  Rhoads,  37 
Pa.  St.  60.  And  see  Pratt  v,  Wright, 
13  Gratt.  175,  The  guardian  of  a 
minor  who  receives  property  of  his 
ward  in  a  foreign  country  or  State 
must  account  for  it,  unless  he  can 
show  that  he  has  accounted  for  it 
abroad.  Secchi's  Estate,  Myrick's 
Prob.  225.  As  to  the  proper  course 
for  care  and  transfer  of  the  ward 's 
money  when  a  ward  removes  from  the 
jurisdiction,  and  a  new  guardian  is 
appointed  in  the  State  of  his  new 
domicile,  see  Snavely  v.  Harkrader, 
29  Gratt.  112. 

18.  Woodward  v.  Woodward,  87 
Tenn.  644. 


§  871 


GUAEDIAN    AND    WAED. 


984 


law.  Thus  it  is  not  uiicomnion  for  our  legislatures  to  authorize 
or  confirm  the  sale  of  lands  held  by  guardians  and  other  trustees 
by  special  statutes ;  and  such  statutes  have  been  attacked  either  as 
an  interference  with  the  property  rights  of  infants  and  their  heirs, 
or  as  an  usurpation  of  judicial  functions."  Such  acts  are,  how- 
ever, constitutional,  unless  expressly  forbidden,  according  to  the 
best  authorities,  where  at  least  the  object  is  simply  to  provide  for 
a  change  of  investment  for  the  beneficiary,  and  not  to  divest  the 
latter  of  property  rights.^"  But  in  a  New  Jersey  case  it  was  inti- 
mated by  the  Chancellor  that,  if  fraud  or  sinister  motives  on  the 
guardian's  part  were  shown,  the  special  act  might  be  judicially 
avoided.^^  An  act  of  the  legislature  may  authorize  a  certain 
guardian  to  sell  the  real  estate  of  his  infant  ward,  subject  to  the 
approval  of  the  sale  by  the  probate  court.^^  It  is  held  that  the 
legislature  may  enable  a  foreign  guardian  to  sell  lands  within  the 
State.^^  So  a  general  law  may  be  enacted  for  enabling  guardians 
and  other  trustees  to  enter  into  agreements  as  to  the  disposition  of 
property  held  by  them,  consistently  with  constitutional  provisions 
which  protect  the  rights  of  individuals ;  notwithstanding  the  rights 
of  persons  remotely  interested  in  the  estate,  who  are  either  not  in 
existence  or  only  contingently  concerned,  may  be  thereby  com- 
promised without  their  assent.^*  Doubtless  the  wiser  policy  of 
the  legislature  is  to  refer  all  cases  of  this  kind  to  the  courts  under 
general   laws;     and   thus   do  some   State  constitutions  expressly 


require 


25 


19.  See  Davison  v.  Johonnot,  7 
Met.  388,  for  a  full  discussion  of 
the  question. 

20.  Clarke  v.  Van  Surlay,  15  Wend. 
436;  Cochran  v.  Van  Surlay,  20 
Wend.  365;  Davison  v.  Johonnot,  7 
Met.  388;  Snowhill  v.  Snowhill,  2 
Green,  Ch.  20;  Brenham  v.  Davidson, 
51  Cal.  352;  Hoyt  v.  Sprague,  103 
TJ.  S.  Supr.  613.  But  see  opinion  of 
Justices,  cited  in  4  N.  H.  572 ;  Jones 
V.  Perry,  10  Yerg.  59. 

21.  Snowhill  v.  Snowhill,  2  Green, 
Ch.  20. 

22.  Brenham  v.  Davidson,  51  Cal. 
352. 

23.  Boon  V.  Bowers,  30  Miss.  246; 
Nelson  v.  Lee,   10  B.  Monr.  495. 

24.  Clarke  v.  Cordis,   4   Allen,  466. 


25.  Per  curiam,  in  Brenham  v. 
Davidson,  51  Cal.  352.  An  act  of  the 
legislature  cannot  authorize  a 
stranger,  apart  from  guardianship,  to 
sell  an  infant's  land  or  other  prop- 
erty as  an  individual,  and  so  confer 
a  good  title ;  and  certainly  no  act 
will  be  readily  interpreted  to  mean 
this.  The  sale  is  supposed  to  be  au- 
thorized as  of  one  in  the  guardian  or 
trust  capacity,  and  to  require  or  to 
respect  his  due  appointment.  Paty  v. 
Smith,  50  Cal.  153;  Lincoln  v.  Alex- 
ander, 52  Cal.  382.  See,  further.  Ex 
parte  Atkinson,  40  Miss.  17,  to  the 
effect  that  under  the  former  consti- 
tution of  that  State  no  probate  guar- 
dian could  be  appointed  over  a  child 
whose  father  was  living. 


8S5  THE  waicd's  pekson.  §  873 


CHAPTER  V. 

BIGHTS  AND  DUTIES  OF  GUARDIANS   CONCEENING   THE  WAKD'b 

PERSON. 

Sectiok  872.  Division  of  This  Chapter. 

873.  Guardian's  Eight  of  Custody. 

874.  Testamentary  Guardians. 

875.  Parent's  Eights  to  Custody. 

876.  Parent '3  Eight  of  Access. 

877.  Habeas  Corpus  to  Determine  Custody. 

878.  Guardian's  Eight  to  Change  Ward's  Domicile  or  Residence. 

879.  Eight  to  Personal  Services  of  "Ward. 

880.  Guardian's  Duties  as  to  Ward's  Person;  In  General. 

881.  Liability  for  Support  of  Ward. 

882.  Support  by  Guardian  Before  and  After  Guardianship. 

883.  Board  Furnished  by  Guardian. 

884.  Services  of  Ward  to  Guardian  to  be  Credited. 

885.  Allowance  to  Parent  for  Ward's  Support;  Chancery  Eules, 

886.  Secular  and  Religious  Education  of  Ward  by  Guardian. 

887.  Use  of  Income  or  Principal. 

§  872.  Division  of  This  Chapter. 

As  the  guardian  of  a  minor  stands  in  the  place  of  a  parent,  suh 
modo,  his  rights  and  duties,  so  far  as  concerns  the  person  of  his 
ward,  are  to  be  considered  correspondingly  with  those  of  a  parent. 
His  rights  relate  chiefly  to  the  ward's  personal  custody.  His 
duties  are  those  of  protection,  education,  and  maintenance.  These 
rights  and  duties  will  be  considered  at  length  in  the  present 
chapter. 

§  873.  Guardian's  Right  of  Custody. 

Guardianship,  generally,  carries  with  it  the  custody  of  the  ward's 
person.  This  is  especially  true  where  the  ward's  parents  are  both 
dead  or  incompetent  to  act,  for  natural  guardians  have  the  prior 
claim  to  custody  while  alive.  Someone  must  exercise  the  right  of 
custody  of  the  infant  when  the  natural  protector  is  wanting;  and 
who  is  more  suitable  than  the  officer  invested  by  law  with  the 
responsibility  of  paying  for  the  child's  education  and  maintenance  ? 
Hence  the  guardian's  title  is,  in  this  respect,  higher  than  that  of 
relatives  and  friends ;  and  he  may  insist  upon  taking  the  child 
from  the  control  of  a  stepmother  or  grandmother,  or  from  any 


f  873 


GUARDIAN    AND    WARD. 


986 


person  to  whom  tlie  father  has  informally  committed  the  care.^* 
For  such  considerations,  however  material  in  determining  the 
selection  of  a  guardian,  become  superseded  by  the  actual  appoint- 
ment. And  it  has  been  said  that  the  decision  of  the  court  as  to 
the  guardian's  appointment  is  a  final  decision  as  to  the  care  and 
custody  of  the  ward,^^  but  guardianship  of  a  minor's  estate  gives 
no  right  to  custody  of  his  person,^*  although  custody  of  the  person 
may  be  given  to  the  guardian  of  the  estate.^* 

But  the  custody  of  infants,  as  we  have  seen,  is  a  subject  within 
the  free  discretion  of  courts  of  equity ;  and  where  the  interests  of 
the  ward  require  it,  the  care  of  his  person  will  be  committed  to 
others,'"  and  the  court  may  even  make  some  temporary  provision 
for  custody  pendente  Ute.^^  Chancery  jurisdiction  applies  in  this 
respect  to  testamentary  and  chancery  guardianship.  The  good  of 
the  child  is  superior  to  all  other  considerations.  Of  this  the  court 
will  judge  in  each  case  by  the  circumstances,  and  make  orders 
accordingly,  both  as  to  actual  custody  and  as  to  the  persons  who 
may  have  access  to  the  child.  In  determining  where  the  infant 
shall  reside,  the  infant's  inclination  shall  have  considerable  weight, 
if  he  be  of  sufficient  age ;  but  not,  it  would  appear,  during  the 
period  of  nurture.'^  As  to  probate  guardians,  it  is  to  be  added 
that  the  more  natural  course,  so  far  at  least  as  strangers  and  distant 


26.  Coltman  v.  Hall,  31  Me.  196; 
Bounell  v.  Berryhill,  2  Cart.  613; 
Johns  V.  Emmert,  62  Ind.  533. 

27.  Cottrell  v.  Booth,  166  Ind.  469, 
76  N.  E.  546;  Mason  v.  Williams,  165 
Ky.  331,  176  S.  W.  1171;  In  re 
Brown,  —  La.  — ,  44  So.  919 ;  In  re 
Lamb's  Estate,  139  N.  Y.  S.  685; 
Senseman's  Appeal,  21  Pa.  St.  331; 
Stringfellow  v.  Somerville,  95  Va.  701, 
29  S.  E.  685,  40  L.  R.  A.  623. 

28.  In  re  Healther,  50  Mich.  261, 
15  N.  W.  487.  See  Bell  v.  Bell's 
Guardian,  167  Ky.  430,  180  S.  W. 
803  (one  removed  as  guardian  of  es- 
tate may  be  retained  as  guardian  of 
the  person). 

29.  Stone  v.  Duffy,  219  Mass.  178, 
106  N.  E.  595  (if  parent  unfit).  See 
Sparkman  v.  Stout  (Tex.  Civ.  App.), 
212  S.  W.  526  (custody  not  awarded 
in  proceedings  for  appointment). 


30.  Roach  v.  Garvin,  1  Ves.  160; 
Macphers.  Inf.  119;  Story,  Eq  Juris. 
§  1341;  Ward  v.  Roper,  7  Humph. 
111. 

31.  In  re  North,  11  Jur.  7.  See  An- 
derton  v.  Yates,  15  E.  L.  &  Eq.  151; 
Smith  V.  Haas,  132  la.  493,  109  N. 
W.  1075  (although  guardian  already 
appointed).  See  McLain  v.  Brewing- 
ton  (Ark.),  211  S.  W.  174  (court  may 
properly  refuse  to  transfer  custody 
during  contest  over  guardianship). 

32.  Anon.  2  Ves.  Sen.  374;  Regina 
V.  Clark,  40  E.  L.  &  Eq.  109 ;  People 
V.  Wilcox,  22  Barb.  178;  Bounell  v. 
Berryhill,  2  Cart.  613;  Rex  v.  Green- 
hill,  4  Ad.  &  El.  642 ;  Garner  v.  Gor- 
don, 41  Ind.  92.  See  supra,  §§  873- 
875,  as  to  custody. 

The  wishes  of  the  ward  will  not  dis- 
place the  rights  of  the  guardian  as  to 
custody.  Palin  v.  Voliva,  158  Ind. 
380,  63  N.  E.  760. 


987  THE  wakd's  person.  §  875 

relatives  are  concerned,  is,  in  controversies  over  custody,  to  apply 
for  the  removal  of  the  guardian  already  appointed,  and  for  the 
appointment  of  another  competent  to  take  actual  control  of  the 
ward's  person.^^ 

In  a  contest  over  the  custody  of  a  minor  betv^een  guardians 
appointed  by  different  courts  the  best  interests  of  the  ward  should 
be  considered.^* 

§  874.  Testamentary  Guardians. 

Testamentary  guardians  cannot  be  controlled  in  their  rights  by 
expressions,  in  other  parts  of  the  vpill  appointing  them,  which 
amount  to  a  mere  recommendation.  A  case  of  this  sort  came 
before  Lord  Chancellor  Cottenham  in  1847.  The  testator  had 
appointed  testamentary  guardians  over  his  children  in  due  form, 
but  had  further  expressed  the  wish  that  in  case  of  his  wife's  death 
during  their  minority  they  should  be  placed  under  the  care  of 
certain  female  relatives.  The  wife  having  died,  the  female  reU 
tives  desired  to  assume  full  control.  The  Lord  Chancellor  refused 
to  accede  to  this  extent ;  but,  upon  his  suggestion,  an  arrangement 
was  effected,  satisfactory  to  all  parties,  so  as  to  give  the  immediate 
custody  to  the  relatives,  while  preserving  to  the  testamentary  guar- 
dian that  general  control  and  superintendence  which  it  was  his 
duty  to  exercise  under  the  will.^^ 

§  875.  Parent's  Rights  to  Custody. 

The  English  cases  are  numerous  where  the  mother's  claim  has 
been  postponed  to  that  of  the  testamentary  or  chancery  guardian.^® 
And  where  the  mother  clandestinelv  removes  her  child,  the  court 
has  ordered  him  to  be  delivered  up  to  the  guardian.^^  So  where 
she  procures  his  marriage  in  violation  of  the  statute.^^     But  the 

33.  Under  a  State  code  which  pro-  appointed    its    guardian ;    afterwards 

vides  that  a  guardian  shall  not  be  en-  another  one  adopted  it,  the  parent  be- 

titled  to  the  custody  of  the  ward  as  fore  dying  giving  it  orally  to  the  lat- 

against  the  parent  if  the  latter  be  "a  ter;   but  the  guardian's  right  to  the 

suitable    person,"    the    court    on    ap-  child's    custody    was    treated    as    su- 

pointing  a  guardian  should  leave  open  perior.    Burger  v.  Frakes,  67  la.  46C. 
the    question    whether   the    parent   is  34.  Kelsey  v.  Green,  69  Conn.  291, 

suitable.      McDowell    v.    Bonner,    62  37  A.  679,  38  L.  K.  A.  471. 
Miss.  278.     A  guardian  is  not,  as  of  35.  Knott  v.  Cottec,  2  Ph.   192. 

right,  entitled  to  the  custody  of  his  36.  See  Macphers.  Inf.  119-121. 

ward  under  fourteen  years  of  age,  but  37.  Wright  v.  Naylor,  5  Madd.  77. 

the  interest  of  the  ward  will  be  con-  38.  Eyre  v.  Countess  of  Shaftesbury, 

sidered.     Heather,  Jte,  HO  Mich.  261.  2  P.  Wms.  103;  Gilb.  Eq.  172. 

One  of  the  child's  grandfathers  was 


§    875  GUAJiDIAN    A^"D    WAED.  988 

court  interferes  with  reluctance  as  against  the  mother,  where  no 
misconduct  on  her  part  appears,  especially  if  the  infant  is  of  tender 
years  or  delicate  constitution,  and  requires  maternal  care  and 
nourishment  And  Lord  Eldon  observed,  in  a  case  where  the 
mother's  rights  came  in  conflict  with  those  of  the  testamentary 
guardian,  that  though  the  effect  of  the  appointment  of  a  guardian 
is  to  commit  the  custody  with  the  guardianship,  the  court  looks 
with  great  anxiety  to  the  execution  of  the  duty  belonging  to  the 
guardian,  and  the  attention  expected  to  be  paid  to  the  reasonable 
wishes  of  the  natural  parent.^* 

The  right  of  chancery  courts  to  regulate  the  personal  custody 
of  infants  subject  to  probate  guardianship  has  also  been  asserted 
in  this  country.  This  principle  determined  the  decision  of  the 
court  in  the  New  York  case  of  People  v.  Wilcox.'^'^  Here  it  ap- 
peared that  the  parents  had  separated,  the  father  being  a  man  of 
intemperate  habits.  The  child,  by  the  father's  permission,  was 
subsequently  brought  up  at  the  house  of  his  paternal  grandparents. 
Upon  the  father's  death,  the  grandparents  secured  letters  of  guar- 
dianship, without  notice  to  the  mother,  who  was  resident  else- 
where. She  afterwards  came  forward  and  claimed  control  of  her 
child,  then  only  nine  years  old.  It  appeared  that  the  child  was 
happy  and  well  provided  for  at  the  home  of  his  grandparents. 
But  it  also  appeared  that  the  mother  was  a  person  of  good  char- 
acter, and  that  no  sufficient  reason  existed  for  depriving  her  of  her 
natural  offspring.  The  child  was  therefore  taken  from  the  legal 
guardian  and  his  custody  awarded  to  the  mother;  the  interest  of 
the  child  being  duly  taken  into  consideration. 

But  whatever  might  have  been  the  language  of  the  court  in  this 
case,  it  is  apparent  that  the  circumstances  were  of  a  peculiar  char- 
acter. This  decision  turned  not  merely  upon  chancery  powers. 
It  recognized  the  deeper  principle  of  natural  law,  that  the  relation 
of  parent  and  child  shall  not  be  roughly  severed.  And  thus  we 
find  probate  guardianship  in  this  country  frequently  limited  by 
positive  enactment,  so  as  to  reserve  to  the  parents,  or  in  other 
words  to  the  natural  guardians,  the  natural  control  of  their  own 
children  and  the  right  to  educate,  when  alive  and  competent  to 
transact  business.*^ 

39.  Earl  of  Ilchester's  Case,  7  Ves.  41.  See  Smith's  Prob.  Prac.  82  87; 
380.                                                                      Harasay    v.    Ramsay,    20    "Wis.    507; 

40.  The  People  v.  Wilcox,  22  Barb.       ante,  §  817. 

178,  In  the  follovHng  cases  the  right  of 


989 


THE    WARD  S    PERSON. 


§  877 


Where  a  guardian  is  appointed  on  account  of  the  temporary 
disability  of  the  mother  the  child  may  be  remitted  again  to  her 
care  when  she  recovers.*^  As  our  former  discussion  of  the  subject 
of  parental  custody  may  have  led  the  reader  to  infer,  the  American 
rule  is  not  uniform  in  this  respect;  and  as  to  testamentary  and 
probate  guardians,  the  widowed  mother  is  in  some  States  preferred 
to  the  guardian,  while  in  others  the  guardian  is  preferred  to  the 
mother;  the  legislature  frequently  supplying  the  definite  rule  of 
guidance/ 


43 


§  876.  Parent's  Right  of  Access. 

Chancery  will  grant  access  in  certain  cases  while  awarding  the 
custody  of  the  infant  to  other  persons.  Not  only  have  orders  of 
access  been  made  in  the  mother's  favor,  but,  after  her  death,  access 
has  been  allowed  to  her  representatives.**  And  where  Lord  Hard- 
wicke  appointed  a  grandmother  guardian  in  preference  to  the 
father's  executor,  he  ordered  that  the  latter  should  have  free  ac- 
cess to  the  infants.*^  So  in  a  Georgia  case  the  court,  while  con- 
firming the  guardian's  right  of  custody,  allowed  access  to  a  near 
relative  on  her  request.*^  "Where,  too,  a  decree  of  divorce  gives 
the  right  of  access  to  a  certain  parent,  not  even  a  testamentary 
guardian  can  refuse  obedience.*^ 

§  877.  Habeas  Corpus  to  Determine  Custody. 

Proceedings  on  a  writ  of  habeas  corpus  may  determine  the 
question  of  legal  custody  in  cases  of  this  kind.  But  a  child  in  the 
personal  keeping  of  his  guardian  is  in  legal  custody;    nor  can 

a  guardian  to  the  custody  of  a  child 
wa3  held  superior  to  that  of  the  mo- 
ther: Macready  v.  Wilcox,  33  Conn. 
321;  Hovey  v.  Morris  (Ind.),  7 
Blackf.  559;  Ex  parte  Chambers,  221 
Mass.  178,  108  jST.  E.  1070  (illegiti- 
mate child).  While  in  the  following 
cases  the  guardian's  rights  to  the 
custody  of  the  child  were  held  in- 
ferior to  those  of  the  parents:  Mc- 
Kinnon  v.  First  Nat.  Bank  (Fla.), 
82  So.  748;  Rallihan  v.  Motsehmann, 
179  Ky.  180,  200  S.  W.  358  (where 
parent  fit)  ;  Mathews  v.  Wade,  2  W. 
Va.  464.  See  Ex  parte  Brown,  98 
Kau.  663,  150  P.  405. 

42.  In  re  T)e  Saulles,  167  N.  T.  9. 
445,  101  Misc.  447. 


43.  Lord  v.  Hough,  37  Cal.  657; 
Eamsay  v.  Eamsay,  20  Wis.  507 ;  con- 
tra, Macready,  v.  Wilcox,  33  Conn. 
321.  And  see  Peacock  v.  Peacock,  61 
Me.  211. 

44.  Ord  V.  Blackett,  9  Mod.  116; 
Macphers.  Inf.  120. 

Where  the  parents  are  ft  persons 
the  court  will  allow  them  to  have  ac- 
cess to  children.  In  re  Boss*  Guar- 
dianship, 9^  P.  671;  In  re  De  Saulles, 
167  N.  T.  S.  445,  101  Misc.  447. 

45.  Hunter  v.  Macrae,  17  Oct.  1738 ; 
cited  in  Macphers.  Inf.  121. 

46.  Ex  parte  Ealston,  1  R.  M. 
Charlt.  119, 

47.  Hill  V.  HUl,  49  Md.  450. 


§  878 


GUARDIAN    AND    WAKD. 


990 


unlawful  imprisonment  or  restraint  be  imputed  from  the  guar- 
dian's refusal  to  surrender  such  child  to  the  paTent.**  On  the 
other  hand,  the  court  cannot  entertain  habeas  corpus  to  restore  to 
the  guardian  a  child  forcibly  removed  by  the  parent,  unless  the 
child  is  actually  restrained  of  liberty/'  Besides  the  writ  of  habeas 
corpus,  there  is  a  remedy  by  petition  to  the  court  of  chancery/" 
In  proceedings  at  the  present  day,  English  and  American,  whether 
by  habeas  corpus  or  in  chancery,  the  inclination  grows  to  make  the 
welfare  of  the  child  paramount  and  to  treat  the  award  of  custody 
as  an  equitable  matter;  even  though  the  wishes  of  a  parent  or  a 
testamentary  guardian  should  thereby  be  disregarded.' 


51 


§  878.  Guardian's  Right  to  Change  Ward's  Domicile  or  Resi- 
dence. 

The  question  whether  the  guardian  may  change  the  ward's  domi- 
cile from  one  country  or  State  to  another  has  given  rise  to  much 
discussion.  In  England,  it  was  decided  that  the  surviving  parent, 
being  also  the  guardian,  was  competent  to  do  so.'^  The  case  came 
before  Sir  William  Grant,  and  was  argued  by  counsel  with  great 
learning  and  ability.  It  was  here  shown  that  the  best  Continental 
jurists  supported  these  views;  among  them,  Voet,  Rodenburgh, 
Bynkershoek,  and  Pothier.  This  is  the  leading  case  on  the  sub- 
ject, and  its  authority  has  been  fully  recognized  in  the  United 
States."  The  great  objection  to  a  change  of  the  infant's  domicile 
is  that  the  right  of  succession  to  personal  property  may  be  thereby 
affected ;  and  it  seems  probable  that,  if  the  change  is  made  with 
fraudulent  intent,  to  the  ward's  injury  or  the  custodian's  private 
advantage,  it  will  not  be  sustained.  Moreover,  as  the  case  above 
referred  to  was  that  of  a  parent,  it  has  been  doubted  whether  a 
guardian,  as  such,  not  being  a  parent,  has  the  right  to  change  his 


48.  People  v.  Wilcox,  22  Barb.  178 ; 
Townsend  v,  Kendall,  4  Minn.  412; 
in  re  Andrews,  L.  E.  8  Q.  B.  153. 
The  guardian  'a  assent  to  a  temporary 
custody  does  not  conclude  him.  Com- 
monwealth V.  Eeed,  55  Pa.  St.  425. 

49.  Foster  v.  Alston,  6  How.  (Miss.) 
406. 

50.  Story,  Eq.  Juris.,  §  1340,  and 
cases  cited.  Concerning  statute  pro- 
cedure for  custody,  sec  Peacock  v. 
Peacock,  61  Me.  211. 

51.  (1893),  2  Q.  B.  232;  People  v. 


Watts,  122  N.  Y.  238;  Lally  v.  Fitz 
Henry,  85  la.  49. 

Even  a  mother,  free  from  miscon- 
duct, who  is  appointed  legal  guardiaa 
of  a  daughter  sixteen  years  old  can- 
not assume  custody  of  the  child  where 
the  latter 's  welfare  opposes.  Beg.  v. 
Gungall  (1893)   2  Q.  B.  232. 

52.  Potinger  v.  Wightman,  3  Mer. 
67.     And  see  preceding  chapter. 

58.  Holyoke  v.  Haskins,  5  Pick.  20 ; 
2  Kent   Com.  227,  n. 


991 


THE    WARD  S    PERSON. 


§  878 


ward's  domicile.  In  Pennsylvania  such  a  guardian's  authority 
has  been  denied,  independently  of  a  court's  permission,  and  the 
power  confined  to  the  parents.^*  But  Chancellor  Kent  expresses 
dissatisfaction  with  such  a  doctrine,  and  considers  the  objection 
against  the  guardian's  power  too  refined  and  speculative.^^  Other 
American  authorities  sustain  his  view,  though  in  general  assuming 
the  principle,  rather  than  asserting  it,  and  not  without  some  bias 
as  to  the  particular  consequences  to  result.^^  The  particular  ques- 
tion does  not  seem  to  have  been  raised  in  England.  With  the 
facilities  of  modem  travel  and  the  liberal  intercourse  of  nations, 
the  tendency  increases  in  favor  of  the  guardian's  power  to  change 
in  good  faith  his  ward's  residence,  if  not  the  domicile,  and  even 
though  not  endowed  with  parental  authority.  This  principle  is 
the  more  readily  admitted,  so  far  as  different  counties  in  the  same 
State  are  concerned.^^  And  it  would  be  unwise  for  American 
courts  to  apply,  as  between  States  united  under  one  general  govern- 
ment, the  same  rigidly  exclusive  doctrines  which  foreign  countries 
differing  in  religion,  customs,  and  civil  institutions,  may  see  fit  to 
adopt  in  their  intercourse  with  one  another.  For  such  a  change 
might  be  for  the  direct  benefit  of  the  ward's  health,  education,  or 
personal  surroundings,  and  the  same  guardian  might  procure  a 
new  appointment  in  the  State  of  new  residence.^* 


54.  School  Directors  v.  James,  2 
Watts  &  Serg.  568;  and  see  Story, 
Confl.  Laws,  §§  494,  504 ;  Estate  Anna 
M.  Fulton,  14  Phila.  298. 

55.  2  Kent,  Com.  227,  n.  (c), where 
this  subject  is  fully  discussed. 

56.  See  Lamar  v.  Micou,  114  U.  S. 
218,  -where  with  the  guardian's  assent 
the  infants  acquired  a  grandmother's 
domicile. 

Where  clearly  disadvantageous  to 
the  ward  and  the  ward's  kindred  and 
connections  this  right  is  not  favored. 
The  guardian's  right  to  change  the 
domicile  is  denied  where  such  change 
affects  the  ward's  testamentary  capac- 
ity. Daniel  v.  Hill,  52  Ala.  430.  Or 
where  he  sent  the  ward  away  to  pre- 
vent a  marriage  against  his  wishes; 
such  marriage  not  being  an  objection- 
able one.   Wynn  v.  Bryce,  59  Ga.  529. 

57.  Ex  parte  Bartlett,  4  Bradf.  221. 


change  the  ward's  domicile,  especially 
in  the  case  of  a  very  young  child,  is 
not  to  be  presumed.  Marheineke  v. 
Grothaus,  72  Mo.  204.  Here  the  ques- 
tion arose  as  to  whether,  the  guar- 
dian having  died,  a  successor  in  the 
trust  was  to  be  appointed  in  a  dif- 
ferent county ;  which  would  have  been 
disadvantageous  to  the  ward. 

58.  In  Wilkins's  Guardian,  146  Pa. 
St.  585  (1891),  School  Directors  v. 
James,  supra,  is  denied  or  distin- 
guished; and  a  guardian  was  permit- 
ted to  change  his  ward's  residence  for 
bona  fide  and  salutary  reasons,  with- 
out consent  of  the  domiciliary  court, 
by  bringing  the  ward  into  this  State 
and  taking  letters  in  the  new  jurisdic- 
tion of  residence. 

A  mere  custodian  of  the  child  un- 
der the  guardian's  sanction  has  of 
course  no  right  to  change  the  ward's 


But     the     guardian's     intention     to       domicile.     Mills  v.  Hopkinsville,  Am. 


§  879 


GUAEDIAN    AND    WAKD. 


992 


The  English  chancery  court  reluctantly  permits  its  wards  to  be 
carried  out  of  the  national  jurisdiction.  The  Chancellor  in  De 
Manneville  v.  De  Manneville  restrained  a  father,  himself  an  alien, 
from  removing  his  child  to  a  foreign  country.^'  In  other  cases, 
permission  has  been  granted  under  stipulations  for  the  benefit  of 
the  child ;  the  guardian  being  required  to  transmit  regular  returns 
to  the  court  with  vouchers,  and  to  bring  back  the  ward  within  a 
specified  time.^°  Similar  orders  in  chancery  have  been  made  in 
this  country,  though  rarely.' 


61 


§  879.  Right  to  Personal  Services  of  Ward. 

The  guardian  has  not  the  same  right  as  a  father  to  the  personal 
services  of  the  infant,  where  he  does  not  undertake  to  stand  in  loco 
parentis,^^  which  he  sometimes  does.  For  as  his  duty  to  educate 
and  maintain  is  limited  by  law  to  the  ward's  resources,  and  is  not, 
like  the  responsibility  of  a  parent,  absolute,  so  his  rights  are  those 
of  a  representative,  who  should  seek  to  add  to  the  trust  fund  in 
his  hands,  and  not  to  his  own  private  emolimient.'^ 


Dig.   1889;    Allgood   v.   "Williams,   ?2 
Ala.  551. 

A  guardian  may  change  the  domi- 
cil  of  the  ward  for  his  benefit.  Smidt 
V.  Benenga,  140  la.  399,  118  N.  W. 
439.  In  re  Kiernan,  77  N.  Y.  S.  924, 
38  Misc.  394, 

59.  10  Ves.  52.  See  Dawson  v.  Jay, 
27  E.  L.  &  Eq.  451. 

60.  Jeffreys  v.  Vanteswartsworth, 
Barn.  141;  Jackson  v.  Hankey,  Jac. 
265,  n.;  Stephens  v.  James,  1  M.  &K. 
627 ;  Lethem  v.  Hall,  7  Sim.  141 ;  Tal- 
bot V.  Earl  of  Shrewsbury,  18  L.  J. 
125.      See   Macphers.   Inf.    129-132. 

61.  Ex  parte  Martin,  2  Hill,  Eq.  71. 
Lord  Chancellor  Cottenham  has  ob- 
served, on  this  subject,  that  while  cir- 
cumstances may  ocur,  such  as  the 
ill-health  of  the  ward,  so  as  to  render 
his  removal  necessary,  the  general  rule 
ought  to  be  against  permitting  an 
infant  ward  to  be  taken  out  of  the 
jurisdiction.  He  further  declared  his 
regret  that  this  rule  had  not  been 
more  strictly  adhered  to,  and  his  con- 
viction that  a  permanent  residence 
abroad  was  injurioua  to  the  future 
prospects   of   English    children,   inas- 


much as  they  were  thus  deprived  of 
their  religious  opportunities,  sepa- 
rated from  their  natural  connections, 
estranged  from  the  members  of  their 
own  families,  withdrawn  from  those 
courses  of  education  which  their  con= 
temporaries  were  pursuing,  and  accus- 
tomed to  habits  and  manners  which 
were  not  those  of  their  own  country, 
and  were  constantly  becoming  from 
day  to  day  less  and  less  adapted  to  the 
position  which  they  should  afterwards 
occupy  in  their  native  land.  Camp- 
bell V.  Mackay,  2  M.  &  C.  31. 

62.  Phillips  V.  Davis,  2  Sneed,  520 ; 
Calhoun  v.  Calhoun,  41  Ala.  369; 
Crosby  v.  Crosby,  1  S.  C.  (N.  S.) 
337;  Armstrong  v.  Walkup,  12  Gratt. 
608.  Among  the  miscellaneous  items 
which  have  been  allowed  a  guardian 
in  his  accounts  may  be  mentioned 
that  of  hona  fde  expenses  incurred  in 
removing  the  ward  to  another  State. 
Cummins  v.  Cummins,  29  111.  452; 
Champlin  v.  Slocum  (R.  I.),  103  A. 
706. 

63.  See  Bass  v.  Cook,  4  Port.  390; 
Bouv.  Diet.  ' '  Guardian ; ' '  Bannister 
V.  Bannister,  44  Vt.  624;    Haskell  ▼. 


993  THE    WAEd's    PEiiSON.  §    880 

Where  a  father  who  is  guardian  of  his  minor  children  cultivates 
a  farm  belonging  to  them  on  his  own  account  he  will  be  entitled  to 
its  proceeds  though  he  uses  their  labor  in  cultivating  it  if  he  has 
not  lost  the  right  to  their  services  by  failing  to  maintain  and 
educate  them.^*  The  value  of  the  ward's  services  to  the  guardian 
is  not  property  for  which  the  guardian  is  bound  to  account.®^ 

Th6  guardian  should  keep  the  ward  employed  when  of  suitable 
age  and  capacity  so  that  he  may  not  exhaust  the  estate  by  his 
maintenance,*^  and  the  guardian,  acting  in  loco  parentis,  may  bind 
out  his  ward  as  an  apprentice  whenever  the  father  could  do  so. 
This,  however,  is  a  matter  almost  exclusively  of  statute  regulation. 
And  while  the  father  is  usually  held  liable  in  damages  for  his 
son's  breach  of  contract,  it  would  seem  that  the  guardian  is  not 
personally  responsible  for  his  ward  unless  the  statute  makes 
him  so.*^ 

As  the  guardian  is  bound  to  promote  the  moral  welfare  of  the 
person  intrusted  to  his  care,  he  may  warn  oif  from  the  ward's 
premises  any  persons  improper  for  him  to  associate  with,  and,  if 
necessary,  expel  them  forcibly.  This  right  is  to  be  reasonably 
construed;  and  in  the  use  of  means  and  the  amount  of  force 
necessary  to  effect  his  object,  he  is  allowed  a  liberal  discretion, 
such  as  a  parent  might  exercise  under  like  circumstances.**  And 
in  many  other  respects  the  rights  of  a  guardian  resemble  closely 
those  of  a  parent  pro  ianto.^^ 

§  880.  Guardian's  Duties  as  to  Ward's  Person ;  In  General. 

The  guardian's  duties  as  to  the  ward's  person  are  those  of  pro- 
tection, education,  and  maintenance.  In  exercising  them,  he  is 
bound  to  regard  the  ward's  best  interests.     Guardians,  as  we  have 

Jewell,  59  Vt.  91.     A  guardian  com-  66.  Marquess  v.   La  Baw,  82  Ind. 

mits  no  breach  of  duty  towards  his  550. 

ward  who  is  nearly  of  age,  in  permit-  67.  Velde  v.  Levering,  2  Eawle,  269. 

ting  the  ward  to  devote  all  his  wagea  68.  Wood  v.  Gale,  10  N.  H.  247. 

towards    keeping    together    and    sup-  69.  Insane  persons  and  spendthrifts 

porting  his  orphan  brothers  and  sis-  cannot  manifestly  be  subjected  to  the 

ters.    Shurtleff  v.  Rile,  140  Mass.  213.  same  personal  restraint  and  custody  as 

Otherwise  semble  if  the  guardian  al-  infants.     But  the  fact  that  such  ward 

lowed   such   wages   to    be    devoted   to  occupies  his  own  house  affords  him  no 

vicious  and  improper  uses.     Tb.  special    immunity    against    his    guar- 

64.  Parlin  &  OrendorfF  Co.  v.  Web-  dian.  Accordingly,  it  has  been  held 
ster,  17  Tex.  Civ.  App.  631,  43  S.  W.  that  the  guardian  of  a  spendthrift 
569.  may  enter  the   dwelling-house   of  the 

65.  Chamrlin  v.  Slocum  ("R.  I.),  103  latter,  in  the  performance  of  official 
A.  706.  duties,     without    his    permission    and 

63 


§    881  GUARDIAN    AND    WAED.  994: 

seen,  are  seldom  appointed  where  there  is  not  some  property.  But 
even  though  the  ward  be  penniless,  we  are  not  to  suppose  that  one 
vested  with  the  full  right  of  custody  can  neglect  with  impunity 
those  offices  of  tenderness  which  common  charity  as  well  as  par- 
ental affection  suggest.  For  to  the  orphan  he  stands  in  some 
sense  in  the  place  of  a  parent,  and  supplies  that  watchfulness,  care, 
and  discipline  which  are  essential  to  the  young  in  the  formation 
of  their  habits,  and  of  which  being  deprived  altogether,  they  had 
better  die  than  live. 

§  881.  Liability  for  Support  of  Ward. 

It  is,  however,  to  be  always  borne  in  mind  that  while  the  father 
is  bound  to  educate  and  maintain  his  minor  children  absolutely 
and  from  his  own  means,  with  a  right  to  their  sennces  as  an  offset, 
no  such  pecuniary  responsibility  is  imposed  upon  a  guardian  who 
is  not  the  parent  or  does  not  undertake  to  stand  in  place  of  one. 
The  latter,  by  virtue  merely  of  such  trust,  need  only  use  for  that 
purpose  the  ward's  fortune.  Hence,  in  supplying  the  wants  of 
his  wards,  he  is  to  consider,  not  the  style  of  life  to  which  they 
have  been  accustomed,  so  much  as  the  income  of  their  estate  at 
his  disposal.  Whatever  their  social  rank  may  have  been,  he  may, 
provided  they  are  left  destitute,  place  them  at  work,  or,  if  they  are 
too  young  or  feeble,  surrender  them  to  some  charitable  institution ; 
they  should,  if  old  enough  and  able,  be  kept  at  work  earning  their 
support.  An  agreement  may  thus  be  made  between  the  guardian 
and  some  relative  of  the  child  or  a  stranger,  for  the  fair  support 
of  the  ward  in  exchange  for  his  services.  He  should,  however,  act 
with  delicacy  and  prudence;  he  may  properly  consider  in  this 
cannection  the  habits  and  tastes  of  the  children  and  the  wishes  of 
their  relatives ;  and  he  can  relieve  himself  of  responsibility  by 
asking  judicial  guidance.  The  courts  show  a  liberal  disposition  to 
protect  the  guardian  from  personal  liability  on  account  of  his  ward. 
And  if  a  guardian  has  permitted  the  ward,  at  his  own  cost,  to  re- 
main in  the  care  and  custody  of  another,  without  express  contract 
as  to  the  period  of  time,  he  may,  whenever  he  pleases,  terminate 
his  own  personal  liability  by  giving  notice.  Nor  does  it  affect  the 
case  that  his  ward  is  then  too  sick  to  be  removed.'" 

against  his  -will.     State  v.   Hyde,   29  G23 ;    Eredin   v.   Dwen,   2  "Watts,  95; 

Conn.  564.  ITussey     v.     Eoundtree,     Busb.     110; 

70.  Spring  v.  "Woodworth,  4  Allen,  Gwaltney  v.  Cannon,  31  Ind.  227;  Mc- 

326;     Overton    v.    Beavers,    19    Ark.  Daniel  v.  Mann,  25  Tex.  101;  Ford  v. 


995 


THE    WARD  S    PERSOX. 


§  881 


On  the  other  hand,  the  guardian  may  make  himself  liable  for 
his  ward  whenever  he  chooses  to  do  so,  and  makes  that  choice  mani- 
fest, like  anyone  else  in  loco  parentis.  If  a  guardian  contracts 
with  another  to  support  his  ward,  he  may  become  personally  bound 
by  his  failure  to  limit  the  right  for  indemnity  to  the  estate  in  his 
hands.''^ 

Where  the  guardian  supports  the  wards  without  expectation  of 
reimbursement,  he  cannot  be  credited  with  the  expense  of  sup- 
port.'^    The  discretion  of  the  guardian  in  maintaining  the  ward 


Miller,  18  La.  Ann.  571;  Brown  v. 
Taryan,  74  Ind.  305.  As  soon  as  one 
not  a  parent  or  in  lo&o  parentis  is  ap- 
pointed guardian  he  may  charge  for 
the  support  of  the  ward.  Pratt  v. 
Baker,  56  Vt.  70;  Moyer  v.  Fletcher, 
56  Mich.  508.  A  guardian  who  is  also 
stepfather,  and  maintains  the  wards 
in  his  family  and  receives  their  ser- 
vices, may  be  allowed  a  reasonable 
sum  for  their  support.  Latham  v. 
Myers,  57  la.  519;  Marquess  v.  Le 
Baw,  82  Ind.  550;  In  the  Matter  of 
Estate  of  Mabel  Ward,  73  Mich.  220. 
The  guardian  cannot  charge  his 
ward's  estate  for  money  expended  in 
board  and  education,  unless  there  was 
no  parent  able  or  willing  to  provide, 
and  the  estate  justified  the  expendi- 
ture. State  V.  Eoche,  91  Ind.  406. 
Nor  can  he  squander  his  ward 's  money 
in  paying  others  for  the  ward 's  main- 
tenance. Conant  v.  Souther,  80  Wis. 
656, 

Some  State  codes  require  that  the 
guardian  of  a  minor  who  has  a  father 
or  mother  shall  not  expend  anything 
for  the  ward's  support  without  a  pre- 
cedent order  of  court.  Darter  v. 
Speirs,  61  Miss.  148.  And  see  Stig- 
ler  V.  Stigler,  77  Va.  163.  If  the 
guardian  pays  in  such  cases  at  all, 
it  does  not  follow  that  he  must  pay 
into  the  parent's  own  hands.  Quinn 
V.  Hill,  6  Dem.  Sur.  39.  As  to  orders 
authorizeing  expenditure  for  the  sup- 
port of  a  lunatic,  see  Hambleton's 
Appeal,  102  Pa.  St.  50. 

71.  See  Lewis  v.  Edward',  44  :M!l. 
333,  as  to  offset  for  the  services  of 


the  ward  to  one  who  sues  the  guar- 
dian for  his  board.  On  the  principle 
of  the  text,  a  case  in  Vermont  was 
decided  a  few  years  ago.  The  guar- 
dian had  contracted  for  the  board  of 
his  ward,  at  a  dollar  and  a  half  a 
week,  fixing  no  limitation  as  to  time. 
The  person  furnishing  the  board  af- 
terwards notified  him  that  he  should 
raise  the  price  to  two  dollars  a  week, 
and  that  if  this  was  not  satisfactory 
the  ward  must  be  taken  away.  The 
guardian  did  not  take  the  ward  away, 
nor  on  the  other  hand  did  he  expressly 
accede  to  the  new  contract.  But  the 
court  inferred  from  the  circumstances 
that  he  had  made  himself  personally 
liable  for  the  increased  rate.  It  was 
observed  in  this  case  that  the  guar- 
dian has  the  possession  and  control 
of  the  ward's  estate,  for  his  support 
and  maintenance,  and  has  the  power 
of  indemnifying  himself  for  any  con- 
tracts he  may  make ;  that  it  is  his 
business  to  know  the  amount  and  situ- 
ation of  the  estate,  and  that  he  is  not 
obliged  to  incur  any  liability  beyond 
it.  If  he  do  so,  it  is  his  o\vn  fault,  for 
which  others,  who  cannot  be  so  well 
possessed  of  this  knowledge,  ought  not 
to  suffer.  But  the  court  also  held  that 
under  the  above  contract  the  guardian 
was  not  personally  liable  for  extra 
charges  against  the  ward,  such  as  re- 
pairs on  clothing,  washing,  care  and 
medical  attendance  while  sick,  and 
burial  expenses.  Hutchinson  v.  Hutch- 
inson, 19  Vt.  437. 

72.  Forbes  v.  Ware,  172  Mass.  306, 
52    N.   E.    447;    In   re   Dahlmier,    78 


§  883 


QDAKDIAN    AND    WAKD. 


996 


will  not  usually  be  reviewed/'  and  he  may  be  allowed  for  such 
board  and  maintenance  of  his  ward  as  would  have  been  allowed  if 
he  had  made  prior  application."'*  Advances  may  be  made  to  the 
ward  in  ^  proper  case."  The  guardian  cannot  relieve  himself 
from  responsibility  by  delegating  the  duty  of  support  to  the  ward 
himself  or  to  a  third  person.'' 


76 


§  882.  Support  by  Guardian  Before  and  After  Guardianship. 

The  guardian  may  be  allowed  for  payments  made  out  of  the 
estate  after  the  ward  comes  of  age  for  the  ward's  support/^  and 
not  usually  for  maintenance  of  infants  prior  to  his  appointment.'" 

§  883.  Board  Furnished  by  Guardian. 

The  guardian  may  be  allowed  for  board  furnished  the  ward/' 
but  where  the  guardian  furnishes  board  for  the  ward  without  in- 
tending to  charge  for  it  he  cannot  later  make  a  charge  for  it.**'  So 
where  the  guardian  took  a  bequest  made  to  him  by  the  father  of 
the  ward  conditioned  on  his  caring  for  the  ward  until  he  became 
of  age,  he  cannot  be  allowed  for  board  furnished.*^ 


Minn.  320,  80  N.  W.  1130  (where 
second  husband  used  farm  of  children 
of  wife  by  first  husband  as  his  own 
and  supported  all  out  of  it)  ;  Abrams 
V.  United  States  Fidelity  &  Guaranty 
Co.,  127  Wis.  ST^,  106  N.  W.  1091,  5 
L.  R.  A.  575,  115  Am.  St.  R.  1091. 
See  Trouth  v.  Bro-mi,  186  111.  App. 
225  (no  charge  made  for  board  where 
ward  did  housework  and  no  charge 
intended). 

73.  In  re  Boyes'  Estate,  151  Cal. 
143,  90  P.  454;  Gott  v.  Gulp,  45  Mich. 
265,  7  N.  W.  767.  See  "Wheeler  v. 
Duke,  29  Tex.  Civ.  App.  20,  67  S.  W. 
909  (holding  order  to  be  void  which 
delegates  to  the  guardian  the  duty  of 
determining  the  sum  necessary  for 
education). 

74.  In  re  Boyes'  Estate,  151  Cal. 
143,  9Q  P.  454  (apportioned  numeri- 
cally among  wards)  ;  Wilson  v.  Fi- 
delity Trust  Co,,30Ky.  LawRep.  263, 
97  S.  W.  753  (not  out  of  principal)  ; 
In  re  Ward,  9-8  N.  Y.  S.  923,  49  Misc. 
181. 

75.  In  re  White,  91  N.  Y.  S.  513, 
101  App.  Div.  172. 


76.  Bliss  v.  Spencer  (Va.),  98  S.  E. 
593. 

77.  In  re  Boyes'  Estate,  151  Cal. 
143,  90  P.  454. 

78.  Farris  v.  Bingham,  164  Ky.  444, 
175  S.  W.  649.  Contra,  State  ex  rel. 
Strickland  v.  Strickland's  Adm'r,  80 
Mo.  App.  401  (even  before  his  ap- 
pointment). See  Logan  v.  Gay,  99 
Tex.  603,  87  S.  W.  852,  90  S.  W.  861 
(aa  to  claims  for  necessaries  fur- 
nished before  the  guardianship  com- 
menced). 

79.  771  re  Boyes'  Estate,  151  Cal. 
143,  90  P.  454;  Miller  v.  Lindemann, 
206  HI.  App.  130;  Rhodes  v.  Fra- 
zier's  Estate  (Mo.  App.),  204  S.  W. 
547;  Cutting  v.  Scherzinger,  40  Ore. 
353,  68  P.  393,  69  P.  439;  Mumford 
v.  Rood,  153  N.  W.  921;  De  Cordova 
V.  Rogers,  97  Tex.  60,  75  S.  W.  16; 
Logan  V.  Gay,  99  Tex.  603,  90  S.  W. 
861  (reversing  87  S.  W.  852). 

80.  State  ex  rel.  Garesche  v.  Slevin 
(Mo.  1887),  6  S.  W.  71.  See  Diffie 
v.  Anderson  (Ark.),  208  S.  W.  428. 

81.  In  re  Klein,  142  N.  Y.  S.  657, 
80  Misc.  377. 


997  THE  ward's  peeson.  §  885 

§  884.  Services  of  Ward  to  Guardian  to  be  Credited. 

The  guardian  caimot  be  allowed  anything  for  support  where  he 
has  had  services  from  the  ward  equal  in  value  to  the  expense  of 
maintenance,®^  and  whenever  he  takes  the  ward  into  his  own 
household  as  a  boarder,  the  value  of  the  child's  services  received 
must  be  computed  as  against  any  charge  of  the  guardian  for  care 
and  maintenance.®* 

§  885.  Allowance  to  Parent  for  Ward's  Support;  Chancery 
Rules. 

As  to  the  guardian's  own  charges  for  the  maintenance  of  wards, 
there  can  be  no  question  that  he  is  neither  obliged  as  such  to  main- 
tain his  wards  at  his  own  expense,  nor  justified  in  appropriating 
their  earnings  to  himself.  But  as  the  services  of  children  and  the 
cost  of  their  board  are  always  mutual  offsets,  the  courts  are  reluc- 
tant to  allow  charges  of  this  sort,  for  or  against  a  giiardian  who 
brings  up  his  ward  in  his  own  family;  more  especially  where  the 
claim  seems  to  have  been  made  up  from  afterthought,  and  without 
previous  stipulation.  Intention,  on  his  part,  to  maintain  the 
ward  gratuitously  may  be  inferred  from  circumstances.  In  this 
sense  we  understand  certain  dicta  of  the  courts  to  the  effect  that 
a  guardian  cannot  charge  for  board  where  he  has  offered  to  bring 
up  the  ward  at  his  home  free  of  expense;  for  it  is  to  be  supposed 
that  there  is  mutuality  in  all  contracts,  and  that  reasonable  notice 
might  terminate  any  liability  which  had  no  fixed  limit.®*  But 
there  are  circumstances  under  which  a  guardian's  promise  to  the 
ward  not  to  charge  him  for  board  would  be  void  for  want  of  con- 
sideration.*^ 

82.  Campbell  v.  Clark,  63  Ark.  450,  Peebles,  42  Ala.  338,  recognizes  a 
39  S.  W.  262;  Marquess  v.  La  Baw,  guardian's  claim  for  keeping  his 
82  Ind.  550;  Sims  v.  Billington,  50  ward 's  horse,  in  a  proper  case.  Equity 
La.  Ann.  968,  24  So.  637.  disinclines    to    charge    for    a    ward's 


83.  Otis  V.  Hall,  117  N.  Y.  131 
Marquess  v.  Le  Baw,  82  Ind.  550 
Starling    v.    Balkum,    47    Ala.    314 


maintenance  for  the  benefit  of  the 
guardian's  general  creditors.  Grif- 
fith V.  Bird,  22  Gratt.  73.    Or  to  allow 


Dawson   v.   Mann,    6    Ky.   Law   Rep.  the  guardian  for  supporting  the  ward 

296;  Clement  v.  Hughes,  13  Ky.  Law  before  his  appointment,  except  under 

Eep.  352;    17  S.  W.  285;   Hedges  v.  strong       circumstances.         Olsen       v. 

Hedges,  24  Ky.  Law  Rep.  2220,  73  S.  Thompson,  77  Wis.  666.     Trumped-up 

W.  1112.  claims  of  maintenance   are   of  course 

84.   Manning  v.   Baker,  8  Md.   44;  disallowed.     In   re  Eschrich,   85   Cal. 

Armstrong  v.  Walkup,  9  Gratt.  372;  98;    Taylor    and    Others    v.    Hill,    86 

Hayden  v.   Stone,  1   Duv.   396;    Hen-  Wis.  99. 

dry  V.  Hurst,  22   Ga.   312;   Cunning-  85.  Keith  v.  Miles,  39  Miss.  442. 
ham   V.   Pool,   9    Ala.   615.      Owen   ▼. 


885 


GUAEDIAN    AND    WARD. 


99S 


As  the  father  is  bound  to  support  his  own  children,  he  cannot, 
when  guardian,  claim  the  right  to  use  the  income  of  their  property 
for  that  purpose;  much  less  to  disturb  the  principal.^®  But,  as 
we  have  seen,  a  father  is  allowed,  when  his  means  are  small,  to 
claim  assistance  from  their  fortunes,  to  bring  them  up  in  becoming 
stjle.*^  And  where  the  father,  when  acting  as  guardian  for  his 
own  children,  might  have  reimbursed  himself,  any  other  person, 
as  guardian,  may  help  him ;  rather,  however,  for  the  future  than 
for  the  past.^* 

Where  the  father  is  a  fit  person  to  have  custody  of  the  child  the 
court  may  refuse  to  order  him  to  pay  for  its  support  to  a  guardian 
who  refuses  to  allow  the  father  to  have  custody,^®  but  where  the 


86.  Leaeh  v.  Williams,  30  Ind.  App. 
413,  66  N.  E.  172;  Corblay  v.  State, 
81  Ind.  62;  In  re  Tolifaro,  113  la. 
747,  84  N.  "W.  936;  In  re  Carter,  120 
la.  215,  94  N.  W.  488;  Clement  v. 
Hughes,  13  Ky.  Law,  352,  17  S.  W. 
285;  Huffman  v.  Hatcher,  178  Ky. 
8,  198  S.  W.  236;  Windon  v.  Stewart, 
43  W.  Va.  711,  28  S.  E.  776;  Town  of 
Fairhaven  v.  Howland,  216  Mass.  149, 
103  N.  E.  302  (grandfather  by  sta- 
tute made  liable  for  support  of  indi- 
gent grandchildren).  See  In  re  Put- 
ney, 114  N.  Y.  S.  556,  61  Misc.  1. 

87.  Corbaley  v.  State,  81  Ind.  62 
(father  unable  to  work)  ;  Hedges  v. 
Hedges  (Ky.  1902),  67  S.  W.  835; 
Harper  v.  Payne,  24  Ky.  Law.  Rep. 
2301,  73  S.  W.  1123  ;  Watson  v.  Watson 
(Ky.),  209  S.  W.  524;  McGreary  v. 
McGreary,  181  Mass.  539,  63  N.  E. 
917;  In  re  Ward's  Estate,  73  Mich. 
220,  41  N.  W.  431;  Fitzsimmons  v. 
Fitzsimmons,  81  Mo.  App.  604. 

88.  Macphers.  Inf.  219;  Clark  v. 
Montgomery,  23  Barb.  464;  Beasley 
V.  Watson,  41  Ala.  234;  Welch  v. 
Burris,  29  la.  186;  Myers  v.  Wade, 
6  Rand.  444;  Walker  v.  Crowder,  2 
Ired.  Eq.  478.  See  supra,,  §§  793, 794. 
As  to  parents,  and  those  like  a  step- 
father who  choose  to  stand  in  place 
of  a  parent,  the  rules  of  maintenance 
which  have  already  been  stated  ap- 
ply to  such  allowances,  in  a  guar- 
dian's accounts.     If  the  guardian,  or 


the  person  with  whose  claim  he 
charges  himself,  was  of  adequate 
means,  and  bound  legally  to  maintain 
the  child  as  parent,  or  fully  under- 
took to  supply  the  place  of  parent, 
education  and  support  cannot  gener- 
ally be  allowed  from  the  ward's  es- 
tate. Bradford  v.  Bodfish,  39  la. 
681;  Douglas's  Appeal,  82  Pa.  St. 
169;  Snover  v.  Prall,  38  N.  J.  Eq. 
207;  Horton's  Appeal,  94  Pa.  St.  62. 
The  expense  of  past  maintenance  is 
the  less  readily  allowable.  Folger  v. 
Heidel,  60  Mo.  284.  Yet  future  main- 
tenance is  chargeable  where  the 
ward's  means  were  disproportionate 
to  the  parent's  and  needful  to  pro- 
vide in  suitable  style ;  and  even  past 
maintenance  may  be  thus  allowed. 
Supra,  §§  793,  794.  And  if  one  in 
place  of  parent  has  undertaken  the 
function  upon  some  such  proviso,  the 
ward 's  income  may  be  used.  The  cir- 
cumstances may  always  be  considered 
and  the  proportionate  means  as  be- 
tween the  ward  and  the  person  ful- 
filling the  parental  functions.  Voes- 
sing  V.  Voessing,  4  Eedf.  360.  The 
guardian  of  an  insane  ward  may  prop- 
erly charge  for  the  expense  of  board- 
ing the  ward  at  an  insane  asylum ; 
the  ward's  estate  being  sufficient  for 
such  expenditure.  Corcoran  v.  Allen, 
11  R.  I.  567. 

89.   In   re   Ross'   Guardianship,   92 
P.  671. 


999 


THE    WAED  S    PERaOIS'. 


§  885 


guardian  is  appointed  because  the  father  is  unfit  there  is  an 
implied  promise  on  his  part  to  pay  for  support.  A  probate  guar- 
dian who  is  st«p-father  to  his  wards  will  readily  be  presumed  to 
stand  to  them  in  the  place  of  a  father,  so  far  as  liability  for  their 
support  and  a  right  to  their  services  are  concerned ;  and  this  rule 
may  apply  where  he  occupies  their  house  for  many  years,®"  but  in 
a  proper  case  a  stepfather  not  being  bound  to  support  the  child 
may  have  an  allowance  for  such  support.*^ 

And  the  widow  will  not  usually  be  allowed  for  the  board  of  her 
child  *^  unless  she  is  in  straitened  circumstances.®^  And  a 
widow  who  is  primarily  liable  for  the  support  of  her  children  will 
usually  be  allowed  for  their  support  only  the  income  from  their 
estate.'*  A  mother  who  is  the  guardian  of  her  infant  child  cannot 
be  allowed  for  motherly  services  rendered  to  it,  but  only  for  cash 
expenditures.®' 

The  allowance  of  monev  for  the  maintenance  and  education  of 
infants  constitutes  an  important  branch  of  the  English  as  con- 
trasted with  our  American  chancery  jurisprudence.  Grenerally 
speaking,  whenever  application  is  made  for  the  appointment  of  a 
chancery  guardian,  maintenance  is  also  applied  for ;  and  the  guar- 
dian receives  no  more  than  the  annual  sum  fixed  bv  the  court. 
The  ward's  whole  fortune  is  held  at  the  disposal  of  the  court, 
whether  the  infant  was  made  a  ward  by  suit  or  otherwise.  If  a 
suit  be  pending,  the  guardian  receives  his  allowance  through  the 
receiver  or  some  other  officer  of  the  court.  If  there  be  no  suit 
pending,  the  executor  or  trustee  pays  the  annual  sum  fixed  by  the 
court;  and  if  the  whole  proceeds  of  real  estate  be  ordered  for 
maintenance,  the  tenants  are  safe  in  attorning  to  the  guardian. 
But  parties  making  payment  are  discharged  only  to  the  extent  of 
the  allowance  decreed.'* 


90.  Mulhern  v.  MeDavitt,  16  Gray, 
404;   supra,  §  686. 

91.  MiDer  v.  Lindemann,  206  111. 
App.  130  (only  after  notice  to  guar- 
dian that  he  Avill  claim  allowance)  ; 
Cutting  V.  Scherzinger,  40  Ore.  353, 
68  P.  393,  69  P.  439.  See  In  re 
Klunch,  68  N.  Y.  S.  629,  33  Misc. 
267. 

9^.  In  re  Grant.  166  N.  T.  640,  60 
N.  E.  1111;  Donnell  v.  Dansby 
(Okla.),  159  P.  317;  J.  H.  Cox  &  Co. 
T.  Fisher  (Okla.),  161  P.  171. 


93.  Williams  v.  Clarke,  81  N.  T.  S. 
381,  82  App.  Div.  199;  Wing  v.  Hib- 
bert,  20  Ohio  Cir.  Ct.  E.  404,  11  0. 
C.  D.   190. 

94.  Ellis  V.  Soper,  111  la.  631,  82 
X.  W.  1041. 

95.  Keeney  v.  Henning,  64  N.  J. 
Eq.  65,  53  A.  460.  See  In  re  Boyes' 
Estate,  151  Cal.  143,  90  P.  454  (under 
some  circumstances  mother  may  be 
paid  for  services). 

96.  Macphers.  Inf.  106;  Ex  parte 
Starkie,   3   Sim.   339.     Chancery   will 


§  886 


GUARDIAN    AND    WARD. 


1000 


.  Testamentary  guardians  are,  however,  frequently  authorized  by 
the  testator  to  apply  at  discretion  from  the  income  of  the  infant's 
fund,  or  from  the  capital,  for  his  support;  and  such  discretion 
will  not  be  controlled  so  long  as  the  guardian  acts  in  good  faith. 
But  trustees  and  guardians  frequently  procure  an  order  of  main- 
tenance, notwithstanding,  in  order  to  relieve  themselves  of  all 
responsibility."^  Doubts  were  formerly  entertained  of  the  power 
of  chancery  to  interfere  in  these  and  otiier  cases  where  the  infant 
had  not  been  made  a  ward  of  chancery  by  suit.  No  such  doubts 
now  exist,  however ;  and  the  court  will,  on  petition,  and  without 
formal  proceedings  by  bill,  settle  a  due  maintenance.'* 

A  decree  of  court  authorizing  the  guardian  to  apply  the  entire 
income  of  the  estate  to  the  support  of  the  child  will  be  applied  to 
the  successor  of  the  guardian  even  though  the  father. 


g» 


§  886.  Secular  and  Religicus  Education  of  Ward  by  Guardian. 

Courts  of  chancery  treat  the  guardian  as  the  proper  judge  of  the 
place  where  his  ward  shall  be  educated,  and  will,  if  necessary,  issue 
orders  to  compel  obedience.  But  if  guardians  disagree  as  to  the 
mode  of  their  ward's  education,  the  court  will  exercise  its  own 
discretion,  and  will  not  consider  itself  bound  by  the  wishes  of  the 
majority.^ 

It  is  the  duty  of  the  guardian  to  give  the  ward  suitable  education 
in  the  business  which  he  will  be  called  upon  to  follow.^  Parol 
evidence  of  the  deceased  father's  wishes  is  admissible,   and  the 


control  the  discretion  of  trustees  as 
to  allowance.  In  re  Hodges,  L.  R.  7 
Ch.  D,  754. 

Macphers.  Inf.  213;  Livesey  v. 
Harding,  Taml.  460;  French  v. 
Davidson,  3  Madd.  396;  Collins  v. 
Vining,  1  C.  P.  Cooper,  472.  In  Mis- 
sissippi the  sum  for  maintenance  and 
education  must  be  fixed  in  chancery. 
Dalton  V.  Jones,  51  !Miss.  585.  But  as 
to  personal  estate,  the  American  rule 
is,  usually,  that  if  the  court  would 
have  authorized  the  expenditure  upon 
application  before  it  was  made,  the 
expenditure  will  be  sanctioned  upon 
settlement  of  the  guardian  '3  accounts. 
Rinker  v.  Streit,  33  Gratt,   663. 

97.  Goods  of  Sartoris,  1  Curteis, 
910. 

98.  Story,  Eq.   Juris.,   §   1354,  and 


cases  cited.  And  see  Kettletas  v. 
Gardner,  1  Paige,  488. 

Trustees  may  be  authorized  by  the 
terms  of  the  trust  to  expend  a  certain 
sum  for  maintenance  and  support  of 
children.  It  is  generally  understood 
that  the  expenses  of  education  are 
thus  included.  Breed's  Wm,  1  Ch. 
D.  226.  Trustees  under  a  will  thus 
authorized,  and  in  effect  testament- 
ary guardians,  are  not  compelled  to 
pay  over  such  moneys  to  a  statute  or 
probate  guardian.  Capps  v.  Hick- 
man, 97  lU.  429. 

99.  In  re  Plumb,  53  N.  T.  S.  558, 
24  Misc.  249,  2  Gibbons,  447. 

1.  Story,  Eq.  Juris.,  §  1340;  Mac- 
phers. Inf.  121;  Tremain's  Case,  Stra. 
168;  Hall  v.  Hall,  3  Atk.  721. 

2.  Perrin  v.  Lepper,  72  Mich.  454, 


1001  THE  ward's  pekson.  §  887 

court  will  pay  attention  to  such  wishes,  although  informally  ex- 
pressed, in  judging  of  the  mode  of  education  of  children  as  well 
&s  in  the  appointing  of  a  guardian,*  and  the  parent's  wishes  as  to 
tiie  religious  education  of  the  ward  should  be  followed.* 

The  subject  of  a  child's  religious  education  received  much  con- 
sideration in  a  late  English  case,  where,  notwithstanding  the 
father's  directions  in  his  will  appointing  a  testamentary  guardian 
who  was,  like  himself,  a  Roman  Catholic,  a  daughter  nine  years 
old  was  allowed  to  remain  with  her  mother,  a  Protestant,  and  to 
be  brought  up  in  the  same  religious  faith;  and  this  against  the 
guardian's  wishes,  tardily  expressed.  An  antenuptial  agreement, 
made  between  the  husband  and  wife,  stipulating  that  boys  of  the 
marriage  should  be  educated  in  the  religion  of  the  father,  and  girls 
in  that  of  the  mother,  was  indeed  declared  of  no  binding  force  as 
a  contract ;  and  yet  it  was  added  that  this  agreement  would  have 
weight  with  the  court  in  considering,  after  the  father's  death, 
whether  he  had  abandoned  his  right  to  educate  this  daughter  in 
his  own  religion.  The  welfare  of  the  child  was,  under  the  circum- 
stances, deemed  a  very  important  consideration.^  In  a  still  later 
case  chancery  considered  that  it  was  most  for  the  benefit  of  the 
child  to  be  educated  as  a  Roman  Catholic*  But  on  the  whole,  in 
cases  of  doubt  the  English  courts  incline  to  favor  Protestant 
education  as  for  the  child's  welfare.'^ 

§  887.  Use  of  Income  or  Principal. 

The  doctrine  has  been  repeatedly  declared  that  no  guardian  can 
expend  more  than  the  income  of  his  ward's  estate  without  proper 
judicial  sanction.  This  is  the  settled  rule  in  chancery,  and  it  is 
universally  applicable  in  the  TJnited  States.*     And  a  similar  prin- 

40  N.  W.  859;  In  re  Alexander,  79  N.  ren,"     And  see  In  re  Agar-ETLis,  27 

J.  Eq.  226,  81  A.  732.  W.  E.   117;    supra.  Part  IIT,   ch.   X, 

S.    Anon.,   2   Ves.   Sen.    56;    Camp-  where  the  general  subject  of  a  child's 

bell  V.  Mackay,  2  M.  &  C.  34 ;  contra^  education    and    maintenance    is    dis- 

Storke  v.  Storke,  3  P.  Wms.  51.  cusaed. 

4.  In  re  Lamb's  Estate,  139  N.  Y.  6.  Clarke,  Be,  21  Ch.  D.  817.     See 
S.  685   (though  father  had  neglected  also  Montagu,  Be,  28  Ch.  D.  82. 
child).  7.  Violet  Nevin,  Be   (1891),  2  Ch. 

5.  Andrews  v.  Salt,  L.  R.  8  Ch.  622.  299 ;  Lacon  v.  Lacon,  2  Ch.  496 ;  Scan- 
See  In  re  Newbery,  L.  E.  1  Ch.  263,  Ian,  Be,  40  Ch.  D.  200. 

where    the    deceased    father's    wishes  8.  Whitlcdge's  Heirs  v.  Callis,  25 

prevailed,  as  against  the  mother  and  Ky.  403;  Baker  v.  Lane  (Ky.  1909^), 

the  children,  so  that  the  minor  chil-  118  S.  W.  963;   Collins  v.  Slaughter, 

dren  might  not  be  taken  to  worship  1  Ky.  Law  Eep.  261;   Griffith's  Ex'r 

at  a  chapel  of  the  "Plymouth  Breth-  v.  Bybee,  24  Ky.  Law  Eep.  666,  69  8. 


§  887 


GUARDIAN    AND    WAED. 


1002 


ciple  prevails  under  the  civil  law.®  But  to  what  extent  the  guar- 
dian renders  himself  personally  liable,  by  exceeding  the  income 
without  previous  sanction  of  the  court,  is  not  quite  clear.  The 
English  rule  is  undoubtedly  strict.  But  as  to  probate  guardians, 
and  in  modern  practice,  legal  formalities  have  been  considerably 
relaxed;  though  the  rule  is  still  that  the  capital  should  not  be 
encroached  upon  without  judicial  leave,  to  meet  expenditures 
which  are  beyond  the  ward's  means,  however  suitable  to  his  social 
position.  In  most  of  the  United  States  the  guardian  is,  doubt- 
less, justified  in  breaking  the  principal  fund,  under  strong  or  sud- 
den circumstances  of  necessity,  for  the  benefit  of  his  ward,  and  he 
may  leave  his  conduct  to  the  subsequent  approval  of  the  court 
when  he  presents  his  accounts.  In  cases  of  risk  and  uncertainty, 
however,  the  proper  course  is  to  obtain  a  previous  order. ^"^ 

It  is  sometimes  provided  by  statute  that  a  guardian  can  be 
allowed  for  expenditures  out  of  tbe  principal  only  where  there 
has  been  previous  authority  from  the  court.^^  but  otherwise  such 


W.  767;  Fidelity  Trust  Co.  v.  Butler, 
28  Ky.  Law  Eep.  1268,  91  S.  W.  676; 
Chubb  V.  Bradley,  58  Mich.  268,  25 
N.  W.  186;  In  re  Brown,  141  N.  Y.  S. 
193,  80  Misc.  4;  Whitfield  v.  Burrell, 
54  Tex.  Civ.  App.  567,  118  S.  W.  153; 
Rinker  v.  Streit  (Va.),  33  Gratt.  663; 
Campbell  v.  O'Neill,  69  W.  Va.  459, 
72  S.  E.  732 ;  In  re  Bostwick,  4  Johns. 
Ch.  lOO;  Myers  v.  Wade,  6  Eand.  444; 
Lawrence  v.  Speed,  2  J.  J.  Marsh. 
403;  Villard  v.  Chovin,  2  Strobh.  Eq. 
40;  State  v.  Clark,  16  Ind.  97;  Beeler 
V.  Dunn,  3  Head,  87;  Oakley  v.  Oak- 
ley, 3  Dem.  140;  Bowling  v.  Feeley, 
72  Ga.  557.  See  Louisiana  rule  as  to 
the  authority  of  a  family  meeting. 
Succession  of  Melina  Webre,  36  La. 
Ann.  312. 

9.  Payne  v.  Scott,  14  La.  Ann.  760. 
See  Louisiana  rule  as  to  authority  of 
family  meeting.  Succession  of  Webre, 
36  La.  Ann.  312. 

10.  Story,  Eq.  Juris.,  §  1355;  Chap- 
line  V.  Moore,  7  Monr.  150;  Davis  v. 
Harkness,  1  Gilm.  173;  Davis  v. 
Roberts,  1  Sm.  &  M.  Ch.  543;  Roy- 
Bton  v.  Royston,  29  Ga.  82;  Foteaux 
V.  Le  Page,  6  Clarke  (la.),  123;  Gil- 
bert V.  McEachen,  38  Miss.  469 ;  Phil- 


lips V.  Davis,  2  Sneed,  520;  Cummins 
V.  Cummins,  29  111.  452;  Cohen  v. 
Shyer,  1  Tenn.  Ch.  192.  Some  State 
codes  lay  down  a  strict  rule  concern- 
ing the  previous  sanction  of  the  court 
to  exceeding  the  ward 's  income.  Boyd 
V.  Hawkins,  60  Miss.  277 ;  Eysarte  v. 
George,  63  Miss.  143 ;  Eoscoe  v.  Mc- 
Donald, 91  Mich.  270;  Jones  v.  Par- 
ker, 67  Tex.  76.  But  in  other  States 
ratification  by  the  court  is  equivalent 
to  a  previous  authority.  Killpatrick 's 
Appeal,  113  Pa.  St.  46;  Ward,  Be,  73 
Mich,  220;  Rhode  v.  Tuten,  34  S.  C. 
496. 

11.  Campbell  v.  Clark,  63  Ark.  450, 
39  S.  W.  262;  Hudson  v.  Newton,  83 
Ark.  223,  103  S.  W.  170;  McQueen  v. 
Fisher  (Ga.  App.),  95  S.  E.  1004; 
Hazelrigg  v.  Pursley,  69  111.  App. 
467;  Hubbell  v.  Hubbell,  5  La.  Ann. 
524 ;  Sims  v.  Billington,  50  La.  Ann. 
968,  24  So.  637;  In  re  Watson,  51  La. 
Ann.  1641,  26  So.  409;  Eastland  v. 
Williams'  Estate,  92  Tex.  113,  46  S. 
W.  32,  45  S.  W.  412;  Blackwood  v. 
Blackwood's  Estate,  92  Tex.  478,  47 
S.  W.  483,  49  S.  W.  1045;  Freedman 
V.  Vallie  (Tex.  Civ.  App.  1903),  75  S. 
W.  322;  Logan  v.  Gay,  99  Tex.  603, 


1003 


THE    WAKD  S    PERSON. 


§    887 


12 


expenditures  may  be  allowed  if  proper  without  prior  authority, 
but  the  court  may  refuse  to  authorize  such  expenditures  in  ad- 
vance.^' In  some  cases  the  principal  may  be  used  when  it  becomes 
both  reasonable  and  necessary  "  to  exceed  the  ward's  income,  and 
the  judicial  sanction  is  granted  accordingly.  Thus  courts  of  chan- 
cery, or  even  of  probate,  authorize  the  capital  to  be  broken  upon, 
or,  if  need  be,  the  whole  estate  to  be  consumed,  where  the  property 
is  small  and  the  income  inadequate  for  support.^^  As  where  the 
ward's  education  is  nearly  completed,  especially  if  he  will  thereby 
be  fitted  for  a  profession.  Or  where  the  ward  is  mentally  or  physi- 
cally unfit  to  be  bound  out  as  an  apprentice. ^^  So,  too,  in  case  of 
extreme  sickness,  or  other  emergency,  or  for  the  burial  of  a  dead 
ward,  where  an  imusual  and  sudden  outlay  becomes  necessary.^^ 
And  the  guardian  can  anticipate  the  income  of  one  year  in  supply- 
ing the  casual  deficiency  of  another.^*  And  he  may  treat  an  in- 
crease of  value  in  his  ward's  property  as  income.^®  And  he  may 
use  the  accumulated  profits  of  previous  years  where  necessary.     A 

90  S.  W.  861 ;   Murph  v.  McCullough,       433,  89  S.  W.  731,  28  Ky.  Law  Rep. 

40  Tex.  Civ.  App.  403,  90  S.  W.  69; 

Dallas     Trust    &    Savings    Bank     v. 

Pitchford    (Tex.    Civ.    App.),   208    S. 

W.  724 ;  Harkrader  v.  Bonham,  88  Va. 

247,  16  S.  E.  159;   Gayle  v.  Hayes' 

Adm'r,  79  Va.  542. 

12.  In  re  Boyes'  Estate,  151  Cal. 
143,  90  P.  454;  In  re  Carter,  120  la. 
215,  94  N.  W.  488;  Des  Moines  Sav. 
Bank  v.  Krell,  176  la.  437,  156  N.  W. 
858  (to  provide  home);  Hoga's  Es- 
tate v.  Look,  134  Mich.  361,  96  N.  W. 
439,  10  Det.  Leg.  N.  473;  In  re 
Klunck,  68  N.  Y.  S.  629,  33  Misc. 
267;  Duffy  v.  Williams,  133  N.  C.  195, 
45  S.  E.  548;  Cutting  v.  Scherzinger, 
40  Ore.  353,  68  P.  393,  69  P.  439; 
Rinker  v.  Streit  (Va.),  33  Gratt.  663; 
Bliss  v.  Spencer  (Va.),  99  S.  E.  593. 
13  In  re  Barry,  61  N.  J.  Eq.  135, 

47  A.  1052.     See,  however,  Watson  v. 

Watson  (Ky.),  209  S.  W.  524. 

14.  Williams  v.  Williams  (Ala.),  81 

So.    41    (where    father    is   unable    to 

support   them)  ;    Little   v.   West,   145 

Ga.   563,   89   S.  E.   682;   Whitledge's 

Heirs  v.  Callis,  25  Ky.  403;  Common- 
wealth V.  Lee,  120  Ky.  433,  86  S.  W. 

990,  27  Ky.  Law  Rep.  806,  120  Ky. 


596  (when  ward  so  young  or  of  in- 
firm health  that  he  cannot  work)  ; 
Hudson  V.  Hudson,  160  Ky.  432,  169 
S.  W.  891  (holding  that  where  the 
ward  is  sick  and  in  pressing  need 
payments  may  be  ordered  made  to 
him  out  of  principal);  Griffith's 
Ex'r  V.  Bybee,  24  Ky.  Law  Rep. 
666,  69  S.  W.  767  (marriage  and  ill- 
ness of  ward)  ;  Gott  v.  Culp,  45  Mich. 
265,  7  N.  W.  767  (where  future  prob- 
able resources  justify  it) ;  In  re 
Ward's  Estate,  73  Mich.  220,  41  N. 
W.  431 ;  Anderson  v,  Silcox,  82  S.  C 
109,  63  S.  E.  128. 

15.  McDowell  v.  Caldwell,  2  McC. 
Ch.  43;  Farrance  v.  Viley,  9  E.  L,  & 
Eq.  219 ;  Roseborough  v.  Roseborough, 
3  Baxt.  314. 

16.  Johnston  v.  Coleman,  3  Jones, 
Eq.  290;  Campbell  v.  Golden,  79  Ky. 
544. 

17.  Long  V.  Norcom,  2  Ired.  Eq. 
354;  In  re  Clark,  17  E.  L.  &  Eq.  599; 
Hobbs  V.  Harlan,  10  Lea,  268. 

18.  Carmichael  v.  Wilson,  3  Moll. 
87;  Bybee  v.  Tharp,  4  B.  Monr.  313. 

19.  Long  V.  Norcom,  2  Ired.  Eq. 
354;  Macphers.  Inf.  337,  338. 


§    887  GUARDIAN    AND    WAED.  1004 

joung  ladj  who  is  a  ward  may  be  allowed  small  sums  by  way  of 
spend ing-money  for  ber  personal  needs,  apart  from  what  may  be 
actually  necessary  to  eat  and  wear.^"  In  short,  the  guardian  is 
allowed  a  liberal  discretion  in  expenditures  for  maintenance  and 
education,  so  long  as  he  refrains  from  encroaching  upon  the  ward's 
capital ;  ^^  and  in  extreme  cases  he  may  intrench  upon  the  capital 
itself  where  this  is  for  the  ward's  welfare.  So  it  is  held  that  he 
is  limited  in  his  disbursements,  not  to  the  income  of  the  ward's 
estate  actually  in  his  hands,  but  to  the  income  of  the  ward's  estate 
wherever  situated.^^  The  maintenance  of  property  from  which 
income  is  derived  should  be  considered  in  fixing  income  of  the 
ward's  estate.^^ 

The  order  in  which  the  ward's  property  should  be  expended  for 
his  support  and  education  is  as  follows:  first,  the  income  of  the 
property;  next,  if  that  proves  insufficient,  the  principal  of  per- 
sonal property;  lastly,  if  both  are  inadequate,  the  ward's  real 
estate,  or  so  much  of  it  as  may  be  necessary.  A  court  should 
protect  personal  capital  while  there  is  income,  and  realty  while 
there  is  income  or  personal  capital  at  all.  The  ward's  real 
estate  can  never  be  sold,  except  under  a  previous  order  of  court. 
Nor  can  a  guardian  use,  in  maintaining  his  ward,  the  proceeds  of 
real  estate  sold  for  the  purpose  of  reinvestment  only,  any  more 
than  he  could  have  used  the  real  estate  itself.  He  should  ask  to 
sell  for  the  purpose  of  maintenance.^*  In  fair  instances  a  court 
has  ordered  a  sale  of  the  ward's  real  estate  for  reimbursement  of 
the  guardian's  expenses  of  support,  tliough  petition  in  advance  is 
the  safer ;  '^  but  a  guardian  who  has  enough  personalty  of  the 
ward  cannot  charge  the  ward's  realty  by  his  contracts.^® 

20.  Karney  v.  Vale,  56  Ind.  542.  back  the   amount  from  such  person. 

21.  Brown  v.  Mullins,  24  Miss.  204;        Chubb  v.  Bradley,  58  Mich.  268. 
Speer  v.  Tinsley,  55  Ga.  89.  23.    Wegman    v.    Wegman,    52    La. 

22.  Foreman   v.    Murray,   7   Leigh,       Ann.  1309,  27  So.  88?. 

412 ;  Maclin  V.  Smith,  2  Ired.  Eq.  371.  24.    Strong  v.   Moe,   8   Allen,   125; 

And  see  In  re  Coe's  Trust,  4  K.  &  J.  Einker  v.  Street,  33  Gratt.  663.     See 

199.      If   the    guardian    pays    money  St.   Joseph's  Academy  v.  Augustine, 

from  the  principal  of  his  ward's  es-  55  Ala.  493. 

tate    to    a    suitable    person    for    the  25.    Bellamy   v.    Thornton    (1894), 

ward's  support,  and  the  money  i3  rea-  Ala. 

sonably  expended,  he  cannot  recover  26.    Roscoe    v.    McDonald    (1894), 

Mich. 


1005  TKE  wajrd's  estate.  §  888 


CHAPTER  VI. 

EIGHTS  AND  DUTIES   OF  THE  GUARDIAN    AS   TO   THE   WARDS  ESTATE. 

Section  888.  In  General;  Leading  Principles. 

889.  Guardian's  General  Powers  and  Duties  as  to  Ward's  Estate. 

890.  Duty  of  Loyalty ;  Not  to  Make  Money  from  Estate. 
S91,  Authority  Before  or  After  Termination  of  Office. 

892.  Guardian  Has  No  Title  in  Ward's  Estate. 

893.  Character  in  Which  Holds  Funds. 

894.  Eight  to  Possession  of  Estate. 

895.  Collection  of  Assets. 

896.  What  Property  is  Assets  of  the  Estate. 
837.  Reasonable  Time  Allowed  for  Investment. 

898.  Character  of  Investments. 

899.  Separation  of  Funds. 

900.  Eeinvestment. 

901.  Statutes  Covering  Investments. 

902.  When  Chargeable  with  Interest  on  Investments. 

903.  Loans  by  Guardian. 

904.  Bank  Accounts. 

905.  Expenditures  Allowed. 

906.  Payment  of  Debts. 

907.  Continuance  in  Business. 

908.  Liability  for  Negligence  or  Fraud. 

&09.  Effect  of  Guardian's  Unauthorized  Acts.  # 

910.  Contracts  in  General. 

911.  Contracts  for  Necessaries. 

912.  Contracts  for  Services  to  Ward  or  Estate. 

913.  Promissory  Notes. 

914.  Loans  to  Guardian. 

915.  Management  of  Ward's  Eeal  Estate  in  Detail. 

916.  Deeds  of  Property. 

917.  Eepairs  and  Insurance. 

918.  Lease. 

919.  Mortgage  or  Pledge. 

920.  Guardian's  Occupation  of  Land. 

921.  Changes  in  Character  of  Ward's  Property;   Sales;   Exchanges, 

&c. 

922.  Eight  to  Sue  and  be  Sued  as  to  Ward 's  Estate. 
9'23.  Guardian's  Eight  of  Action  for  Benefit  of  Ward. 

924.  Parties. 

925.  Compromise  of  Claims. 

926.  Arbitration. 

§  888.  In  General ;  Leading  Principles. 

We  have  seen  that  chancery  guardians  have  only  a   limited 
authority  over  the  estates  of  their  wards,  inasmuch  as  the  court 


§    889  GUARDIAN    AND    WARD.  1006 

makes  a  fixed  allowance,  to  be  consumed  in  maintenance  and  edu- 
cation, leaving  the  bulk  of  the  infant's  estate  in  the  hands  of 
executors,  trustees,  or  its  own  officers.  In  this  country  guardians 
almost  invariably  assume  the  full  management  of  their  wards' 
fortunes,  unless  restrained  by  the  will  of  the  testator ;  and  when- 
ever they  do  so  they  are  bound  by  the  principles  which  regulate 
the  general  conduct  of  all  trustees  and  bailees.  Ordinary  pru- 
dence, care,  and  diligence  should  be  therefore  the  correct  standard 
as  applied  wherever  the  trust  is  not  purely  gratuitous. 

The  leading  principle  recognized  by  chancery  in  supervising 
the  guardian's  conduct  is,  as  in  the  appointment  or  award  of 
custody,  that  the  ward's  interests  are  of  constant  consideration. 
Hence  two  observations  are  to  be  made  at  the  outset  of  this  chap- 
ter. The  first  is,  that  unauthorized  acts  of  the  guardian  may  be 
sanctioned  if  they  redound  to  the  ward's  benefit;  while,  on  the 
other  hand,  for  unauthorized  acts  by  which  the  ward's  estate 
suffers,  the  guardian  must  pay  the  penalty  of  his  imprudence.^^ 
The  second  is,  that  the  guardian's  trust  is  one  of  obligation  and 
duty,  and  not  of  speculation  and  profit."^  We  shall  have  occasion 
to  apply  these  observations  as  we  proceed. 

§  889.  Guardian's   General   Powers   and    Duties   as   to   Ward's 
Estate. 

Among  the  most  obvious  powers  and  duties  of  the  guardian  in 
the  management  of  his  ward's  property  are  these :  To  collect  all 
dues  and  give  receipts  for  the  same.  To  procure  such  legacies 
and  distributive  shares  from  testators  or  others  as  may  have  ac- 
crued. To  take  and  hold  all  property  settled  upon  the  ward  by 
way  of  gift  or  purchase,  unless  some  trustee  is  interposed.  To 
collect  dividends  and  interest,  and  the  income  of  personal  property 
in  general.  To  receive  and  receipt  for  the  rents  and  profits  of  real 
estate.  To  receive  moneys  due  the  ward  on  bond  and  mortgage. 
To  pay  the  necessary  expenses  of  the  ward's  personal  protection, 
education,  and  support.  To  deposit  properly  and  invest  and  rein- 
vest all  balances  in  his  hands.  To  sell  the  capital  of  the  ward's 
property,  change  the  character  of  investments  when  needful,  con- 
vert real  into  personal  and  personal  into  real  estate,  in  a  suitable 
-exigency;    but  not  without  judicial  direction.     To  account  to  the 

27.   Milner   v.   Lord   Harewood,    18  28.  2  Kent,  Com.  229. 

Ves.    Jr.    259;    Capehart    v.    Huey,    1 
Hill,  Ch.  405. 


1007 


THE    WARD  S    ESTATE. 


§    890 


ward  or  his  legal  representatives  at  the  expiration  of  his  trust. 
And,  in  general,  especially  if  recompensed,  to  exercise  the  same 
prudence  and  foresight  which  a  good  business  man  would  use  in 
the  management  of  his  own  fortunes,  though  under  more  guarded 
restraints.^^ 

The  guardian  should,  in  managing  the  affairs  of  his  ward,  exer- 
cise the  same  prudence  which  an  ordinarily  prudent  man  exercises 
in  his  own  affairs  of  like  nature,^"  and  is  not  liable  for  honest 
errors  in  judgment,^^  and  it  is  the  policy  of  the  courts  to  sustain 
if  possible  irregular  acts  of  a  guardian  where  done  in  good  faith 
and  without  detriment  to  the  estate.^^ 

A  guardian  has  no  right  to  make  a  gift  out  of  the  estate.'' 
Informal  advice  by  a  judge  cannot  be  relied  on  as  protection  by 
the  guardian." 

§  890.  Duty  of  Loyalty ;   Not  to  Make  Money  from  Estate. 

The  guardian  is  bound  for  ordinary  diligence  if  compensated, 
and  for  slight  diligence  at  all  events,  on  the  usual  footing  of  a 
bailee  of  property. 

It  is  to  be  observed,  however,  that  chancery  not  only  punishes 
corruption,  but  treats  with  suspicion  all  acts  and  circumstances 
evincing  a  disposition  on  the  guardian's  part  to  derive  undue 
advantage  from  his  position.  This  rule  is  applicable  to  trustees 
in  general.  The  trust  should  be  managed  exclusively  in  the  in- 
terest of  the  cestui  que  trust;   or,  in  case  of  guardianship,  for  the 


29.  Genet  v.  Talmadge,  1  Johns.  Ch. 
3;  Jackson  v.  Sears,  10  Johns.  435; 
Eichelberger  's  Appeal,  4  Watts,  84 ; 
Swan  V.  Dent,  2  Md.  Ch.  Ill;  Cren- 
shaw V.  Crenshaw,  4  Eich.  Eq.  14; 
Chapman  v.  Tibbits,  33  N.  Y.  289. 
One  who  is  liable  as  a  debtor  to  the 
Tard  is  not  entitled,  when  sued,  to 
question  the  validity  of  the  guardian 's 
appointment,  not  even  though  he  be  a 
co-heir.  Johnson  v.  Blair,  126  Pa. 
St.  426. 

30.  In  re  Wood's  Estate  &  Guar- 
dianship, 159  Cal.  466,  114  P.  992; 
Wainright  v.  Burroughs,  1  Ind.  App. 
393,  27  N.  E.  591 ;  Alcon  v.  Coons,  82 
N.  E.  92;  Layne  v.  Clark,  152  Ky. 
310,  153  S.  W.  437;  Gott  v.  Culp,  45 


matters  are  all  that  can  be  expected)  ; 
Reynolds'  Appeal,  70  Mo.  App.  576: 
Taylor  v.  Kellogg,  103  Mo.  App.  258, 

77  S.  W.  130;  In  re  Bielby's  Estate, 
155  N.  T.  S.  133,  91  Misc.  353  (should 
inform  himself  of  condition  of  es- 
tate) ;  Scoville  v.  Brock,  79  Vt.  449, 
65  A.  577;  Elliott's  Adm'r  v.  Howell, 

78  Ya.  297.  See  Perrin  v.  Lepper,  72 
Mich.  454,  40  X.  W.  859;  Detroit 
Trust  Co.  V.  Hunrath,  168  Mich.  180, 
131  N.  W.  147. 

31.  In  re  Wisner's  Estate,  145  la. 
151,  123  N.  W.  973. 

32.  Duffy  V.  McHale,  35  K.  I.  16,  S:. 
A.  36. 

33.  Norris  v.  Norris,  83  N.  Y.  S.  77, 
S5  App.  Div.  113. 


Mich.    265,    7    N.    W.    767     (honesty,  34.  In  re  Kimble,  127  la.  665,  103 

kindness  and  ordinary  skill  in  money       N.  W.  1009. 


§  890 


GUABDIAN    AND    WABD. 


1008 


ward's  benefit.  The  guardian  cannot  reap  any  benefit  from  the 
use  of  the  ward's  money.  He  cannot  act  for  his  own  benefit  in 
any  contract  or  purchase  or  sale  as  to  the  subject  of  the  trust.  If 
he  purchases  in  his  character  as  guardian,  he  presumptively  uses 
his  ward's  funds  for  that  purpose.  If  he  settles  a  debt  upon 
beneficial  terms,  or  purchases  it  at  a  discount,  the  advantage  is  to 
accrue  entirely  to  the  ward's  estate,'^  and  the  guardian  cannot 
acquire  adverse  interests  in  the  ward's  property,*®  and  where  he 
makes  investments  which  he  should  have  made  as  guardian  he  will 
be  charged  as  trustee  of  the  ward.^'  Where  the  guardian  pur- 
chases for  himself  at  sales  of  his  ward's  property,  his  conduct  will 
be  closely  scrutinized.     But  where  no  fraud  appears,  and  the  sale 


35,  White  v.  Parker,  8  Barb.  48 ;  2 
Kent,  Com.  Z29;  Diettrich  v.  Heft,  5 
Barr,  87;  Clowes  v.  Van  Antwerp,  4 
Barb.  416;  Lefevre  v.  Laraway,  22 
Barb.  168;  Kennaird  v.  Adams,  11  B. 
Monr.  102 ;  Sparhawk  v.  Allen,  1  Fos- 
ter (N.  H.),  9;  Heard  v.  Daniel,  26 
Miss.  451;  Jennings  v.  Kee,  5  Ind. 
257. 

A  guardian  is,  lilce  other  trustees, 
hound  not  to  reap  any  personal  bene- 
fits from  use  of  the  ward's  funds. 
Peadro  v.  Carriker,  168  111.  570,  48 
N.  E.  102 ;  Boyd  v.  Boyd,  176  HI.  40, 
51  N.  E.  782,  68  Am.  St.  E.  169  (ward 
is  not  barred  by  delay  of  18  years  to 
assert  his  rights) ;  American  Surety 
Co.  of  New  York  v.  Sperry,  171  HI. 
App.  56;  Charles  v.  Witt,  88  Kan.  484, 
129  P.  140;  Moyer  v.  Fletcher,  56 
Mieh.  508,  23  N.  W.  198;  Brandau  v. 
Greer,  95  Miss.  100,  48  So.  519;  Pat- 
terson V.  Booth,  103  Mo.  402,  15  8. 
W.  543. 

As  a  guardian  must  not  reap  un- 
due benefit,  he  cannot  make  a  collu- 
sive sale  or  improve  the  property  for 
his  own  benefit.  Lane  v.  Taylor,  40 
Ind.  495.  He  must  not  derive  profit 
by  setting  fictitious  values,  but  ac- 
count according  to  true  valuations. 
Titles  adverse  to  the  ward's  interest 
cannot  be  disposed  of  for  his  own 
benefit  and  to  the  ward's  detriment. 
Spelman  v.  Terry,  15  N.  T.  Supr.  205. 
If   the  guardian  has   a  life   interest 


in  land  of  which  the  ward  is  seized 
in  fee,  he  cannot  apply  to  the  ward 
the  whole  cost  of  removing  an  encum- 
brance, principal  and  interest.  Bourne 
v.  Maybin,  3  Woods,  C.  C.  724. 

36.  Hawkins  v.  Peeves,  112  Ark. 
389,  166  S.  W.  562 ;  Ingram  v.  Heintz, 
112  La.  496,  36  So.  507;  Boudreaux 
V.  Lower  Terre-Bonne  Refining  &  Mfg. 
Co.,  127  La.  98,  53  So.  456;  Johnston 
V.  Loose,  201  Mich.  259,  167  N.  W. 
1021  (guardian  cannot  purchase  for 
himself  dower  interest  of  widow  in 
ward's  land) ;  Town  of  Thornton  v. 
Oilman,  67  N.  H.  392,  39  A.  900  (one 
who  buys  from  the  guardian  with  no- 
tice takes  no  valid  title) ;  Horton  v. 
Maine,  21  E.  I.  126,  46  A.  403 ;  Gulf, 
C.  &  S.  F.  Ry.  Co.  v.  Lemons  (Tex. 
Civ.  App.),  152  S.  W.  1189.  See  Cahill 
V.  Seitz,  86  N.  T.  8.  1009,  93  App. 
Div.  105.  See  In  re  Stude's  Estate 
(Iowa),  162  N.  W.  10;  Mann  v.  Mc- 
Donald, 10  Humph.  (Tenn.)  275.  He 
cannot  contract  with  himself  as  a 
guardian,  so  as  to  force  his  ward 
into  a  compromise  settlement  of  claims 
with  his  other  creditors.  Cabell  v. 
Shoe  Company,  81  Tex.  104. 

37.  Haynes  v.  Montgomery,  96  Ark. 
573,  132  S.  W.  651;  Taylor  v.  Calvert, 
138  Ind.  67,  37  N.  E.  531;  Donlon  v. 
Maley,  110  N.  E.  92;  Perry  v.  Elgin, 
15  Ky.  Law  Rep.  855,  26  8.  W.  4 ; 
Succession  of  Hawkins,  139  La.  228, 
71  So.  492. 


1009  THE  ward's  estate.  §  890 

appears  beneficial  to  the  ward,  the  more  reasonable  doctrine  is  that 
the  transaction  is  sustainable  in  equity,  subject  to  the  ward's  sub- 
sequent election,  on  reaching  majority,  to  disaffirm  the  sale.  The 
guardian,  meanwhile,  takes  the  legal  title ;  more  especially  if  the 
gale  was  conducted  through  a  third  party,  who  afterwards  conveyed 
to  him.'*  The  ward  is  entitled  to  any  profits  made  with  his  money 
by  the  guardian.^' 

Where  a  guardian  speculates  with  his  ward's  funds,  or  employs 
them  in  his  own  business,  he  must  account  for  the  profits.  A3 
this  is  a  clear  breach  of  trust,  compound  interest  is  properly 
chargeable.  It  would  seem  to  be  the  true  rule  in  equity,  where 
large  profits,  which  ought  to  have  gone  to  the  credit  of  the  cestui 
que  trust,  are  appropriated  by  his  trustee,  to  require  them  to  be 
turned  in  on  account;  and  to  impose  compound  interest  instead, 
with  annual  or  other  periodical  rests  as  a  penalty  only  when  there 
are  practical  difficulties  in  the  way  of  enforcing  such  a  rule  or  as  a 
beneficial  option  to  the  ward.  For  it  is  obvious  that  in  this 
country  a  guardian  can  frequently  afford  to  pay  compound  interest 
for  the  use  of  his  ward's  money,  if  he  is  suffered  to  retain  the  full 
profits  of  the  speculation  for  himself.*"  It  has  been  held  that 
where  a  guardian  employs  his  ward's  money  in  a  business  which  he 
allows  his  son  to  manage,  with  a  portion  of  the  profits  as  his  com- 
pensation, and  the  transaction  is  free  from  fraud,  he  is  not  charge- 
able with  his  son's  share  of  the  profits.*^ 


88,  Ex  parte  Lacey,  6  Ves.  625;  Le 
fevre  v.  Laraway,  22  Barb.  168 ;  Chor 
penning 'a  Appeal,  32  Pa.  St.  315 
Hoskins  v.  "Wilson,  4  Dev.  &  Batt.  243 
Blackmore  v.  Shelby,  8  Humph.  43? 
Crump  et  al.,  Ex  parte,  16  Lea,  732 
Brockett  v.  Richardson,  61  Miss.  766 


guardian  as  well  as  that  of  the  ward, 
the  guardian  may,  at  a  sale  under 
the  deed,  bid  in  the  property  in  his 
own  right  to  protect  himself  as  well 
as  his  ward.  Bunel  v.  Nester,  203 
Mo.  429,  101  S.  W.  69;  Same  v. 
Springfield  Sav.  Bank,  101  S.  W.  78. 


Hudson  V.  Helmes,  23  Ala.  585.    But  39.   Martinez  v.   Meyers,    131   Ala. 

see    Beal    v.    Harmon,    38    Mo.    435.  293,  61  So.  810;  Chanslor  v.  Chanslor 's 

In  Missouri,  under  the  Spanish  laws,  Trustees,  74  Ky.   663;   In  re  Allard, 

the    guardian    might    purchase    lands  49  Mont.  219,  141  P.  661. 

of    his    ward    with    the    court 's    per-  40.   Meyers   v.    Martinez,   172    Ala. 

mission.      McNair    v.    Hunt,    5    Mo.  641,   55   So.  498    (where   claim   made 

300.     See  Boyer  v.  East,   161  N.  Y.  for  profits,  interest  on  principal  and 

580,     56    N.     E.     114,     76     Am.     St.  profits  charged);   Goff's  Guardian  v. 

E.   290    (affg.   49   N.   Y.   S.    1132,25  Goff,   123   Ky.  73,  93   S.  W.   625,  29 

App.   Div.    625)    (guardian   who   has  Ky.  Law  Rep.  501;  Spear  v.  Spear,  9 

also  a  dower  interest  may  purchase  Rich.   Eq.    184;    Lowry   v.    State,   64 

at  foreclosure  sale).  Tnd.  421;   Reed  v.  Timmins,  52  Tex. 

Where  a  deed  of  trust  taken  by  a  84. 

gnardian    secures    the    debt    of    the  41.  Kyle  v.  Barnett,   17   Ala.   306. 

64 


§    894  GUARDIAN    AND    WAED.  1010 

§  891.  Authority  Before  or  After  Termination  of  Office. 

The  guardian  will  not  he  allowed  for  expenses  incurred  previous 
to  Ms  appointment/^  and  he  has  no  authority  to  take  funds  of  the 
estate  after  resignation.*' 

§  892.  Guardian  Has  No  Title  in  Ward's  Estate. 

The  guardian  as  a  general  rule  has  no  legal  title  to  the  personal 
property  of  the  ward/*  or  to  his  interest  in  real  estate,*^  but  takes 
the  proceeds  of  the  sale  of  trust  property.**  The  legal  title  to 
stock  issued  to  A.  B.,  Guardian,  is  in  him  individually,  and  on  his 
death  descends  to  his  representatives.*^ 

§  893.  Character  in  Which  Holds  Funds. 

One  who  is  executor  of  a  will  and  also  guardian  of  one  of  the 
devisees  will,  after  a  settlement  of  the  estate,  be  regarded  as  hold- 
ing funds  as  guardian,*^  and  a  guardian  who  takes  funds  of  the 
ward  will  be  estopped  to  deny  that  he  took  them  as  guardian.*' 

§  894.  Right  to  Possession  of  Estate. 

A  guardian  has  the  custody  and  control  of  the  ward's  estate."" 
IsTor  can  he  with  safety  permit  the  administrator  of  the  estate  of 
his  ward's  father  to  control  property  of  which  he  is  the  l^al 
custodian.  And  he  must  hold  an  administrator  to  account  in  all 
cases.'^ 

42.  In  re  Tyndall,  102  N.  Y.  S.  47.  Williams  v.  Farmers'  State 
211,  117  App.  Div.  294;  In  re  Grant,  Bank  of  Sparks  (Ga.  App.),  97  S.  E. 
166  N.  Y.  640,  60  N.  E.  1111   (affg.       249. 

67  N.  Y.  S.  654,  56  App.  Div.  176),  48.    State    to    Use    of    Jacobs    v. 

(in  obtaining  custody,  etc.).  Hearst,  12  Mo.  365,  51  Am.  Dec.  167. 

43.  Hendrix  v.  Richards,  57  Neb.  49.  Francis  v.  Sperry  (Okla.),  176 
794,  78  N.  W.  378.  P.  732. 

44.  Judson  v.  Walker,  155  Mo.  166,  50.  Hallinan  v.  Hearst,  133  Cal. 
55  S.  W.  1083;  Scilert  v.  McAnally,  645,  66  P.  17,  55  L.  R.  A.  216;  BorufF 
223  Mo.  505,  122  S.  W.  1064;  Title  v.  Stipp,  126  Ind.  32;  In  re  Stude's 
Guaranty  &  Surety  Co.  v.  Cowen  Estate  (Iowa),  162  N.  W.  10;  Cro- 
(Okla.),  177  P.  563;  contra,  Hunter  foot's  Ex'r  v.  Duvall,  3  Ky.  Law 
V.  Lawrence's  Adm'r,  11  Grat.  (Va.)  Rep.  541;  Boaz's  Adm'r  v.  Milliken, 
111,  62  Am.  Dec.  640.  4   Ky.  Law  Rep.   448;    Thompson  v. 

45.  Howard  v.  Pope,  109  Ga.  259,  Thompson,  20  Ky.  Law  Rep.  979,  47 
34  S.  E.  301;  Louisville  Trust  Co.  v.  S.  W.  1088;  Strite  v.  Furst,  112  Md. 
Kidd,  29  Ky.  Law  Rep.  382,  93  S.  W.  101,  76  A.  498;  United  States  Fidelity 
38.  See  Higginson  v.  Wathen,  20  Ky.  &  Guaranty  Co.  v.  Citizens'  State 
Law  Rep.  332,  46  S.  W.  21;  Louisville  Bank  of  Langdon,  36  N.  D.  16,  161 
Trust  Co.  V.  Kidd,  29  Ky.  Law  Rep.  N.  W.  562  (trust  relationship  arises)  ; 
382,  93  S.  W.  38.  In   re  Bolin's   Estate,   22   Okla.   851, 

4G.  Cady  v.  Lincoln,  100  Miss.  765,       98  P.  934;  Tolbert  v.  Bolin,  Id. 
57  So.  213.  51.  Wills 's  Appeal,  22  Pa.  St.  325; 


1011 


THE    WAKD  S    ESTATE. 


§    895 


The  will  cannot  require  the  testamentary  guardian  to  deliver 
the  infant  ward  his  estate  upon  his  marriage/ 


S2 


§  895.  Collection  of  Assets. 

It  is  the  guardian's  first  duty  to  collect  the  assets  of  the  estate 
as  speedily  as  possible,^^  which  duty  is  fixed  by  law  and  cannot  be 
governed  by  the  wishes  of  the  ward.^* 

Choses  in  action  should  be  reduced  to  possession  without  unnec- 
essary delay ;  ^^  to  which  we  should  add,  however,  that  incorporeal 
personalty  of  various  kinds  serves  in  modem  times  for  a  long- 
continued  investment.  All  claims  should  be  collected  as  prudence 
may  require,  concerning  which  the  guardian  has  been  put  upon 
inquiry,^®  or  the  court  may  authorize  a  judgment  to  be  sold  where 
it  appears  that  it  cannot  be  collected  without  delay.°^ 

In  collecting  outstanding  debts  or  prosecuting  claims  a  reason- 
able time  is  to  be  allowed  the  guardian.  Ordinary  prudence  and 
diligence  is  the  rule;    and  for  culpable  negligence  subjecting  the 


Clark  V.  Tompkins,  1  S.  C.  (N.  S.) 
119;  Coggins  v.  Flvthe,  113  N.  C. 
103;  Denholm  v.  McKay,  148  Mass. 
434. 

52.  Hudson's  Guardian  v.  Hudson, 
160   Ky.  432,   169   S.  W.  891. 

53.  Independent  Order  of  Mutual 
Aid  V.  Stahl,  64  III.  App.  314;  United 
States  Fidelity  &  Guaranty  Co.  v. 
State,  40  Ind.  App.  136,  81  N.  E. 
226  (should  pay  debt  he  owes  estate) ; 
Boaz's  Adm'r  v.  Milliken,  4  Ky.  Law 
Eep.  448;  Fairex  v.  New  Orleans  City 
E.  Co.,  36  La.  Ann.  60;  Pertuit  v. 
Damare,  50  La.  Ann.  893,  24  So.  681; 
Norris  V.  Baumgardner,  97  Md.  534, 
55  A.  619;  Strite  v.  Furst,  112  Md. 
101,  76  A.  498;  Daffron  v.  Modern 
"Woodmen  of  America,  190  Mo.  App. 
303,  176  S.  W.  498;  Mason  v.  Ackley, 
52  Okla.  157,  152  P.  846;  Mason  v. 
Evans,  52  Okla.  484,  153  P.  133;  Dun- 
leavy  v.  Mayfield,  56  Okla.  470,  155 
P.  1145;  Brewer  v.  Ferryman,  — 
Okla.  — ,  162  P.  791;  Hughes  v. 
Green,  —  S.  C.  — ,  98  S.  E.  201 
(rent)  ;  Hunter  v.  Lawrence's  Adm'r, 
11  Grat.  (Va.)  111.  62  Am.  Dee.  640; 
Hutson  V.  Jenson.  110  Wis.  26,  85 
N.  W.  689;   Mann  v.  Mann,  119  Va. 


630,  89  S.  E.  897  (money  due  on  con- 
demnation of  land).  See  Benson  v. 
Siemens,  156  N.  Y.  S.  1,  92  Misc. 
509  (fund  under  control  of  special 
term  not  turned  over  to  guardian). 

54.  People's  Bank  v.  Wood,  207  111. 
App.  602. 

55.  See  Hill,  Trustees,  447,  and 
cases  cited;  Caffrey  v.  Darby,  6  Ves. 
488;  Powell  v.  Evans,  5  Ves.  839; 
Lewson  v.  Copeland,  2  Bro.  C.  C.  156; 
Tebbs  V.  Carpenter,  1  Madd.  298; 
Caney  v.  Bond,  6  Beav.  486.  So  as  to 
infant  husband  or  wife.  Ware  v. 
Ware,  28  Gratt.  670;  Shanks  v.  Ed- 
mondson,  28  Gratt.  804. 

56.  The  guardian  of  a  soldier's  heir 
should  ascertain  as  to  his  pension  and 
bounty  rights,  and  pursue  claims  ac- 
cordingly. Clodfelter  v.  Bost,  70  N. 
C.  733.  Where  the  guardian  puts  a 
claim  for  collection  into  the  hands  of 
an  attorney  in  good  standing,  who  col- 
lects and  embezzles  the  money,  he  is 
not  responsible  for  the  loss,  if  using 
common  prudence  under  the  circum- 
stances. Landmesser's  Appeal,  126 
Penn.  St.  115. 

57.  Schmidt  v.  Shaver,  196  HI.  108, 
63     N.  E.  655,  89  Am.  St.  Rep.  250. 


§  895 


GUAKDIAN    AND    WABD. 


1012 


estate  of  his  ward  to  loss  he  may  make  himself  personally  liable, 
even  though  the  demand  be  against  a  person  residing  in  another 
State.''*  He  is  presumably  liable  to  his  ward  for  the  nominal 
amount  of  debts  due  to  the  ward's  estate  which  he  has  failed  to 
collect;  and  if  they  were  not,  by  the  exercise  of  good  business 
judgment,  collectible  for  their  face,  he  should  be  able  to  show  this.*" 
He  is  liable  not  only  for  what  he  actually  receives,  but  what  he 
ought  to  receive.®"  And  where  the  party  is  insolvent  and  the 
guardian  loses  the  chance  of  gaining  some  dividend  on  the  claim 
by  his  supine  negligence,  he  is  also  answerable,®^  but  he  will  not 
be  chargeable  for  honest  delay  in  prosecuting  remedies  for  collec- 
tion of  choses  in  action  if  such  delay  seems  advisable.®^  He  is  not 
to  sue  in  all  cases  where  ordinary  modes  of  collection  fail ;  for  the 
expenses  of  litigation  are  to  be  weighed  against  the  chances  of 
realizing  a  benefit.®^  What  is  a  reasonable  time  will  depend  upon 
circumstances.  It  is  his  duty  to  contest  all  improper  claims, 
though  presented  by  the  surviving  parent.®*  If  a  guardian  takes 
notes  of  third  persons  in  payment  of  an  indebtedness  to  his  ward, 
and  afterwards  receives  the  money  upon  the  notes  and  appropriates 
the  money  as  guardian,  the  payment  by  the  debtor  is  sufficient.*' 

Where  one  in  paying  a  debt  to  the  guardian  overpays  him,  the 
guardian  is  personally  liable  for  the  excess,®®  but  money  paid  to  a 
guardian  by  mistake  cannot  be  recovered  again,  if  he  has  paid  it 
out  before  receiving  notice  of  the  mistake,®^  and  a  guardian  has  no 
authority,  without  order  of  the  court,  to  refund  money  collected.®* 
Formal  acts  in  beneficial  chattel  transactions  for  his  ward  do  not 
require  a  judicial  order.®* 

A  person  named  in  a  will  as  testamentary  guardian  who  has 


58.  Potter  v.  Hiscox,  30  Conn.  508. 

59.  Seigler  v.  Seigler,  7  S.  C.  317. 

60.  State  v.  Womaek,  72  N.  C.  397; 
Stothoff  V.  Eeed,  32  N.  J.  Eq.  213. 

61.  Webber's  Estate,  133  Pa.  St. 
338;  Eoush  v.  Griffith,  65  W.  Va.  752, 
65  S.  E.  168  (guardian  is  liable  for 
money  he  could  have  collected,  with 
diligence). 

62.  In  re  Schandoney's  Estate,  133 
Cal.  387,  65  P.  877;  Nagle  v.  Robins, 
9  Wyo.  211,  62  P.  154  (where  it  ap- 
pears that  debtor  will  pay  if  given 
time);  Stem's  Appeal,  5  Whart.  472; 


Waring  v.  Darnall,  10  Gill  &  Johns. 
127;   Love  v.  Logan,  69  N.  C.  70. 

63.  §§  925,  926. 

64.  Ex  parte  Guernsey,  21  111.  443. 

65.  Jones  v.  Jones,  20  la.  388. 

66.  Tow  v.  Elliott,  33  N.  C.  51. 

67.  Massey  v.  Massey,  2  Hill,  Ch. 
492. 

68.  Loyal  Americans  v.  Edwards, 
106  111.  App.  399. 

69.  Thus  he  may  discharge  a  tontine 
life  insurance  policy  upon  receiving 
its  actual  surrender  value  when  the 
proper  period  arrives.  Maclay  t. 
Equitable  Co.,  152  U.  S,  499. 


1013 


THE    WAKD  S    ESTATE. 


§    897 


never  been  appointed  as  such  or  qualified  has  no  authority  to  col- 
lect assets/" 

§  896.  What  Property  is  Assets  of  the  Estate. 

The  guardian's  responsibility  extends  only  to  such  property  of 
his  ward  as  is  accessible  to  him.  But  having  once  come  into 
possession,  or  gained  knowledge  of  his  right  of  possession,  it  is  his 
duty  to  account  for  the  property ;  for  the  law  then  imposes  upon 
him  a  prima  facie  liability.'^  And  the  fact  that  money  was  col- 
lected in  another  State  beyond  his  jurisdiction  cannot  affect  his 
obligation  to  account ;  but  where  assets  never  reach  his  hands  from 
another  State  or  country,  the  question  is  whether  he  used  such 
diligence  in  attempting  to  collect  as  a  prudent  business  man  would 
usually  exercise  under  such  circumstances.^^  When  one  assumes 
the  office  of  guardian,  indebted  at  the  time  to  his  ward,  the  indebt- 
edness becomes  assets  to  be  properly  accounted  for.''' 

Courts  of  equity  follow  the  ward's  property  whenever  wrong- 
fully disposed  of  or  appropriated  by  the  guardian  ;  and  any  person 
in  whose  hands  it  is  found  will  be  held  as  trustee,  if  it  can  be 
shown  that  it  came  into  his  possession  with  notice  of  the  trust.''* 
The  guardian  himself  may  follow  his  ward's  property  wherever  he 
can  find  it,  whether  into  the  hands  of  a  former  guardian  or  such 
guardian's  transferee.''^  And  legacies  charged  on  land  and  pay- 
able to  the  ward  on  reaching  majority,  though  paid  meanwhile  to 
his  guardian,  remain  a  lien  on  the  land  until  actually  received  by 
the  ward.'" 

§  897.  Reasonable  Time  Allowed  for  Investment. 

The  guardian  is  not  chargeable  for  interest  from  the  date  of  his 
appointment  or  receipt  of  funds,  but  a  reasonable  time  for  invest- 
ment must  be  allowed  him.''''     A  familiar  rule  charges  the  guar- 


70.  Olmstead  v.  Taylor,  125  Mich. 
316,  85  N.  W.  740,  8  Det.  Leg.  N.  10. 

71.  Bethune  v.  Green,  27  Ga.  56; 
Howell  V.  Williamson,  14  Ala.  419; 
Martin  v.  Stevens,  30  Miss.  159. 

72.  Harris  v.  Berry,  82  Ky.  137. 

78.  United  States  Fidelity  &  Guar- 
anty Co.  V.  State,  40  Ind.  App.  136, 
81  N.  E.  226. 

Thus,  where  he  becomes  guardian 
upon  an  express  agreement  to  assume 
all  liabilities  of  his  predecessor,  who 


had  converted  the  ward  'b  estate.   Mar- 
tin V.  Davis,  80  Wis.  376. 

74.  Carpenter  v.  McBride,  3  Fla. 
292.  See  McCall  v.  Flippin,  58  Tenn. 
161. 

75.  Fox  V.  Kerper,  51  Ind.  148. 

76.  Cato  V.  Gentry,  28  Ga.  327. 

77.  Thomas  v.  Thomas,  126  Ark. 
579,  191  S.  W.  227;  Corcoran  v.  Rene- 
han,  24  App.  D.  C.  411;  Griffin  v. 
Collins,  125  Ga.  159,  53,  S.  E.  1004 
(one  year)  ;  Abrama  v.  United  States 
Fidelity    &    Guaranty    Co.,    127    Wis. 


§  898 


GUARDIAN    AND    WARD. 


1014 


dian  with  interest  for  neglecting  to  invest  his  ward's  money  after 
six  months;  yet  deferring  interest  for  that  length  of  time  is  not 
invariable,  but  depends  upon  the  circumstances,'*  and  may  for 
good  reason  leave  a  proper  amount  of  the  funds  of  the  estate 
uninvested." 

Like  all  other  trustees,  the  guardian  is  bound  to  make  his  ward's 
funds  productive.  He  should  see  that  the  capital  which  comes  to 
his  hands  is  well  secured ;  procure  a  change  of  securities  whenever 
necessary ;  and  invest  surplus  moneys  where  they  may  draw  inter- 
est. For  funds  accruing  during  the  continuance  of  his  trust  he  is 
allowed  a  reasonable  time  for  making  his  investment,  usually  lim- 
ited to  six  months,  though  in  some  cases  a  year  is  allowed,  and  in 
others  only  three  months ;  and  he  cannot  suffer  the  ward's  money 
to  remain  longer  idle.*°  But  he  may  keep  a  suitable  surplus  on 
hand  for  current  and  contingent  expenses ;  also  sums  too  small 
to  be  wisely  invested.*^  And  family  relics  and  ornaments,  house- 
hold furniture  and  farm  stock,  are  generally  exempted  from  the 
rule  of  investment. 

§  898.  Character  of  Investments. 

The  investment  of  the  trust  funds  is  one  of  the  most  important 
duties  of  a  guardian,  both  as  respects  the  interests  of  his  ward  and 
his  own  security.  Testamentary  guardians,  like  trustees  under 
deeds  of  trust,  should  follow  the  direction  of  the  testator  in  making 
investments ;  and  for  losses  arising  from  such  course  they  are  not 
responsible.  But  their  powers  are  to  be  construed  strictly;  and 
where  the  will  is  silent  or  the  directions  are  in  general  terms,  or 
manifestly  improper,  chancery  rules  of  investment  must  prevail.*" 
We  have  already  observed  that  conversions  are  not  favored ;    that 


579,  106  N.  W.  1091,  5.  L.  R.  A.  575, 
115  Am.  St.  Eep.  1091  (two  months). 

There  are  extreme  cases  in  which 
a  guardian  would  not  be  charged  for 
delaying  to  invest,  even  with  simple 
interest,  it  appearing  on  proof  that 
he  could  not  do  so  advantageously  by 
exercising  due  diligence.  Brand  v. 
bott,  42  Ala.  499;  Ashley  v.  Martin, 
50  Ala.  537.  At  the  present  day  there 
are  banks  or  trust  companies  which 
allow  small  rates  of  interest  on  bal- 
ances subject  to  check. 

78.  Crosby  v.  Merriam,  31  Minn. 
342;   Thurston,  Re,  57  Wis.  104. 


79.  Gott  V.  Gulp,  45  Mich.  265,  7 
N.  W.  767.  See  hi  re  Evans'  Estate, 
7  Pa.  Super,  Ct.  142  (guardian  liable 
where  leaves  money  uninvested  four 
years  in  bank  which  fails). 

80.  Worrell's  Appeal,  23  Pa.  St. 
44;  White  v.  Parker,  8  Barb.  48; 
Karr  v.  Karr,  6  Dana,  3 ;  Pettus  v. 
Sutton,  10  Rich.  Eq.  356;  Owen  v. 
Peebles,  42  Ala.  338;  infra,  §  902. 

81.  Baker  v.  Richards,  8  S.  &  R.  12 ; 
Knowlton  v.  Bradley,  17   N.  H.   458. 

82.  Macphers.  Inf.  266.  And  see 
Hill,  Trustees,  368-384,  and  Wharton's 
notes. 


1015  THE  ward's  estate.  §  898 

is,  the  investment  of  personalty  in  lands  or  of  lands  in  personalty.*' 
But  in  many  of  our  States  the  probate  courts  are  allowed  at  dis- 
cretion, like  courts  of  equity,  upon  a  proper  showing,  to  permit 
the  sale  of  a  ward's  lands,  and  the  change  or  conversion  from 
unproductive  to  productive  property,  or  the  improvement  of  land, 
all  for  the  ward's  intended  benefit.®* 

In  England  the  estates  of  infants  and  persons  of  unsound  mind 
under  chancery  guardianship  are  usually  controlled  by  the  court. 
The  general  practice  is  to  get  in  all  the  money  due  the  ward  and 
invest  it  in  the  public  funds.  For  this  purpose  a  receiver  is  ap- 
pointed, if  necessary.  The  court  will  not  allow  the  ward's  money 
to  be  left  out  on  personal  security,  without  reference  to  a  master 
as  to  the  sufficiency  of  the  security ;  nor  upon  judgment  security ; 
but,  where  advantageously  invested  on  the  security  of  real  estate, 
in  Great  Britain,  the  court  will  not  disturb  the  investment.  The 
statute  of  4  and  5  Will.  IV.,  c.  29,  authorizes  investments  on  real 
security  in  Ireland,  under  the  direction  of  the  English  court  of 
chancery.*' 

Under  the  English  rule  a  trustee  can  only  protect  himself  from 
risk  when  he  invests  the  trust  funds  in  government  securities  or 
has  an  order  of  court  to  invest  in  any  other  securities.  This  is 
also  the  law  in  Pennsylvania,  New  York  and  l^ew  Jersey,  and 
applies  to  the  committee  of  a  lunatic.*® 

In  this  country  the  management  of  the  personal  estate  of  infants 
and  others  is  usually  left  to  their  guardian,  subject  to  recognized 
principles  of  law  which  he  is  bound  to  follow,  and  in  the  absence 
of  statute  a  guardian  will  be  protected  in  using  his  honest  judg- 
ment in  investments,*^  but  not  in  making  partial  payments  on  a 

83.  See  §  921.  A  guardian  who  86.  Comm.  v.  Eiley,  226  Pa.  244, 
takes  title  to  lands  in  his  own  name,  75  A.  367,  44  L.  E.  A.  (N.  S.)  889. 
paying  partly  in  his  ward's  money,  87.  Baldy  v.  Hunter,  171  U.  S.  388, 
and  giving  a  mortgage  for  the  unse-  18  S.  Ct.  890,  43  L.  Ed.  208,  98  Ga. 
cured  sum,  is  guilty  of  waste.  Rob-  170,  25  S.  E.  416  (Confederate 
inson  v.  Pebworth,  71  Ala.  240.     So,  bonds). 

too,   where   the   ward's   personalty   is  Under  Laws  Neb.  1905,  ch.  62,  §  3, 

invested  in  real  estate  without  an  or-  a  guardian  may  by  authority  of  the 

der   of   the    court.      West   Shields    v.  court  exercise   an   option  to  purchase 

Lewis,    20    Ky.    Law    Rep.    1601,    49  land    covenanted    to    his    wards,    and 

S.  W.  803.  may    pay    in    cash,    or   partly    cash. 

84.  See  Ames  v.  Ames,  148  111.  321.  Ankeny  v.  Richardson,  187  F.  550, 
See  next  chapter  after.  109  C.  C.  A.  316;  Slauter  v.  Favorite, 

85.  Macphers.  Inf.  266;  Hill,  Trus-  107  Ind.  291,  4  N.  E.  880,  57  Am. 
tees,  395;  Norbury  v.  Norbury,  4  Rep.  106  (where  guardian  investing 
Madd.  191.  ^°  mortgage  examined  title  ten  days 


§  898 


GUAEDIAN    AND    WARD. 


1016 


contract  to  purchase  property  in  excess  of  the  estate,®'  and  he  will 
not  be  allowed  for  speculation  or  investments  not  authorized  by 
law/*  and  the  guardian  will  not  be  allowed  for  investment  in 
stocks  and  bonds  which  he  appropriated  to  his  own  use.'"  It  is 
the  general  rule  that  either  public  securities  or  real  securities  are 
to  be  preferred.^^  Investments  in  bonds  of  the  United  States,  or 
of  the  State  having  jurisdiction  of  the  ward,  are  doubtless  proper ; 
BO  mortgage  investments  on  first-class  property  within  the  State, 
and  city  and  town  securities,  are  frequently  designated  as  suitable 
investments.  But  the  stock  of  railway,  navigation,  and  other 
incorporated  companies,  whose  stability  is  uncertain,  is  unsuit- 


able ;  ®^    and  corporate  bonds  are  a  security  preferable  to  their 


before  loan  made  and  found  no  in- 
cumbrance) ;  Hughes  v.  "White,  117 
Ind.  470,  20  N.  E.  157  (transaction 
depends  on  situation  at  the  time)  ; 
In  re  "Wisner's  Estate,  145  la.  151, 
123  N.  W.  978  (real  estate)  ;  Hender- 
son V.  Lightner,  29  Ky.  Law  Rep. 
301,  92  S.  W.  945;  Gott  v.  Gulp,  45 
Mich.  265,  7  N.  W.  767;  National 
Surety  Co.  v.  Manhattan  Mortgage 
C  .,  (X.  Y.  Sup.),  174  N.  Y.  S.  9 
(not  in.  subordinate  interest  in  mort- 
gage) ;  Mumford  v.  Rood,  153  N.  W. 
921;  Seoville  v.  Brock,  81  Vt.  405, 
70  A.  1014  (may  act  on  general  repu- 
tation of  the  securities) ;  Nagle  v. 
Robins,  9  Wyo.  211,  62  P.  154  (evi- 
dence of  verbal  advice  by  judge  is 
admissible  on  question  of  guardian's 
good  faith) .  See  Sucession  of  Buddig, 
108  La.  406,  32  So.  361  (guardian 
must  clearly  show  that  law  complied 
•with).  See  Smith  v.  Moore  (S.  C), 
35  S.  E.  331  (purchase  of  widow's 
interest   in   homestead   unauthorized). 

88.  Scott  V.  Reeves,  131  Ala.  612, 
31  So.  453;  Harris  v.  Preston,  153 
Ky.  810;  156  S.  W.  902. 

89.  Stubblefield  v.  Stubblefield,  105 
Ark.  594,  151  S.  W.  994  (loss  on 
notes) ;  Rogers  v.  Dickey,  117  Ga. 
819,  45  S.  E.  71;  American  Surety 
Co.  of  New  York  v.  Sperry,  171  111. 
App.  56;  Collins  v.  Slaughter,  1  Ky. 
Law  Rep.  261;  In  re  Moore,  112  Me. 
119,  90  A.  1088;  Kimball  v.  Perkins, 


130  Mass.  141;  Shelton  v.  Laird,  68 
Miss.  175,  8  So.  271;  Empire  State 
Surety  Co.  v.  Cohen,  156  N.  Y.  S. 
935,  93  Misc.  29'9  (incumbered  real 
estate) ;  Woodard  v.  Bird,  105  Tenn. 
671,  59  S.  W.  143  Ingenhuett  v.  Hunt, 
15  Tex.  Civ.  App.  248,  39  S.  W.  310. 

90.  In  re  Dow,  133  Cal.  446,  65  P. 
890. 

The  retention  of  money  in  his  own 
hands  by  the  guardian  of  a  ward  and 
the  giving  of  a  note  therefor  cannot 
be  said  to  amount  to  an  "invest- 
ment. ' '  Fidelity  &  Deposit  Co.  of 
Maryland  v.  Freud,  115  Md.  29,  80 
A.  603. 

91.  Gray  v.  Fox,  Saxt.  259;  Wor- 
rell's Appeal,  9  Barr,  508;  Nance  v. 
Nance,  1  S.  C.   (N.  S.)   209. 

92.  Worrell's  Appeal,  23  Pa.  St. 
44;  Allen  v.  Gaillard,  1  S.  C.  (N,  S.) 
279;  French  v.  Currier,  47  N.  H,  88. 
There  are  a  number  of  recent  de- 
cisions in  Virginia,  North  Carolina, 
South  Carolina,  Alabama,  and  other 
Southern  States,  of  temporary  im- 
portance, which  relate  to  investments 
in  what  are  known  as  "Confederate 
securities,"  and  settlements  by  a 
guardian  in  the  so-called  "Confeder- 
ate money."  Among  these  see  Powell 
V.  Boon,  43  Ala.  459;  White  v.  Nes- 
bit,  21  La.  Ann.  600;  Brand  v.  Ab- 
bott, 42  Ala.  499;  Sudderth  v.  Mc- 
Combs,  65  N.  C.  186 ;  Coffin  v.  Bram- 
litt,  42  Miss.  194 ;  Parsley  v.  Martin, 


1017 


THE    WAED  S    ESTATE. 


§    898 


stock.  Unit^  States  Bank  stock  lias  been  considered  a  proper 
investment ;  "  and  so  with  stock  in  a  solvent  bank  of  good  repute." 
^Vnd  wbile,  in  some  States,  fiduciary  officers  are  strictly  limited  in 
their  power  of  investments,  in  others,  as  Massachusetts,  there  is 
no  favored  stock  or  security,  and  they  are  only  bound  to  exercise 
reasonable  prudence  and  sound  faith.^^ 

While  in  many  States  tbe  guardian's  investments  of  his  ward's 
moneys  in  stocks  is  illegal,  and  it  must  be  his  loss  if  the  stock 
turn  out  unproductive,  the  tendency  of  the  decisions  is  to  make 
him  liable,  in  case  the  stock  prove  productive,  for  th^  highest 
market  value  of  the  shares  which  he  realized  or  might  have  real- 
ized, and  for  all  the  dividends  he  received  from  them.'*  But 
where  the  guardian's  investment  in  his  own  business  or  speculations 
is  followed  by  his  own  insolvency,  the  ward  gains  no  priority  over 
other  creditors  if  the  fund  cannot  be  traced  out  and  identified; 
and  this  subjection  of  a  ward's  capital  to  utter  loss  is  a  strong 
reason  for  discouraging  it.^^  Generally,  however,  as  to  invest- 
ments or  changes  of  investment  in  personal  property,  the  guardian 
may,  in  good  faith  and  the  exercise  of  ordinary  prudence  and 
discretion,  act  without  a  court's  order.*^  An  unauthorized  invest- 
ment is  not  void  but  voidable  only,^'  and  one  participating  in  an 
illegal  investment  knowingly  will  be  liable  to  the  ward  for  losses.^ 


77  Va.  376;  Robertson  v.  Wall,  85  N. 
C.  283,  500;  Green  v.  Rountree,  88 
N.  C.  164;  Pannill's  Adm'r  v.  Gallo- 
ways, 78  Va.  387.  Such  investment 
was  held  unlawful  in  Lamar  v.  Micou, 
112  U.  S.  452,  notwithstanding  the 
motive  of  the  guardian  was  to  save 
property  from  confiscation. 

93.  Boggs  V.  Adger,  4  Rich.  Eq. 
408;  contra,  Smith  v.  Smith,  7  J.  J. 
Marsh.  238.  And  see  Watson  v. 
Stone,  40  Ala.  451. 

94.  Haddock  v.  Planter's  Bank,  66 
Ga.  496. 

95.  Konigmacher '3  Appeal,  1  Penn. 
207;  Eamball  v.  Perkins,  130  Mass. 
141;  Lovell  v.  Minot,  20  Pick.  116; 
Nance  v.  Nance,  1  S.  C.  (N.  S.)  209; 
Swartwout  v.  Oaks,  52  Barb.  622. 
Where  money  was  lost  in  a  mortgage 
investment  through  a  defective  title, 
the  guardian  was  relieved  of  the  loss. 


it  appearing  that  he  had  used  fair 
prudence  in  examining  the  title. 
Slauter  v.  Favorite,  107  Ind.  291. 
See  Elliott's  Adm'r  v.  Howellandals, 
78  Va.  297.  In  Jack's  Appeal,  9-4 
Pa.  St.  367,  the  guardian  was  ab- 
solved, where  the  security  became 
worthless  through  an  extraordinary 
shrinkage  of  real  estate  values. 

96.  French  v.  Currier,  47  N.  H. 
88;  Lamb's  Appeal,  58  Pa.  St.  142; 
Atkinson  v.  Atkinson,  8  Allen,  15. 

97.  See  Englar  v.  Offutt,  Trustee, 
70  Md.   78. 

98.  Durrett  v.  Commonwealth,  90 
Ky.  312. 

99.  MeCutcheon  v.  Roush,  13?  la. 
351,  115  N.  W.  903;  Jordan  v.  Same, 
Id. 

1.  Hoyt  V.  Dollar  Savings  Bank  of 
the  City  of  New  York,  175  N.  Y.  S. 
377. 


§  899 


GUARDIAN    AND    WARD. 


1018 


§  899.  Separation  of  Funds. 

He  must  not  mingle  guardianship  funds  with  his  own  private 
funds,^  but  he  need  not  keep  two  separate  and  distinct  accounts 
for  principal  and  income.^  Where  there  are  several  wards,  he 
must  allot  to  each  his  due  share  of  expenses  and  profits.  And  if 
he  becomes  insolvent,  and  gives  the  bulk  of  the  property  received 
by  him  to  one,  and  little  or  nothing  to  the  others,  equity  will  still 
treat  the  property  as  belonging  to  the  wards  in  their  proper  shares.'* 
Money  temporarily  in  the  guardian's  hands  should  be  deposited  in 
some  responsible  bank  of  good  repute.  But  wherever  placed  and 
however  invested,  the  trust  funds  should  be  separated,  by  distin- 
guishing marks,  from  his  private  property;  exceptions  occurring, 
however,  in  some  cases  of  a  temporary  deposit ;  as,  for  instance, 
where  the  money  is  left  in  one's  iron  safe  with  his  private  valuable 
papers  for  no  unreasonable  length  of  time  and  under  circumstances 
imputing  to  him  no  want  of  ordinary  prudence  and  diligence, 
either  in  placing  and  keeping  it  there  in  that  condition,  or  in 
pursuing  the  thief  who  took  it  out.  Otherwise,  he  would  be  per- 
sonally liable  for  loss.  Hence,  if  a  guardian  deposits  money  of 
the  ward  in  the  bank  to  his  owti  account,  or  takes  a  certificate 
of  deposit  simply  to  himself,  and  the  bank  afterwards  fails,  he 
must  suffer  the  consequences ;  ^  though  it  is  otherwise  where  he 
deposits  there  not  imprndently  or  dishonestly  in  his  trust  capacity.* 
So,  if  he  purchases  stock  or  takes  a  promissory  note  in  his  own 
name,  it  will  be  treated  as  his  own;  but  not,  necessarily,  to  the 
ward's  prejudice,  for  it  might  otherwise  be  clearly  identified  and 
traced  as  the  ward's  property.^  And  it  would  appear  that  he  is 
not  permitted  in  such  cases  to  show  by  other  evidence  an  intent  to 
charge  his  ward ;   for  the  act  itself  is  conclusive  against  him.* 


2.  In  re  Stude's  Estate  (la.),  162 
N.  W.  10;  In  re  Allard,  49  Mont. 
219,  141  P.  661;  Hall  v.  Turner's 
Estate,  78  Vt.  62,  61  A.  763. 

3.  Eountree  v.  Pursell,  1  Ind.  App. 
522,  39  N.  E.  747. 

4.  Case  of  Hampton,  17  S.  &  R.  144. 

5.  Wren  v.  Kirton,  11  Ves.  377; 
Fletcher  v.  Walker,  3  Madd.  73;  Mc- 
Donnell V.  Harding,  7  Sim.  178; 
Routh  V.  Howell,  3  Ves.  565;  Mat- 
thews V-  Brise,  6  Beav.  239 ;  Atkinson 


V.  Whitehead,  66  N.  C.  296.  As  to  a 
certificate  of  deposit,  see  Booth  v. 
Wilkinson,  78  Wis.  652. 

6.  Post's  Estate,  Myrick's  Prob. 
230;   Law's  Estate,   144  Pa.  St.  499. 

7.  Jenkins  v.  Walter,  8  Gill  &  Johns. 
218;  White  v.  Parker,  8  Barb.  48; 
Knowlton  v.  Bradley,  17  N.  H.  458; 
Brown  v.  Dunham,  11  Gray,  42 ;  Beas- 
ley  V.  Watson,  41   Ala.   234. 

8.  Brisbane  v.  Bank,  4  Watts,  92; 
Stanley's  Appeal,  8  Barr.  431. 


1019 


THE    WARD  S    ESTATE. 


§    901 


§  900.  Reinvestment. 

Where  the  trust  property  is  already  invested  on  securities  which 
would  not  be  sanctioned  by  the  coui*t,  the  question  sometimes 
arises  how  far  it  is  the  guardian's  duty  to  call  them  in  and  invest 
in  other  securities.  In  this,  and  in  matters  of  reinvestment,  the 
same  principles  would  be  held  to  apply  as  to  general  trustees. 
And  since  such  questions  have  arisen  almost  always  under  testa- 
mentary trusts,  and  not  as  between  guardian  and  ward,  the  reader 
is  referred  to  works  on  that  subject  for  a  fuller  exposition  of  the 
law.  We  will  simply  add,  that  much  is  to  be  left  to  a  guardian's 
discretion,  in  this  and  all  other  respects,  where  he  manages  the 
property  of  his  ward  on  the  footing  of  a  trustee ;  and  that  he  will 
not  be  held  to  strict  account  for  losses  occasioned  in  the  exercise 
of  his  authority,  where  he  has  acted  bona  fide,  and  according  to  the 
best  of  his  judgment,  or  with  average  good  judgment,  though  not 
with  all  the  promptitude  and  skill  which  the  exigencies  of  the 
ward's  situation  demanded.* 

§  901.  Statutes  Governing  Investments. 

There  are  statutes  in  manv  States  which  authorize  the  invest- 
ment  by  fiduciaries  only  in  particular  kinds  of  securities.  In 
others  it  is  provided  that  investments  may  be  made  in  any  manner 
for  the  interest  of  all  concerned.^"  Guardians  are  in  various 
States  restricted  to  investments  made  onlv  under  order  of  court/^ 


9.  See  Hill,  Trustees,  and  Whar- 
ton's notes,  37t&-384.  And  see  Perry, 
Trusts,  chs.  14,  21. 

If  the  guardian  on  his  appointment 
finds  in  the  estate  investments  of  a 
kind  not  authorized  he  shauld  sell 
them  within  a  reasonable  time  and 
■will  be  liable  for  loss  if  he  does  not 
do  so.  In  re  Tunt's  Estate,  170  N. 
Y.  S.   303,  103   Misc.   358. 

10.  Gary  v.  Cannon,  3  Ired.  Eq.  64. 
See  State  v.  Harrison,  75  N.  C.  432; 
Stevens  v.  Meserve,  73  N.  H.  293,  61 
A.  420,  111  Am.  St.  E.  612  (mort- 
gages on  real  estate  of  double  the 
amount  of  the  loan — guardian  may 
determine  value  of  real  estate). 

11.  Corcoran  v.  Kostrometinoff,  164 
F.  685  (only  after  notice)  ;  In  re 
Wood's  Estate  and  Guardianship, 
159    Cal.    466,    114    P.    992     (after 


proper  hearing)  ;  Mclntyre  v.  The 
People,  Use,  Etc.,  103  111.  142; 
Easton  v.  SomervilLe,  111  la.  164, 
82  N.  W.  475,  82  Am.  St.  R.  502; 
McCutchen  v.  Eoush,  139  la.  351, 
115  N.  W.  903;  Jordan  v.  Same,  Id.; 
Berryhill  v.  Jackson  (Okla.),  172  P. 
787  (sale  under  irregular  order  of 
court  upheld)  ;  Francis  v.  Sperry 
(Okla.),  176  P.  732;  In  re  Wood's 
Estate,  247  Pa.  478,  93  A.  634;  Nagle 
V.  Robins,  9  Wyo.  211,  62  P.  154 
(verbal  advice  by  judge  to  guardian 
is  not  an  order  of  court  protecting 
him  in  making  investments).  See 
Davidson  v.  I.  M.  Davidson  Real  Es- 
tate &  Investment  Co.,  226  Mo.  1, 
125  S.  W.  1143  (where  is  no  money 
in  estate  order  authorizing  invest- 
ment is  not  binding  on  widows).  See 
7?!    re   Jiskra's  Estate    (Wash.).   182 


902 


GUARDIAN    AND    WARD. 


1020 


or  that  they  cannot  invest  in  real  estate/'^  or  in  a  non-resident 
corporation/^  or  in  anything  other  than  public  securities.' 


14 


§  902.  When  Chargeable  with  Interest  on  Investments. 

Negligence  and  unreasonable  delay  in  the  investment  of  trust 
funds  is  a  breach  of  official  duty  for  which  the  trustee  is  held 
answerable.  And  where  the  guardian  carelessly  suffers  cash  bal- 
ances to  remain  idle  in  his  hands  he  is  chargeable  with  interest,^^ 
and  in  case  of  fraud  or  positive  misconduct  with  compound  inter- 
est/*   compounded    yearly.^^     It    remains    a    disputed    question 


P.  961.  See  Pace  v.  Pace  (Okla.), 
172  P.  1075  (order  of  court  based  on 
mistake   no   protection). 

12.  In  re  Decker,  76  N.  Y.  S.  315, 
37  Misc.  527;  In  re  Bolton,  159  N.  Y. 
129,  53  N.  E.  756,  56  N.  Y.  S.  1105 
(order  of  surrogate  authorizing  pur- 
chase of  residence  for  ward  is  void). 
See  Beakley  v.  Ford,  123  Ark.  383, 
185  S.  W.  796. 

13.  In  re  Decker,  76  N.  Y.  S.  315, 
37  Misc.  527. 

14.  In  re  Decker,  76  N.  Y.  S.  315, 
3T  Misc.  527   (not  in  bank  stock). 

15.  Willis  V.  Eice,  157  Ala.  252, 
48  So.  397  (simple  interest  after  par- 
tial settlement) ;  Merritt  y.  Wallace, 
76  Ark.  217,  88  S.  W.  876  (ten  years' 
delay) ;  France  v.  Shockey,  92  Ark. 
41,  121  S.  W.  1056  (6  per  cent.)  ; 
Parker  v.  Wilson,  98  Ark.  553,  136 
S.  W.  981,  stay  of  judgment  granted, 
99  Ark.  344,  137  S.  W.  9U6;  In  re 
Boyes'  Estate,  151  Cal.  743,  90  P. 
454 ;  Eobinson  v.  Smith,  206  111.  App. 
556  (guardian  allowing  interest  to 
accumulate  not  chargeable  as  if  he 
had  collected  it  annually  and  released 
it)  ;  Kinsey  v.  State,  71  Ind.  32 ; 
Marques3  v.  La  Baw,  82  Ind.  550; 
I.,  re  Stude's  Estate  (Ta.),  162  N". 
W.  10;  Goff'sGuardianv.  Goff,  123K:. 
73,  93  S.  W.  625,  29  Ky.  Law  Eep. 
501;  In  re  Watson,  51  La.  Ann.  1641, 
26  So.  409;  State  ex  rel.  Deckard  v. 
Macom  (Mo.  App.),  186  S.  W.  1157; 
In  re  Pniyne,  73  N.  Y.  S.  859,  68 
App.  Div.  584  (compounded  annual- 
ly) ;    In  re  Ward,  98  N.  Y.  S.   923, 


49  Misc.  181;  In  re  Boyle's  Estate, 
67  Pa.  Super.  Ct.  381  De  Cordova  v. 
Eogers,  97  Tex.  60,  75  S.  W.  16 
(added  to  income) ;  Freedman  v. 
Vallie  (Tex.  Civ.  App.  1903),  75  S. 
W.  322  (10  per  cent.)  ;  Logan  v.  Gay, 
99  Tex.  603,  90  S.  W.  861,  87  S.  W, 
852;  Brockschmidt  v.  Becker  (Tex. 
Civ.  App.  1910),  132  S.  W.  Ill; 
Yates  v.  Watson  (Tex.  Civ.  App.), 
187  S.  W.  548;  Elliott's  Adm'r  v. 
Howell,  78  Va.  297.  See  In  re 
Wohlers,  164  N.  Y.  S.  936,  98  Misc. 
500  (guardian  entitled  to  interest  on 
legacies  to  ward). 

16.  Barney  v.   Saunders,    16   How 
535;  Swindall  v.  Swindall,  8  Ired.  Eq 
285;  Knott  v.  Cottee,  13  E.  L.  &  Eq 
304 ;  Stark  v.  Gamble,  43  N.  H.  465 
Mackin    v.    Morse,    130    Mass.    439 
Suavely  v.  Harkrader,  29  Gratt.  112 
Tyson    v.    Sanderson,    45    Ala.    364 
Clay  V.  Clay,  3  Met.  (Ky.)  548;  Eaw 
son  V.  Corbett,  150  111.  466.     But  see 
Eeynolds    v.    Walker,    29    Miss.    250. 
Compound    interest     should     not    be 
charged    where    there     is    no     wilful 
breach  of  duty;  nor  where  the  ward, 
on  coming  of  age,  voluntarily  leaves 
the    money    in    the    late    guardian  'h 
hands  without  a  demand.     Kattelman 
V.  Estate  of  Guthrie,  142  111.  357. 

17.  In  re  Dow,  133  Cal.  446,  65  P. 
890;  In  re  Hamilton's  Estate,  139 
Cal.  671,  73  P.  578  (funds  used  in 
guardian's  o^vn  business);  Glassell  v. 
Glassell,  147  Cal.  510,  82  P.  42;  Gay 
V.  Whidden,  64  Fla.  295,  59  So.  Sg'e; 
Jones  V.  Nolan,  120  Ga.  588,  48  S.  E. 


1021 


THE    WARDS    ESTATE. 


§    902 


whether  the  guardian  should  be  charged  with  compound  interest 
for  mere  delinquency;  but  it  seems  that  he  should  not.  In  some 
cases  a  trustee  has  been  so  charged,  because  the  trusts  under  which 
he  acted  required  him  to  place  the  fund  where  more  than  simple 
interest  would  have  accumulated.  In  others,  the  principle  seems 
to  have  been  to  exact  it  as  a  penalty  for  his  misconduct  in  deriving, 
or  seeking  to  derive,  some  pecuniary  advantage  from  the  trust 
money,  or  in  squardering  it.  In  all  cases  courts  of  chancery  have 
exercised  a  liberal  discretion,  according  to  the  circumstances-^' 
The  rule  announced  by  Chancellor  Kent  cannot,  therefore,  be  con- 
sidered quit<^  accurate.^* 

Interest  may  be  compounded  only  to  the  time  of  the  termination 
of  guardianship,^"  and  the  compounding  of  interest  must  cease 
after  the  wards  arrive  at  maturity,^^  If  the  guardian  takes  the 
funds  fraudulently,^^  or  improperly  invests  them,  he  is  liable  for 
the  highest  legal  rate  of  interest,^^  but  where  an  expenditure  is 
166;  Luke  V.  Eettenbach  (Ida.),  181       charged  interest  unless  he  has  made 


P.  705;  Blakeney  v.  Wyland,  115 
la.  607,  89  N.  W.  16;  Charles  v.  Witt, 

88  Kan.  484,  129  P.  140  (rents)  ; 
Commonwealth  v.   Lee,   120   Ky.  433, 

89  S.  W.  731,  990,  27  Ky.  Law  Rep. 
806,  28  Ky.  Law  Eep.  596;  In  re 
Noble's  Estate,  178  Pa.  St.  460,  35 

A.  859  Smith  v.  Moore  (S.  C),  95 
S.  E.  351;  Scheib  v.  Thompson,  23 
Utah,  564,  65  P.  499  (10  per  cent, 
compounded  annually).  See  In  re 
Anderson,  97  Wash.  688,  167  P.  71. 
See  Forbes  v.  Ware,  172  Mass.  306, 
52  N,  E.  447  (where  no  fraud  or  de- 
mand shown). 

18.  See  language  of  the  master  of 
the  rolls,  in  Jones  v.  Foxall,  13  E.  L. 
&  Eq.  140;  Roche  v.  Hart,  11  Ves.  58. 

19.  2  Kent,  Com.  231,  and  note  t6., 
with  citation  of  authorities.  And  see 
Roche  V.  Hart,  11  Vcs.  58;  Robinson 
V.  Robinson,  9  E.  L.  &  Eq.  70;  Light's 
Appeal,  24  Pa.  St.  180;  Kenan  v. 
Hall,  8  Ga.  417;  Greening  v.  Fox,  12 

B.  Monr.  187;  Bentley  v.  Shreve,  2 
Md.  Ch.  215;  Pettus  v.  Clauson,  4 
Rich.  Eq.  92 ;  Farwell  v.  Steen,  46  Vt. 
678;  Finnell  v.  O'Neal,  13  Bush,  176. 
And,  pending  a  judicial  decree  upon 
his  final  balance,  one  is  under  no  ob- 
ligation to  invest  and  should  not  be 


use  of  the  fund  or  earned  interest. 
Be  Mott,  26  N.  J.  Eq.  509.  Mere  fail- 
ure of  the  guardian  to  file  annual  ac- 
counts does  not  render  him  liable  for 
compound  interest.  Ashley  v.  Martin, 
50  Ala.  537.  He  should  be  so  charged 
only  in  cases  of  fraud  or  flagrant 
breach  of  trust.  Thurston  Re,  57  Wis. 
104,  And  see  Shaw  v.  Bates,  53  Vt. 
360, 

20.  Stewart  v.  Sims,  112  Tenn.  296. 
79  S.  W.  385;  Windon  v.  Stewart, 
48  W.  Va.  488,  37  S.  E.  603. 

21.  Tanner  v.  Skinner,  11  Bush 
(Ky.)  120;  Tanner  v.  Skinner,  74 
Ky.  120,  See  In  re  Noble's  Estate, 
178  Pa.  St.  460,  35  A.  859. 

22.  Smith  v.  Smith,  210  P.  947 
(notwithstanding  order  of  court  au- 
thorizing him  to  borrow  ward 's 
money)  ;  Waldstein  v.  Bamett,  112 
Ark.  141,  165  S.  W.  459;  Fisher  v. 
Brown,  135  N,  C.  198.  47  S.  E.  39« 
(8  per  cent.)  ;  Whitfield  v.  Burrell. 
54  Tex.  Civ.  App.  567,  113  S.  W. 
153. 

23.  Francis  v.  Sperry  (Okla.).  176 
P.  732;  Cross  v.  Rubey  (Mo.  App.), 
206  S.  W.  413 ;  Murph  v.  McCullough. 
40  Tex,  Civ.  App.  403,  90  8.  W.  69. 


§    903  GUARDIAX    AND    WARD.  1022 

made  in  good  faith,  though  not  allowed  bj  the  court,  the  guardian 
will  be  charged  with  simple  interest  only.^* 

One  acting  as  guardian  may  be  charged  with  compound  interest 
in  the  same  way  as  a  guardian  regularly  appointed.^^ 

If  the  guardian  keeps  no  accounts,  and  cannot  show  what  inter- 
est he  made  on  the  funds  of  the  estate,  he  must  account  for  interest 
at  the  legal  rate  from  the  time  when  they  should  have  been 
invested.^^  Where  he  loans  his  ward's  money  on  usury,  and 
thereby  forfeits  the  whole  debt,  he  is  liable  for  principal  and 
interest.^'  But  this  need  not  prevent  him  from  investing  at  more 
than  the  ordinary  or  "  legal  "  rate,  if  it  be  in  reality  lawful ;  and 
in  some  States  he  is  bound  to  do  so.^^ 

The  guardian  will  be  allowed  interest  on  disbursements  he  has 
made  from  his  own  funds  for  the  ward  only  where  they  are  large 
in  amount  and  made  early  in  the  year."^  But  interest  may  not  be 
enforced  where  the  guardian  was  not  allowed  for  sums  paid  out 
for  the  ward  which  amounted  to  more  than  the  interest.^" 

The  guardian  is  chargeable  with  interest  actually  made  on  the 
funds  of  the  estate,^^  compounded  annually.^" 
§  903.  Loans  by  Guardian, 

The  guardian  in  the  absence  of  statute  is  bound  to  use  the 
prudence  of  a  careful  business  man  in  making  loans,  and  is  liable 
for  failure  to  do  so,^^  and  should  take  proper  security.^*     But  for 

24.  Campbell  v.  Clark,  63  Ark.  450,  Ky.  430, 180  S.  W.  803  (not  chargeable 
39  S.  W.  262;  In  re  Smith,  89  N.  Y.  on  income  in  excess  of  rental  fixed 
S.  639,  97  App.  Div.  157,  caused    by     improvements    made    by 

25.  Kester  v.  Hill,  46  W.  Va.  744,  guardian)  ;  In  re  AUard,  49  Mont. 
34  S.  E,  798.  219,    141    P,    661     (guardian    cannot 

26.  Moyer  v.  Fletcher,  56  Mich.  508,  transfer  loan  from  account  of  one 
23  N.  W.  198,  ward  to  another). 

27.  Draper  v.  Joiner,  9  Humph.  612.  32.  Bojoiton  v.  Dyer  (18  Pick.),  35 

28.  Foteaux  v,  Lepage,  6  la.  123;  Mass,  1;  Miller  v.  Condon  (14  Gray), 
Frost  V.  Winston,  32  Mo.  489.  80  Mass.  118;  Anderson  t,  Silcox,  82 

29.  Bliss  V.  Spencer  (Va.),  99  S.  E.  S,  C.  109,  63  S.  E.  128  (from  begin- 
593.  ning  of  year  succeeding  year  of  ap- 

30.  Griffith's  Ex'r  v.  Bybee,  24  Ky.  pointment). 

Law  Rep.  666,  69  S.  W.  767 ;  Sayers  33.  Des  Moines  Sav.  Bank  v.  Krell, 

T.  Cassell    (Va.   1873),  23   Grat.   525.  176  la.  437,  156  N.  W.  858;  Atkinson 

31.  Smith  V.  Smith,  210  F.  947;  v.  Wittig,  19  Ky.  Law,  513,  40  8.  W. 
Griffin  v.  Collins,  125  Ga.  159,  53  S.  457  (loan  to  failing  corporation  se- 
E.  1004;  Hedges  v.  Hedges,  24  Ky.  cured  by  notes  of  failing  firm  is  not 
Law  Rep.  2220,  73  S.  W.  1112;  Koyl  prudent)  ;  In  re  Allard,  49  Mont.  219, 
V.  Lay,  194  Mo.  App.  291,  187  S.  W.  141  P,  661;  Cabell  v.  McLish  (Okla.), 
279,  196  S.  W.  433;  Garrett  v.  Carr,  160  P.  592;  Nagle  v.  Robins,  9  Wyo. 
1   Rob.    (Va.)    196    (fnirr-bis  of  inter-  211,  62  P.  154. 

est).      See  Bell  V.  Bell's  Guardian,  167  34.  Corcoran  v.  Kostrometinoff,  164 


1023 


THE    WARD  S    ESTATE. 


§  903 


losses  which  ai^  without  the  protection  of  this  rule,  the  guardian 
or  other  trustee  is  always  personally  responsible  And  loans  on 
the  credit  of  a  single  individual  (even  though  it  be  the  child's 
parent) '°  or  a  single  firm,  without  other  security,  or  with  very 
doubtful  security,  are  not  sustained ;  ^°  except  perhaps  in  special 
instances  of  transactions  with  some  failing  or  doubtful  debtor 
already  owing  the  ward's  estate,  with  whom  one  seeks  to  make  as 
prudent  and  advantageous  terms  as  possible.  Nor  are  investments 
in  indorsed  notes  of  parties  of  bad  or  doubtful  standing  to  be 
upheld ;  *^  though  the  rule  would  be  otherwise  if  their  credit  was 
good.  To  lend  money  deliberately  and  without  special  excuse,  on 
what  one  knows  is  insufficient  security,  is  a  waste  of  the  ward's 
estate,^*  and  where  he  takes  security  in  his  own  individual  name 
he  will  be  liable  as  insurer ;  ^®  and  if  the  guardian  uses  due  dili- 
gence he  will  not  be  liable  though  loss  ensues.*" 

The  guardian  is  liable  if  he  makes  a  loan  to  himself.*^  Statutes 
often  require  the  approval  of  the  court  in  loans,*^  and  the  guardian 
will  be  protected  if  he  obeys  an  order  of  court.*^     If  a  loan  by  the 


F.  685;  Leach  v.  Gray  (Ala.),  77  So. 
341;  In  re  Carver's  Estate,  118  Cal. 
73,  50  P.  22;  Line  v.  Lawder,  122 
Ind.  548,  23  N.  E.  758;  Lovell  v. 
Minot,  20  Pick.  116.  See  Torry  v. 
Frazer,  2  Redf .  486 ;  Norris  v.  Norris, 
83  N.  Y.  S.  77,  85  App.  Div.  113; 
Kunz  V.  Ragsdale  (Tex.  Civ.  App.), 
200  S.  W.  269-;  Nagel  v.  Robina,  9 
Wyo.  211,  62  P.  154  (guardian  should 
be  given  speculative  security  and 
charged  with  the  amount  of  the  loan). 
See  Nagle  v.  Eobins,  9  Wyo.  211,  62 
P.  154  (holding  loan  with  stock  as 
security  is  not  an  investment  in 
stock). 

35.  Wyckoff  v.  Hulse,  32  N.  J.  Eq. 
697. 

36.  Smith  v.  Smith,  4  Johns.  Ch. 
281;  Line  v.  Lawder,  122  Ind.  548; 
Clay  V.  Clay,  3  Met.  (Ky.)  548;  Boy- 
ett  V.  Hurst,  1  Jones  Eq.  166;  Clark 
V.  Garfield,  8  Allen,  427;  Gilbert  v. 
Guptil,  34  111.  112;  Lee  v.  Lee,  55 
Ala.  590.  But  see  State  v.  Morrison, 
68  N.  C.  162. 

37.  Harding  v.  Lamed,  4  Allen, 
426;  Fletcher  v.  Fletcher,  29  Vt.  98; 


Covington    v.    Leak,    65    N.    C.    594; 
Hurdle  v.  Leath,  63  N.  C.  597. 

38.  Burwell  v.  Burvell,  78  Va.  574. 

39.  In  re  Guardianship  of  Bane, 
120  Cal.  533,  52  P.  852,  65  Am.  St. 
R.  197. 

40.  Rowe  V.  Sanford,  74  Mo.  App. 
191. 

41.  Fidelity  &  Deposit  Co.  of  Mary- 
land V.  Freud,  115  Md.  29,  80  A.  603; 
In  re  Bates'  Guardianship  (Okla.), 
174  P.  743  (loan  to  himself  cannot  be 
authorized  by  court)  ;  Hutson  v.  Jen- 
son,  110  Wis.  26,  85  N.  W.  689. 

42.  Parker  v.  Wilson,  136  S.  W.  981 
(stay  of  judgment  granted,  99  Ark. 
344,  137  S.  W.  9-26)  ;  American  Bond- 
ing Co.  of  Baltimore  v.  People,  46 
Colo.  394,  104  P.  81 ;  Charles  v.  Witt, 
88  Kan.  484,  129  P.  140;  Woodard  v. 
Bird,  105  Tenn.  671,  59  S.  W.  143. 
See  Nagle  v.  Robins,  9  Wyo.  211,  62 
P.  154  (where  statute  as  to  approval 
of  court  is  permissive,  only  the  guar- 
dian is  not  entitled  to  refuse  a  pro- 
per loan  until  approval  of  court  is 
obtained). 

43.  In  re  Schandoney's  Estate,  133 


§    904  GUARDIAN    AND    WAKD.  1024: 

guardian  be  sanctioned  by  the  court,  be  is  not  liable  for  lose,  unless 
it  arises  from  bis  subsequent  default/*  But  the  assent  of  the 
court  must  be  in  writing  and  of  record ;   not  given  by  parol/® 

The  ward  has  no  redress  where  the  estate  has  suffered  no  finan- 
cial loss  from  an  unauthorized  loan,*®  and  the  unauthorized  loan  is 
good  against  the  borrower.*^ 

§  904.  Bank  Accounts. 

While  a  guardian  has  a  right  to  deposit  funds  temporarily  in 
a  bank  for  safe-keeping,  and  he  will  not  be  liable  for  loss  if  he 
exercises  ordinary  care  in  the  selection  of  a  bank  and  so  earmarks 
the  deposit  as  to  show  its  trust  character ;  **  still,  if  he  deposits  the 
money  in  his  individual  name,  without  any  designation  or  indica- 
tion of  his  representative  character,  he  is  generally  liable  for  its 
loss  notwithstanding  that  he  has  not  been  guilty  of  any  negli- 
gence.*® Furthermore,  he  may  not  make  such  a  deposit  as  an 
investment  as  it  is  held  to  be  a  loan  on  personal  security  only  and 
should  not  be  made  except  by  leave  of  court.^° 

To  protect  the  guardian  against  loss  of  funds  deposited  in  a  bank 

from  its  failure,  the  guardian  must  show  sufficient  reason  for  not 

investing  the  funds  elsewhere,^^  and  will  not  be  responsible  for 

Cal.  387,  65  P.  877;  In  re  O'Brien 'a  A  hanTc  which  has  two  accounts  of 

Estate,  80  Neb.  125,  113  N.  W.  1001  the  same  individual,  one  as  an  indi- 

(personal  supervision  of  county  judge  vidual  and  the  other  as  guardian,  has 

is  not  equivalent   to   order   of  court,  not  right  to  pay  the  depositor's  indi- 

ncither    is    approval    of    accounts) ;  vidual  checks  out   of  his   guardian 's 

Nagle  V.  Robins,  9  Wyo.  211,  62  P.  account,   and   is  liable  to   the  estate 

154.  for  doing  so.     United  States  Fidelity 

44.  O  'Hara  v.  Shepherd,  3  Md.  Ch.  &  Guaranty  Co.  v.  United  States  Nat. 
306;  Bryant  v.  Craig,  12  Ala.  354;  Bank  (Ore.),  157  P.  155,  L.  R  A. 
Carlysle  v.  Carlysle,   10  Md.   440.  IffieE,  610. 

45.  See  Newman  v.  Reed,  50  Ala.  49.  Be  Bane,  120  Cal.  533,  52  P. 
297.  852. 

46.  Townsend  v.  Stern  (la.  1904),  50.  Be  Wood,  159  Cal.  466,  114  P. 
99  N.  W.  570.  992,  26  L.  R.  A.    (N.  S.)   252;   Mur- 

47.  Wright  v.  Wright  (Tex.  Civ.  phy  v.  McCullough,  40  Tex.  Civ.  App. 
App.),  155  S.  W.  1015.  403,  90  S.  W.  69,  36  L.  R.  A.  (N.  S.) 

48.  Be  Wood,  158  Cal.  466,  114  P.  252;  United  States  Fidelity  &  Guar- 
992,  36  L.  R.  A.  (N.  S.)  252;  Otto  v.  anty  Co.  v.  Taggart  (Tex.  Civ.  App.), 
Van  Riper,  164  N.  Y.  536,  58  N.  E.  194  S.  W.  482;  In  re  Jiskra's  Eistate 
643,  79  Am.  St.  R.  673  (affg.  52  N.  Y.  (Wash.),  182  P.  961  (guardian  ia 
S.  773,  31  App.  Div.  278)  (deposit  in  liable  where  deposits  funds  in  bank 
joint  names  of  guardians  as  an  in-  instead  of  investing  as  ordered), 
dividual  and  the  sureties  is  improper)  ;  51.  In  re  Grammel,  120  Mich.  487, 
O'Connor  v.  Decker    (Wis.  1897),  70  79  N.  W.  706,  6  Det.  Leg.  N.  219. 

N.  W.  286  (letters  ' '  Guar. ' '  after  his 
name  are  sufficient). 


1025 


THE    WAIiD  S    ESTATE. 


§    905 


loss  of  a  fund  deposited  temporarily  in  a  bank  prudently  selected,'^' 
or  deposited  by  order  of  court. °^  An  order  of  court  ordering  the 
guardian  to  deposit  the  funds  of  tlie  ward  in  a  certain  institution 
from  which  they  shall  be  withdrawn  only  on  order  of  court  may  be 
void  as  infringing  on  his  right  of  possession.^* 

A  small  fund  may  be  properly  left  in  a  savings  bank  at  four 
per  cent,,  where  it  is  so  small  that  no  higher  rate  could  have  been 
procured  elsewhere.*^ 

§  905.  Expenditures  Allowed. 

The  ward's  estate  is  subject  to  all  liabilities  properly  incurred 
in  the  course  of  the  guardian's  judicious  management  of  it.^° 

The  guardian  will  be  granted  considerable  latitude  in  the  use  of 
the  funds  of  the  estate  if  he  exercises  an  honest  discretion,  and 
expenses  incurred  in  good  faith  should  be  allowed  although  they 
did  not  benefit  the  ward.*^^ 

Where  there  is  any  doubt  about  the  propriety  of  an  expenditure, 
the  prudent  guardian  will  obtain  its  approval  by  the  court  in 
advance,  and  statutes  frequently  provide  for  such  approval  before 
making  the  expenditure.^*     The  guardian  may  be  allowed  for  ex- 


52.  Corcoran  v.  Kostrometinoff,  164 
F.  685;  In  re  Wood's  Estate  &  Guar- 
dianship, 159  Cal.  466,  114  P.  992. 

53.  In  re  Guardianship  of  Corcoran, 
3  Alaska,  263;  Nelson  v.  Cowling,  89 
Ark.  338,  116  S.  W.  890;  Cohn  v. 
Winslow,  115  Miss.  275,  76  So.  264. 

54.  De  Greyer  v.  Superior  Court  of 
City  and  County  of  San  Francisco, 
117  Cal.  640,  49'  P.  983,  59  Am.  St.  R. 
220.  See,  however,  Succession  of  "Weg- 
mann,  110  La. '930,  34  So.  878  (in 
peculiar  cases  court  may  order  funds 
deposited  in  its  registry). 

55.  In  re  Klunek,  68  N.  Y.  S.  629, 
33  Misc.  267.  See  Kerr  v.  Weathers, 
153  P.  866. 

56.  Burton's  Adm'r  v.  Selph  (Ky. 
1909),  118  S.  W.  286  (only  sums  ex- 
pended for  ward's  benefit);  McCor- 
mick  V.  Shannon,  111  N.  Y.  S.  875, 
127  App.  Div.  745  (buying  at  fore- 
closure to  protect  wards) ;  In  re  Hill's 
Estate,  250  Pa.  107,  95  A.  426  (not 
allowed   where   purpose    of   payments 

65 


to  wards  did  not  appear)  ;  Anderson 
V.  Steddum  (Tex.  Civ.  App.),  194  8. 
W.  1132;  Buskirk  v.  Sanders,  70  W. 
Va.  363,  73  S.  E.  9'37  (only  neces- 
saries) ;  Owens  v.  Mitchell,  38  Tex. 
588.  As  to  carriage  hire,  see  Ruble 
v.  Cottrell,  57  Ark.  190. 

57.  Tegart  v.  McCaleb,  9  La.  Ann. 
259;  State  ex  rel.  Tygard  v.  Elliott, 
82  Mo.  App.  458  (may  be  allowed  for 
penalties  paid  for  delay  in  payment 
of  taxes  where  was  no  money  to  pay 
taxes  on  time). 

58.  State  v.  Dunbar's  Estate,  9» 
Mich.  99f,  57  N.  W.  1103;  Cross  v. 
Rubey  (Mo.  App.),  206  S.  W.  413; 
Yates  V.  Watson  (Tex.  Civ.  App.), 
187  S.  W.  548;  Davis,  v.  White  (Tex. 
Civ.  App.),  207  S.  W.  679.  See  Win- 
dleton  V.  O  'Brien,  68  Mo.  App.  675.  See 
Barton  v.  Bowen  (Ya.),  27  Gratt.  849 
(may  be  allowed  after  expenditure  if 
would  have  been  authorized  before). 
Contra,  In  re  Alexander,  79  N.  J. 
Eq.  226,  81  A.  732. 


§  905 


GUARDIAN    AND    WARD. 


1026 


penses  incurred  in  protecting  or  obtaining  contix)!  of  the  person  of 
the  ward.'^ 

The  guardian  will  be  allowed  for  costs,  attorney's  fees  and  other 
expenses  of  litigation  properly  incurred  for  the  estate,^"  but  not 
for  expenses  unnecessary  in  the  litigation.®\. 

As  the  guardian  is  allowed  his  costs  and  expenses  in  suits  on 
the  ward's  behalf,  so  he  may  charge  bills  of  professional  counsel 
properly  paid;  and  this  too  when  the  charge  was  fairly  occasioned 
by  a  contest  over  his  accounts,  which  he  defended ;  but  he  cannot 
make  the  estate  pay  for  advice  and  services  rendered  on  his  own 
account    under    any    colorable    pretext.®^        And    the    primary 


58.  Bank  v.  Krell,  176  la.  437,  156 
N.  W.  858  (expenditures  need  not  be 
confined  to  food  or  clothing  actually 
used  by  wards) ;  In  re  Pruyne,  73  N. 
Y.  S.  859,  68  App.  Div.  584.  See  In 
re  Boyle's  Estate,  67  Pa.  Super.  Ct. 
381  (guardian  adopting  ward  allowed 
for  her  maintenance  at  his  home). 

60.  In  re  Brady,  10  Ida.  366,  79^  P. 
75  (will  contest  in  which  wards  are 
interested)  ;  Luke  v.  Kettenbach 
(Ida.)  181  P.  705;  In  re  Tolifaro, 
113  la.  747,  84  N.  W.  936;  Appeal  of 
Farnum,  107  Me.  488,  78  A.  901; 
Grove  v.  Eeynolds,  100  Mo.  App.  56, 
71  S.  W.  1103;  In  re  Decker,  76  N. 
Y.  S.  315,  37  Misc.  527  (attorney's 
fee  for  preparing  final  account) ;  Or- 
der, 102  N.  Y.  S.  211,  117  App.  Div. 
294,  affirmed,  In  re  Tyndall,  190  N. 
Y.  522,  83  N.  E.  1133  (attorney's 
fees  based  only  on  what  services  are 
worth)  ;  Title  Guaranty  &  Surety  Co. 
V.  Slinker,  42  Okla.  811,  143  P.  41 
(premiums  on  guardian 's  bond) ; 
Scheib  v.  Thompson,  23  Utah,  564, 
65  P.  499. 

61.  In  re  Tolifaro,  113  la.  747,  84 
N.  W.  936  (attendance  of  guardian  at 
hearing)  ;  State  ex  rel.  Tygard  v.  El- 
liott, 82  Mo.  App.  458  (not  for  ex- 
penses of  non-resident  guardian  in 
coming  to  State  to  qualify) ;  In  re 
Hill's  Estate,  250  Pa.  107,  9^5  A.  426. 

62.  McElhcnny's  Appeal,  46  Pa.  St. 
347;  Alexander  v.  Alexander,  8  Ala. 
796;  Neilson  v.  Cook,  40  Ala.  498; 
State  V.  Foy,  65  N.  C.  265;  Blake  v. 


Pegram,  101  Mass.  592;  Voessing  v. 
Voeseing,  4  Redf.  360;  Moore  v. 
Shields,  69  N.  C.  50;  Hunt  v.  Mal- 
donado,  89  Cal.  636.  The  rule  in  some 
States  is  strict  that  a  guardian  who 
is  a  counsellor  cannot  charge  for  pro- 
fessional services  rendered  by  himself. 
Morgan  v.  Hannas,  49  N.  Y.  667.  But 
cf.  Blake  v.  Pegram,  supra.  Where 
the  accounts  have  become  complex 
and  intricate  through  the  guardian's 
own  fault,  the  cost  of  stating  them 
correctly  ought  not  to  be  charged  to 
the  ward.  Eawson  v.  Corbett  et  al., 
150  HI.  466. 

A  retiring  guardian  should  not  be 
compelled  to  account  for  money  which 
his  successor  may  collect  equally  well. 
Mattox  V.  Patterson,  60  la.  434.  A 
guardian  who  has  received  money  as 
such  cannot  escape  accounting  there- 
for by  setting  up  that  it  belongs  to 
some  one  else  than  his  wards.  Humble 
V.  Mebane,  89  N.  C.  410.  His  failure 
to  disclose  that  he  has  received  money 
for  his  ward  amounts  to  a  conversion 
thereof.  Asher  v.  State,  88  Ind.  215. 
He  cannot  avoid  liability  to  account, 
if  acting  as  guardian,  by  denying 
that  he  was  appointed.  Gregory  v. 
Field,  63  Miss.  323.  And  see  as  to 
fraudulent  concealment  of  worthless 
securities,  Slauter  v.  Favorite,  107 
Ihd.  291.  Where  one  kept  his  ac- 
counts so  imperfectly  that  it  was  im- 
possible to  say  whether  he  should  re- 
ceive certain  credits  as  general  or  spe- 
cial guardian,  they  were  credited  one 


1027 


THE    WAliD  S    ESTATE. 


S'    905 


S3 


liability  for  such  attorneys  as  he  employs  is  of  course  his  o^vIl 

The  guardian  may  be  allowed  for  expenses  though  he  has  not 
actually  paid  them  if  there  is  an  arrangement  in  good  faith  that 
he  shall  do  so.®* 

The  fact  that  expenditures  otherwise  improper  were  incurred 
at  the  request  of  the  wards  is  no  defence.®^  The  guardian  may  be 
allowed  the  ward's  share  of  the  debts  of  the  estate  in  which  he  is 
an  heir.°°  Mother  who  is  guardian  of  female  ward  may  not  be 
allowed  for  expenses  of  ward's  wedding,®"  but  the  burial  expenses 
of  the  mother  of  the  ward  may  be  properly  allowed.®^ 

The  guardian  may  make  payments  on  the  order  of  an  infant 
ward  to  her  husband  if  the  latter  is  of  full  age,®®  but  not  if  he  is 
under  age." 

The  guardian  will  not  be  allowed  for  sums  expended  in  trying 
to  protect  unauthorized  investments,'^  and  he  will  not  be  allowed 
for  expenses  in  contesting  removal  proceedings  where  they  force 
his  resignation.'^' 

He  is  to  be  reimbursed  for  all  reasonable  and  proper  expenses 
incurred  by  him  in  the  management  of  his  ward's  estate.'*  Also 
for  his  proper  advances.'*     Interest  has  been  allowed  on  sums  of 


half   to   each    fund.      Smith   v.   Gum- 
mere,  39  N.  J.  Eq.  394. 

63.  §§  911,  912. 

64.  In  re  Mason,  68  Neb.  779,  94 
N.  W.  990  (attorney's  fees).  Contra, 
In  re  Plumb,  53  N.  Y.  S.  558,  24 
Mise.  249,  2  Gibbons,  447. 

65.  In  re  Tolifaro,  113  la.  747,  84 
N.  W.  336. 

66.  Sims  V.  Billington,  50  La.  Ann. 
968,  24  So.  637. 

67.  Keeney  v.  Henning,  64  N.  J.  Eq. 
65,  53  A.  460. 

68.  In  re  Connolly's  Estate,  150  N. 
Y.  S.  559,  88  Misc.  405. 

69.  State  v.  Joest,  46  Ind.  233,  235; 
State  V.  Parrish,  1  Ind.  App.  441,  27 
N.  E.  652. 

70.  State  v.  Joest,  46  Ind.  233,  235. 

71.  In  re  Moore,  112  Me.  119,  90  A. 
1088. 

72.  In  re  Cobb's  Estate  (Okla.), 
166  P.  885. 

73.  Personal  services  as  a  mechanic  or 
architect  are  ruled  out  strictly  in  some 
States,  the  guardian  being  restricted 


to  his  statutory  commission.  Morgan 
V.  Hannas,  49  N.  Y.  667.  Other 
States  rule  differently;  their  rule 
being  that  of  a  fair  allowance  rather 
than  a  fixed  commission.  §  375.  A 
guardian  who  keeps  a  store  may  in 
good  faith  supply  the  ward's  neces- 
saries, and  hence  charge  at  customary 
rates  of  profit.  Moore  v.  Shields,  69 
N.  C.  50.  But  this  principle  is  a 
dangerous  one  to  admit  far.  The 
guardian  of  a  wealthy  insane  adult 
ward  may  fairly  claim  compensation 
for  luxuries  supplied  him,  and  for 
personal  visits  and  care  suitable  to 
the  ward's  welfare.  May  v.  May,  109 
Mass.  252.  As  to  estimating  neces- 
saries purchased  with  depreciated 
money,  see  Phillips  v.  Towles,  73  Ala. 
406.  The  guardian  cannot  as  such 
sue  his  ward  for  necessaries,  having 
no  property  of  the  ward  in  possession 
to  reimburse  him  for  maintenance. 
McLane  v.  Curran,  133  Mass.  531. 

74.    Merkell's  Estate,    154    Pa.   St. 
285. 


§    908  GUARDIAN    AND    WAKD.  1028 

money  necessarily  advanced  by  him  to  his  wai'd ;  and  this  seems 
reasonable/" 

Interest  may  be  allowed  a  guardian  on  disbursements  with  an- 
nual rests,  the  amounts  expended  for  the  previous  year  deducted 
and  interest  computed  on  the  balance  up  to  the  next  annual  rest/' 

Where  the  ward  was  mentally  incapacitated  for  contracting  or 
appointing  an  agent,  the  guardian  cannot  be  credited  with  sums 
paid  to  an  agent  so  appointed  by  the  ward,  but  only  for  such  sums 
as  were  shown  to  have  been  used  for  the  ward's  benefit/^  The 
guardian  cannot  be  allowed  for  gifts  made  by  him  to  the  ward." 

§  906.  Payment  of  Debts. 

It  is  the  guardian's  duty  to  pay  all  just  debts  of  the  ward/^*  but 
he  is  not  to  apply  property  exempt  from  attachment  or  execu- 
tion) in  satisfaction  of  his  ward's  debts/" 

§  907.  Continuance  in  Business. 

The  guardian  of  an  insane  adult  ward  cannot  lawfully  continue 
the  ward's  business,  so  as  to  charge  it  with  losses  thereby  incurred,*" 
and  a  ward's  property  should  not  be  subjected,  at  the  guardian's 
instance,  to  the  hazards  of  business,  nor  should  a  probate  court 
confer  any  such  authority.®^  But  where  he  does  so  beneficially, 
the  ward,  by  acceptance  of  the  benefits  after  becoming  sui  juris, 
may  be  estopped  from  objecting.*^ 

§  908.  Liability  for  Negligence  or  Fraud. 

So  far  as  the  guardian  acts  within  the  scope  of  his  powers  he 
is  bound  only  to  the  observance  of  fidelity,  and  such  diligence  and 
prudence   as   men   ordinarily   display   under   like   circumstances. 

75.  Hayward  v.  Ellis,  13  Pick.  272 ;  78a.  Alcon  v.  Koons,  42  Ind.  App. 
May  V.  Skinner,  152  Mass.  328.  But  537,  82  N.  E.  92 ;  Anderson  v.  Silcox, 
see  Evarts  v.  Nason,  11  Vt.  122.  And  82  S.  C.  10&,  63  S.  E.  128  (ward's 
so  interest  received  on  a  small  balance  trousseau)  ;  State  v.  Fidelity  &  De- 
may  stand  in  lieu  of  compensation.  posit  Co.  of  Maryland  (Md.),  104  A. 
Mattox  V.  Patterson,  60  la.  434.  278.     See  Simpson  v.  Roberts,  205  111. 

76.  Abrams  v.  United  States  Fi-  App.  35  (not  for  funeral  expenses  of 
delity  &  Guaranty  Co.,  127  Wis.  579,       ward's  mother). 

106  N.  W.  1091,  5  L.  R.  A.  575,  115  79.  Fuller  v.  Wing,  5  Shep.  222. 

Am.  St.  E.  1091.    See  Nelson  v.  Cowl-  80.  Corcoran  v.  Allen,  11  E.  I.  567. 

ing,  89  Ark.  334,  116  S.  W.  890   (in-  81.   Michael  v.  Locke,  80   Mo.  548. 

terest  not   allowed   where  gross  neg-  And  see  Bush  v.  Bush,  33  Kan.  556; 

lect  of  duty).  Carter  v.  Lipsey,  70  Ga.  417;  Warren 

77.  Griffin  v.  Collins,  125  Ga.  159,  v.  Union  Bank  of  Eochester,  157  N. 
53  S.  E.  1004.  Y.    259,   51   N.  E.   1036,  43  L.  R.   A. 

78.  Harper  v.  Payne,  24  Ky.  Law  256,  68  Am.  St.  E.  777. 

Rep.  2301,  73  S.  W.  1123.  82.  Hoyt  v.  Sprague,  103  U.  S.  613, 


1029  THE  ward's  estate.  §  909 

And  in  absence  of  misconduct  his  acts  are  liberally  regarded  like 
those  of  any  trustee.  He  is  not  liable  for  investments  carefully 
made,  which  afterwards  prove  worthless ;  nor  where  he  deals  with 
failing  debtors  prudently  under  all  the  circumstances,  though  good 
security  be  not  available  and  a  loss  finally  occurs.®^  Xor  is  he 
responsible  for  funds  of  which  he  was  robbed  without  his  fault.** 
But  for  any  fraudulent  transaction  to  which  he  lends  himself  he 
must  suffer  the  consequences.*"  And  if  by  his  negligence  tbe 
estate  has  suffered  loss,  he  must  make  good  the  deficiency.*®  What 
acts  amount  to  fraud  or  culpable  negligence  will  depend  upon  cir- 
cimistances.  Ignorance  of  duty  is  equivalent  to  misconduct,  where 
the  ward's  interests  suffer  by  it.*^  And  a  sale  of  the  ward's  rights 
of  property  at  a  grossly  inadequate  price,  upon  the  guardian's  ovm 
responsibility,  may  be  afterwards  set  aside  at  the  instance  of  the 
ward.**  Innocent  third  parties  for  value  are  not  affected  by  the 
guardian's  fraud ;  and  the  usual  barrier  applies  as  to  negotiable 
securities.**  But  in  general,  where  third  parties  neglect  to  make 
reasonable  inquiries  as  to  facts  which  ought  to  have  raised  sus- 
picion in  their  minds,  they  may  have  to  suffer  for  their  own 
imprudence. 


90 


§  909.  Effect  of  Guardian's  Unauthorized  Acts. 

It  is  a  general  principle  that  acts  done  by  a  guardian  without 
authority  will  be  protected  and  will  bind  the  infant,  if  they  turn 
out  eventually  beneficial  to  the  latter;  but  the  guardian  does  such 
acts  at  his  own  peril.  The  transaction  will  perhaps  avail  as  be- 
tween the  guardian  and  third  parties ;  but  the  infant,  on  arriving 
at  majority,  may  usually  disaffirm  it  altogether,  if  not  manifestly 
beneficial  in  the  court's  opinion,  and  require  the  guardian  to  place 
him  in  statu  quo.^^  This  risk  is  restricted,  however,  to  unauthor- 
ized as  well  as  prejudicial  acts  ;  for  no  guardian  can  be  an  infalli- 

83.  Barney  v.  Parsons,  54  Vt.  623;  87.  Nicholson's  Appeal,  20  Pa.  St. 
Green  v.  Rountree,  88  N.  C.  164;  La-       50. 

mar  v.  Micou,  112  U.  S.  452;   §  353.  88.    Leonard    v.    Barnum,    34    Wis. 

84.  Furman  v.  Coe,  1  Gaines's  Cas.       105. 

96;   Atkinson  v.  Whitehead,  66  N.  C.  89.  See  Gum  v.  Swearingen,  69'  Mo. 

296.  553;    2   Schoulcr,  Pers.  Prop.  23. 

85.  McCahan's  Axipeal,  7  Barr,  56.  90.    Gale    v.    Wells,    12    Barb.    84; 

86.  2  Kent,  Com.  230;  Glover  v.  Iluuter  v.  Lawrence,  11  Gratt.  Ill; 
Glover,   1   McMull.   153;   Royer's  Ap-       Bevis  v.  Heflin,  63  Ind.  129. 

peal,  11  Pa.  St.  36;  Wynn  V.  Benbury,  91.    Macphers.    Inf.    339;    infra,    § 

4   Jones  Eq.  395;   Coggins  v.  Flythe,       987. 
113  N.  C.  103. 


§  910 


GUAEDIAN    AND    WAED. 


1030 


ble  judge  of  what  is  beneficial  to  his  ward ;  and  to  make  him  liable 
in  ordinary  cases,  beyond  the  limits  of  good  faith  and  a  sound 
discretion,  would  be  intolerable.  Hence,  as  judicial  control  be- 
comes relaxed,  the  guardian's  unauthorized  acts  may  fairly  be 
considered  as  lessening  in  number  and  importance,  save  so  far  as 
local  statutes  prescribe  the  rule,  as  they  frequently  do.  Where 
the  guardian  acts  under  judicial  sanction,  what  he  does  in  good 
faith  receives  strong  protection,®"  and  even  without  a  judicial  sanc- 
tion he  may  do  many  acts  beneficial  to  his  ward  in  their  scope.®^ 
Unauthorized  acts  which  turn  out  ill  for  the  ward  are  not  usually 
protected.^* 

In  States  requiring  the  approval  of  the  court  before  a  guardian 
can  bind  his  ward's  property  one  doing  work  under  a  contract 
cannot  obtain  a  lien  on  the  property  where  the  contract  was  exe- 
cuted without  the  approval  of  the  court 


95 


§  910.  Contracts  in  General. 

A  guardian,  it  is  said,  cannot  by  his  general  contracts  bind  the 
person  or  estate  of  his  ward.®*  Nor  can  he  avoid  a  beneficial  con- 
tract made  by  his  infant  ward ;  ^''  nor  waive  a  benefit  to  which  the 
ward  is  entitled  by  decree.®^  For  anything  which  he  does  injuri- 
ous to  the  infant  is  a  violation  of  duty,  and  the  insertion,  in  a  con- 
tract, of  words  importing  the  title  "  guardian  "  will  not  shield  the 
guardian  from  personal  liability.  In  the  language  of  Chief  Justice 
Parsons :  "As  an  administrator  cannot  by  his  promise  bind  the 
estate  of  the  intestate,  so  neither  can  the  guardian  by  his  contract 
bind  the  person  or  estate  of  his  ward."  ®®  But  the  rule  is,  after 
all,  a  technical  one;  for  the  insertion  of  words  showing  represen- 
tative capacity  imports  that  the  contract  was  made  as  a  trustee; 
the  form  of  the  remedy  is  aifected,  but  not  the  primary  source  of 


92.  See  McElheny  v.  Musick,  63  111. 
329. 

93.  Maclay  v.  Equitable  Co.,  152 
IT.  S.  499;  Albert's  Appeal,  128  Pa. 
St.  613;  Small's  Estate,  144  Pa.  St. 
293. 

94.  May  v.  Duke,  61  Ala.  53;  Me- 
Duffie  V.  Mclntyre,  11   S.   C.   551. 

95.  Los  Angeles  County  v.  Winane, 
13  Cal.  App.  234,  109  P.  640. 

96.  In  re  Manning's  Estate,  134 
la.  165,  111  N.  W.  409;  Jones  v. 
Brewer,  1  Pick.  (Mass.)  317;  Tenney 


V.  Evans,  14  X.  H.  343;  Keynolds  v. 
Garber-Buiek  Co.,  149  N.  W.  985,  L. 
K.  A.  1915C,  362;  Aborn  v.  Janis, 
113  N.  Y.  S.  309,  62  Misc.  95  (order 
affd.,  106  N.  Y.  S.  1115,  121  App. 
Div.  923;  Lee  v.  Tonsor  (Okla.),  161 
P.  804;  Jones  v.  Jolmson  (Okla.), 
178  P.  984. 

97.  Oliver  v.  Houdlet,  13  Mass.  237. 
And  see  Bac.  Abr.,  Guardian  (G). 

98.  Hite  V.  Hite,  2  Band.  409. 

99.  Forster.  v.  Puller,  6  Mass.  58. 


1031  THE   wakd's  estate.  §   910 

liability  in  the  real  beneficiary'.    And  on  all  such  contracts,  fairly 
made,  the  guardian  is  entitled  to  reimbursement  from  his  ward's 
estate.     It  is  simply  meant  that  the  person  with  whom  the  guar- 
dian contracts  on  behalf  of  his  ward  may  presume  a  sufficiency  of 
assets.     In  other  words,  the  guardian's  duty  is  to  bring  up  the 
ward  suitably ;    and  if  in  the  performance  of  his  duty  it  becomes 
necessary  for  him  to  enter  into  contracts,  they  impose  no  duty  on 
the  ward,  but  bind  the  guardian  personally  and  alone.     If  one 
acting  in  a  trust  capacity  could  claim  exemption  from  all  personal 
liability,  on  the  ground  that  there  was  none  of  the  ward's  property 
left  in  his  hands  for  payment,  he  might  abuse  his  privileges.     His 
knowledge  of  the  exact  state  of  the  trust  fund  and  his  power  of 
management  would  give  him  an  immense  advantage  over  the  other 
contracting  party.     Hence  the  propriety  of  the  rule  that  gl^ardians 
are  personally  bound  on  their  contracts,  in  dealing  with  others  on 
the  ward's  behalf,  while  in  turn  they  get  a  recompense  from  the 
estate  by  charging  their  expenses  to  the  ward's  account,  to  be 
passed  upon  by  the  court;    in  which  sense  of  a  reimbursement 
alone,  whether  in  law  or  equity,  can  it  be  said  that  the  ward  is 
liable,  since  the  guardian  can  put  no  contract  obligations  upon  his 
ward.     The  insertion  of  words  implying  a  trust  becomes,  there- 
fore, essential  in  determining  whether  a  contract  was  intentionally 
made  by  the  guardian  on  his  own  personal  account.     If  the  guar- 
dian contracts  a  debt  for  his  ward's  benefit,  he  becomes,  in  this 
epuse,  personally  liable;    and  this,  even  though  the  debt  be  for 
necessaries.^     Where,  however,  the  guardian's  contract  with  the 
creditor  shows  an  express  limitation  of  his  liability,  by  mutual 
assent,  to  the  assets  of  the  ward  in  the  guardian's  hands,  it  would 
appear  that  the  guardian  incurs  no  personal  liability  beyond  such 

1.  Simms  v.  Norris,  5  Ala.  42 ;  Eol-  supplies.     It  was  held  that  though  A. 

lins  V.   Marsh,   128   Mass.   166.     And  resided    after   his   appointment    and 

866  infra,   §    911,   as   to   the   ward's  a  new  guardian  was  appointed,  A.'s 

necessaries.     Sperry   v.   Fanning,   80  personal  liability  under  the  contract 

111.    371.      A    guardian    should    take  had  not  been  terminated.     If  a  guar- 

heed    what    contract   he    makes,    and  dian  promises  to  pay  a  debt  of  his 

provide  for  terminating  it  properly.  ward,  he  will  become  personally  bound, 

In  Mass.   General   Hospital  v.   Fair-  though  expressly  contracting  as  guar- 

banka,  132  Mass.  414,  A.,  in  antici-  dian;  and  the  creditor's  discharge  of 

pation   of  being   appointed   guardian  the    ward    is   sufficient   consideration. 

«f  B.,  an  insane  person,  promised  to  Kingsbury  v.  Powers,  131   Til.  182. 
pay   an   asylum   for   B.'s  board   and 


§    911  GUAKDIAN    AND    WAED.  1032 

assets,^  though  he  cannot  thereby  hind  the  ward's  person  or  estate 
absolutely.^ 

The  guardian  in  some  States  may,  when  proper  to  protect  assets, 
make  binding  agreements  for  the  benefit  of  the  estate  of  the  ward  * 
with  the  approval  of  the  court,"^  and  the  ward  will  on  coming  of  age 
be  bound  by  a  contract  signed  for  him  by  the  guardian  acting  under 
authority  of  the  court.®  The  guardian  cannot  bind  the  estate  by 
any  other  contract  than  one  expressly  allowed  by  law.'' 

§  911.  Contracts  for  Necessaries. 

For  necessaries  of  his  ward,  supplied  by  the  guardian's  order 
and  on  his  credit,  the  guardian  then  is  liable;  and  this  on  the 
principle  that  the  guardian  has  made  a  contract.^  A  guardian,  it 
is  true,  cannot  bind  his  infant  ward,  or  the  latter's  estate,  by  a 
contract,  even  for  necessaries.^  But  he  is  of  course  entitled  to  a 
proper  reimbursement  for  the  necessaries  thus  supplied  by  himself 
from  the  ward's  estate.  So,  where  he  advances  money  for  the 
ward's  maintenance  and  education.^" 

But  if  the  income  of  the  ward's  estate  is  ample  for  payment 
of  the  necessaries  supplied  him,  the  creditors  may,  by  a  proper 
course  of  procedure,  have  it  subjected  to  the  satisfaction  of  their 
just  claims.  And  this,  too,  it  would  appear,  notwithstanding  any 
personal  undertaking  on  the  guardian's  part."  Not  even  funds 
derived  from  a  minor's  pension,  granted  under  the  United  States 
laws,  are  exempt  from  liability  for  the  ward's  support.^^     On  the 

2.  Sperry  v.  Fanning,  80  111.  371,  Comeron  &  Co.  v.  Yarby  (Okla.),  175 

8.  Eollins  V.  Marsh,  128  Mass.  116;  P.  206.     See  Lenow  v.  Arrington,  111 

Heading  v.  "Wilson,  38  N.  J.  Eq.  446.  Tenn.  720,  69  S.  W.  314;   Andrus  v. 

4.  Hanover  Nat.  Bank  v.  Cocke,  127  Blazzard,  23  Utah,  233,  63  P.  888,  54 
N.  C.  467,  37  S.  E.  507  (guardian  may  L.  E.  A.  354. 

make     binding     agreement     to     loan  8.  State  v.  Koehe,  91  Ind.  406;  Tur- 

credit  to  borrow  money  to  avoid  ex-  ner  v.  Flagg,  6  Ind.  App.  563,  33  N. 

pense  in  settlement  of  insolvent  bank  E.  1104;  Sliepard  v.  Hanson,  9  N.  D. 

in  which  ward  is  stockholder)  ;  LeEoy  249,  83  N.  W.  20. 

V.  Jacobosky,  136  N.  C.  443,  48  S.  E.  9.  Eeading  v.  Wilson,  38  N.  J.  Eq. 

796,  67  L.  E,  A.  977    (contract  with  446. 

trustee    of    insolvent    bank   in    which  10.  Smith's  Appeal,  30  Pa.  St.  397; 

ward  is  stockholder  to  save  expense)  ;  Eollins  v.  Marsh,  128  Mass.  116;  in- 

Stone  V.  Ellis  (Tex.  Civ.  App.  1897),  fra,  eh.  6. 

40  S.  W.  1077.  11.  Bamum  v.  Frost,  17  Gratt.  398; 

5.  Smoot  V.  Eichards,  16  Tex.  Civ.  Walker  v.  Browne,  3  Bush,  686.     Suit 
App.  6G2,  39'  S.  W.  133.  on  the  probate  bond  by  permission  of 

6.  In  re  Harker's  Estate,   113   la.  court  is  the  common  remedy  in  many 
584,  85  N.  W.  786.  States.     Cole  v.  Eaton,  8  Cush.  587. 

7.  Burke  &  Williams  v.  MacKenzie,  12.    Welch   v.    Burris,    29   la.    186; 
124   Ga.  248,   52   S.  E.   653;   William  Brown's  Appeal,  112  Pa.  St.  18. 


1033  THE  ward's  estate.  §  911 

ward's  own  contract  for  necessaries,  the  guardian  is  not  personally 
liable.^'     And  it  would  appear  from  some  cases  that  his  knowledge 
of  the  ward's  contract  and  failure  to  dissent  will  not  suffice ;   or,  in 
other  words,  that  an  express  contract  should  be  shown  to  charge 
the  guardian  personally.     Yet  such  a  contract  of  the  ward  may 
be  ratified  by  the  words  or  acts  of  a  guardian ;    and  we  presume 
that  he  may  generally  be  held  bound  on  a  contract  shown  by  strong 
implication  to  have  existed  between  him  and  the  party  furnishing 
education  or  support.^*     Claims  for  goods  furnished  to  a  ward  at 
the  request  of  the  guardian  should  be  made  and  action  brought 
against  the  guardian  personally  and  not  against  the  ward's  estate/'' 
As  a  rule  the  guardian,  if  custodian  of  the  ward's  person,  has  the 
same  right  to  judge  as  to  what  are  necessaries,  according  to  the 
estate  and  social  position  of  his  ward,  that  a  parent  would  have 
for  his  own  child  ;^*  and  others  who  supply  the  minor  are  bound 
to  take  heed  acordingly,^^  and  the  guardian  is  not  liable  for  neces- 
saries furnished  the  ward  unless  expressly  authorized  by  him/* 
The  ward  is  not  to  be  judge  of  his  own  necessaries  ;   it  is  the  guar- 
dian rather,  or  the  court.^*     It  is  held  that  the  guardian  appointed 
in  one  State  may  sue  a  foreign  guardian  for  the  support  and  edu- 
cation of  wards  left  with  the  former  by  consent  of  the  latter 
guardian.""     So,  wherever  a  town,  is  liable  for  the  support  of  a 
ward  as  a  pauper,  his  guardian  may  claim  reimbursement  for 
necessary  expenses  incurred  after  the  ward's  property  has  been 
exhausted.^^     A  guardian  is  presumed  to  furnish  all  necessaries 
for  his  infant  ward,  and  a  stranger  who  furnishes  them  must  in 
general  contract  with  the  guardian  himself.^^     But  where  the  guar- 
dian makes  purchases,  the  party  furnishing  the  goods  is  not  bound 
to  see  that  payment  is  made  from  the  ward's  income.     This  risk 
must  be  run  by  the  guardian  himself,  for  the  facts  are  within  his 

13.  Baird  v.  Steadman,  39  Fla.  40,  16.  Nicholson  v.  Spencer,  11  Ga. 
21.  So.  5T2.  607;   Kraker  v.  Bjrum,  13  Eich.  163. 

14.  Tucker  v.  McKee,  1  Bailey,  344 ;  17.  McKanna  v.  Merry,  61  HI.  177. 
Hargrove  V.  Webb,  27  Ga,  172;  Oliver  18.  Pinnell  v.  Hinkle,  54  W.  Va. 
V.  Houdlet,  13  Mass.  237.  119,  46  S.  E.  171, 

15.  Fidelity  &  Deposit  Co.  of  Mary-  19.  Matter  of  Plumb,  52  Hun,  119. 
land  V.  M.  Eich  &  Eros.,  122  Ga.  506,  20  Spring  v.  Woodworth,  2  Allen, 
50  S.  E,   338;    Hall  v.  Ferguson,  24  206. 

Ind.  App.  532,  57  N.  E,  153;  Murphy  21.   Fisk  v.  Lincoln,   19  Pick.   473, 

V,  Holmes,  84  N.  Y.  S.  806,  87  App.       See  Preble  v.  Longfellow,  48  Me.  279. 
Div.  366,  14  N.  T.  Ann.  Cas.  71.  22.  State  v.  Cook,  12  Ired.  67;  Roy- 

ston  V.  Eoyston,  29  Ga.  82, 


§  912 


GUARDIAN    AND    WARD. 


1034 


own  peculiar  knowledge.^'  And  the  usual  principle  is,  where  the 
guardian  has  contracted  for  his  ward's  support  without  express 
restriction,  that  the  creditor  holds  the  guardian  liable  individuallj, 
relying  upon  the  latter's  promise,  while  the  guardian  may  reim- 
burse himself  out  of  the  ward's  estate  so  far  as  justice  permits/ 


24 


§  912.  Contracts  for  Services  to  Ward  or  Estate. 

Under  suitable  circumstances  a  guardian  may  employ  attomeys- 
at-law  or  other  agents,  and  charge  their  compensation  in  his  ac- 
counts.^^ 

A  contract  by  a  guardian  for  services  for  the  estate  made 
without  authority  of  court  is  invalid  as  against  the  estate,^* 
although  the  value  of  such  services  may  be  allowed  against  the 
estate  in  proper  proceedings  in  equity  or  the  probate  court ;  ^'  but 
a  contract  for  services  will  in  any  event  bind  only  the  estate  and 
not  the  wards.^*  A  personal  judgment  only  against  the  guardian 
will  be  allowed  in  most  States.^^ 

The  guardian  may  when  necessary  employ  a  physician  to  care 
for  the  ward  and  pay  for  his  services  out  of  the  principal,^"  and 


23.  Broadus  v.  Rosson,  3  Leigh,  12; 
Hutchinson  v.  Hutchinson,  Iff  Vt.  437. 

24.  Rollins  v.  Marsh,  128  Mass.  116; 
Rhodes  v.  Frazier's  Estate  (Mo. 
App.),  204  S.  W,  547;  Gallagher  v. 
McBride,  66  N.  J.  Law,  49  A.  582. 

25.  Be  Flinn,  31  N.  J.  Eq.  640; 
supra,  §  343.  A  natural  tutrix  of 
minors,  duly  appointed,  is  bound  to 
prosecute  a  legal  claim  on  their  be- 
half, and  her  contract  with  counsel 
concerning  compensation  for  service 
is  within  her  powers.  Taylor  v. 
Bemiss,  110  U.  S.  42.     That  an  em- 

,  ployed  attorney  must  look  to  the  guar- 
'  dian  for  his  compensation,  see  Row- 
ing V.  Moran,  5  Dcm.  56. 

The  guardian  may  give  power  of 
attorney  to  collect  and  receipt  for 
debts.  Forbes  v.  Reynard,  98  N.  T. 
S.  710,  113  App.  Div.  306. 

26.  Morse  v.  Hinckley,  124  Cal.  154, 
56  P.  896;  McKee  v.  Hunt,  142  Cal. 
526,  77  P.  1103 ;  Burke  &  Williams  v. 
MacKenzie,  124  Ga.  248,  52  S.  E.  653 
(contract  for  improvement  of  ward's 
real  estate)  ;  In  re  Kitchen  (Ind. 
App.   1909),  89  N.  E.  375;   Williams 


V.  Bonner,  79  Miss.  664,  31  So.  207; 
Kersey  v.  O'Day,  173  Mo.  560,  73  8. 
W.  481. 

27.  Morse  v.  Hinckley,  124  Cal.  154, 
56  P.  896;  Irvine  v.  Stevenson  (Ky.), 
209  S.  W.  7  (may  employ  more  than 
one  attorney  when  necessary) ;  Suc- 
cession of  Hanna,  135  La.  1043,  66 
So.  355;  Everson  v.  Hum,  89  Neb. 
716,  131  N,  W.  1130;  Parnell  v.  Wad- 
lington,  42  Okla.  363,  139  P.  121.  See, 
however,  Payne  v.  Rech,  6  Ohio  App. 
327. 

An  improvident  contract  of  a 
guardian  as  to  the  compensation  of 
attorneys  employed  to  represent  their 
interest  will  not  be  enforced ;  the  at- 
torneys being  limited  to  a  reasonable 
fee.  Wheeler  v.  James  &  James  (Ky. 
1909),  120  S.  W.  350. 

28.  Wilhelm  v.  Hendrick,  167  Ky. 
219,  180  S.  W.  516. 

29.  Baker  v.  Groves,  1  Ind.  App. 
522,  27  N.  E.  640 ;  Weber  v.  Werner, 
122  N.  Y.  S.  943,  138  App.  Div.  127. 

30.  Williams  v.  Bonner,  79  Miss. 
664,  31  So.  207. 


1035 


THE    WAED  S    ESTATE. 


§    91 


payments  made  for  services  in  caring  for  the  ward's  real  estate 
may  be  credited  to  the  guardian,^^  but  not  where  the  services  were 
unnecessary. 

Where  the  guardian  delegates  his  duties  to  another  he  is  liable 
for  his  actions.^' 

The  ward  will  not  be  allowed  to  manage  his  own  affairs  unless 
his  capacity  to  do  so  is  shown  by  a  preponderance  of  the  proof.^* 

The  guardian  of  an  insane  person  may,  without  obtaining 
authority  from  the  court,  hire  competent  help  to  take  care  of  the 
ward's  invalid  wife.  He  is  thus  discharging  the  personal  obliga- 
tions of  his  ward,  performing  an  act  of  no  unusual  character.  It 
is  true  as  a  general  rule  that  the  guardian  has  no  authority  to  bind 
the  estate  of  his  ward  by  contract,  but  that  rule  does  not  apply  to 
acts  in  i>erformance  of  duties  and  obligations  of  the  ward  not  of 
an  unusual  or  extraordinary  character,  and  which  do  not  bind  or 
attempt  to  bind  the  ward  beyond  his  legal  incompetency  to  act  for 
himself.*^ 

§  913.  Promissory  Notes. 

Notes  payable  to  guardian. —  The  title  to  promissory  notes  made 
payable  to  the  guardian  is  prima  facie  in  him.  And  this  is  true 
though  the  ward  come  of  age  pending  a  suit  on  such  notes,  or  other- 
wise the  guardian's  authority  has  ceased.  Hence  he  may  maintain 
suit,  unless  the  defendant  can  show  that  it  has  been  transferred  to 
the  successor,  or  otherwise  disprove  title.^®  A  guardian  may 
assign  a  note  taken  in  his  own  name,^"^  but  a  statute  forbidding  a 
sale  of  property  without  authority  of  the  court  will  prevent  the 
guardian    from    transferring    a   notei   without    such    authority 


38 


31  Sears  v.  Collie,  148  Ky.  444,  146 
S.  W.  1117;  State  ex  rel.  Tygard  v. 
Elliott,  82  Mo.  App.  458;  McCoy  v. 
Lane,  66  Neb.  847,  92  N.  W.  1010; 
In  re  Mason,  68  Neb.  779,  94  N.  W. 
990. 

32.  In  re  Binghamton  Trust  Co.,  83 
N.  Y.  S.  1068,  87  App.  Div.  26  (agent 
for  real  estate  not  needed)  ;  Vaughn 
V.  Tealey  (Tenn.  Ch.  App.  1900),  63 
S.  W.  236;  Moore  v.  Bannerman  (Tex. 
Civ.  App.),  45  S.  W.  825  (attorney 
not  needed). 

S3.  Eittenberry  v.  Wharton,  176 
Ala.  390,  58  So.  293. 


34.  In  re  Lee,  105  La.  254,  29  So. 
703. 

35.  Ee  Mores  (Minn.),  160  N.  W. 
187,  L.  E.  A.  1917B,  676. 

36.  Chambles  v.  Vick,  34  Miss.  109 ; 
Fountain  v.  Anderson,  33  Ga.  372; 
King  V.  Seals,  45  Ala.  415;  Gard  v. 
Neff,  39  Ohio  St.  607. 

37.  Echols  V.  Speake,  64  So.  306; 
Brewster  v.  Seeger,  173  Mass.  281,  53 
N.  E.  814;  Jenkins  v.  Sherman,  77 
Miss.  884,  28  So.  726. 

38.  Browne  v.  Fidelity  &  Deposit 
Co.  of  Maryland,  98  Tex.  55,  80  S.  W. 
593.     See  Merchants'  &  Clerks'  Sav. 


§  913 


GUARDIAN    AIS'D    WAED. 


1036 


The  guardian  may,  however,  indorse  over  such  note  on  the  cessation 
of  his  authority;  in  which  case  the  person  in  lawful  possession 
should  sue.  He  may  thus  assign  over  a  note  after  the  ward's 
majority  for  money  due  the  ward,  and  give  the  assignee  full  power 
to  collect,  where  the  ward  interposes  no  valid  objection.^'  So,  too, 
he  may,  after  his  ward's  death,  transfer  a  note  for  the  ward's 
money,  payable  to  the  ward  or  bearer,  to  a  third  person  for  collec- 
tion.*°  But  a  note  which  evidences  a  debt  due  the  guardian  in 
his  own  individual  capacity  is  not  properly  a  part  of  the  ward's 
assets ;  and  a  successor  in  the  trust  who  accepts  such  a  note  from 
his  predecessor  is  held  liable  as  for  a  breach  of  his  trust  where  the 
note  proves  uncollectible.*^  If  the  guardian  settled  with  his  ward 
whatever  was  due  on  a  note  taken  by  him  he  may  enforce  payment 
for  his  own  benefit.*^  And  where  a  guardian,  on  surrendering  his 
trust,  transfers  to  his  successor  a  debt  due  the  ward,  this  is  suffi- 
cient consideration  to  support  the  promise  of  the  latter  to  pay  the 
former  guardian's  debt.*^ 

Notes  payable  hy  guardian. —  The  ward's  estate  may  be  chargetl 
with  a  note  issued  on  authority,**  or  where  the  transaction  benefits 
the  ward.*^  But  the  ward  cannot  be  made  liable  after  majority 
on  a  note  given  by  her  guardian  without  authority  where  she  re- 
ceived no  benefit  after  reaching  her  majority  from  the  funds 
realized.*® 

The  promise  of  a  guardian  to  pay  his  ward's  debts  is  not  col- 
lateral, within  the  statute  of  frauds ;  and  therefore  it  need  not  be 
expressed  in  writing.*^ 

An  indebtedness  of  the  guardian  of  a  minor  for  money  borrowed 
and  used  for  the  benefit  of  his  ward  is  not  a  good  consideration  for 
the  execution  of  a  note  therefor  by  his  successor.*^ 


Bank  Co.  v.  Schirk,  27  Ohio  Cir  Ct. 
R.  125  (where-  guardian  has  no  au- 
thority to  sell  note  he  can  confer 
none) . 

39.  Hippee  v.  Pond,  77  la.  235; 
Brewster  v.  Seeger,  173  Mass.  281,  53 
N.  E.  814. 

40.  Fletcher  v.  Fletcher,  29  Vt.  98. 

41.  State  V.  Greensdale,  106  Ind. 
364,  and  cases  cited. 

42.  Wright  v.  Eobinson,  94  Ala.  479. 

43.  French  v.  Thompson,  6  Vt.  54; 
cf.  Sharman  v.  Jackson,  47  Ala.  329. 


44.  Scottish-American  Mortgage 
Co.  V.  Ogden,  49  La.  Ann.  8,  21  So. 
116. 

45.  Forster  v.  Fuller,  6  Mass.  58,  4 
Am.  Dec.  87;  Wallis  v.  Neale,  43  W. 
Va.  529,  27  S.  E.  227. 

46.  Wright  v.  Perry,  129  Cal.  613, 
62  P.  176.  See  Moore  v.  Metz,  24  Ky. 
Law,  1729,  72  S.  W.  294. 

47.  Roche  v.  Chaplin,  1  Bailey,  419. 

48.  Wright  v.  Perry,  129  Cal.  61  i, 
62  P.  176. 


1037  THE  ward's  estate.  §   915 

§  914.  Loans  to  Guardian. 

The  ward's  estate  will  not  be  usually  liable  for  money  borrowed 
by  the  guardian  without  an  order  of  court,*^  but  the  guardian  is 
personally  liable  for  moneys  advanced  to  him."" 

§  915.  Management  of  Ward's  Real  Estate  in  Detail. 

The  guardian  has  the  management  and  control  of  his  ward's  real 
estate  so  long  as  his  general  authority  lasts.  It  is  his  duty  to 
collect  the  rents  for  the  benefit  of  his  ward,  in  which  connection  he 
may,  according  to  custom,  employ  a  real-estate  agent  or  collector,'^^ 
or  he  may  be  allowed  an  agent's  commission."^ 

It  is  his  duty  not  only  to  collect  the  rents  but  to  preserve  the 
property."^  He  may  avow  for  damage  feasant,  sue  for  non-pay- 
ment of  rent,  and  bring  trespass  and  ejectment  in  his  own  name. 
This  was  the  common-law  rule  as  to  guardians  in  socage,  and  it 
still  applies  to  testamentary,  chancery,  and  perhaps  to  probate 
guardians.  The  recognized  principle  is  that  such  guardians  have 
an  authority  coupled  with  an  interest,  and  not  a  bare  authority,"* 
and  may  prosecute  and  settle  in  good  faith  a  claim  for  trespass  on 
the  ward's  lands,""  or  collect  the  purchase  price  of  land  sold."' 
A  guardian  makes  himself  personally  liable  where  he  permits  others 
to  negligently  collect  the  rents,  or  occupies  the  premises  himself. 

49.  Wood  V.  Truax,  39  Mich.  628;  does  not  carry  with  it  the  control  of 
Buie's  Estate  v.  White,  94  Mo.  App.  his  real  estate.  Atwood  v.  Frost,  57 
367,  68  S.  W.  101.   Contra,  In  re  Man-       Mich.  229,  23  N.  W.  790, 

ning's  Estate,  134  la.  165,  11  N.  W.  52.    (1906)    Ohlmann   v.   Wirth,   97 

409'  (estate  liable  for  money  used  for  S.  W,  760, 30   Ky.  Law  Eep.  206  (judg- 

benefit   of  estate   though   money  bor-  ment  modified  on   rehearing,   Ohlman 

rowed  without  authority).     See  Scot-  v.  Same  (1907),  30  Ky.  Law  Rep.  1372, 

tish-American   Co.   v.   Ogden,   49    La.  101  S.  W.  295   (collecting  rents). 

Ann.  8,  21  So.  116  (authority  of  fam-  53.  Walker  v.   Thompson,   145   Ky. 

ily  meeting  is  sufficient)  ;  State  ex  rel.  597,  140  S.  W.  1045. 

Tygard  v.  Elliott,  82  Mo.  App.  458;  54.  Shaw  v.  Shaw,  Vem.   &  Scriv. 

In  re  Bartsch,  113  N.  Y.  S.  286,  60  607;    Bacon   v.    Taylor,   Kirby,    368; 

Misc.  272.  2    Kent,   Com.    228;    Torry   v.   Black, 

50.  Elson  V.  Spraker,  100  Ind.  374;  58  N.  Y.  185;  Pond  v.  Curtiss,  7 
Bell  V.  Dingwell,  91  Neb.  699,  136  N.  Wend.  45;  Huff  v.  Walker,  1  Cart. 
W.  1128.  1?3.     And   see   O'Hara  t.   Shepherd, 

51.  Haden  v.  Swepston,  64  Ark.  477,  3  Md.  Ch.  306.  But  such  suits  can- 
43  S.  W.  393  (guardian  is  charged  not  in  Illinois  be  bought  by  a  probate 
with  rents  only  from  time  property  or  statute  guardian,  and  under  local 
was  turned  over  to  him  by  the  ad-  statutes  different  rules  apply.  Mul 
ministrator)  ;  Be  Flinn,  31  N.  J.  Eq.  ler  v.  Benner,  69  111.  108 ;  Wallis  v. 
640.     See  Griffin   v.   Collins,   125   Ga.  Bardwell,  126  Mass.  366. 

159,    53    S.    E.    1004     (liability    for  65.   Tory  v.   Black,   58   N,   Y.    1S5, 

rents).  65  Barb,  414, 

GMardianship   of   a  minor's  person  56.  Daridson  v.  I,  M.  Davidson  R^al 


§    915  GUAEDIAN    AND    WAED.  1038 

or  suffers  the  premises  to  remain  unoccupied,  or  wilfully  or  care- 
lessly permits  others  to  occupy  them  to  the  ward's  detriment ;  '^ 
and  in  the  exercise  of  ordinary  business  discretion  and  subject  to 
the  usual  rules  of  agency  he  is  liable  for  his  ward's  rents  which 
were  or  should  have  been  collected.^^  He  is  therefore  liable  where 
he  allows  a  squatter  to  perfect  title  to  the  ward's  property  not 
only  for  the  loss  of  rents  but  also  for  the  loss  of  the  principal.^' 

The  guardian  may  grant  an  easement  in  his  ward's  lands ;  but 
it  is  of  no  avail  beyond  the  limit  of  his  guardianship,*""  and  he  may 
not  encumber  it  with  covenants  restricting  its  use,*^  He  may 
authorize  the  cutting  of  standing  timber,  and  allow  others  to  carry 
it  away,^^  though  not  so  as  to  authorize  a  waste  of  the  corpus.^' 
But  his  license  should  be  given  in  all  cases  for  his  ward's  benefit, 
and  so  with  the  receipt  of  damages  for  another's  trespass.^*  And 
if  trees  are  cut  and  carried  away  by  his  permission,  so  that  trespass 
cannot  be  maintained,  he  must  make  compensation  to  the  ward.'"* 
Guardians  may  also  institute  proceedings  for  partition.  Such 
proceedings,  in  England,  should  be  by  bill  in  equity.*® 

The  guardian  may  make  partition  of  the  lands  among  the  in- 
fants which  will  be  sustained  if  fair.^^ 

Estate  &  Investment  Co.,  226  Mo.  1,  to   dedicate   lands   to   the   public   for 

125   S.  W.   1143    (cannot  receipt  for  streets,  &c.,  see  Indianapolis  v.  King3- 

purehase  price  when  not  received).  bury,  101  Ind.  200.    He  cannot  waive 

57.  Wills 's  Appeal,  22  Pa.  St.  325;  his  ward's  homestead  rights.  Eatcliff, 
Clark  V.  Burnside,  15  111.  62;  Hughes'  Guardian  v.  Davis  et  al.,  64  la.  467. 
Appeal,  53  Pa.  St.  500;  Spelman  v.  61.  Curry  v.  Keil,  46  N.  Y.  S.  495, 
Terry,  74  N.  T.  448.  19  App.  Div.  375;  Day  v.  Forest  City 

58.  Peale  v  .Thurman,  77  Va.  753;  Eailway,  27  Ohio  Cir.  Ct.  R.  60.  See 
Coggins  V.  Flythe,  113  N.  C.  103.  He  In  re  Kearnes,  1  Pa.  326  (guardian 
cannot  give  the  child's  rents  or  use  has  no  authority  to  build  addition); 
and  occupation  without  consideration  Windon  v.  Stewart,  43  W.  Va.  711, 
even  to  the  child's  parent.  Cheney  v.  28  S.  E.  776  (after  partition). 
Roodhouse,  135  111.  257;  Matter  of  62.  Fonbl.  Eq.  Tr.  82,  n.;  Thomp- 
Brown,  76  Hun,  186.  son  v.  Boardman,  1  Vt.  367;  Bond  v. 

59.  Short  v,  Mathis,  107  Ga.  807,  Lockwood,  33  111.  212.  See  Buskirk  v. 
33  S.  E.  694.  Sanders,  70  W.  Va.  363,  73  S.  E.  937. 

60.  Watkins  v.  Peck,  13  N.  H.  360;  63.  Torry  v.  Black,  58  N.  Y.  185. 
Johnson  v.  Carter,  16  Mass.  443.    Tin-  64.  Torry  v.  Black,  58  N.  Y.  556. 
der  Ohio  statutes,  a  guardian  cannot  65.  Truss  v.  Old,  6  Band.  556. 
grant   a  right  of  way  thorugh  land  66.  Macphers.  Inf.  340. 

owned  by  his  wards  without  authority  67.    Hunt   v.    Eabitoay,    125    Mich, 

from    the    probate    court.      State    v.  137,  84  N.  W.  59,  7  Det.  Leg.  N.  447. 

Hamilton    County,    39    Ohio    St.    58.  See   Shiner   v.    Shiner,    14    Tex.    Civ. 

And  see  Indiana  R.  v.  Brittingham,  App.  489,  15  Tex.  Civ.  App.  666,  40 

98  Ind.  294.     As  to  his  authority  act-  S.  W.  439  (guardian  cannot  represent 

ing  under  orders  of  a  competent  court  devisees  on  partition). 


1039  THE  ward's  estate.  §  917 

Title  by  advert  posseesion  may  be  quieted  by  suit  by  the 
guardian  of  an  insane  person."* 

§  916.  Deeds  of  Property. 

From  what  has  been  already  said,  it  appears  clear  that  the 
guardian  may  execute  all  the  deeds  and  other  writings  necessary 
to  the  fulfilment  of  his  trust.  But  such  instruments  should  be 
signed  in  the  name  of  his  ward.^®  On  the  same  principle  that 
agents  and  trustees  are  personally  bound  when  they  exceed  their 
authority,  a  guardian  makes  himself  personally  liable  for  stipula- 
tions which  he  has  no  right  to  insert  in  a  deed,  and  for  authorized 
covenants,  so  badly  worded  that  they  fail  to  bind  the  ward's  estate; 
but  not,  it  would  appear,  for  implied  covenants  merely.'"'  Where 
a  married  woman  has  executed  a  deed  as  guardian,  it  would  seem, 
on  principle,  that  the  joinder  of  her  husband  is  unnecessary.''^ 

Guardians  may  assign  dower.  And  it  seems  that  the  guardian's 
assignment  will  bind  the  heir,  although  Blackstone  and  Fitzherhert 
state  the  law  otherwise.'^  The  deed  of  a  married  woman,  guar- 
dian of  infants,  in  such  capacity,  does  not  convey  her  right  of 
dower. '^^ 

§  917.  Repairs  and  Insurance. 

A  guardian  having  the  means  should  with  due  prudence  insure 
buildings,  pay  taxes  and  assessments  on  his  ward's  lands,  and  keep 
the  premises  in  tenantable  condition.^*     But  as  our  next  chapter 

68.  Freeman  v.  Ftink,  85  Kan.  473,  less  the  ward  become  of  age  before 
117  P.  1024,  46  L.  E.  A.  (N.  S.)  487.       the  sale.     Shurtleff  v.  Rile,  140  Mas8. 

69.  Hunter  v.  Dashwood,  2  Edw.  213.  See  Strang  v.  Burris  et  al.,  61 
Ch.  415.  la.  375.     See  Robinson  v.  Hersey,  60 

70.  Whiting  v.  Dewey,  15  Pick.  428 ;       Me.  225. 

Webster  v.  Conly,  46  111.  13.  The  guardian   will   be   allowed  for 

71.  Palmer  v.  Oakley,  2  Doug.  433.  insurance  paid  on  the  ward's  real 
An  infant's  guardian  may  accept  de-  estate.  Sims  v.  Billington,  50  La. 
livery  of  a  deed  of  conveyance  to  his  Ann.  968,  24  So.  637;  Monaghan  v. 
ward.    Barney  v.  Seeley,  38  Wis.  381.  Agricultural  Fire  Ins.  Co.,   53   Mich. 

72.  2  Bl.  Com.  136;  Fitzh.  N.  B.  238,  IS  N.  W.  797;  Garvey  v.  Owens, 
348;  1  Washb.  Real  Prop.  226;  Jones       12  N.  T.  Supp.  349,  58  Hun,  600. 

V.    Brewer,    1    Pick.    314 ;    Young    v.  Or  taxes.     State  ex  rel.  Tygard  v. 

Tarbell,  37  Me.  509;  Curtis  v.  Hobart,  Elliott,  82  Mo.  App.  458  (though  paid 

41  Me.  230;   Boyers  v.  Newbanks,  3  to  wrong  oflRcer)  ;   In  re  Bodine,  134 

Ind.   388;   Clark  v.  Bumside,  15  111.  N.  Y.  S.  406,  74  Misc.  498;  Garvey  v. 

62.  Owens,  12  N.  Y.  Supp.  349;  Savage  v. 

7S.  Jones  v.  Hollopeter,  10  S.  &  E.  City  of  Buffalo,  59  Hun,  609;  Burgert 

326.  v.  Caroline,  31  Wash.  62,  71  P.  724,  96 

74.  For  loss  imprudently  caused  by  Am.  St.  E.  889'.     See  In  re  Pruyne,  73 

a  tax  sale  the  guardian  is  liable,  an-  N.  Y.  S.  859,  68  App.  Div.  584. 


§    918  GUARDIAN    AND    WARD.  1040 

will  show,  his  power  at  common  law  over  the  ward's  real  estate  is 
closely  circumscribed,  and  he  cannot  build  or  make  expensive  per- 
manent improvements  without  a  previous  order  from  a  court  of 
equity,  which  is  in  the  absence  of  statute  to  be  construed  strictly." 
And  where  he  advances  money  for  such  purposes,  without  first 
obtaining  an  order,  it  would  appear  that  he  is  without  a  remedy." 
But  the  court  will  sometimes  protect  such  expenditures,  on  the 
ground  that  the  ward  has  received  a  benefit  thereby ;  ^^  and  this 
seems  the  more  reasonable  doctrine,  though  not  clearly  recognized 
in  this  country  aside  from  express  legislation.''*  Authority  granted 
to  expend  a  certain  sum  for  this  purpose  is  held  no  authority  to 
exceed  that  sum,  though  it  should  prove  inadequate ; ''  but  a  liberal 
decree  under  a  liberal  statute  is  construed  otherwise.*^  Nor  has 
the  builder  any  lien  upon  the  ward's  real  estate  for  such  excess.*' 
A  guardian's  stipulation,  in  his  lease  of  the  ward's  lands,  to  pay 
for  improvements,  will  not  bind  the  ward.*^  Nor  can  a  guardian's 
joinder  in  highway  petitions  to  cover  illegal  acts.*^ 

§  918.  Lease. 

A  guardian  may  ordinarily  lease  the  ward's  land  without  special 
order  of  the  court,**  unless  by  statute  a  special  order  is  required.*** 

Or  repairs  or  improvement  of  real  76.  Hassard  v.  Kowe,  11  Barb.  22 ; 

estate.      Buie's   Estate    v.    White,   94  BeUinger  v.  Shafer,  2  Sandf.  Ch.  293. 

Mo.  App.  367,  68  S.  W.  101;  Garvey  77.  See  Macphers.  Inf.  295;  1  Atk. 

V.    OAvens,    12    N.    Y.    Supp.    349,    58  489;  Hood  v.  Bridport,  11  E.  L.  &  Eq. 

Hin.  609 ;   Bramlett  v.  Mathis,  71  S.  271 ;  Jackson  v.  Jackson,  1  Gratt.  143 ; 

C.  123,  50  S.  E.  644    (measure  of  al-  Bent  &  Co.  v.  Burnett,  90  Ky.  600. 

lowance     for     improvements     is     not  78.  Cheney   v.    Ecodhouse,    135    111. 

amount     expended     but     increase     in  257,  recognizes  this  doctrine, 

value  of  property)  ;  Sutton  v.  Sutton  79.  Snodgrass's  Appeal,  37  Pa.  St. 

(Tenn.  Ch.  App.  1900),  58  S.  W.  891;  377. 

Nagle  v.  Eobins,  9  Wyo.   211,  62   P.  80.  May  v.  Skinner,  149  Mass.  375. 

154.     See  Hickey  v.  Dixon,  85  N.  Y.  81.  Guy  v.  Du  Uprey,  16  Cal.  195. 

S.   551,  42  Misc.  i;   In  re  Smith,  89  82.  Barrett  v.  Cocke,  12  Heisk.  566. 

N.  Y.  S.  639,  97  App.  Div.   157    (no  83.  Payne  v.  Stone,  7  S.  &  M.  367. 

allowance    for    unnecessary    improve-  84.    Indian    Land    &    Trust   Co.    v. 

ments) ;   Wallis  v.  Neale,  43  W.  Va.  Shoenfelt,  5  Ind.  T.  41,  79  S.  W.  134; 

529,  27  S.  E.  227    (not  where  tenant  Potter  v.  Eedmon's  Guardian,  123  Ky. 

should  have  made  the  repairs).  400,  96  S.  W.  529,  29  Ky.  Law  Eep. 

Or  for  incumbrances  on  real  estate.  840 ;    Cumberland    Pipe    Line    Co.   v. 

Switzer  v.  Switzer,  57  N.  J.  Eq.  421,  Howard,  30  Ky.  Law  Eep.  1179,  100 

41   A.   486;    American   Surety  Co.   of  S.  W.  270;  Perry  v.  Perry,  127  N.  C. 

New  York  v.  Sperry,  171  111.  App.  56,  23,    37    S.    E.    71 ;    Eogers   v.    Harris 

75.  Payne  v.  Stone,  7  S.  &  M.  367;  (Tex.  Civ.  App.),  171  S.  W.  809. 

Miller's  Estate,  1  Pa.  St.  326.     And  85  Gaines  v.  Gaines,  116  Ark.  508, 

Bee  Powell  v.  North,  3  Ind.  392;  Lane  173  S.  W.  410   (confirmation  by  court 

V.  Taylor,  40  Ind.  495.  required) ;   Gridley  v.  Wood,  206  111. 


1041 


THE    WARD  S    ESTATE. 


§    918 


But  Lis  demise  cannot  last  for  a  longer  period  than  the  law  allows 
for  the  continuance  of  his  trust.  And  it  will  determine  upon  the 
ward's  death  in  any  event.  A  lease  made  by  a  guardian,  extend- 
ing beyond  the  minority  of  his  ward,  was  once  considered  void; 
but  the  modem  rule  treats  such  leases  as  void  only  for  the  excess 
at  the  election  of  the  ward ;  ^^  but  statutes  in  some  States  have 
authorized  mining  or  oil  and  gas  leases  for  a  period  beyond  the 
term  of  the  guardianship  on  the  ground  that  such  extended  time 
may  be  necessary  for  the  proper  development  of  the  property.*^ 

A  lease  by  a  guardian  for  oil  and  gas  mining  purposes  is  not  a 
"  conveyance  of  real  estate  "  within  the  purview  of  a  statute  pro- 
viding machinery  for  obtaining  a  license  to  sell  real  estate.®^  The 
same  principles  apply  to  guardians  of  insane  persons  and  spend- 
thrifts.    And  the  rule  embraces  asisignments  of  the  ward's  leases.*' 


App.  505 ;  Indian  Land  &  Trust  Co. 
V.  Shoenfelt,  5  Ind.  T.  41,  79  S.  W. 
134;  Charles  v.  Witt,  88  Kan.  484, 
129  P.  140;  Daniels  v.  Charles,  172 
Ky,  238,  189  S.  W.  192  (mining  lease 
not  an  ordinary  use)  ;  Fisher  v.  Mc- 
Keemie,  43  Okla.  577,  143  P.  850; 
Windon  v.  Stewart,  43  W.  Va.  711,  28 
e.  E.  776;  Wilson  v.  Youst,  43  W. 
Va.  826,  28  S.  E.  781,  39  L.  E.  A. 
292 ;  Haskeir  v.  Sutton,  53  W.  Va. 
206,  44  S.  E.  533  (oil  or  gas).  See  In 
re  Berryhill's  Estate,  7  Ind.  T.  593, 
601,  104  S.  W.  847,  850.  See  McCoy 
T.  Ferguson,  172  Ky.  235,  189  S.  W. 
191.  See  Globe  Soap  Co.  v.  Louisville  & 
N.  Ry.,  27  Ohio  Cir.  Ct.  R.  759  (agree- 
ment t/O  renew  held  unauthorized). 

86.  Bac.  Abr.,  Leases,  I;  2  Kent, 
Com.  228;  1  Washb.,  Real  Prop.  307; 
Eex  V.  Oakley,  10  East,  494;  Putnam 
V.  Ritchie,  6  Paige,  SQ'O;  Field  v. 
Bchieffelin,  7  Johns.  Ch.  150;  People 
V.  Ingersoll,  20  Hun,  316;  Richardson 
V.  Richardson,  49  Mo.  29.  See  sta- 
tute restriction  in  Muller  v.  Benner, 
69  111.  108;  Bates,  Guardian  v.  Dun- 
ham, 58  la.  308;  Bent  &  Co.  v,  Bar- 
nett,  90  Ky.  600;  Bettes  v.  Brower, 
184  F.  342;  Jackson  v.  O'Rorke,  71 
Neb.  418,  98  N.  W.  1068;  Huston  v. 
Cobleigh,  29  Okla.  793,  119  P.  416 
(unless   authorized   by  court) ;    Max- 

66 


well  V.  Urban,  22  Tex.  Civ.  App.  565, 
55  S.  W.  1124  (lease  expires  with 
death  of  guardian). 

87.  Mallen  v.  Ruth  Oil  Co.,  231  F. 
845,  146  C.  C.  A.  41,  230  F.  497  (by 
statute  lease  of  oil  and  gas  lands  may 
bind  ward  on  majority)  ;  Lawrence  E. 
Tierney  Coal  Co.  v.  Smith's  Guardian 
(Ky.),  205  S.  W.  051,  203  S.  W.  731 
(statute  authorizing  lease  beyond  ma- 
jority is  unconstitutional;  quaere  as 
to  oil  and  gas  leases) ;  Cabin  Valley 
Mining  Co.  v.  Hall,  155  P.  570  (lease 
extending  beyond  minority  may  be 
authorized  by  court)  ;  Hoyt  v.  Fixico 
(Okla.),  175  P.  517  (oil  and  gas 
lease  beyond  majority  of  ward  ap- 
proved). 

At  common  law  a  guardian  of  a 
minor  had  no  authority  to  make  a 
lease  beyond  the  term  of  the  minority, 
but  under  proper  statutes  such  a  lease 
may  be  authorized  by  the  court.  In 
the  case  of  oil  and  gas  leases,  where 
time  is  necessary  for  the  development 
of  the  porperty  the  minor's  estate  is 
not  injured  but  is  benefited  by  such 
a  lease.  Cabin  Valley  Mining  Co.  v. 
Hall  (Okla.),  155  P.  570,  L.  R.  A. 
1916F,  493. 

88.  Duff   V.    Keaton,    33    Okla.    92, 
124  P.  291,  42  L.  R.  A.  (N.  8.)  472. 

89.  Ross  V.  Gill,  4  Call,  250. 


§  919 


GUAKDlA2f    A>iD    WARD. 


104: 


The  guardian  must  not  lease  imprudentlv,  nor  so  as  to  sacrifice 
his  ward's  interests  for  the  benefit  of  others. ^°  The  father,  as 
natural  guardian,  cannot  lease  the  land  of  his  child ;  nor  can  the 
mother;  nor  can  anj  mere  custodian  of  the  person.*^^  So,  too, 
guardians  may  take  premises  on  lease.  And  though  the  w^ords 
''A.  and  B.,  guardians  "  of  certain  minors,  are  used  in  a  lease,  the 
guardians  are  personally  bound  to  the  lessor  to  pay  the  rent.'^ 
The  guardian's  power  to  lease  e:xtends  only  to  usufruct,  and  not  to 
exhaustion  of  the  corpus.^^  In  the  exercise  of  due  prudence  he 
may  let  out  his  ward's  lands  for  raising  a  crop  on  shares.** 

The  guardian  cannot,  however,  agree  to  a  lien  on  the  improve- 
ments made  on  the  premises  on  the  expiration  of  the  lease,"^  and 
a  natural  guardian  who  has  never  been  appointed  by  the  probate 


court  cannot  lease.®*^     The  burden  rests  on  one  attacking  a  lease, 


87 


§  919.  Mortgage  or  Pledge. 

Mortgage  or  Pledge  hy  Guardian. —  The  guardian's  power  to 
borrow  monev  on  a  mortcrae-e  of  his  ward's  lands,  and  to  create 
liens  upon  it  generally,  is  regarded  with  very  little  favor.  He 
could  hardly  make  the  mortgage  operate  beyond  the  minority  of 
his  ward,  at  any  rate,  if  the  ward,  on  reaching  majority,  elected  to 
disaffirm  it;  and  his  only  safe  course  would  be  to  secure  the  pre- 
vious permission  of  the  court;  which  American  statutes  in  these 
days  generally  permit  to  be  done  on  special  proceedings.®' 


90.  Knothe  v.  Kaiser,  5  Thomp.  &  C. 
4;  Thackray's  Appeal,  75  Pa.  St.  132. 

91.  Anderson  v.  Darby,  1  N.  &  McC. 
369;  Magruder  v.  Peter,  4  Gill  & 
Johns.  323;  Ross  v.  Cobb,  9  Terg. 
463.  See  Drury  v.  Conner,  1  Har.  & 
G.  220. 

92.  Hannen  v.  Ewalt,  18  Pa.  St.  9. 
See  Snook  v.  Sutton,  5  Ilalst.  133. 

93.  Thus,  a  guardian  cannot  lease 
oil  or  mineral  lands  for  the  purpose 
of  working  out  the  product.  Stough- 
ton's  Appeal,  88  Pa.  St.  198. 

94.  Weldon  v.  Little,  53  ]Mich.  1. 

95.  Hughes  v.  Kershow,  42  Colo. 
210,  93  P.  1116. 

96.  Capps  V.  Hensley,  23  Okla.  311, 
100  P.  515;  Pilgrim  v.  Mcintosh, 
7  Ind.  T.  623,  104  S.  W.  858. 

97.  Norton  v.  Stroud  State  Bank, 
17  Okla.  295,  87  P.  848. 


98.  Merritt  v.  Simpson,  41  111.  391; 
Lovelace  v.  Smith,  39  Ga.  130;  Wood 
V.  Truax,  39  Mich.  628;  Edwards  v. 
Taliafero,  34  Mich.  13.  And  see  next 
chapter.  Power  to  sell  and  convey, 
under  a  trust  does  not  include  power 
to  mortgage.  Tyson  v.  Latrobe,  42 
Md.  325.  As  to  assigning  a  mortgage, 
see  next  section.  Where  a  statute 
requires  (as  in  case  of  a  land  war- 
rant) a  particular  authority  to  be 
obtained  for  a  transfer  of  land,  one 
who  purchases  without  ascertaining 
that  it  has  been  pursued,  acts  at  his 
peril.  Mack  v.  Brammer,  28  Ohio 
St.  508.  The  Illinois  constitution 
and  statutes  confer  large  pow- 
ers on  the  county  courts  as  to  grant- 
ing leave  to  mortgage,  and  a  mort- 
gage may  be  authorized  to  secure  a 
loan   obtained   in   ordr-r   to   make   im- 


1043  Tllii     WAKD's    JiSTATE.  §    919 

Tlie  guardian  can  mortgage  the  ward's  property  only  as  au'chor- 
ized  by  statute/^  and  for  debts  properly  contracted/  but  may  pay 
a  mortgage  out  of  the  ward's  other  property."  He  is  bound  to 
apply  rents  and  profits  in  keeping  down  the  interest  on  mortgage 
debts ;  nor  can  he,  in  general,  invest  personal  estate  more 
judiciously  than  in  freeing  the  land  from  debt  altogether.^  An 
order  of  court  is  not  necessary  in  such  cases,  nor  for  judgment 
debts,  but  it  would  be  required  for  discharging  other  than  direct 
encumbrances.* 

Where  a  guardian  purchases,  on  behalf  of  his  ward,  a  house 
and  lot  expressly  subject  to  a  mortgage,  he  becomes  personally 
liable  for  the  amount  of  the  unpaid  debt ;  even  though  he  had 
been  authorized  by  the  court  to  make  the  purchase.  But  the  court 
will  afford  him  relief  from  the  ward's  estate.^  In  an  English  case, 
where  a  guardian  borrowed  money  to  pay  oif  encumbrances  on  the 
ward's  estate  and  promised  to  give  the  lender  security,  but  died 
before  doing  so,  the  court  refused  to  decree  specific  performance; 
ihcugh  the  lender's  money  had  been  duly  applied  for  that  purpose.^ 
Here,  however,  there  had  been  no  written  contract.^ 

The  guardian  will  be  liable  for  failure  to  protect  the  interests  of 

provements  on  the  ward's  land.    Mort-  An  order  of  sale  does  not  authorise 

gage   Co.   V.   Sperry,   138   U.   S.    313.  a    pledge.       O'Herron    v.    Gray,    168 

Cf.    Trutch    V.    Bunnell,    11    Ore.    58.  Mass.    573,   47   N.   E.    429,   40   L.   R. 

One  who  lends  money  to  a  guardian  49'8,  60  Am.  St.  E.  411. 

who  is  authorized  by  the  court  to  bor-  1.    Warren      v.      Union      Bank     of 

row  for  the  purpose  of  removing  liens  Rochester,   157  N.   Y.   259,   51   N.  E. 

may    recover    the    amount    from    the  1036,   43   L.   R.   A.   256,   68   Am.   St. 

ward's  estate.     Ray  v.  McGinniss,  81  Rep.  777  (act  to  pay  debts  contracted 

Ind.   451.  in  unauthorized  business)  ;  Tawitz  v. 

99.   Ankeny  v.   Richardson,   187   F.  Hopkins    (Okla.).    174    P.   257    (only 

550,    109   C.   C.    A.    316;    Howard   v.  for  existing  debts'). 

Bryan,  133  Cal.  257,  65  P.  462;  Scot-  2.  Werber  v.  Cain,  71  S.  C.  346,  51 

tish- American    Mortgage    Co.    v.    Og-  S.  E.  123. 

den,  49  La.  Ann.  8,  21  So.  116   (only  3.    Macphers.    Inf.    285;    March   v. 

as  sanctioned  by  a  family  meeting)  ;  Bennett,    1    Vem.    428 ;    Jennings    v. 

Capen  v.   Garrison,   lff3   Mo.   335,   92  Looks,  2  P.  Wms.  278. 

S.  W.   368,  5  L.  R.  A.   838    (statute  4.   Palmes  v.   Danby,   Prec.   in   Ch. 

authorizing  mortgage  for  maintenance  137;  s.  c,  1  Eq.  Ab.  261;  Waters  v. 

of  ward  does  not  authorize  mortgage  Ebral,  2  Yern.  606. 

to      discharge      pre-existing      incum-  5.  Woodward's  Appeal,  38  Pa.  St. 

brance)  ;    Bell   v.   Dingwell,    91    Neb.  322 ;  Low  v.  Purdy,  2  Lans.  422. 

699,  136  N.  W.  1128;  Battell  v.  Tor-  6.  Hooper  v.  Eyles,  2  Vem.  480. 

rey,  6'5  X.  T.  294  ;  Noble  v.  Runyan,  7.    As   to   applying  money   in   pay- 

85   ni.  61S;   Lee   v.   Tonsor    (Okla.),  mcnt  for  land,  where  the  title  vested 

161  P.  804;  In  re  Hinds'  Estate,  183  prior  to  the  guardianship,  see  McCall 

Pa.  St.  260,  38  A.  599.  v.   Flippin.   58    Tonn.   151. 


§  919 


GUARDIAN    AKD    WAED. 


1044r 


the  ward  in  foreclosure  of  a  mortgage  on  property  belonging  to  the 
ward  where  the  property  is  sold  for  less  than  the  amount  of  the 
mortgage.*  So,  too,  a  guardian  may  redeem  his  ward's  estate 
from  foreclosure.' 

A  guardian  of  a  minor  has  a  right  to  resort  to  the  principal  of 
the  ward's  estate,  if  to  the  latter's  advantage.  The  legal  control 
of  the  guardian  over  the  personal  estate  of  the  infant  is  absolute 
within  the  bounds  of  a  discretion  bounded  by  an  honest  judgment 
of  what  his  best  interests  require,  and  he  may  even  sell  the  per- 
sonal property  of  the  ward.  So  the  guardian  has  full  authority  to 
pledge  an  insurance  policy  in  which  the  ward  is  named  as  bene- 
ficiary for  the  purpose  of  raising  money  necessary  for  his  educa- 
tion, and  when  there  are  no  funds  to  pay  the  loan  may  then 
surrender  the  policy." 

Where  a  guardian  pledges  securities  for  a  present  loan  a  pledgee 
without  notice  may  assume  the  transaction  is  proper.^^ 

Mortgage  or  Pledge  to  Guardian. —  The  guardian  may  receive 
money  secured  to  the  ward  by  mortgage,  and  discharge  the  miort- 
gage,  before,  at,  or  after  maturity,  in  the  exercise  of  due  prudence 
and  foresight ;  "^^  and  his  discharge  of  a  mortgage  is  protection  to 
a  subsequent  mortgagee  although  the  mortgage  had  not  in  fact  been 


8.  Kidder  v.  Houston  (N.  J.  Ch. 
1900),  47  A.  336. 

9.  Botham  v.  Mclntier,  19  Pick. 
346;  Marvin  v.  Schilling,  12  Mich. 
356.  But  see  Sheahan  v.  Wayne,  42 
Mich.  69. 

10.  Clare  v.  Mutual  Life  Insurance 
Co.,  201  N.  Y.  492,  94  N.  E.  1075, 
35  L.  E.  A.  (N.  S.)  1123;  contra, 
Easterling  v.  Homing,  30  App.  D.  C. 
225  (holding  that  a  guardian  cannot 
pledge  personal  property  without  or- 
der of  court). 

In  Nerv  Hampshire  it  is  held  that 
a  guardian  has  no  common-law  au- 
thority to  bind  his  ward  or  the  trust 
fund  by  a  pledge  of  the  ward 's  prop- 
erty. A  guardian  who  signs  a  note 
as  guardian  simply  binds  himself  per- 
sonally; and  one  who  takes  in  pledge 
from  a  guardian  a  note  payable  to 
the  order  of  the  guardian,  has  not 
even  an  innocent  holder's  protection. 


Hardy  v.  Bank,  61  X.  H.  34,  and 
cases  cited.  Statutes  generally  indi- 
cate how  the  guardian  may  raise 
money  which  he  needs.  In  this  ca."W 
the  guardian 's  successor  was  allowed 
to  recover  the  notes  pledged  by  a  bill 
in  equity.  But  as  to  the  pledge  of 
negotiable  instruments  not  overdue 
to  one  who  advances  in  good  faith, 
and  without  notice  of  infirmity,  and 
as  to  pledge  in  general,  see  Schouler, 
Bailm.,  Part  lY.,  ch.  4. 

11.  Bank  of  Guntersville  v.  United 
States  Fidelity  &  Guaranty  Co. 
(Ala.),  75  So.  168. 

12.  Chapman  v.  Tibbits,  33  N.  Y. 
239;  vSmith  v.  Dibrell,  31  Tex.  239. 
The  debtor  is  discharged,  though  the 
guardian  squander  the  proceeds.  Bid- 
den V.  Vizard,  35  La.  Ann.  310.  Mort- 
gaged land  may  be  redeemed  from  a 
tnx  sale.  Witt  v.  Mewhirter,  57  la. 
545. 


1045 


Tili:    WAKD  S    ESTATE. 


§  921 


paid;  "  and  so,  too,  lie  may  extend  or  renew  a  mortgage  note  or 
other  note  on  fair  terms;  '*  and  on  a  breach,  may  sell  ^'^  or  assign 
a  mortgage,"  but  a  guardian  has  no  authority  tx)  postpone  the 
security  of  a  mortgage  held  by  him  as  guardian  to  another  junior 
mortgage." 

§  920.  Guardian's  Occupation  of  Land. 

Where  a  guardian  cultivates  his  ward's  farm  instead  of  letting 
it  out,  he  is  bound  to  cultivate  as  a  prudent  farmer  would  his  own 
land ;  otherwise  the  loss  by  depreciation  of  the  property  in  value 
must  be  made  good  by  him.^*  And  for  losses  occurring  througb 
his  bad  management  of  his  ward's  real  estate  he  cannot  expect  to 
be  recompensed.^^  Or  he  may  carry  on  the  farm  as  guardian 
when  he  can  do  so  with  fair  regard  for  the  ward's  benefit,  and  claim 
allowance  accordingly  for  his  reasonable  outlay.^"  If  he  occupy 
the  premises  personally,  he  should  account  for  rent.^^ 

Stock  and  farming  utensils  on  the  ward's  farm  are  prima  facie 
the  ward's  property,  as  against  a  guardian  who  has  carried  on  the 
farm  in  person.--  But  this  does  not  exempt  from  attachment 
property  of  the  guardian  which  he  purchases  and  places  upon  the 
ward's  lands ;   for  the  question  of  title  is  always  open  to  proof.^^ 

§  921.  Changes  in  Character  of  Ward's  Property;    Sales;    Ex- 
changes, &c. 
Conversions  —  that  is  to  say,  changes  made  in  the  character  of 
trust   property,   from   personal   into   real,    or  real   into   personal 
estate  —  are  never  favored,  especially  where  the  natural  conse- 


13.  Werber  v.  Cain,  71  S.  C.  346, 
51  8.  E.  123. 

14.  Willick  V.  Taggart,  17  Hun, 
511. 

15.  Stull  V.  Benedict,  10  Cal.  App. 
619,  102  P.  961;  Taylor  v.  Hit«,  61 
Mo.   142. 

16.  Tonges  v.  Vanderveer  Canarsie 
Improvement  Syndicate,  148  N.  Y.  S. 
748. 

17.  Covey  v.  Leslie,  144  Mich.  165, 
107  N.  W.  900,  13  Det.  Leg.  N.  218. 

18.  Willis  V.  Fox,  25  "Wis.  646. 

19.  Harding  v.  Lamed,  4  Allen, 
^26.  The  approval  of  the  probate 
court  is  not,  in  Illinois,  essentinl  to 
♦■he  validity  of  the  rnardinn's  lease; 
unless    80    disapproved,    the    lease    is 


good.  Field  v.  Herrick,  101  HI.  110. 
Cf.  Bates,  Guardian  v.  Dunham,  58 
la.  308.  In  some  States  leases  are 
limited  at  all  events  to  seven  years, 
or  other  stated  period. 

20.  Remington  v.  Field,  16  R.  I. 
509. 

21.  Hedges  v.  Hedges  (Ky.  19'02), 
67  S.  W.  835;  Hedges  v.  Hedges,  24 
Ky.  Law  Rep.  2220,  73  S.  W.  1112; 
Rtcrnbach  v.  Friedman,  34  Hun,  542; 
Parlin  &  Orendorff  Co.  v.  Webster, 
17  Tex.  Civ.  App.  631,  43  S.  W.  569; 
Garrett  v.  Carr  (Va.),  1  Rob.  196 
Hnterest  allowed  on   surplus  profitr^. 

22.  Tenney  v.  Evans,  11  N".  H.  346. 

23.  76.;  Tinney  v.  Evans,  14  N.  H. 
343. 


§  921 


GTJAKDIAN    AND    WAKD. 


1046. 


quence  would  be  to  vary  rights  of  inlieritauce.  The  previous  sane 
tion  of  chancery  should  always  be  sought ;  and  this  is  only  given 
under  strong  circumstances  of  propriety.  As  a  rule  the  guardian 
may  not  convert  his  ward's  personal  estate  into  real  estate  without 
the  previous  sanction  of  chancery,  nor  may  the  vendor  enforce 
a  lien.^*  The  same  may  be  said  with  less  force  of  exchanges  of 
the  ward's  property.  Courts  are  reluctant  to  disturb  the  property 
of  those  who  are  only  temporarily  disabled  from  assuming  full 
control.  Sales  of  real  estate  are  in  general  only  partial,  and  for 
necessary  purposes.  But  sales  and  exchanges  of  personal  estate 
are  very  common.  And  the  guardian  may  sell  personal  estate  for 
the  purposes  of  the  trust  without  a  previous  order  of  court,  pro- 
vided he  acts  fairly  and  with  good  judgment;  though  his  safer 
course  is  to  obtain  permission.  But  sales  of  the  real  estate  of  the 
ward  would  be  extremely  perilous,  if  not  absolutely  void,  unless 
previous  authority  had  been  obtained.  Undoubtedly,  they  could 
not  bind  the  ward  under  such  circumstances.  ISTor  is  the  guardian 
permitted  to  sell  first  and  obtain  judicial  sanction  afterwards,  nor 
to  contract  to  sell  at  his  own  instance.^^ 

The  guardian  has  as  a  general  rule  no  authority  to  sell  the 
ward's  property.^®  So  the  guardian  must  not  buy  land  with,  the 
infant's  money  without  the  direction  of  chancery.  And  having 
obtained  permission  to  do  so,  he  is  bound  to  exercise  good  faith  and 
seek  his  ward's  best  interests.^^ 

The  statutes  of  most  American  States  have  greatly  altered  the 
law  on  the  subject  of  conversions,  so  as  not  only  to  facilitate  the 
sale  of  real  estate  belonging  to  cestuis  que  trust,  but  to  enable  their 
fiduciaries,  under  judicial  authority,  to  make  specific  performance 
of  contracts  and  to  release  vested  and  contingent  interests.^^     It 


24.  Boisseau  v.  Boisseau,  79  Va.  73. 

25.  Thacker  v.  Henderson,  69  Barb. 
271 ;    next  chapter. 

26  Los.  Angeles  County  v.  Winans, 
13  Cal.  App.  234,  109  P.  640;  Blair 
V.  Dwyer,  110  La.  332,  34  So.  464; 
Gary  v.  Landry,  122  La.  29,  47  So. 
124;  Gremillion  v.  Roy,  125  La.  524, 
51  So.  576;  Succession  of  Drysdale, 
130  La.  167,  57  So.  789;  LeRoy  v. 
Jacobosky,  136  N.  C.  443,  48  S.  E. 
79«,  67  L.  R.  A.  977.  See  Bank  of 
Welch  V.  Cabell,  152  P.  844. 

27.   Macphers.  Inf.  27S  et  seq.;   2 


Kent,  Com.  228-230,  and  notes;  Story, 
Eq.  Juris.,  §  1357;  Witter  v.  Witter, 
3  P.  Wms.  101;  Ex  parte  Phillips,  19 
Ves.  122;  Skclton  v.  Ordinary,  32  Ga. 
266;  Ware  v.  Polhill,  11  Ves.  273; 
Holbrook  v.  Brooks,  33  Conn.  347; 
Royer's  Appeal,  11  Pa.  St.  36;  Woods 
V.  Boots,  60  Mo.  546;  Ex  parte 
Crutchfield,  3  Yerjr.  336;  Dorr,  Peti- 
tioner, Walker,  Eq.  145;  Kendall  v. 
Miller,  9  Cal.  591.  See  Harris  v.  Har- 
ris, 6  Gill  &  Johns.  Ill;  Davis's  Ap- 
j'Oil,  CO  Penn.  St.  118. 

28.   See  next   chapter.      It  may  be 


1047 


THE    WAKD  S    ESTATE. 


921 


would  appear,  too,  that,  iu  tiie  absence  of  any  statute  limiting  his 
powers,  he  has,  as  incidental  to  his  office  and  duties^  the  power  to 
eell,  in  the  exercise  of  sound  business  discretion,  his  ward's  per- 
sonal property,  except,  perhaps,  as  to  peculiar  incorporeal  kinds,"" 
unless  authority  of  the  court  is  required ;  ^"  and  the  fact  that  the 
statute  provides  for  a  license  to  sell  does  not  prevent  the  guardian 
from  selling  without  a  license.^' 

A  purchaser  is  bound  to  inquire  as  to  the  authority  of  the  guar- 
dian to  sell,  and  if  he  does  not  do  so  he  cannot  claim  to  be  a 
purchaser  without  notice.^^ 

Where,  at  the  time  the  court  orders  the  sale  or  purchase  of  real 
estate  by  the  guardian,  the  conversion  was  beneficial  to  the  ward, 
it  would  appear  that  the  guardian  is  not  made  liable  if  such 
conversion  afterwards  turns  out  injurious/^  But  whether  an 
order  of  court  would  protect  conduct  notoriously  imprudent,  as 


incumbent  upon  a  guardian  by  virtue 
of  his  trust  te  sell  land  or  foreclose, 
under  a  mortgage  which  he  holds  as 
an  investment  for  his  ward,  in  which 
ease  the  usual  rules  of  trusteeship  ap- 
ply.   Taylor  v.  Hite,  61  Mo.  142. 

29,  Bank  of  Guntersville  v.  United 
States  Fidelity  &  Guaranty  Co.  (Ala.), 
75  So.  168;  Nashville  Lumber  Co.  v. 
Barefield,  33  Ark.  353,  124  S.  W. 
758;  Schmidt  v.  McBean,  98  111.  App. 
421;  196  m.  108,  63  N.  E.  655,  89 
Am.  St.  R.  250;  O 'Herron  v.  Gray, 
168  Mass.  573,  47  N.  E.  429,  40  L. 
E.  A.  498,  60  Am.  St.  E.  411;  Pardee 
V.  Merritt,  75  Minn.  12,  77  N.  W. 
552;  Cabbie  v.  Cabbie,  97  N.  Y.  S. 
773,  111  App.  Div.  426. 

See  Wallace  v.  Holmes,  9  Blatchf. 
67;  Humphrey  v.  Buisson,  19  Minn. 
221.  A  guardian  cannot,  in  South 
Carolina,  sell  and  assign  his  ward's 
bond  and  mortgage  of  real  es- 
tate without  judicial  sanction.  Mc- 
PuflSe  V.  Mclntyre,  11  S.  C.  551. 
AUter,  probably,  in  many  States; 
though  the  right  to  assign  real  estate 
eecnrity  is  more  doubtful  than  that  of 
assigning  a  simple  note  or  bond  upon 
personal  security  or  without  security. 
See  preceding  section;  Mack  v.  Bram- 
mer,  28  Ohio  St.  508.     General  guar- 


dians do  not  represent  their  infant 
wards  in  foreclosure  proceedings. 
Sheahan  v.  Wayne,  42  Mich.  69. 

Stock  and  its  transfer  follow  pe- 
culiar rules.  Shares  of  stock  standing 
in  the  name  of  "A.  B.  guardian" 
cannot  be  sold  so  as  to  compel  the 
company  to  recognize  the  transferee, 
without  order  of  the  court.  De  la 
Montagnie  v.  Union  Ins.  Co.,  42  Cal. 
290. 

A  guardian's  sale  of  cotton  on 
credit,  taking  the  purchaser's  note 
without  security  according  to  business 
usage,  does  not  necessarily  render  the 
guardian  liable  if  such  purchaser  turn 
out  insolvent.  State  v.  Morrison,  68 
X.  C.  162. 

30.  McCutchen  v.  Roush,  139  la. 
351,  115  X.  W.  903  (transferee  tak- 
ing with  notice)  ;  Gentry  v.  Bearss, 
82  Neb.  787,  118  N.  W.  1077. 

31.  Gardner  v.  Beacon  Trust  Co., 
190  :^rass.  27,  76  N.  E.  455,  2  L.  E.  A. 
767,  112  Am.  St.  Eep.  303;  contra, 
Hendrix  v.  Richards,  57  Neb.  794,  78 
N.  W.   378. 

32.  Layne  v.  Clark,  152  Ky.  310, 
153  S.  W.  437;  Hamilton  v.  People's 
Nat.  Bank  of  Washington,  259  Pa. 
220,  102   A.  877. 

33.  Bonsall's  Case,   1   Rawle,   266. 


§  922 


GUAEDIAN    AND    WAKD. 


1048 


if  there  should  be  a  sudden  and  marked  decline  in  the  value  of 
the  land  from  some  cause  not  within  the  consideration  of  the  court 
at  the  time  of  issuing  the  order,  and  such  as  would  have  been 
sufficient  for  its  revocation,  and  the  guardian,  nevertheless,  goes 
on  and  makes  the  sale  at  a  sacrifice,  may  well  be  doubted.^* 

In  this  country  the  subject  is  commonly  regulated  by  statute. 
A  guardian  may  purchase  for  his  ward,  who  is  one  of  the  heirs, 
such  portion  of  an  estate  as  the  other  heirs  refused  to  take  on 
partition,  and  the  court  ordered  to  be  sold. 


35 


§  922.  Right  to  Sue  and  Be  Sued  as  to  Ward's  Estate. 

The  right  to  collect  a  debt  implies  the  right  to  sue.  Hence  the 
guardian  may,  in  the  exercise  of  good  discretion,  and  acting,  if 
need  be,  under  competent  legal  advice,  institute  suits  to  recover 
the  ward's  property.^®  And  this  right  extends  to  property  fraudu- 
lently obtained  from  the  ward  before  the  guardian's  appointment." 

Hence  the  guardian  may,  in  the  exercise  of  this  discretion, 
institute  action  against  a  third  person  for  possession  of  the  ward's 
land  ^*  or  personal  property,^®  or  to  enjoin  injury  to  the  ward's 
real  estate,*"  or  for  injuries  to  the  ward,'*^  or  for  money  due  the 
estate.*^  And  if  he  institutes  groundless  and  speculative  suits, 
and  is  unsuccessful,  or  occasions  a  controversy  over  his  accounts 
through  his  own  fault,  he  must  bear  the  loss.  So,  too,  whenever 
his  conduct  shows  fraud  or  heedless  imprudence.*^     Otherwise,  he 


34.  See  Harding  v.  Lamed,  4  Allen, 
426. 

35.  Bowman 's  Appeal,  3  "Watts, 
369. 

36.  Smith  v.  Bean,  8  N.  H.  15; 
Shepherd  v.  Evans,  9  Ind.  260;  South- 
western K.  V.  Chapman,  46  Ga.   557. 

37.  Somes  v.  Skinner,  16  Mass.  348. 
See  Cook  v.  Lee,  72  N.  H.  569,  58 
A.  511  (guardian  may  not  sue  to  set 
aside  as  fraudulent  a  conveyance  by 
the  ancestor). 

38.  Cole  V.  Jerman,  77  Conn.  374, 
59  A.  425;  Duck  Island  Club  v.  Bex- 
stead,  174  111.  435,  51  N.  E.  831; 
Beaghler  v.  Messick  (Mo.  App.),  202 
S.  W.  409. 

39.  Mayer  v.  Columbia  Sav.  Bank, 
86  Mo.  App.  108  (replevin)  ;  Dold  v. 
Dold,    169   N.    Y.    S.    209,    103    Misc. 


86;    Kerr  v.   McKinney    (Okla.),   170 
P.  685. 

40.  Kinsley  v.  Kinsley,  150  Ind.  67, 
49  N.  E.  819;  Eoth  v.  Conly,  21  Ky. 
Law  Eep.   1623,  55  S.  W.  881. 

41.  Cleveland  C.  C.  &  St.  L.  Ry. 
Co.  V.  Moneyhum,  146  Ind.  147,  44 
N".  E.  1106,  34  L.  R.  A.  141. 

42.  Beach  v.  Peabody,  188  111.  75, 
58  N.  E.  679;  Potts  v.  State,  65  Ind, 
273 ;  Bryson  v.  Collmer,  33  Ind.  App. 
494,  71  N.  E.  229;  Poultney's  Minors 
V.  Barrett,  6  La.  493;  Burke  v. 
Burke,  170  Mass.  499,  49  N.  E.  753. 
See  Williams  v.  Farmers'  State  Bank 
of  Sparks  (Ga.  App.),  97  S.  E.  249; 
Webb  V.  Hayden,  166  Mo.  39,  65  S. 
W.   760. 

43.  Brown  v.  Brown,  5  E.  L.  &  Eq. 
567;  Savage  v.  Dickson,  16  Ala.  257; 


1049 


THE    WAKD  S    ESTATE. 


§  923 


44 


is  entitled  to  his  costs  and  legal  expenses  out  of  the  ward's  estate 
In  defending,  as  in  bringing  suits,  and  incurring  costs  and  counsel 
fees,  the  rule  is  that  the  guardian  should  not  wilfully  or  recklessly 
litigate  over  his  ward's  interests,  but  should  apply  ordinary  pru- 
dence and  discretion  in  considering  the  probable  benefits  of  such 
a  course.*^ 

Where  the  guardianship  terminates  and  the  wards  become  of  age 
pending  suit  by  the  guardian  the  suit  does  not  abate,  but  the  wards 
may  be  substituted  as  plaintiffs,*®  or  if  a  new  guardian  is  ap- 
pointed he  may  be  substituted/^  Proof  that  the  ward  has  attained 
full  age  or  is  dead  pending  suit  against  the  guardian  will  cause  it 
to  abate,*^  but  the  guardian  may  recover  on  a  note  made  to  him  as 
j^iardian  although  the  ward  has  married  or  reached  majority  before 
action  brought,*^  and  the  general  guardian  of  minors  may  sue  them, 
a  guardian  ad  litem  being  appointed  for  them/° 

§  923.  Guardian's  Right  of  Action  for  Benefit  of  Ward. 

By  the  common  law,  the  guardian  could  maintain  an  action  of 
trespass  and  recover  damages  for  his  ward  ;  and  the  statute  of  West- 
minster II.,  c.  32,  gave  a  writ  of  ravishment,  by  means  of  which  he 
oould  recover  the  body  of  the  heir  as  well  as  damages.^^  The  equity 
of  this  statute  may  perhaps  extend  to  testamentary,  chancery,  and 
probate  guardians,  as  well  as  to  guardians  in  socage ;  on  which 
principle  it  has  been  held  that  the  guardian  may  sue  and  recover 
damages  for  the  seduction  of  his  female  ward.^^  Local  statutes  in 
this  country  sometimes  enlarge  the  guardian's  right  of  action  for 
the  benefit  of  his  ward ;  and,  as  a  rule,  if  a  minor  under  gniardian- 
ship  sustains  a  personal  injury  from  the  tort  of  another  his  guar- 
dian may  sue  and  recover  for  the  ward's  benefit  just  as  the  latter 
might  have  recovered  through  next  friend  in  case  he  had  no 
guardian.'"     But  the  guardian  has  no  personal  right  of  action 


Blake    v.    Pegram,    109    Mass.    541 ; 
Spelman  v.  Terry,  74  N.  Y.  448. 

44.  Ee  Flinn,  31  N.  J.  Eq.  640. 

45.  Kingsbury  v.  Powers,  131  111. 
182;  Coggins  v.  Flythe,  113  N.  C. 
103,  5  352. 

4€.  Shatttick  v.  Wolf,  72  Kan.  366, 
83  P.  1093;  Smith  v.  Mingey,  172 
N.  Y.  650,  65  N.  E.  1122  (affg.  76 
N.  Y.  S.  194,  72  App.  Div.  103). 

47.  Horning  v.  Poyer,  18  Ohio  Cir. 
Ct.  R.  732,  6  O.  C.  D.  370. 


48.  Logan  v.  Robertson  (Tex.  Oit. 
App.  1904),  83  S.  W.  395. 

49.  Kerr  v.  McKinney  (Okla.),  170 
P.  685. 

50.  Kidd  V.  Prince  (Tex.  CiT. 
App.),  182  S.  W.  725. 

51.  Bac.  Abr.  Guardian   (F.). 

52.  Fernslee  v.  Moyer,  3  "Watts  k 
Scrg.  416. 

53.  §§  1033-1035;  Louisville  R.  v. 
Goodykoontz,  119  Ind.  Ill,  •where  the 
child  died  from  the  injury. 


§    924  GUARDIAN    AND    WAED,  1050 

like  a  parent  to  recover  for  loss  of  services  of  the  child/*  The 
guardian  maj  estop  himself  from  recognizing  the  title  of  a  third 
party." 

§  924.  Parties. 

There  is  much  conflict  and  some  confusion  concerning  the 
proper  parties  to  suits  brought  in  which  the  ward  is  interested. 
The  general  rule  that  the  ward  is  to  be  made  the  party  in  suits 
which  concern  his  title  is  clear  and  well  settled,  and  in  most 
States  as  the  guardian  gets  not  title,  but  only  the  care  and  man- 
agement of  property,  it  follows  that  all  such  suits  must  be  brought 
in  the  name  of  the  ward.**® 

There  is  an  anomalous  exception  to  this  rule  in  England  and 
]N'ew  York  when  the  guardian  seeks  to  set  aside  an  act  done  by 
an  insane  person  who  has  been  put  under  guardianship.  This 
exception  is  founded  in  part  upon  the  doctrine  that  the  committee 
of  an  insane  person  acquires  some  right  to  the  ward's  estate  and 
in  part  on  the  ancient  theory  that  no  man  can  be  heard  to  stultify 
himself." 

The  general  guardian  has  no  authority  to  appear  in  litigation 
in  which  the  ward  is  interested,  but  a  guardian  ad  litem  must  bo 
appointed.^* 

Where,  however,  the  guardian  makes  contracts  on  behalf  of  tho 
estate  suits  on  such  contracts,  express  or  implied,  are  properly 

54.  Louisville  Eailway  v.  Goody-  385;  McMullen  v.  Blecker,  64 
koontz,  119  Ind.  Ill;  §§  757-771.  Re-  W.  Va.  88,  60  S.  E.  1093  (partition 
imbursement  of  the  ward's  estate  for  suit) ;  Longstreet  v.  Tilton,  Coxe,  38; 
medical  attendance  is  a  proper  item  Sillings  v.  Bumgardner,  9  Gratt.  273; 
of  damage.  Vincent  v.  Starks,  45  Wis.  458,     See 

55.  Ingram  v.  Heintz,  112  La.  496,  The  Home  v.  Selling  (Ore.),  179  P. 
36  So.  507.  261   (ward  assuming  mortgage). 

56.  Campbell  v.  Fichter,  168  Ind.  57.  Ortley  v.  Messere,  7  Johns.  Ch. 
645,  81  N.  E.  661  (no  authority  to  (N,  Y.)  139;  Gorham  v.  Gorham,  3 
contest  will)  ;  Harrison  v.  Western  Barb.  Ch.  (N.  T.)  124.  The  court  re- 
Const.  Co.,  41  Ind.  App.  6,  83  N.  E.  fused  to  follow  this  exception  in 
256;  In  re  Stude's  Estate  (la.),  162  Lombard  v.  Morse,  155  Mass.  136, 
N.  W.  10;  Boudreaux  v.  Lower  Terre-  138;  Lang  v.  Whidden,  2  N.  H.  435. 
Bonne  Refining  &  Mfg.  Co.,  127  La.  58.  Saville  v.  Saville,  63  Kan.  861, 
98,  53  So.  456  (to  annul  judgment  66  P.  1043;  Elder  v.  Adams,  180 
against  ward) ;  Mee  v.  Fay,  190  Mass.  303,  62  N.  E.  373 ;  Scott  v. 
Mass.  40,  76  N.  E.  229';  In  re  Catlin's  Royston,  223  Mo.  568,  123  S,  W.  454; 
Estate,  151  N".  Y.  S.  254,  89  Misc.  Schlieder  v.  Wells,  99  N.  Y.  S.  1000, 
93  (construction  of  will);  Empire  114  App.  Div.  417;  Buermann  v.  New 
State  Surety  Co.  v.  Cohen,  156  N.  York  Produce  Exchange,  3  How.  Prae. 
Y.    S.    935,    93    Misc.    299;    Stewart  fN.  Y.)  39-3. 

V.    Sims,    112    Tenn.    296,    79    8     W. 


1051 


THE    WABX)  S    ESTATE. 


§  924 


brougJii    bj   or   against  the  guardian  j°'   so   where    the  guardian 


59.  Wolfe  V.  Murphy,  47  App.  D. 
C.  296  (on  note)  ;  McLean  v.  Dean, 
66  Minn.  369,  69  N.  W.  140  (note)  ; 
Shepard  v.  Hanson,  10  N.  D.  194,  86 
N.  W.  704  (note)  ;  Barnwell  v. 
Marion,  54  S.  C.  223,  32  S.  E.  313 
(on  bond) ;  Taylor  v.  Kilgore,  33 
Ala.  214 ;  Merrill  v.  Sherburne,  1  Fos- 
ter (N.  H.),  204.  In  Louisiana  no 
Buit  can  be  prosecuted  by  or  for  an 
insane  person  or  minor  except  through 
a  curator  or  tutor.  Succession  of 
Thomas,  35  La.  Ann.  23.  Among  the 
cases  in  which  the  guardian  has  been 
allowed  to  sue  in  his  own  name  are 
the  following:  For  non-payment  of 
rent.  Pond  v.  Curtiss,  7  "Wend  45. 
For  trespass  on  his  ward's  lands. 
Truss  V.  Old,  6  Kand.  556;  Bacon  v. 
Taylor,  Kirby,  368.  For  intermed- 
dling with  the  issues  and  profits 
thereof.  Beecher  v.  Crounse,  19  "Wend. 
308.  For  an  injury  to  any  property 
of  the  ward  in  his  actual  possession. 
Fuqua  v.  Hunt,  1  Ala.  197.  Or  where 
he  has  the  right  of  possession.  Suth- 
erland V.  Goff ,  5  Porter,  508 ;  Field  v. 
Lucas,  21  Ga.  447.  Or  on  a  note 
payable  to  himself  as  guardian, 
though  given  for  a  debt  due  to  the 
ward.  Jolliffe  v.  Higgins,  6  Munf. 
r, ;  Baker  v.  Ormsby,  4  Scam.  325 ; 
Thacher  v.  Dinsmore,  5  Mass.  299; 
Hightower  v.  Maull,  50  Ala.  495.  Or, 
as  it  would  appear,  on  his  express  con- 
tract touching  the  ward '3  estate. 
Thomas  v.  Bennett,  56  Barb.  197. 
As  to  statute  provisions,  see  Turner 
V.  Alexander  as  Guardian,  41  Ark. 
254.  As  to  amending  the  writ,  see 
Weber  v.  Hannibal,  83  Mo.  262.  As 
to  power  of  the  general  guardian  of 
an  insane  person,  unlike  an  infant's 
guardian  ad  litem,  to  waive  objections 
to  the  admission  of  testimony,  see 
Warren  Co.   v.  Dahney.   SI   Mo.   275. 

But  debts  and  demands  of  the  ward 
should  in  general  be  prosecuted  in 
the  ward's  name.  And  the  guardian 
cannot  sue  in  his  own  name,  after  his 
female  ward's  marriage,  for  a   debt 


due  her  before  such  marriage.  Bamet 
v.  Commonwealth,  4  J.  J.  Marsh.  389. 
Nor  on  a  promise  to  the  guardians  of 
the  minor  children  of  A.  B.;  for  this 
is  a  promise  to  the  wards.  Carskad- 
den  V.  McGhee,  7  Watts  &  Serg.  140. 
Nor  on  an  award,  although  he  had 
submitted  to  arbitration.  Hutchins 
V.  John?on,  12  Conn.  376.  Nor  where 
a  statute  authorizes  guardians  to  "de- 
mand, sue  for,  and  receive  all  debts 
due"  their  wards.  Hutchins  v.  Dres- 
ser, 26  Me.  76.  And  see  Hoare  v. 
Harris,  11  111,  24;  Fox  v.  Minor,  32 
Cal.  111.  He  cannot  act  on  a  petition 
for  partition.  Stratton's  Case,  1 
Johns.  509;  Totten's  Appeal,  46  Pa. 
St.  301.  Nor  subscribe  a  libel  for 
divorce.  Winslow  v.  Winslow,  7  Mass. 
96.  Nor  bring  a  bill  in  equity  in 
his  own  name  touching  the  ward's 
transactions.  Lombard  v.  Morse,  155 
Mass.  136.  He  is  sometimes  author- 
ized by  statute,  however,  to  sue  in  his 
own  name  for  the  use  of  the  ward. 
Fuqua  v.  Hunt,  1  Ala.  197 ;  Longmire 
v.  Pilkington,  37  Ala.  296 ;  Mebane 
v.  Mebane,  66  N.  C.  354.  And  see 
Anderson  v.  Watson,  3  Met.  (Ky.) 
509;  Hines  v.  Mullins,  25  Ga.  696.  A 
guardian  in  Georgia  must  be  party 
ir.  an  action  to  recover  a  legacy  be- 
queathed to  his  deceased  ward.  Bea- 
vers V.  Brewster,  62  Ga.  574. 

Guardian  for  minor  heirs  allowed, 
in  Texas,  to  sue  on  a  promissory  note 
payable  to  the  ancestor,  on  showing 
that  they  are  the  only  heirs,  and  that 
there  has  been  no  administration. 
Eoberts  v.  Sacra,  38  Tex.  580.  Sed 
qu.  For  unlawful  detainer,  and  senible 
in  all  suits  by  guardian  for  the  bene- 
fit of  the  ward,  the  action  should  be 
entitled  in  the  ward's  name  hy  guar- 
dian. Vincent  v.  Starks,  45  Wis.  458. 
A  general  guardian  may  sue  in  his 
own  name  to  recover  an  infant's  dis- 
tributive share;  and  separate  suits 
where  there  are  several  infants  so 
entitled.  Hauenstein  v.  Kull,  59  How. 
Pr.   24.     Cf.  Jordan  v.  Donahue,   12 


§  924 


GUAKDIAN    AND    WAED. 


1052 


makes  a  contract  in  behalf  of  the  ward  he  is  the  onlj  necessary 
party  defendant,^"  but  he  may  not  be  sued  for  necessaries  fur- 


E.  I.  1&9,  and  cases  cited.  And  see 
Ankeny  v.  Blackieton,  7  Or,  407,  As 
to  procedure  in  Vv'est  Virginia,  see 
Burdett  v.  Cain,  8  W.  Va.  282,  In 
Illinois  the  probate  or  statuate  guar- 
dian cannot  bring  suits  in  relation  to 
his  ward's  real  estate,  such  as  eject- 
ment. Muller  V.  Benner,  69  111.  108. 
An  action  upon  an  express  contract 
made  by  a  guardian  for  his  ward's 
benefit  may  be  brought  by  or  against 
the  guardian  personally.  McKinney 
V.  Jones,  55  Wis.  39. 

Payment  by  the  debtor  to  an  unau- 
thorized person  cannot  avail  in  de- 
fence against  the  guardian's  suit; 
but  as  to  the  defence  of  payment  to 
the  natural  guardian,  cf,  supra,  %  255; 
also  Southwestern  E.  v.  Chapman,  46 
Ga.  557. 

The  right  of  action  upon  a  note  pay- 
able to  a  guardian  for  money  of  the 
ward  passes,  upon  the  guardian's 
death,  to  his  personal  representa- 
tive. Chitwood  V.  Cromwell,  12 
Heisk.  658.  And  so  in  general  where 
he  might,  if  alive,  have  sued  in  his 
own  name.     7&. 

A  guardian  is  to  be  sued  in  person 
upon  notes  executed  by  him  in  his 
ofBcial  capacity.  See  1  Pars.  Bills  & 
Xotes,  89,  90;  Thacher  v.  Dinsmore, 
5  Mass.  299;   §  345. 

A  guardian  is  not  liable  in  assump- 
sit for  necessaries.  Cole  v.  Eaton,  8 
Cush.  587.  Nor  for  labor  performed 
on  the  ward's  buildings.  Eobinson  v. 
Hersey,  60  Me.  225.  But  he  may  bo 
sued  upon  his  own  contract  touching 
his  ward 's  estate.  Stevenson  v.  Bruce, 
10  Ind.  397.  And  judgment  should 
then  be  against  him  personally,  and 
not  against  the  ward.  Clark  v.  Casler, 
1  Cart.  (Ind.)  243.  Where  the  judg- 
ment is  to  bind  the  ward's  property, 
suit  should  be  against  the  ward. 
Otherwise  the  property  of  the  guar- 
dian must  be  levied  upon,  who  will 
look   to   the   infant's  estate  for  his 


own  reimbursement.  Tobin  v.  Addi- 
son, 2  Strobh.  3 ;  Clark  v.  Casler,  1 
Smith  (Ind.),  150.  And  see  Eaymond 
V.  Sawyer,  37  Me.  406 ;  Bently  v.  Tor- 
bert,  68  Iowa,  122.  As  to  conclusive- 
ness of  judgments,  see  Morris  v.  Grar- 
rison,  27  Pa.  St.  226.  Judgment 
against  a  person  as  "guardian"  is  a 
judgment  against  him  personally,  the 
additional  words  being  descriptive 
merely.  No  action  lies  against  a 
guardian  upon  the  ward's  contracts 
or  debts;  but  suit  should  be  against 
the  ward,  who  may  defend  by  guar- 
dian. Brown  v.  Chase,  4  Mass.  439; 
WiUard  v.  Fairbanks,  8  E.  I.  1.  In 
dower  and  partition  proceedings  a 
guardian  may  appear  for  the  ward, 
like  any  guardian  ad  litem,  in  some 
States.  Eankin  v.  Kemp,  21  Ohio  St. 
651;  Cowan  v.  Anderson,  7  Cold.  284; 
Miller  V.  Smith,  98  Ind.  226;  State  v. 
Cayce,  85  Mo.  456.  In  Massachusetts 
a  ward's  money  may  be  reached  by 
trustee  process  against  him  or  taken 
on  execution.  Simmons  v.  Almy,  100 
Mass.  239.  In  a  suit  against  A.  B. 
the  words  "as  he  is  guardian,"  etc., 
may  be  rejected  as  surplusage.  Eol- 
lins  V.  Marsh,  128  Mass.  116. 

Guardian  and  insane  ward  cannot 
be  sued  jointly  to  recover  a  debt 
which  the  ward  incurred  previous  to 
the  guardian's  appointment.  Allen 
V.  Hoppin,  9  E.  I.  258. 

The  ward  should  not  sue  on  the 
guardian's  contracts,  but  he  has  a 
remedy  on  the  guardian's  bond  or 
against  the  guardian  personally. 
Dougherty  v.  Hughes,  165  HI.  384, 
46  N.  E.  229;  Martel  v.  Desjardin, 
93  Me.  413,  45  A.  522.  See  Lynch 
V.  Cogswell,  18  Ohio  Cir.  Ct.  E.  641, 
7  O.  C.  D.  12  (ward  bound  by  decree 
of  probate  court  approving  payment). 

60.  Howard  v.  Cassels,  105  6a.  412, 
31  S.  E.  562,  70  Am.  St.  Eep.  44; 
Shelton  v.  Laird,  68  Miss.  175,  8  So. 
271;  King  v.  Starr,  9  Ky.  Law  Bep. 


1053 


THE    WARD  S    ESTATE. 


§    925 


ni&hed  to  the  ward  without  his  order.® ^  A  claimant  may  pro- 
ceed in  the  probate  court  and  obtain  an  order  for  payment  of  his 
-claim,®^  or  the  claimant  may  sue  on  the  guardian's  bond.®' 

Actions  involving  injuries  to  the  ward  must  be  brought  in  the 
name  of  the  ward."  In  some  States,  however,  the  guardian  may 
sue  on  the  ward's  behalf  '^  on  leave  of  court.*'  But  the  ward  may 
proceed  in  equity  to  attack  a  fraudulent  settlement  of  the  minor's 
claim,  there  being  no  remedy  at  law;  *^  and  where  the  guardian 
buys  property  for  his  personal  use  with  the  knowledge  of  the 
seller,  the  seller  becomes  a  party  to  the  conversion  of  the  funds, 
and  may  be  sued  by  the  ward.'* 

§  925.  Compromise  of  Claims. 

The  guardian  may  compromise  when  acting  in  good  faith  and 
with  sound  discretion  for  the  benefit  of  his  ward.®^*  Local  stat- 
utes are  found  in  aid  of  this  right.  But  on  general  principle  the 
guardian's  compromise  and  allowance  of  a  baseless  .and  unjust 
claim  would  not  be  upheld  in  equity  as  against  the  ward.®^  An 
infant  cannot,  in  any  event,  be  bound  by  the  fraudulent  com- 
promise of  his  guardian,'"  though  he  would  be  commonly  by  a 


536;  Lothrop  v.  Duffield,  134  Mich. 
485,  96  N.  W.  577,  10  Det.  Leg.  N. 
541  (for  services)  ;  contra,  Judson  v. 
Walker,  155  Mo.  166,  55  S.  W.  1083; 
Tow  V.  Elliot,  33  N.  C.  51 ;  Municipal 
Court  of  City  of  Providence  v.  Le 
Valley,  25  E.  I.  236,  55  A.  640. 

61.  Pinnell  v.  Hinkle,  54  W.  Va. 
119,  46  S.  E.  171. 

62.  Turner  v.  Flagg,  6  Ind.  App. 
563,  33  N.  E.  1104;  Beeves  v. 
Hunter  (Iowa),  171  N.  W.  567. 

63.  Conant  v.  Kendall,  38  Mass.  (21 
Pick.)   36. 

64.  Illinois  Cent.  E.  Co.  v.  Head, 
119  Ky.  809,  84  S.  W.  751,  27  Ky. 
Law  Eep.  270;  Brock  v.  Eogers,  184 
Mass.  545,  69  N.  E.  334  (deceit)  ; 
Pieper  v.  Shahid,  101  S.  C.  364,  85 
8.  E.  905. 

65.  Havens  v.  Ahlering,  123  Ky. 
713,  97  S.  "W.  344,  29  Ky.  Law  Eep. 
1265;  Bennett  v.  Bennett,  65  Neb. 
432,  91  N.  W.  409,  96  N.  W.  994; 
Martin  v.  Caldwell,  49  Ind.  App.  1, 
96  K  E.  P60  (ricrht  wholly  statu- 
tory) ;   Wright  v.   Cosmopolitan  Life 


Ins.  Ass'n,  154  111.  App.  201.  See 
Loa  Angeles  County  v.  Winans,  13 
Cal.  App.  234,  109  P.  640;  Patterson 
V.  Melchoir,  102  Minn.  363,  113  N.  W. 
902;  Social  Benev.  Soc.  No.  1  v. 
Holmes,  127  Ga.  586,  56  S.  E.  775; 
Taylor  v.  Superior  Court,  30  E.  I. 
200,  74  A.  482. 

66.  Muller  v.  Naumann,  83  N.  Y. 
S.  488,  85  App.  Div.  337;  Vinson  v. 
Vinson,  105  La.  30,  29  So.  701  (fam- 
ily meeting  must  authorize  suit). 

67.  Berdan  v.  Milwaukee  Mut.  Life 
Ins.  Co.,  136  Mich.  396,  99  N.  W.  411, 
11  Det.  Leg.  N.  46. 

68.  American  Surety  Co.  v.  Vann 
(Ark.),  205  S.  W.  646;  Empire  State 
Surety  Co.  v.  Nelson,  126  N.  Y.  S. 
453  (ward  may  sue  third  person  tak- 
ing money  with  knowledge). 

68a.  Simes  v.  Ward,  78  N.  H.  533, 
103  A.  310. 

69.  Underwood  v.  Brockman,  4 
Dana,  309.  Nor,  as  it  would  seem, 
against  the  guardian  himself,  no 
blame  attaching  to  him. 

70.  Lunday  v.  Thomas,  26  Ga.  537. 


§  925 


GUAEDIAN    AWD    WABD. 


1054: 


compromise  made  in  good  faith,  apparently  in  the  ward's  interest 
at  the  time,  and  with  reasonable  prudence. '^^  On  the  same  gen- 
eral principles,  and  with  like  limitations,  the  guardian  may  re-- 
lease  a  debt  due  his  ward,  or  a  cause  of  action  for  damages.'* 
The  same  rule  as  to  compounding  and  releasing  debts  appears  to 
prevail  in  England  as  in  this  country;  and  it  applies  to  all 
trustees  alike.''^ 

The  guardian  should  not  confess  judgment  against  the  ward, 
but  should  submit  the  matter  to  the  court  for  decision,'*  and 
cannot  by  consent  to  a  void  proceeding  render  it  effectual.'' 

The  money  received  by  a  guardian  on  a  fraudulent  settlement 
made  by  the  guardian  will  be  credited  in  the  ward's  judgment 
for  the  same  cause  of  action,'®  and  a  note  given  to  a  guardian 
under  an  unlawful  agreement  not  to  prosecute  for  rape  may  be 
binding." 

A  parent  has  no  implied  authority  to  settle  a  cause  of  action 
of  his  infant  child.'^  In  the  exercise  of  prudence  and  good  faith 
or  personal,  in  settlement  of  the  latter's  debt  or  claim,"  and  he 
a  guardian  may,  to  save  the  ward  from  loss,  accept  property,  real 
has   no   authority   to   compromise,*"   or   release    a   claim    of   the 


71.  Ordinary  v.  Dean,  44  N.  J.  64. 
Compromise  or  release  under  the 
sanction  of  the  court  having  juris- 
diction of  the  guardianship  is  allowed 
under  some  codes,  and  the  guardian 
•who  obtains  it  is  more  amply  pro- 
tected than  where  he  acts  on  his  own 
responsibility.  See  Hagy  v.  Avery, 
69  la.  434,  as  to  executing  a  quit- 
claim deed  for  land  in  litigation  un- 
der the  court's  direction.  And  see 
compromise  upheld,  under  statute, 
even  though  the  ward's  estate  be 
charged  thereby  with  new  liabilities. 
Smith  V.  Angell,  14  R,  I.  192. 

72.  Torry  v.  Black,  58  N.  Y.  158. 
An  assumption  of  another's  debt  on 
the  ward's  behalf  ought  to  be  shown 
to  be  for  the  ward's  apparent  inter- 
eat  at  the  time.  Clear  Creek  Co.  v. 
Comstock  Co.,  17  Col.  481. 

73.  Blue  V.  Marshall,  3  P.  Wms.  381. 

74.  Metcalf  v.  Alter,  31  La.  Ann. 
389';  Boudreaux  v.  Lower  Terre-Bonne 
Eefining  &  Mfg.  Co.,  127  La.  98,  53 
So.  456. 


75.  Fowler  v.  Lewis'  Adm'r,  36  W. 
Va.  112,  14  S.  E.  447. 

76.  Bunch  v.  Foreman  Blades  Lum- 
ber Co.,  174  N.  C.  8,  93  S.  E.  374. 

77.  Griffin  v.  Chriswisser,  84  Neb. 
196,  120  N.  W.  909. 

78.  Missouri  Pac.  Ey.  Co.  v.  Lasca, 
79  Kan.  311,  99  P.  616. 

79.  Mason  v.  Buchanan,  62  Ala. 
110. 

80.  Nashville  Lumber  Co.  v.  Bare- 
field,  93  Ark.  353,  124  S.  W.  758. 
Contra,  Grievance  Committee  v.  Ennis, 
84  Conn.  594,  80  A.  767.  See,  how- 
ever, Malpass  v.  Graves,  111  Ga.  743, 
36  S.  E.  955;  Knights  Templars'  & 
Masons'  Life  Indemnity  Co.  v.  Cray- 
ton,  209  111.  550,  70  N.  E.  1066;  Bun- 
nell V.  Bunnell,  111  Ky.  566,  64  S. 
W.  420,  23  Ky.  Law  Rep.  800;  Suc- 
cession of  Emonot,  109  La.  35ff,  33 
So.  368;  Berdan  v.  Milwaukee  Mut. 
Life  Ins.  Co.,  136  Mich.  396,  99  N. 
W.  411,  11  Det.  Leg.  N.  46.  See 
Stevens  v.  Meserve,  73  N.  H.  293,  61 
A.  420,  111  Am.  St.  E.  612;  Alexan- 


1055 


THE    WARD  S    ESTATE. 


§  926 


ward/^     "Where  a  note  or  debt  is  lawfully  due  from  a  solvent 
party,  the  guardian  may  be  held  accountable  for  the  whole  if  he 
settles  for  less  than  the  full  face  amount.*^ 
§  926.  Arbitration. 

A  guardian  is  now  generally  permitted  to  submit  to  a  fair 
arbitration  questions  and  controversies  respecting  the  property 
and  interests  of  his  ward,  and  the  award  made  in  pursuance 
thereof  is  binding  on  all  parties.^^  The  original  doctrine  apart 
from  statute  seems  to  be  this:  that  he  cannot  bind  his  ward  by 
arbitration  unless  the  court  shall  previously  authorize  him  to  do 
so,  or  subsequently  approve,  on  the  ground  that  it  was  for  the 
ward's  benefit.**  And  in  considering  what  is  beneficial  and  bind- 
ing as  to  a  minor  ward,  the  usual  analogies  applicable  to  infants 
have  considerable  application.*^ 

Although  the  guardian  may  enter  into  an  agreement  of  arbitra- 
tion in  a  proper  case,  still,  where  such  agreement  in  fact  sur- 
rendered to  one  who  had  no  semblance  of  claim  the  ward's  title 
to  property,  it  is  not  binding  on  the  ward,*®  and  equity  will  not 
uphold  any  arbitration  which  does  not  properly  guard  the  ward's 
interests.*^ 


der  V.  Alexander,  120  N.  C.  472,  27 
S.  E.  121;  Brown  v.  Fidelity  &  De- 
posit Co.  of  Maryland,  98  Tex.  55, 
76  S.  W.  944,  80  S.  W.  593  (guardian 
cannot  discount  notes)  ;  Davis  v. 
Beall,  21  Tex.  Civ.  App.  183,  50  S. 
W.  1086;  Matt  V.  Matt,  182  111.  App. 
312;  Picciano  v.  Duluth,  M.  &  N.  Ey. 
Co.,  102  Minn.  21,  112  N.  W.  885. 
See  Goodrich  v.  Webster,  74  N.  H. 
474,  69  A.  719 ;  Holliday  v.  Hammond 
State  Bank,  118  La.  1000,  43  So. 
656   (authority  of  family  meeting). 

At  common  laiv,  a  testamentary 
or  general  guardian  has  power  to 
settle  and  compromise  claims  on  be- 
half of  his  ward.  Dwyer  v.  Corru- 
gated Paper  Products  Co.,  141  N.  Y. 
S.  240,  80  Misc.  412;  Richey  v.  Har- 
lan, 170  Ky.  461,  186  S.  W.  149.  Con- 
tra, McGoodwin  v.  Shelby,  181  Ky. 
230,  204  S.  W.  171  (may  settle  doubt- 
ful contested  claims  of  wards)  ;  Mc- 
Goodwin V.  Shelby  (Ky.),  206  S.  W. 
625.     See  O'Beilly  v.  Reading  Trust 


Co.    (Pa.),   105   A.    542    (compromise 
approved  by  court). 

81.  Naeglin  v.  De  Cordoba,  171  U. 
S.  638,  19  S.  Ct.  35,  43  L.  Ed.  315 
(affg.  7  N.  W.  678,  41  P.  526). 

82.  Darby  v.  Stribling,  22  S  C.  243. 

83.  "Weed  v.  Ellis,  3  Caines,  253; 
Weston  v.  Stewart,  11  Me.  326;  Hut- 
chins  V.  Johnson,  12  Conn.  376;  Gole- 
man  v.  Turner,  14  S.  &  M.  118; 
Strong  V.  Beroujon,  18  Ala.  168. 

84.  A  guardian  cannot  release  the 
ward's  rights  in  real  estate,  irrespec- 
tive of  statutory  power.  Pond  v. 
Hopkins,  154  Mass.  38;  Fowler  v. 
Lewis,  36  W.  Va.  112.  It  is  the  guar- 
dian, and  not  the  ward,  who  becomes 
thus  liable  to  counr  1  f  r  their  fees 
when  he  engages.  Hunt  v.  Maldo- 
nado,  89  Cal.  636. 

85.  Part  V,  chs.  2  &  3. 

86.  Bunnell  v.  Bunnell,  111  Ky.  566, 

64  S.  W.  420,  23  Ky.  Law  Rep.  800, 

65  S.  W,  607,  23  Ky.  Law  Rep.  1101. 

87.  De  Vaughn  v.  McLeroy,  82  Ga. 
687. 


927  GUABDIAN    AND    WAKD.  1056 


CHAPTER  VII. 

SALES   OF    THE   WARd's   KEAL    ESTATE. 

Section  927.     In  Sales  of  Ward's    Personal  Property  a  Liberal  Eule  Applies. 

928.  Otherwise  as  to  Keal  Estate;  Whether  Chancery  Can  Bell  In- 

fant's Lands. 

929.  English  Chancery  Doctrine. 

930.  Civil-law  Eule  as  to  Sales  of  Ward's  Lands. 

931.  Sale  of  Ward's  Lands  under  Legislative  Authority  Common  in 

the  United  States. 

932.  American   Statutes  on   this  Subject  Considered. 

933.  Guardian's    Own    Sale    Not    Binding;     Public    Sale    Usually 

Eequired. 

934.  What  Interests  in  Land  May  Be  Sold. 
9^5.     Parties  to  Proceedings. 

936.  Purpose  of  Sales. 

937.  Eequisites  of  Petition. 

938.  Eequisites  of  Decree. 

939.  Eights  of  Purchaser  Under  Guardian's  Deed. 

940.  Sales  Void  or  Voidable. 

941.  Disposition  of  Proceeds. 

942.  Confirmation  of  Sale. 

943.  Sales  in  Cases  of  Non-Eesidents, 

§  927.  In  Sales  of  Ward's  Personal  Property  a  Liberal  Rule  Ajv- 
plies. 
The  nature  of  personal  property,  its  convertibility  into  cash, 
and  the  necessity  frequently  arising  for  changes  of  investment  in 
order  to  make  it  sufficiently  productive,  have  brought  about  a 
flexible  rule  so  far  as  its  purchase  and  sale  is  concerned,  and  no 
actual  conversion  takes  place.  Hence  courts  of  chancery  at  the 
present  day  assume  considerable  latitude  in  directing  changes 
from  one  species  of  personal  estate  to  another.  Especially  liberal 
must  be  the  rule  in  those  States  where  the  trustee  is  free  to  invest 
in  any  securities  deemed  proper,  provided  he  observes  prudence 
and  good  faith.  Hence,  too,  the  guardian  himself  may  sell  and 
reinvest  his  ward's  personal  estate,  and  make  purchases,  without 
a  previous  order  of  court.  But  this  is  to  be  considered  rather 
the  American  than  the  English  rule;  since,  as  we  have  seen  in 
the  preceding  chapter,  a  guardian's  discretion  is  strictly  limited 
in  England,  and  the  practice  of  the  chancery  courts  in  such 
raattors  is  to  control  the  property. 


1057  SAX.ES    OF    REAL    ESTATE.  §    92S 

§  928.  Otherwise  as  to  Real  Estate;  Whether  Chancery  Can 
Sell  Infant's  Lands. 
Courts  of  chancery,  however,  have  no  inherent  original  juris- 
diction to  direct  the  sale  of  lands  belonging  to  infants.  The 
legislative  power  of  a  State  may  take  the  property  of  its  citizens 
in  the  exercise  of  the  right  of  eminent  domain.  But  a  judicial 
tribunal  properly  hesitates  to  assume  such  functions.  The  com- 
mon law,  which  recognized  fully  the  right  of  individuals  to  the 
enjoyment  of  their  possessions,  and  particularly  of  real  estate, 
without  disturbance,  appears  to  have  treated  lands  belonging  to 
infants  as  property  which  should  be  preser\'ed  intact  until  the 
owner  becamo  of  .sufBcient  age  to  dispose  of  it  according  to  his 
own  pleasure.  Timber  might  be  felled,  and  mineral  ore  dug  out 
and  carried  away ;  **  but  though  such  acts  constituted  a  technical 
conversion  of  real  estate,  they  were  in  effect  but  a  mode  of  enjoy- 
ment of  the  rents  and  profits,  and  the  guardian  was  obliged  to 
accoimt  for  these  products  of  the  soil  to  the  infant  owner.  Sales 
of  the  ward's  lands  were  authorized  in  certain  cases,  as  where 
there  were  debts  to  be  paid,  encumbrances  to  be  discharged,  judg- 
ments to  be  satisfied,  or  necessary  repairs  to  be  made  upon  the 
premises.  But  in  such  cases  the  court  of  chancery  violated  no 
rights  of  ownership ;  since  it  is  the  universal  doctrine  that  prop- 
erty can  only  be  held  subordinate  to  the  obligation  of  paying 
one's  debts.*®  Mortgages  were  in  rare  instances  permitted."** 
Courts  of  chancery  went  no  further,  except  when  authorized  by 
statutes.  They  preferred  that  the  infant's  property  should  re- 
main, while  guardianship  lasted,  impressed  with  its  original 
character.  In  the  settlement  of  estates,  personal  property  was 
to  be  taken  to  pay  what  was  needful  for  support  and  maintenance, 
rather  than  lands.  ISTot  even  purchases  of  real  estate  were  favor- 
ably  regarded.     And    when    a   sale  became   necessary,    the   real 

88.  See  supra,  ch.  VI.  But  see  90.  7b.  When  an  infant  was  abso- 
Stoughton's  Appeal,  88  Pa.  St.  198.       lutely    entitled,     subject     to     certain 

89.  See  Shaffner  v.  Briggs,  36  Ind.  trusts,  to  the  beneficial  interest  in  real 
55.  On  application  for  maintenance,  estate,  the  legal  estate  being  in  trus- 
chancery  has  jurisdiction  to  charge  tees,  chancery  directed  the  raising  of 
expenses  of  past  maintenance  and  money  by  means  of  a  mortgage  to  de- 
costs  on  the  infant's  land.  In  re  Ho-  fray  the  cost  of  necessary  repairs, 
warth,  L.  R.  8  Ch.  415.  And  see  De  Jackson,  Ee,  21  Ch.  D.  786.  See  the 
Witte  V.  Palin,  L.  R.  14  Eq.  251 ;  scanty  precedents  for  such  mortgages 
ISTunn  v.  TTancock,  L.  R.  6  Ch.  8.50,  as  here  cited;  prospective  charges  not 
to  jurisdiction  in  sale  of  reversionary  seeming  to  have  been  sanctioned  by 
interest  of  an  infant;  §§  340,  351.  such  proceedings. 

67 


§  928 


GUARDIAN    AND    WARD. 


1058 


estate  was  not  resorted  to  until  o-ther  means  of  raising  money  had 
failed;  nor  was  a  general  sale  of  the  lands  ordered  whenever  a 
partial  sale  would  suffice. 

On  this  subject  Lord  Hardwicke  observed  as  follows,  in  Taylor 
V.  Philips:  ®^  "  There  is  no  instance  of  this  court's  binding  the 
inheritance  of  an  infant  by  any  discretionary  act  of  the  court 
As  to  personal  things,  as  in  the  composition  of  debts,  it  has  been 
done,  but  never  as  to  the  inheritance;  for  that  would  be  taking 
on  the  court  a  legislative  authority,  doing  that  which  is  properly 
the  subject  of  a  private  bill."  This  language  received  the  subse- 
quent approval  of  Lord  Chancellor  Hart.*^  It  has  also  been 
quoted  as  the  recognized  law  in  this  country.^'  In  some  States, 
chancery,  by  virtue  of  its  general  jurisdiction  over  infants  and 
their  estates,  claims  power  to  decree  the  sale  of  an  infant's  lands, 
whether  held  under  a  deed  or  will,®*  or  to  partition,  or  to  give 
orders  to  reinvest  proceeds.  Here  the  aid  of  local  statute  is 
sometimes  invoked  for  the  liberal  exercise  of  such  functions;  but 
aside  from  such  aid  the  claim  is  made  positively  in  several  States 
that  chancery  has  inherent  jurisdiction  to  order  the  sale  of  lands 
belonging  to  infants  for  their  proper  support  and  education,  or 
more  broadly  still  for  their  benefit.®^ 

There  are,  indeed,  numerous  American  decisions,  in  which  the 
rights  of  infants  in  lands  are  protected  in  equity,  so  far  as  to  give 
the  infants  opportunity  to  conform  or  set  aside  a  sale  of  real 
estate  and  prevent  them  from  being  bound  by  a  transaction  to 


91.  2  Vea.  23. 

92.  Eussell  v.  Russell,  1  Moll.  525. 

93.  Rogers  v.  Dill,  6  Hill,  415.  See 
also  the  learned  and  elaborate  opin- 
ion of  the  court,  with  citation  of  Eng- 
lish authorities,  in  William's  Case,  3 
Bland,  186;  Ex  parte  Jewett,  16  Ala. 
409;  Thompson  v.  Brown,  4  Johns. 
Ch.  619;  Faulkner  v.  Davis,  18  Gratt. 
651. 

Here  real  estate  owned  by  tenants 
in  common,  of  whom  an  infant  was 
one,  was  sold  under  and  in  pursuance 
of  a  judgment  in  a  partition  suit  in- 
stituted by  others  of  the  tenants  in 
common,  and  it  was  held  that  the  por- 
tion of  the  proceeds  belonging  to  the 
infant  remained  impressed  with  the 
character  of  real  estate,  and  as  such 


did  not  pass  under  the  infant's  will. 
Horton  v.  McCoy,  47  N.  Y.  21, 
And  see  Cole  v.  Gourlay,  79  N.  T. 
527.  Guardian  summarily  ordered  to 
refund  the  excess  of  purchase-money 
in  case  of  an  error  as  to  the  extent  of 
of  the  infant's  lands.  Matter  of 
Price,  67  N.  Y.  231. 

94.  Goodman  v.  Winter,  64  Ala. 
410;  Redd  v.  Jones,  30  Gratt.  123. 

95.  Shumard  v.  Phillips,  53  Ark. 
37;  Thaw  v.  Ritchie,  136  U.  S.  519; 
Hamar  v.  Cook,  118  Mo.  476.  Tho  Illi- 
nois rule  upholds  such  jurisdiction 
quite  extensively.  Hale  v.  Hale,  146 
ni.  227.  Statutes  of  a  State  may  af- 
fect this  whole  jurisdiction.  White- 
head V.  Bradley,  87  Va.  676;  Shumard 
V.  Phillips,  53  Ark.  37. 


1059 


SALES    OF    fiEAJL    ESTATE. 


§    929 


which  they  could  not  be  parties  in  their  own  right.  Instances 
are  found  in  administrators'  settlements  to  which  the  infant  heir 
was  not  a  privy,  sales  under  decree  to  persons  who  had  never  paid 
the  purchase-money,  and  fraudulent  transactions.®* 

§  929.  English  Chancery  Doctrine. 

Hence,  too,  whenever  the  court  of  chancery  has  permitted  pur- 
chases of  lands,  the  infant's  right  to  affirm  or  disaffirm  on  reach- 
ing majority,  or,  as  chancery  sometimes  expresses  it,  to  show 
cause,  has  been  reserved.  Lord  Eldon  lays  do\vn  with  great  cau- 
tion the  power  of  the  court  in  changing  the  infant's  property,  so 
as  not  to  affect  the  infant's  power  over  it  when  he  comes  of  age.*^ 
And  whatever  may  be  the  rule  where  there  is  some  claim  or  debt 
to  be  satisfied,  it  appears  that  chancery  will  decline  ordering  a 
sale  of  land  belonging  to  an  infant  merely  upon  the  ground  that 
the  sale  would  be  beneficial  to  him;  while  in  any  case,  if  there 
be  a  material  error  in  substance,  and  not  in  form  alone,  a  pur- 
chaser may  object  to  the  title,  and  the  court  will  discharge  hira 
from  his  contract.®* 

One  objection  to  conversions  of  property,  namely,  that  the  laws 
of  inheritance  are  not  the  same  in  real  and  personal  estate,  be- 
came obviated  in  equity  by  treating  the  proceeds  throughout  as 
impressed  with  the  character  of  the  original  fund ;  a  rule  of  large 
application  both  in  England  and  America.®®  Another  objection, 
upon  which  English  writers  have  dwelt  at  length,  arose  under 
the  law  of  testamentary  dispositions,  which  allowed  infants  to 
give  and  bequeath  personal  estate,  males  at  the  age  of  fourteen, 
and  females  at  twelve,  while  real  estate  could  not  be  devised 
under  twenty-one.  Here  again  chancery  decreed,  whenever  a 
conversion  was  authorized,   that  the  right  of  testamentary  dis- 


96.  Williams  v.  Duncan,  44  Miss. 
376;  Jones  v.  Billstein,  28  "Wis.  221; 
Williams  v.  Wiggand,  53  111.  233; 
Terry  v.  Tuttle,  24  Mich.  206;  Phil- 
lips V.  Phillips,  50  Mo.  604;  Walks 
V.  Moody,  65  N.  C.  599. 

97.  Ware  v.  Polhill,  11  Ves.  278; 
Ex  parte  Phillips,   19   Ves.   122. 

98.  See  1  Dan.  Ch.  Pract.,  3  Am. 
ed.,  159',  160;  Calvert  v.  Godfrey,  6 
Beav.  106.  Jurisdiction  under  a  re- 
cent statute  considered  in  1893,  1  Ch. 
153. 


99.  Wheedale  v.  Partridge,  5  Ves. 
396;    Macphers.  Inf.   284;   Story,  Eq. 
Juris.,    §§    790-793,    and    authorities 
cited;    2    Kent,    Com.    230,    and    n; 
Forman  v.  Marsh,  1  Kern.  544;  Hor- 
ton  V.  McCoy,   47  N.  Y.   21;    Fidler 
V.    Higgins,    6    C.    E.    Green,     138 
Holmes's    Appeal,    53    Pa.    St.    339 
March   v.   Berrier,   6   Ired.   Eq.    524 
Huger  V.  Huger,  3  Dcsaus.   18.     But 
this  is  not  necessarily  the  case  at  law. 
And  such  proceeds  lose  their  original 
character   and  become   personalty   on 


§    932  GUAEDIAN    AND    WAED.  1060 

position  should  not  be  thereby  changed.  The  wills  act  of  1  Vict., 
c.  26,  dispenses  with  this  distinction  in  testamentary  dispositions 
altogether/  And  this  latter  objection  never  could  have  arisen  in 
the  courts  of  many  of  the  United  States. 

§  930.  Civil-Law  Rule  as  to  Sales  of  Ward's  Lands. 

Guardians  and  tutors  of  minors  at  the  civil  law  had  power, 
under  the  direction  of  the  proper  court,  as  it  would  appear,  to 
convev  the  estates  of  their  wards. ^ 

§  931.  Sale    of    Ward's    Lands    Under    Legislative    Authority 
Common  in  the  United  States. 

Le2:islative  authoritv  mav  intervene  to  direct  the  absolute  sale 
of  an  infant's  lands.  And  since  the  ownership  of  real  estate  in 
this  country  is  vested  with  comparatively  little  of  that  sanctity 
and  importance  which  the  ancient  laws  of  primogeniture  and 
feudal  tenure  threw  about  it,  and  inasmuch  as  purchases  and 
sales  of  land  are  fast  becoming  matters  of  every-day  occurrence, 
the  legislatures  of  most  of  the  United  States  have  seen  fit  to 
enact  laws  for  facilitating  the  sales  of  real  estate  by  fiduciary 
officers.  These  laws  are  comparatively  recent,  and  not  altogether 
uniform  in  their  provisions.  But  in  most  essential  features  they 
are  alike.  They  constitute  a  permanent  system.  They  may 
apply,  not  to  guardians  alone,  but  also  to  trustees,  executors,  and 
administrators.  As  cases  are  constantly  arising  under  these 
laws,  we  shall  here  briefly  notice  some  of  the  principles  which 
have  a  special  bearing  upon  the  sales  of  real  estate,  so  far  as 
guardians  are  concerned,  without  deeming  it  necessary  to  make 
a  minute  analysis,  since  such  statutes  are  purely  local  and  subject 
to  local  variations. 

§  932.  American  Statutes  on  This  Subject  Considered. 

Our  American  statutes  relative  to  the  sale  of  lands  belonging 
to  infants  have  the  following  points  in  common :  Firsts  an  appli- 
cation to  the  court  on  the  infant's  behalf  upon  which  the  order 
of  sale  issues.  Second,  a  special  bond  to  be  filed  by  the  guardian. 
Third,  the  formal  sale  of  the  land,  usually  at  public  auction. 
Fourth,  the  execution  of  the  deed  to  the  purchaser.  Fifth,  a 
proper  disposition  of  the  proceeds  of  the  sale.      And  in   some 

their    first    transmission,    though    to  cited.     See  Hill  on  Trustees,  396,  n. 
an  infant.     Dyer  v.  Cornell,  4  Barr,  2.    Menifee    v.    Hamilton,    32    Tex. 

359.  495. 
1.    Macphers.    Inf.    27S,    and   cases 


1061 


SALES    OF    KEAL    ESTATE. 


§  932 


States  a  judicial  coafiraiation  of  the  sale  is  required.  The  judi- 
cial order  of  sale  is  frequently  termed  a  license;  and  the  exact 
method  of  procedure  is  indicated  in  the  statutes  themselves. 

These  statutes,  we  may  add,  not  unfrequently  limit  the  purpose 
for  which  such  sales  may  be  made:  as,  for  instance,  when  the 
ward  has  no  other  means  for  his  education  and  support;  or, 
again,  to  pay  proper  debts;  or  sometimes  for  the  purpose  of  in- 
vesting the  proceeds  so  as  to  derive  an  ineome  more  readily. 
And  again,  the  guardian  to  be  authorized  is  the  probate,  not  the 
natural,  guardian,  who,  besides  giving  the  usual  bond  of  guar- 
dianship, is  likewise  required  to  give  the  special  bond  of  which 
we  speak  for  the  purposes  of  the  sale.^  And  the  legislative  pro- 
vision sometimes  extends  to  sales  of  reversionary  or  equitable 
interests  of  minors;  or,  again,  is  limited  to  property  in  which 
the  minor  has  the  legal  title. 

It  is  the  universal  American  rule,  both  under  the  statutes  and 
at  common  law,  that  a  guardian  has  no  power  to  convey  land 
without  an  order  of  court,*  or  to  make  a  contract  to  convey,'* 

3.  See  Morris  v.  Morris,  2  McCart.       575;  Ayer  &  Lord  Tie  Co.  v.  Wither- 


239;  Shanks  v.  Seamonds,  24  la.  131; 
People  V.  Circuit  Judge,  19  Mich. 
296;  Smith  v.  Biscailuz,  83  Cal.  344, 
Nor  is  the  husband  of  an  infant  a 
^ardian,  under  such  statute,  who  can 
be  thus  authorized  to  sell.  Dengenhart 
V.  Cracraft,  36  Ohio  St.  549.  A  sale 
will  not  be  authorized  after  the  guar- 
dianship has  ended.  Phelps  et  al.  v. 
Buck  et  al,  40  Ark.  219.  If  A.,  up- 
on his  representation  that  he  is  B.  's 
guardian,  obtains  an  order  to  sell, 
when  he  is  not  B.'s  guardian,  the  or- 
der is  void  and  may  be  impeached  col- 
laterally. Grier's  Appeal,  101  Pa.  St. 
412.  Sale  cannot  be  made  after  the 
ward's  death.  Kobertson  v.  Coates, 
65  Tex.  37.  "Where  the  guardian's 
appointment  was  absolutely  void  the 
sale  is  likewise  void.  Dooley  v.  Bell, 
87  Ga.  74.  But  a  merely  irregular 
appointment  is  not  to  be  assailed. 
Kramer,  Appellant,  v.  Mugele,  153 
Pa.  St.  493;   §  308. 

4.  Van  Houten  v.  Black,  67  So. 
1008;  Funk  v.  Rentchler,  134  Ind. 
68,  33  N.  E.  985;  Frazier  v.  Jeakins, 
64   Kan.  615,  68   P.   24,   57   L.  R.  A. 


spoon's    Adm'r,    30    Ky.    Law    Rep. 

1067,  100  S.  W.  259   (timber)  ;   Bush 

v.  Coomer,  24  Ky.  Law  Rep.  702,  69 

S.  W.  793;   Poultney's  Heirs  v.  Og- 

den,    8   La.    428;    Rocques'    Heirs    v. 

Levecque's  Heirs,  110  La.  306,  34  So. 

454;  Touchy  v.  Gulf  Land  Co.,  45  So. 

434;   Keel  v.  Sutherlin,  130  La.   182, 

57  So.  794 ;  Crain  v.  Tremont  Lumber 

Co.,  134  La.  276,  63  So.  901   (except 

to  effect  partition) ;  Houlihan  v.  Fo- 

garty,  17  Det.  Leg.  N.  735,  162  Mich. 

492,  127  N.  W.  793 ;  Meiggs  v.  Hoag- 

land,  74  N.  T.  S.  234,  68  App.  Div. 

182;  Drennan  v.  Harris  (Okla.),  161 

P.   781;    Sampson   v.   Smith    (Okla.), 

166  P.  422 ;  Sayers  v.  Pollock,  219  Pa. 

274,  68  A.  732;  De  Armit  v.  Milnor, 

20  Pa.  Super.  Ct.  369;  Ellis  v.  LeEow, 

96  Tex.  532,  74  S.  W.  528,  71  S.  "W. 

576,  30   Tex.   Civ.  App.  449;   Merrill 

V.  Bradley,  121   S.  W.   561    (certified 

questions  answered,  102  Tex.  481,  119 

S.  W.  297;   Palmer  v.  Abrahams,  55 

Wash.  352,  104  P.  648 ;  Kester  v.  Hill, 

42  W.  Ya.  611,  26  S.  E.  376. 

5.  Nichols  V.  Bryden,  86  Kan.  941, 
122    P.    1119;    Wolf    v.    Holton,    104 


§    934  GUARDIAN    AND    WARD.  1062 

although  the  guardian  acts  with  the  approval  of  the  ward,'  except 
for  the  purpose  of  collecting  a  debt/ 

§  933.  Guardian's  Own  Sale  Not  Binding;   Public  Sale  Usually 
required. 

In  general,  a  guardian's  sale  of  real  estate  belonging  to  his 
minor  ward,  without  an  order  from  the  court  either  by  virtue  of 
statute  or  chancery  jurisdiction,  is  not  binding  upon  the  minor; 
and  such  ward's  interest,  legal  or  equitable,  can  only  be  divested 
by  a  public  sale  under  proper  judicial  sanction;*  though  dis- 
cretion is  sometimes  given  the  court  as  to  ordering  and  sanction- 
ing a  private  sale.^  But  under  a  deed  of  gift  to  minors,  empow- 
ering the  guardian  to  sell,  his  discretion  is  commensurate  with 
the  terms  of  the. trust/" 

§  934.  What  Interests  in  Land  May  Be  Sold. 

It  is  held  in  New  York  that  the  statutes  of  that  State  provide 
for  judicial  sales  only  in  cases  where  the  legal  title  is  in  the 
infant;  and  that,  independently  of  such  statutes,  the  court  of 
chancery,  having  regard  to  the  infant's  necessities  and  interest, 
may  order  a  sale  of  the  equitable  estate.  On  this  principle  a 
chancery  sale  was  sustained,  as  against  infants,  where  a  trust 
estate  of  infants  in  lands  had  been  transferred  by  a  contract  made 
between  the  guardian  and  purchaser  with  the  approval  of  the 
court."  Other  sales  of  this  kind  have  been  allowed  where  the 
legal  estate  was  in  the  infant." 

The  power  of  sale  may  extend  to  the  ward's  homestead  "  or 
timber,"  or  to  an  undivided  interest  of  a  minor  in  land,  as  tenant 

Mich.   107,   62  N.  W.  174;   LeEoy  v.  12.  In  re  Hazard,  9  Paige,  365. 

Jacobosky,  136   N.  C.   443,  48  S.  E.  13.  Merrell  v.  Harris,  65  Ark.  355, 

796,  67  L.  R.  A.  977;   Gault  Lumber  46   S.  W.   538,   41   L.   R.   A.   714,   67 

Co.   V.   Pyles,   92   P.    175;    Storey   v.  Am.   St.   R.    929;    In   re  Hamilton's 

Lonabaugh,  247  Pa.  331,  93  A.  481.  Estate,  120  Cal.  421,  52  P.  708;  An- 

6.  Bellinger  v.  Foltz,  93  Va.  729,  cell  v.  Southern  Illinois  &  M.  Bridge 
25  S.  E.  998.  Co.,    223    Mo.    209,    122    S.   W.    709; 

7.  Arrowivood  v.  McKee,  119  Ga.  Hartsog  v.  Berry,  45  Okla.  277,  145 
623,  46  S.  E.  871.  P.   328.     See   Ex  parte   Tipton,    123 

8.  Supra,  §  356;  Wells  v.  Chaffin,  Ark.  389,  185  S,  W.  798.  See  Rushing 
60  Ga.  677,  Morrison  v.  Kinatra,  56  v  Homer,  130  Ark.  21,  196  S.  W.  468 
Miss.  71.  (only  if  free  from  debt). 

9.  Maxwell  v.  Campbell,  5  Ind.  14.  Bettes  v.  Brewer,  184  F.  343 
361.  (although    timber    called    personalty 

10.  Thurmond  v.  Faith,  69  Ga.  832.  still   guardian    must   obtain   order   to 

11.  Woods  V.  Mather,  38  Barb.  473;  sell  it  as  realty). 

Anderson  v.  Mather,  44  N.  Y.  249.  WJiere  a  guardian  severs  standing 


1063 


SALES  OF  EBAL  ESTATE. 


§  935 


in  oommon  or  otnerwise/"^  but  the  part-owner  of  lands  in  which 
an  infant  is  interested  ought  not  to  be  allowed  to  make  the  sale/' 
or  to  his  interest  as  a  remainderman,"  or  an  equity  subject  to  an 
existing  mortgage/*  or  to  a  contingent  interest.^®  It  is  held  that 
chancery  cannot  interfere  with  the  lands  of  infants  unborn.^"  In 
all  such  cases  the  guardian  should  keep  within  the  scope  of 
judicial  and  legislative  permission.^^ 

§  935.  Parties  to  Proceedings. 

Sales  may  be  ordered  on  petition  of  a  guardian/^  or  of  a 
special  guardian.^^  The  infant  wards  are  not  necessary  parties 
to  proceedings  for  sale  "*  unless  by  statute  when  they  are  over  a 
certain  age/^  and  children  bom  after  the  sale  are  deemed  to  have 
been  before  the  court.^®    A  guardian  ad  litem  may  be  required." 

Proceedings  for  sale  do  not  terminate  by  the  termination  of 
the  guardianship  by  the  death  or  resignation  of  the  guardian 
pending  the  proceedings,  but  a  new  guardian  should  be  appointed 
to  finish  the  sale.^" 


irees,  it  is  his  duty  to  sell  the  timber 
and  account  for  the  proceeds.  Bush- 
kirk  V.  Sanders,  70  W.  Va.  363,  73 
S.  E.  937. 

15.  Price,  Matter  of,  67  N.  Y.  231; 
Schafer  v.  Luke,  51  Wis.  669;  Bren- 
ham  V.  Davidson,  51  Cal.  352;  Fitz- 
patrick  v.  Beal,  62  Miss.  244. 

16.  In  re  Tillotsons,  2  Edw.  Ch. 
113. 

17.  Oldaker  v.  Spiking  (Mo.),  210 
e.  W.  59. 

18.  As  to  the  effect  of  such  a  sale, 
Bee  Lynch  v.  Kirby,  36  Mich.  238. 
And  see  §  351.  Guardian's  petition 
to  court  for  leave  to  mortgage  should 
be  in  writing,  and  in  Ehode  Island 
he  cannot  give  a  power  of  sale  in 
such  mortgage.  Barry  v.  Clarke,  13 
E.  L  65. 

19.  Palmer  v.  Garland,  81  Va.  444 
(aided  by  statute)  ;  Thaw  v.  Ritchie, 
136  TJ.  S.  519.  Contra,  Graff,  v.  Ran- 
kin, 250  F.  150,  38  8.  Ct.  578. 

20.  Downin  v.  Sprecher,  35  Md. 
474. 

21.  Kingsbury  v.  Powers,  131  IlL 
182. 

22.  Ellis  v.  Smith's  Guardian,  147 
Ky.  99,  143  S.  W.  776. 


23.  Hagennan  v.  Meeks,  13  N.  M. 
565,  86  P.  801 ;  Baker  v.  Cureton,  150 
P.  1090. 

24.  Furr  v.  Burns,  124  Ga.  742,  53 
S.  E.  201;  Dillingham  v.  Spalding, 
7  Ky.  Law  Rep.  370. 

25.  Eosenfeld  v.  Miller,  115  N.  Y. 
S.  692,  131  App.  Div.  282  (14  years). 

26.  Ammons  v.  Ammons,  50  W.  Va. 
390,  40  S.  E.  490. 

27.  Siler  v.  Archer's  Guardian,  26 
Ky.  Law  Rep.  557,  82  S.  W.  256.  See 
Succession  of  Coleman,  11  La.  Ann. 
109;  "Weil  v.  Schwartz,  51  La.  Ann. 
1547,  26  So.  475. 

There  is  no  presumption  of  law 
that  a  guardian  is  so  interested  per- 
sonally in  a  proceeding  to  sell  the 
ward's  real  estate  that  a  guardian 
ad  litem  should  be  appointed;  every 
presumption  being  indulged  that  the 
guardian  will  protect  the  ward's  in- 
terest until  the  contrary  is  shown. 
Ancell  V.  Southern  Illinois  &  M. 
Bridge  Co.,  223  Mo.  209,  122  S.  W. 
709. 

28.  Danahy  v.  Fagan,  117  N.  Y.  S. 
300,  63  Misc.  658;  McVaw  v.  Shelby, 
25  Ky.  Law  Rep.  309,  75  S.  W.  227. 


§  937 


GUABDIAN    AND    WARD. 


1064r 


§  936.  Purpose  of  Sales. 

It  is  commonlj  provided  by  statute  that  the  court  may  author- 
ize sales  by  the  guardian  of  the  estate  of  the  ward  for  various 
purposes,  as  on  account  of  undivided  interests  therein,^®  or  to 
pay  debts  of  the  ward,^°  or  for  a  proper  change  of  investmeut,'^ 
or  when  real  estate  is  unproductive,^^  or  may  direct  an  exchange 
of  the  ward's  lands,^^  or  to  use  the  proceeds  of  sale  for  the  main- 
tenance of  the  ward,^*  but  not  for  the  purpose  of  erecting  per- 
manent improvements.'® 

§  937.  Requisites  of  Petition. 

The  petition  for  sale  should  set  forth  its  necessity,'®  the  pur- 
pose   for    which    a    sale    is    asked,'^    showing    benefit    to    the 


29.  Howard  v.  Bryan,  133  Cal.  257, 
65  P.  462 ;  Skidmore  v.  Cumberland 
Valley  Land  Co.,  126  Ky.  576,  104  S. 
W.  390,  31  Ky.  Law  Kep.  1002;  In  re 
Congdon,  41  N.  Y.  Ch.  1831,  2  Paige, 
566.  See  In  re  Culver  (Del.  Orph.), 
104  A.  784  (not  enough  that  widow 
wants  dower  appraised).  See  In  re 
Evans,  143  N.  Y.  S.  839,  82  Miac. 
193  (application  to  convey  ward's  in- 
terest to  a  corporation  and  take  stock 
in  payment  denied).  See  Frantz  v. 
Lester  (W.  Va.),  95  S.  E.  945  (stat- 
ute authorizing  sale  to  be  liberally 
construed). 

30.  Alcon  V.  Koons,  42  Ind.  App. 
537,  82  N.  E.  92.  See  Irvine  v. 
Stevenson  (Ky.),  209  S.  W.  7  (debts 
of  ward's  ancestor);  "Warren  v. 
Union  Bank  of  Rochester,  157  N.  Y. 
259,  51  N.  E.  1036,  43  L.  E.  A.  256, 
68  Am.  St.  E.  777  (order  void  when 
granted  to  pay  an  unauthorized 
debt). 

31.  McCreary  v.  Billing,  176  Ala. 
314,  58  So.  311. 

32.  Crawford  v.  Broomhead,  97  Ga. 
614,  25  S.  E.  487. 

33.  Decker  v.  Fessler,  146  Ind.  16, 
44  N.  E.  657.  Contra,  Ford  v.  May, 
157  Ky.  830,  164  S.  W.  88. 

34.  Dixon  v.  Hosick,  101  Ky.  231, 
41  S.  W.  282,  10  Ky.  Law  Eep.  387; 
Campbell  v.  Goodin's  Guardian,  128 
Ky.  278,  108  S.  W.  248,  32  Ky.  Law 
Eep.  1137   (only  where  guardian  un- 


able to  support  her) ;  Hudson's  Guar- 
dian V.  Hudson,  160  Ky.  432,  169  S. 
W.  891  (out  of  principal) ;  Nunnely's 
Guardian  v.  Nunnelly,  180  Ky.  131, 
201  S.  W.  976 ;  Eaker  v.  Harvey  (Mo. 
App.),  179  S.  W.  985;  Leet  v.  Gratz, 
92  Mo.  App.  422  (not  to  compromise 
a  claim) ;  East  Greenwich  Inst,  for 
Savings  v.  Shippee,  20  E.  I.  650,  40 
A.  872;  Gayle  v.  Hayes*  Adm'r,  79 
Va.  542. 

See  Farris  v.  Bingham,  164  Ky.  444, 
175  S.  W.  649  (the  sale  of  exempt 
property  of  infants,  held  warranted 
where  retention  would  only  give  the 
use  of  it  to  their  guardian). 

35.  Little  V.  West,  145  Ga.  563,  89 
S.  E.  682. 

36.  Van  Houten  v.  Black,  67  So. 
1008;  In  re  Hamilton's  Estate,  120 
Cal.  421,  52  P.  708  (petition  need  not 
show  how  much  of  ward's  estate  is 
undisposed  of) ;  Howard  v.  Bryan, 
133  Cal.  257,  62  P.  459,  65  P.  462 
(items  for  which  money  is  wanted) ; 
McKeever  v.  Ball,  71  Ind.  398;  Alcon 
v.  Koons,  42  Ind.  App.  537,  82  N.  E. 
92;  Phillips  v.  Spalding's  Guardian, 
31  Ky.  Law  Rep.  579,  102  S.  W.  1193; 
Soekey  v.  Winstock,  43  Okla.  758,  144 
P.  372;  Pyeatt  v.  Estus  (Okla.),  17^ 
P.  42;  Bailes  v.  Anderson  (W.  Va.), 
95  S.  E.  1039  (signed  and  sworn  to 
by  guardian). 

37.  Beezley  v.  Phillips,  54  C.  C.  A. 
491,  117  F.  105;  Campbell  v.  Goodin's 


1065  SALES  OF  REAL  ESTATE.  §  939 

ward,'*  describing  the  land  to  be  sold,^*  and  the  ward's  interest  in 
the  property,*"  showing  the  wards  as  parties.*^ 

§  938.  Requisites  of  Decree. 

The  order  of  sale  should  state  its  terms.*^ 

§  939.  Rights  of  Purchaser  Under  Guardian's  Deed. 

The  guardian's  deed  made  under  such  orders  of  court  has 
usually  only  the  effect  of  a  quitclaim,  except  so  far  as  he  may 
have  covenanted  on  his  part  that  he  has  complied  with  the  statute 
requisites  and  that  he  is  the  guardian  duly  authorized ;  and  in 
general  he  cannot  bind  his  ward  by  any  covenants  of  warranty  in 
the  deed,  though  if  he  choose  to  warrant  he  may  bind  himself. 
The  purchaser  in  such  sales  usually  takes  all  risks  of  title  except 
as  concerns  the  authority  and  good  faith  of  the  guardian  in  the 
premises.*^ 

The  doctrine  of  caveat  emptor  will  not  be  applied  to  a  sale  by 
a  guardian  of  the  ward's  property  under  order  of  court,  as  the 
purchaser  has  a  right  to  demand  a  marketable  title  free  from 
reasonable  doubt  as  to  its  validity.  So  the  purchaser  is  not  bound 
to  carry  out  the  bargain  where  there  is  a  right  of  way  over  the 
premises  of  which  neither  party  knew  at  the  time  of  the  sale.** 

Guardian,    128    K7.    278,    lOS    S.    W.  25   Okla.   679,   107   P.   433    (need  not 

248,  32  K7.  Law  Kep.  1137  (inability  show  ward  resides   in   county).     See 

of  father  to  support  ward);   Schaale  Fowler  v.  Lewis'  Adm'r,  36  W.  Va. 

V.  Wasey,   70   Mich.    414,  38   N.  W.  11,    14    S.    E.    447    (co-owners    made 

317.  parties  renders  proceeding  effective). 

38.    Womble    v.    Price's    Guardian,  Contra,  Ellis  v.  Smith's  Guardian,  143 

112    Ky.    533,   66    S.   W.   370,    67   S.  Ky.  99,  143  S.  W.  776. 
W.  9.  42.  In   re  Hamilton's   Estate,   120 

89.  Theobald  v.  Deslonde,  93  Miss.  Cal.  421,  52  P.  708    ("for  cash"  ia 

208,  46  So.  712 ;  Maurr  v.  Parrish,  7  suflBcient)  ;  Teague  v.  Swasey,  46  Tex. 

Ohio  Dec.   54,   1  Wkly.  Law  Bui.   85  Civ.  App.  151,  102  S.  W.  458. 
(wrong   lot  number   renders   proceed-  Decree  for  guardian's  sale  of  real 

ings  void) ;  Jirou  v.  Jirou  (Tex.  Civ.  estate,  making  no  reference  to  a  cer- 

App.  1911),  136  S.  "W.  493.  tain  lot,  held  not  to  authorize  guar- 

40.  Puckett  V.  Glendinning  (Ark.),  dian  in  imposing  any  servitude  upon 
205  S.  W.  454;  Worthington  v.  Dun-  such  lot.  Silverman  v.  Betti,  222 
kin,  41  Ind.  515;  Campbell  v.  Goo-  Mass.  142,  109  N.  E.  947;  Roth  v. 
din's  Guardian,  128  Ky.  278,  108  S.  TTnion  Nat.  Bank  of  Bartlesville 
W.  248,  32  Ky.  Law  Pep.  1137   (title  (Okla.),  160  P.  505. 

papers  need  not  be  filed  where  ward  43.    State    v.    Clark,   28    Ind.    138; 

took  by  descent)  ;   Dole  v.  Shaw,  282  Byrd  v.  Turpin,  62  Ga.  591;  Holyoke 

m.    642,   118    S.   E.    1044;    Bailes   v.  v.  Clark,  54  N.  H.  578. 

Alderson  ("W.  Va.),  95  S.  E.  1039.  44.    Stonebrook    v.    Wisener    (la.), 

41.  Revill's  Heirs  v.  Claxton's  153  N.  W.  351,  L.  R.  A.  1915E.  835. 
Heirs,  75  Ky.  558;  Eaves  v.  Mullen,  See  contra,  Manternach  v.  Studt,  240 


§    940  GUAEDIAN    AND    WAED.  1066 

And  it  is  held  that  caveat  emptor  does  not  apply  to  the  purchaser 
so  as  to  require  him  in  equity  to  take  the  title  where  actual  repre- 
sentations of  the  guardian  as  to  the  goodness  of  the  title  turn  out 
untrue.*^ 
§  940.  Sales  Void  or  Voidable. 

The  most  difficult  question  which  arises  under  the  statutes 
relating  to  sales  of  the  infant's  lands  is  that  of  the  essentials  of 
the  purchaser's  title.  In  what  cases  may  the  guardian's  sale  be 
set  aside?  What  statute  provisions  shall  be  regarded  as  impera- 
tive, and  what  as  merely  directory  ?  How  far  will  irregularities 
avoid  the  guardian's  acts,  and  who  is  at  liberty  to  impeach  them  ? 
One  proposition  may  be  laid  dov^m  at  the  outset.  It  is  that,  inas- 
much as  the  authority  of  the  guardian  to  make,  and  of  the  court 
to  permit,  an  absolute  sale  of  the  infant's  lands,  is  limited  to  the 
grant  of  powers  conferred  by  the  legislature,  the  terms  of  such 
grant  should  be  carefully  followed.  Sales  made  in  utter  disre- 
gard of  the  precautions  wisely  interposed  by  law  are  absolutely 
worthless.'*^  And  furthermore,  there  are  constitutional  con- 
straints in  a  majority  of  our  States  upon  corrections  of  void  and 
irregular  sales  of  this  character  by  a  special  act  of  legislation.^^ 

On  the  ether  hand,  it  must  be  admitted  that  there  is  always 
a  hardship  imposed  upon  a  hona  fide  purchaser,  whose  rights 
once  apparently  vested  are  afterwards  pronounced  null.  If  the 
purchaser  took  the  child's  lands  by  collusion  and  fraud,  or,  being 
the  guardian  himself,  abused  his  trust  to  secure  his  own  profit, 
equity  might  justly  suffer  the  transaction  to  be  set  aside  alto- 
gether. But  a  stranger  who  pays  his  purchase-money  honestly 
and  fairly  ought  not  to  be  compelled  to  suffer  for  mere  irregu- 
larities under  the  law.  For  such  fraudulent  acts  of  the  guardian 
as  necessarily  follow  the  consummation  of  a  bargain  —  as  the 
misapplication  of  the  purchase-money  —  it  is  clear  that  this 
purchaser  is  not  liable.*®  A  sale,  too,  if  valid  when  made,  is  not 
rendered  invalid  by  the  guardian's  subsequent  resignation  and 
the  appointment  of  another  person  in  his  place.*® 

ni.  464,  88  N.  E.  1000  (holding  that  47.   See  Roche  v.   Waters,   72   Md. 

caveat  emptor  does  apply  to  a  guar-       264. 

dian's  sale).  48.  Fitzgibbon  v.  Lake,  29  111.  165; 

45.  Black  v.  Walton,  32  Ark.  321.       Kendrick   v.    Wheeler,   85    Tex.    247^ 

46.  Ex  parte  Guernsey,  21  HI.  443 
Barrett  v.  Churchill,  IS  B.  Monr.  387 
Patton  V.  Thompson,  2  Jones  Eq.  411 
Mason  v.  Wait,  4  Scam.  127. 


Orman  v.  Bowles,  18  Col.  463. 

49.  Hemdon  v.  Lancaster,  6  Bosh, 
483. 


1067 


SALES  OF  REAL  ESTATE. 


§  940 


As  to  those  acts  which  precede  the  consummation  of  a  bargain 
the  purchaser  is  put  on  his  guard,  unless  from  the  very  nature 
of  the  case  they  could  not  have  come  to  his  observation.  Irregu- 
larities or  omissions  to  comply  with  statute  formalities  seem  to 
range  themselves  in  three  classes:  those  which  are  immaterial; 
those  which  will  render  a  sale  voidable  by  certain  parties  inter- 
ested; those  which  go  to  the  foundation  of  the  sale  and  render 
it  void  altogether.  And  according  to  the  judicial  construction  of 
such  irregularities  and  omissions,  under  the  statutes  and  practice 
of  the  particular  State,  will  the  purchaser's  title  be  determined. 

Where  the  sole  authority  of  the  guardian  is  derived  from  the 
statute,  courts  will  reluctantly  declare  any  part  of  that  statute 
immaterial,  except  in  the  sense  that  the  responsibility  for  non- 
compliance is  thrown  upon  the  guardian  or  the  court,  and  not 
upon  the  purchaser.  Informalities  in  the  recitals  of  a  bona  fide 
deed,  defective  notices,  the  insertion  of  irrelevant  or  superfluous 
matter  in  the  order  of  sale,  errors  of  the  guardian  in  his  allega- 
tions or  of  the  court  in  issuing  process,  have  been  in  this  sense 
ruled  as  immaterial.  But  such  cases  are  generally  not  so  much 
of  statutory  direction  as  of  judicial  rule  and  common-law  anal- 
ogies in  supplying  the  intention  of  the  legislature  where  the 
statute  was  silent.  The  general  principle  prevails,  that  it  is  wise 
policy  to  sustain  judicial  sales,  and  that  they  should  not  be 
declared  void  or  voidable  for  slight  defects ;  ^°    and  all  intend- 


51 


ments  will  be  indulged  in  favor  of  the  decree 

Of  mere  irregularities  advantage  may  often  be  taken  by  direct 
proceedings  concerning  the  sale,  as  by  appeal,  or  by  a  refusal  to 
consummate  the  sale;  while,  to  attack  the  completed  sale  and 
a  purchaser's  title  collaterally,  statute  fundamentals  should  have 
been  disregarded. 

As  to  irregularities  or  omissions  which  will  render  a  sale  void- 
able,  either  the  infant  heir  or  some  other  person  in  interest  has 


50.  Fitzgibbon  v.  Lake,  23  111.  165; 
Cooper  V.  Sunderland,  3  la.  114; 
Thornton  v.  McGrath,  1  Duv.  349; 
Ackley  v.  Dygert,  33  Barb.  176. 

51.  Howard  v.  Bryan,  133  Cal.  257, 
65  P.  462;  Field  v.  Peeples,  180  111. 
376,  54  N.  E.  304  (though  petition 
destroyed  and  purpose  of  sale  does 
not  appear  in  decree)  ;  In  re  Turner, 
80  N.  Y.  S.   573,  83  N.  Y.  8.   1118, 


79  App.  Div.  495,  86  App.  Div.  629; 
Harris  v.  Hopkins,  166  Ky.  147,  179 
S.  W.  14;  Wood  v.  Frickie,  120  La. 
180,  45  So.  96;  Drennan  v.  Harris 
(Okla.),  161  P.  781;  Greer  v.  Ford, 
31  Tex.  Civ.  App.  389,  72  S.  W.  73. 
See  Landreth  v.  Henson,  173  S.  W. 
427  (presumption  of  regularity  may 
be  overcome  by  proof)  ;  Mullinax  v. 
Barrett   (Tex.  Civ.  App.),  173  S.  W. 


§    940  GTJAKDIAN    AND    WAKD.  1068 

been  unfairly  dealt  with.     Here  the  privilege  is  accorded  to  the 

party  or  parties  wronged,  of  having  the  sale  set  aside  on  appeal 

or  by  direct  proceedings  instituted  for  that  purpose;    but  not  in 

a  collateral  manner.     We  need  not  here  speak  of  the  infant's  right 

of  election  in  certain  cases  on  attaining  majority.^^     Where  in 

general  the  guardian  obtained  his  license  without  duly  notifying 

a  person  in  interest,  such  person  is  allowed  to  have  the  sale  set 

aside.     The  purchaser's  title  is,  however,  good  in  the  meantime. 

ISTor  can  anyone  take  advantage  of  the  defective  proceedings  but 

those  whose  interests  were  injuriously  affected.     A  special  limit 

is  frequently  set  by  law  to  proceedings  of  this  kind,  for  the  sake 

of  quieting  titles;    otherwise,  the  ordinary  statute  of  limitations 

seems  to  apply.^^     And  length  of  time  and  laches  on  the  infant's 

part  after  reaching  majority,  or  his  election  not  to  avoid,  may 

often  render  the  transaction  unimpeachable.^*     After  destruction 

of  the  records  and  lapse  of  time,  the  sale  may  be  presumed  to 

have  conformed   to  essentials.'^     Presumptions   in   short   are   in 

favor  of  the  regularity  of  all  probate  court  proceedings  within 

each    jurisdiction;     and    such    proceedings    should    seldom    be 

avoided  when  collaterally  attacked  unless  it  is  shown  affirmatively 

that  there  was  no  actual  jurisdiction.^* 

But  as  to  irregularities  or  omissions  which  render  the  sale  void 

altogether,  there  is  some  confusion  of  authority.     The  principle 

itself  is  a  clear  one,  but  in  the  application  commonly  made  seems 

much  difficulty.     The  license  of  a   court   plainly  without   com- 

1181;  Goodman  v.  Schwind  (Tex.  Civ.  to  purchaser  until  conveyance  is  exe- 

App.),  186  S.  W.  282  (sale  void  where  cuted,  confirmed,  &e.,  even  though  by 

clerk  of  court  is  the  guardian).  its    terms    dating    back.      Ordway    v. 

52.  Infra,  ch  X;  Part  V,  ch.  5.  Smith,  53  la.  589. 

53.  Kimball  v.  Fisk,  39  N.  H.  110;  55.  Spring  v.  Kane,  86  111.  580. 
Bryan  v.  IManning,  6  Jones,  334;  Where  a  court  of  equity  acts  on  gene- 
Field  V.  Goldsby,  28  Ala.  218;  ral  grounds,  it  must  inquire  whether 
Dutcher  v.  Hill,  29  Mo.  271;  Gilmore  the  infant  will  be  benefited;  if  not, 
V.  Eodgers,  41  Pa.  St.  120; -Marvin  decree  should  be  refused.  Ames  et  oL 
V.  Schilling,  12  Mich.  356;  Kenniston  v.  Ames  et  al.,  48  111.  321.  General 
V.  Leighton,  43  N.  H.  309.  jurisdiction    denied    in    selling    land 

54.  See  infra,  ch.  X ;  Part  V,  chs.  where  an  adult  -had  a  part  interest. 
5  and  6 ;  Havens  v.  Patterson,  43  N.  Eoche  et  al  v.  Waters,  72  Md.  264. 
Y.  218;  Parmele  V.  McGinty,  52  Miss.  Jurisdiction  apart  from  statute  de- 
475.  Infant 's  title  under  statute  sale,  nied.  Whitehead  v.  Bradley,  87  Va. 
when    actually    divested,    see    Doe    v.  676. 

Jackson,    51    Ala.    514 ;    Shaffner    v.  56.  See  Howbert  v.  Heyle,  47  Kan. 

Briggs,  36  Tnd.   55;  MacVey  v.  Mae-  58;  Meikel  ct  al.  v.  Borders,  129  Ind. 

Vey,   51   Mo.   406;    Schafer  v.  Luke,  523;  Curie  v.  Franklin,  51  Ark.  338. 
51  Wis.  669.     Land  held  not  taxable 


1069 


SALES  OF  EEAL  ESTATE. 


§  940 


petent  jurisdiction  would  be  void.  But  where  the  court  ha^ 
jurisdiction  (and  this  jurisdiction  is  usually  vested  originally  in 
county  courts  having  probate  jurisdiction^^),  it  is  material  to 
inquire  what  provisions  of  the  statute  are  positive  and  what  are 
declaratory.  In  some  cases,  a  very  strict  rule  seems  to  have  been 
pursued ;  in  others,  the  construction  has  been  liberal  in  favor  of 
the  purchaser's  rights.  The  execution  of  the  statute  bond  would 
seem  to  be  in  general  an  essential,  though  some  States  do  not  so 
regard  it;  so,  too,  a  public  sale  at  the  time  set;  sometimes  the 
filing  of  an  oath ;  the  offer  of  such  land  as  the  license  designates 
and  none  other;  the  delivery  of  a  deed  to  the  purchaser  and 
receipt  of  the  purchase-money.  And  yet  the  guardian's  failure 
to  comply  with  certain  of  these  formalities  does  not  invariably 
affect  the  purchaser's  title.  The  difficulty  is  set  at  rest  in  some 
States  by  a  statute  provision  as  to  the  essential  particulars  which 
a  bona  fide  purchaser  is  bound  to  notice.^*  We  can  only  add  that, 
in  States  where  the  legislature  supplies  no  such  provision,  a  pur- 
chaser cannot  feel  safe  in  disregarding  any  forms  of  procedure 
prescribed  in  so  many  words;  and  that,  the  more  explicit  the 
language  of  the  statute,  the  more  careful  he  should  be  in  insisting 
on  the  prescribed  course,  especially  as  to  the  sale  and  the  method 
of  conducting  it.°®     There  might  be  defects  to  urge  directly  for 


57.  As  to  courts  of  common  pleas, 
for  such  jurisdiction,  see  McKeever 
V.  Ball,  71  Ind.  39S;  Foresman  v. 
Haag,  36  Ohio  St.  102. 

58.  Gen  Sts.  Mass.,  ch.  102,  §§  37- 
48;   Mohr  v.  Tulip,  51  "Wis.  487. 

59.  Williams  v.  Morton,  38  Me.  47 ; 
Owens  v.  Cowan,  7  B.  Monr.  152; 
Palmer  v.  Oakley,  2  Doug.  433 ;  Stall 
V.  Macalester,  9  Ham.  19 ;  Blackman 
V.  Baumann,  22  Wis.  611;  Strouse  v. 
Drennan,  41  Mo.  289;  Brown  v.  Chris- 
tie, 27  Tex.  73;  Frazier  v.  Steenrod, 
7  la.  339. 

Due  notice  to  those  interested  in 
the  sale  is  essential.  Knickerbocker 
T.  Knickerbocker,  58  111.  399;  Haws 
V.  Clark,  37  la.  355;  Williamson  v. 
Warren,  55  Miss.  19.  But  the  pro- 
ceeding is  in  rem,  in  the  ward 's  inter- 
est; and  hence  notice  to  heirs  is  not 
always  insisted  upon  as  necessary. 
Mulford    V.    Beveridge,    78    111.    455; 


Gager  v.  Henry,  5  Sawyer  C.  C.  237; 
Mohr  V.  Mahierre,  101  U.  S.  417.  Nor 
the  appointment  of  a  guardian  ad 
litem.  Orman  v.  Bowles,  18  Col.  463. 
But  notice  to  the  ward  is  usually  re- 
quisite. Eankin  v.  Miller,  43  la.  11; 
Kennedy  v.  Gaines,  51  Miss.  625; 
Musgrave  v.  Conover,  85  HI.  374. 
Though  the  ward  need  not  join  in 
the  petition.  Cole  v.  Gourlay,  79  N, 
T.  527.  Jurisdiction  is  essential.  In 
some  States  the  probate  court  has  no 
authority  to  order  a  sale.  Summer  v. 
Howard,  33  Ark.  490.  See  Fores- 
man  V.  Hagg,  36  Ohio  St.  102.  The 
statute  which  prescribes  in  what 
county  application  should  be  made 
for  leave  to  sell  must  be  regarded. 
Spellman  v.  Dowse,  79  111.  66;  Mohr 
V.  Tulip,  51  Wis.  487.  Advice  of  a 
family  meeting  is  an  element  in 
Louisiana  practice.  Wisenor  v.  Lind- 
say, 33  La.  Ann.  1211.     There  is  no 


§  940 


GUABDIAN    AND    WAED. 


1070 


avoiding  such  a  sale  which  could  not  enable  the  sale  to  be  attacked 


jurisdiction  to  authorize  a  mortgage 
under  a  guardian '3  petition  which 
asks  for  a  sale.  McMaunis  v.  Eice,  48 
la.  361.  The  notice  of  public  sale 
with  a  wrong  time  or  no  time  stated 
is  fatally  defective.  Lyon  v.  Van- 
atta,  35  la.  521.  But  cf.  Spring  v. 
Kane,  86  111.  580.  A  sale  bond  is 
essential  in  some  States,  while  in 
others,  especially  where  confirmation 
is  made  by  the  court,  its  omission 
does  not  invalidate  the  sale.  Stewart 
V.  Bailey,  28  Mich.  251;  Blauser  v, 
Diehl,  90  Pa.  St.  350;  Howbert  v. 
Heyle,  47  Kan.  58;  McKeever  v.  Ball, 
71  Tnd.  398;  Railroad  Co.  v.  Stein- 
feld,  42  Ohio  St.  454;  Barnett  v.  Bull, 
81  Ky.  127;  Goldsmith  v.  Gilliland, 
23  Fed.  R.  645.  But  informality  in 
the  bond  is  not  necessarily  fatal. 
McKinney  v.  Jones  and  Another,  55 
Wis.  3ff.  See  Watts  v.  Cook,  24  Kan. 
278;  Cuyler  v.  Wayne,  64  Ga.  78.  A 
special  bond  covers  only  a  sale  under 
the  specific  license.  Weld  and  Others 
V.  Johnson  Mfg.  Co.,  84  Wis.  537,  Cf. 
Arrowsmith  v.  Gleason,  46  Fed.  R. 
256.  As  to  requisites  and  sufficiency 
of  a  petition  for  leave  to  sell,  there 
are  many  decisions  of  little  more  than 
local  consequence.  Discretion  of  a 
county  court  in  ordering  a  sale  may 
be  controlled  usually  on  appeal.  A 
defective  petition  does  not  usually 
affect  the  court's  jurisdiction.  And 
see  Robertson  v.  Johnson,  57  Tex.  62; 
Ellsworth  V.  Hall,  48  Mich.  407. 

There  has  been  some  conflict  of 
cases  as  to  whether  a  sale  is  valid 
without  the  statutory  notice  to  per- 
sons in  interest.  But  the  present  in- 
clination upholds  the  sale  where  a 
proper  petition  was  presented  to  the 
proper  court,  thus  giving  the  court 
jurisdiction  in  rem.  The  sale  may 
then  bind  the  guardian  and  his  ward, 
and  all  having  notice  and  assenting, 
even  though  it  might  not  bind  parties 
adversely  interested  having  no  notice. 
For  the  notice  is  not  to  give  jurisdic- 
tion of  the  subject-matter,  but  to  get 


jurisdiction  of  persons  adversely  in- 
terested. Mohr  V.  Tulip,  51  Wis.  487, 
and  cases  cited;  Nott  v.  Sampson, 
Man.  Co.,  142  Mass.  479. 

The  place  of  sale  need  not  be  des- 
ignated. Williamson  v.  Warren,  55 
Miss.  199.  There  may  be  a  merely 
defective  notice,  so  as  not  to  render 
the  sale  void  as  in  case  no  notice  were 
given.  Lyon  v.  Yanatta,  35  la.  521; 
Bunce  v.  Bunce,  59  la.  533 ;  Richard- 
son V.  Farwell,  49  Minn.  210.  A  limit 
of  sale  by  appraisement  or  otherwise 
is  sometimes  set.  Fraser  v.  Zylicz, 
29  La.  Ann.  534.  Statute  requirement 
of  publication  for  successive  weeks, 
how  fulfilled.  Dexter  v.  Cranston,  41 
Mich.  448.  As  to  adjourning  the  sale, 
see  Gager  v.  Henry,  5  Sawyer  C.  C. 
237.  Defective  recitals  in  a  guar- 
dian's deed;  whether  the  deed  must 
be  cancelled.  Bobb  v.  Barnum,  59 
Mo.  394.  Succinct  statements  in  such 
deed  are  sufficient.  Worthington  v. 
Dunkin,  41  Ind.  515.  Where  the  court 
has  jurisdiction,  and  makes  an  order 
for  the  sale,  a  hona  fide  but  irregular 
arrangement  by  the  guardian  with  the 
purchaser,  as  to  delivery  of  deed  to 
carry  out  the  terms  of  the  sale,  will 
not  readily  be  regarded  as  invalidat- 
ing the  sale.  Mulford  v.  Beveridge, 
78  HI.  455.  The  act  of  conveyance  is 
rather  oflBcial  than  personal,  and  may 
be  carried  out  by  a  siiccessor  to  the 
guardian  who  sold.  Lynch  v.  Kirby, 
36  Mich.  238.  A  ward  had  a  void  de- 
cree of  sale  set  aside  where  his  guar- 
dian misappropriated  the  proceeds  and 
was  not  compelled  to  refund  the  pur- 
chase-money, in  Reynolds  v.  McCurry, 
100  HI.  356.  As  to  limitation  of 
ward's  disability  to  set  aside,  see 
White  V.  Clawson,  79  Ind.  188. 

A  formal  order  of  court  confirming 
the  sale  is  not  needful  usually  to  give 
it  validity;  but  local  statutes  differ. 
Robertson  v.  Johnson,  57  Tex.  62; 
Bunce  v.  Bunce,  59  la.  533;  Reid  et 
al.  V.  Hart,  45  Ark.  41;  Bone  v. 
Tyrrell,  113  Mo.  175;  Moore  v.  Davis, 


1071 


SALES  OF  KEAL  ESTATE. 


§  940 


collaterally.     The  guardian's  tender  of  a  deed  with  misrecitals 
of  importance  need  not  be  accepted  bj  the  party  purchaser."" 

The  purchaser  may  sometimes  maintain  a  bill  in  equity  for 
rescinding  the  sale  on  account  of  illegality.  But  he  must  offer 
to  surrender  possession  and  to  account  for  the  use  and  occupation 
of  the  premises."^  Defective  proceedings  are  sometimes  cured  by 
the  court,  so  as  to  compel  him  to  abide  by  the  terms  of  the  pur- 
chase. Mere  irregularities  in  a  guardian's  sale  not  affecting  the 
jurisdiction  and  the  validity  of  a  title  do  not  justify  the  purchaser 
in  refusing  to  complete  the  purchase."^  He  is  presumed  to  have 
knowledge  of  all  judicial  limits  as  to  price  and  other  essentials 
on  record  in  the  license  proceedings."^  And  it  seems  that  he  may, 
by  his  laches,  forfeit  his  right  of  objection  to  the  sale."*  What- 
ever the  favor  to  be  shown  to  a  bona  fide  purchaser  without  notice 
of  fatal  defects  in  the  title  or  misappropriation  of  the  proceeds, 
one  who  connives  at  a  fraud  upon  the  ward  may  be  held  account- 
able for  the  trust  property  or  its  proceeds."^  But  sales  made  in 
fraud  of  an  infant  are  sometimes  adopted  and  confirmed  by  a 
court,  with  the  purchaser's  assent,  as  being  beneficial  to  the 
infant.""  A  guardian  in  general  can  only  safely  accept  money 
in  payment  of  the  purchase  price."' 

An  order  of  sale  obtained  by  one  who  has  never  qualified  as 


85  Mo.  464;  Scarf  v,  Aldrich,  97  Cal. 
360.  What  snch  order  adjudicates, 
see  Dawson  v.  Helmes,  30  Minn. 
107.  Thongh  confirmation  ought 
to  precede  the  delivery  of  a  deed, 
a  deed  previously  delivered  is  good 
after  confirmation.  Hammann  v. 
Mink,  99  Ind.  279.  Confirmation 
of  a  sale  where  no  deed  was  executed, 
but  the  price  was  paid  and  possession 
delivered,  gives  at  least  an  equitable 
title.  Alexander  v.  Hardin,  54  Ark. 
480. 

60.  Williams  v.  Schembri,  44  Minn. 
250.  The  guardian's  tender  of  a 
deed  with  proper  recitals  and  cove- 
nants should  be  accepted. 

61.  Shipp  V.  Wheeless,  33  Miss.  646 ; 
Loyd  V.  Malone,  23  111.  43;  Anderson 
V.  Layton,  3  Bush,  87. 

62.  Bcidler  v.  Friedcll,  44  Ark.  411; 
Kelly  and  Another  v.  Morrell,  29  Fed. 
R.  736. 


63.  In  re  Petition  of  Axtele,  95 
Mich.  244. 

64.  Cooper  v.  Hepburn,  15  Gratt. 
551. 

65.  See  Wallace  v.  Brown,  41  Ind. 
436,  where  a  purchaser  paid  to  the 
guardian  the  latter 's  individual  note-s 
in  settlement  of  his  purchase.  So,  too, 
AmWeton  v.  Dyer,  53  Ark.  224.  And 
see  post,  ch.  9.  A  collusive  sale  be- 
tween administrator  and  guardian  to 
the  detriment  of  the  ward  and  heir, 
may  be  avoided  by  the  latter.  Cand- 
ler V.  Clarke,  90  Ga.  550. 

Rents  and  profits  under  an  irregu- 
lar sale  must  be  accounted  for  when 
the  sale  is  set  aside.  Ambleton  v. 
Dyor,   53   Ark.   224. 

66.  Ex  parte  Kirkman.  3  Head,  517. 

67.  Brenham  v.  Davidson,  51  Cal. 
352.  See  Peabody  v.  North,  161 
Mass.  525,  as  to  other  considerations 
as  part  of  the  purchase  price. 


§    942  GUARDIAN    AIS'D    WAKD.  1072 

guardian  is  a  nullitj.^^  So,  too,  the  sale  of  a  court,  contrary  to 
the  provisions  of  a  devise,  is  utterly  void,®'  and  may  be  void 
unless  properly  entered  in  some  record  book."° 

§  941.  Disposition  of  Proceeds. 

As  to  the  disposition  of  the  proceeds,  the  guardian's  conduct 
is  to  be  regulated  by  the  terms  of  his  license.  If  he  was  per- 
mitted to  sell  for  the  purpose  of  maintenance  and  support,  the 
moneys  obtained  must  be  so  appropriated ;  if  for  the  payment  of 
certain  debts,  those  debts  must  be  paid ;  if  for  investment  in 
other  securities,  he  must  invest  therein;  and,  unless  the  court 
leave  sthe  investment  to  his  own  discretion,  he  is  bound  to  invest 
as  it  orders.  Any  other  course  of  conduct  will  subject  him  to 
penalties  for  breach  of  his  special  bond.  He  is  not  justified  in 
appropriating  the  proceeds  of  the  sale  for  the  above  objects  gen- 
erally, however  reasonable  it  miffht  be  to  do  so  on  other  consider- 
ations;  but  for  the  particular  object  contemplated  by  the  court 
in  granting  the  license,^^  Xot  even  the  ward's  assent  to  his  dis- 
position of  the  proceeds  can  exonerate  the  guardian  from  j^spon- 
eibility  to  other  parties  immediately  interested,  for  such  losses  as 
may  occur  by  reason  of  his  disregard  of  this  rule.^"  IN'or  is  his 
special  bond  discharged  by  the  fact  that  he  produced  the  proce€ds 
of  the  sale  in  court^  and  was  then  ordered  to  withdraw  them; 
for  the  guardian  and  not  the  court  is  the  proper  custodian  of  the 
fund.'''  Any  person  not  the  guardian,  authorized  to  sell  in  such 
cases,  is  held  to  account  in  like  manner.'* 

The  ward  is  bound  to  account  to  the  purchaser  for  the  purchase 
price  used  for  his  benefit  where  the  guardian  makes  a  void  sale, 
but  the  succeeding  guardian  need  not  do  so 


§  942.  Confirmation  of  Sale. 

In  various  States  confirmation  of  the  sale  by  the  court  is  not  a 
prerequisite  to  divesting  the  ward's  title,  but  in  others  it  appears 
to  be."     And  a  court  may  refuse  to  confirm  or  may  set  a?ide  a 

68.  Wells  V.   Steckleberg,  50   Neb.  73.  State  v.  Steele,  21  Ind.  207. 
670,  70  N.  W.  242.  74.  Pope  v.  Jackson,  11  Pick.  113. 

69.  Rogers  v.  Dill,  6  Hill,  415.   See  75.  Touchy   v.    Gulf   Land   Co.,    45 
also  Matter  of  Ellison,  5  Johns.  Ch.  So.  434. 

261 ;  Sutpben  v.  Fowlor.  9  Paige,  280.  76.  Gentry  v.  Bearss,  82  Neb.  787, 

70.  Teague  v.  Swasey,  46  Tex.  Civ.  118  N.  W.  1077  (succeeding  guardian 
App.  151,  102  S.  W.  458.  need    not    offer    to    return    purchase 

71.  Strong  v.  Moe,  8  Allen,  125.  price  paid   for  void  sale). 

72.  Harding  v.  Lamed,  4  Allen,  426,  77.  §  9.39,  notes. 


1073  SAI.ES    OF    REAL    ESTATE.  §    943 

sale  because  of  gross  inadequacy  of  price  or  other  unfairness  to 
the  ward's  interest."*  Certain  defects  in  a  sale,  too,  are  in  some 
States  (but  not  in  others)  treated  as  cured  by  the  court's  required 
confirmation  of  the  sale ;  and  this  more  particularly  where  it  is 
ehown  that  the  sale  was  beneficial  to  the  ward." 

Where  a  guardian  petitions  for  the  sale  of  his  ward's  interest, 
alleging  that  a  certain  cash  offer  has  been  received  and  the  sale 
is  confirmed  on  his  return  of  the  receipt  of  the  cash,  he  is  later 
estopped  to  deny  that  he  received  any  cash  for  the  land.  To  allow 
such  a  claim  would  be  trifling  with  judicial  records  made  up  at 
the  instance  of  the  guardian.^" 

§  943.  Sales  in  Cases  of  Non-Residents. 

Where  a  non-resident  guardian  applied  for  the  sale  of  real 
estate  in  Maine  belonging  to  his  ward,  also  a  non-resident,  the 
person  authorized  in  that  State  to  make  the  sale  was  ordered  to 
transmit  the  proceeds  to  such  non-resident  guardian;  but  this 
would  not  be  the  rule  in  some  other  States.*^  Statutes  have  been 
frequently  enacted  by  which  non-resident  guardians  may  sell 
their  ward's  lands,  on  petition  to  the  court  having  jurisdiction, 
with  an  authenticated  copy  of  the  letters  of  guardianship,  and 
compliance  with  the  ordinary  formalities  of  such  sales;  execut- 
ing, perhaps,  to  the  court  having  control  of  the  funds,  a  bond  for 

their  proper  application.*^ 

78.  Mitchell  v.  Jones,  50  Mo.  438.  80.  5e  Potter,  249  Pa.  158,  94  Atl. 

79.  See  Emery  v.  Vroman,  19  Wis.       465,  L.  R.  A.  1916A,  637. 

€89;  Mahoney  v.  McGee,  4  Bush,  527;  81.  Johnson  v.  Avery,  2  Fairf.  99; 

Blaekman  v.  Baumann,  22  Wis.  611;  contra,   Gay  v.   Brittingham,   34   Md. 

Pursley  v.  Hayes,  22   la.   11;   Gager  675. 

V.  Henry,  5  Sawyer  C.  C.  237;   Hurt  82.  McClelland     t.     McClelland,     7 

▼.  Long,  90  Tenn.  445.  Baxt.  210. 

68 


§    944  GUARDIAN    AND    WABD.  1074 


CHAPTER  VIIL 

THE  GUAEDIAN's  INVENTORY  AND  ACCOUNTS. 

Section  944.  The  Guardian's  Inventory. 

945.  The  Guardian's  Accounts;  English  Chancery  Practiee. 

946.  Accounts;  Jurisdiction  Over. 

947.  Accounts;  Duty  to  Render  Accounts. 

948.  Accounts;  When  Required. 

949.  Accounts;   Form. 

949*3.  Accounts;     Intermediate  and  Final,  Distinguished. 

950.  Accounts;  "With  "What  Property  Guardian  Chargeable. 

951.  Accounts;  Effect  of  Lapse  of  Time. 

952.  Accounts;  In  Case  of  Death,  &c.,  of  Guardian. 

953.  Compensation  of  Guardians  in  England. 

954.  Compensation  in  this  Country. 

955.  Commissions. 

§  944.  The  Guardian's  Inventory. 

One  of  the  probate  guardian's  first  duties  after  his  appointment 
is  to  file  an  inventory  of  the  ward's  effects.  This  ia  a  schedule, 
prepared  bj  discreet  and  disinterested  persons,  and  verified  by 
their  oath,  wherein  the  amount  of  the  ward's  estate,  both  real  and 
personal,  together  with  the  separate  items,  are  duly  entered  at  a 
just  valuation.  The  inventory  serves  as  the  basis  of  the  guar- 
dian's accounts,  and  primarily  fixes  his  liability.  Here  again 
the  statute  relative  to  infants  borrows  from  the  long-established 
practice  of  the  English  ecclesiastical  courts,  with  regard  to  the 
administration  of  estates.  But  one  inventory  is  in  general  neces- 
sary; and  if  subsequent  effects  come  to  the  guardian's  hands,  he 
will  place  them  in  his  accounts  to  the  ward's  credit.  It  is  to  be 
observed  that  though  probate  inventories  are  prima  facie  evidence 
of  the  existence  of  assets  and  their  true  valuation,  they  are  by  no 
means  conclusive.  And  the  guardian  may  show,  in  rendering  his 
accounts,  that  he  was  not  chargeable  with  certain  items  which 
therein  appeared,  or  that  the  just  sale  of  property  realized  less 
than  its  appraised  worth ;    and  he  will  be  credited  accordingly. 

On  the  other  hand,  property  omitted  from  the  inventory,  which 
comes  within  the  guardian's  reach  in  any  manner,  should  be 
accounted  for,  as  well  as  all  gains  realized  over  and  above  the 
appraisers'  valuation.  During  the  long  period  for  which  a  guar- 
dian's authority  frequently  lasts,  the  inventory  may  become  of 


1075  INVENTOEY  AND  ACCOUNTS.  §  945 

little  practical  consequence,  except  as  furnishing  for  himself  the 
starting-point  in  his  system  of  accounts,  and  determining,  for  the 
convenience  of  others  interested,  the  fact  and  extent  of  his  orig- 
inal liability.  And  as  the  ward's  real  estate  is  to  be  preserved 
intact  unless  a  sale  is  ordered,  the  guardian's  account,  like  that 
of  an  administrator,  starts  usually  in  this  country  with  the 
amount  of  personal  estate  according  to  the  inventory,  taking  into 
his  reckoning  only  the  income  and  expenditures  from  the  real 
estate  until  some  sale  of  land  is  actually  made.  If  two  or  more 
persons  under  guardianship  are  interested  in  different  property, 
or  have  unequal  interests  in  the  same  property,  separate  schedules 
should  be  rendered  for  each.*' 

An  inventory  filed  by  a  guardian  may  be  corrected  by  amend- 
ment allowed  by  the  court." 

§  945.  The  Guardian's  Accounts;    English  Chancery  Practice. 

The  accounts  of  guardians  are  in  England  subject  to  the  direc- 
tion of  the  court  of  chancery.  Guardians  and  receivers  who  have 
entered  into  recognizance  as  officers  of  the  court  are  compelled  to 
present  their  accounts  on  application  made  by  any  person  inter- 
ested. Such  proceedings  are  by  petition,  or  on  motion  filed. 
Keoeivers  are  expected  to  pass  their  accounts  regularly,  and  a 
guardian  is  compelled  to  account  by  enforcing  his  recognizance. 
The  common  rules  as  to  executors  and  trustees  apply  to  guar- 
dians. But  unless  there  is  misconduct  shown,  the  guardian  need 
not  show  specifically  how  he  has  used  the  sum  allowed  as  main- 
tenance. A  receiver's  accounts  are  sometimes  examined  on  ap- 
plication of  strangers.  Mr.  Macpherson  says  that  there  is  scarcely 
a  modem  instance  to  be  found  where  an  account  has  been  taken 
from  a  guardian  without  suit.®"     In  like  manner,  equity  treats 

83.  Matter    of    Seaman,    2    Paige,  An  Indiana  statute  makes  the  duty  of 

409;  Hooker  v.  Bancroft,  4  Pick.  50;  a   j^uardian   to  file   an   inventory   im- 

Mass.  Gen.  Sts.,  chs.  100,  109;   State  perative.    Wood  v.  Black,  84  Ind.  279. 

V.    Stewart,    36    Mis3.    652;    Clark   v.  Summary  removal  is  the  penalty  for 

"Whitakcr,    18    Conn.    543;    Fuller    v.  disregard   of  a  court's  order  to  file. 

Wing,  5  Shep.  222;  Green  v.  Johnson,  Ex  parte  Cottingham's  Guardian,  124 

3  Gill  &  Johns.  388;  Fogler  v.  Buck,  Ind.  250. 

66  Me.  205.      And  see,  as  to  inven-  84.  In  re  Watson,  51  La.  Ann,  1641, 

tories  generally,  1   Wms.  Ex'rs,  878-  26   So.   409;    Martin   v.   Sheridan,   46 

883;   Schouler,  Ex'rs,   Part   III.,   ch.  Mich.  93,  8  N.  W.  722;  United  States 

2.    A  guardian 's  sureties  are  not  pre-  Fidelity  &  Guaranty  Co.  v.  Hall  (Tex. 

eluded  by  the  inventory  from  showing  Civ.  App."),  173  8.  W.  89^. 

the  true  ownerflhi-n  of  alleged  assets.  85.   Macphers.   Inf.   108;    lb.,  259, 

Sanders   v.    Forgasson,   3    Baxt.   249.  348. 


§  947 


GUAKDIAN    AXD    WAP.D. 


1076 


as  guardians  all  persons  who  take  possession  of  an  infant's  estate, 
whether  duly  authorized  to  act  or  not,  and  obliges  such  personB 
to  account,  on  application  made  by  the  infant  himself,  or  on  hi« 
behalf.*^ 

§  946.  Accounts;    Jurisdiction  Over. 

Courts  of  equity  in  this  country  are  doubtless  authorized  to 
entertain  like  proceedings  against  all  quasi  guardians.*^  But 
under  our  statutes  probate  guardians,  duly  appointed,  are  invari- 
ably made  liable  to  account,  in  the  first  instance,  to  the  local  court 
issuing  letters  of  guardianship,  which  thus  becomes,  in  fact,  the 
general  depository  of  accounts  relative  to  the  estates  of  deceased 
persons  and  wards.  The  immediate  jurisdiction  over  the  settle- 
ment of  guardians'  accounts  is  usually,  therefore,  in  the  probate 
court. 

Rules  of  equity  still  prevail  to  a  considerable  extent  so  as  to  hold 
guardians  accountable  on  the  usual  footing  of  trustees.  The  cita- 
tion to  render  account  in  the  probate  court  is  a  summary  proceed- 
ing, resembling  the  bill  in  chancery  for  discovery. 

§  947.  Accounts;    Duty  to  Render  Accounts. 

It  is  the  duty  of  every  guardian,  whose  trust  as  such  is  revoked, 
to  account  honestly  to  the  late  wards,  or  to  his  successor  in  the 
trust  if  there  be  one,  for  their  estate.  Thus,  a  guardian  cannot 
discharge  himself  by  simply  turning  over  to  his  successor  the  lat- 
ter's  note  for  an  individual  debt  due  the  guardian  and  taking  a 
receipt  in  full ;  but  he  will  still  be  bound  in  equity  to  the  ward 
unless  he  transfers  the  ward's  property,  or  money  in  lieu,  or  good 
securities,  such  as  are  admitted  to  be  proper  investments.*^  Per- 
mitting a  guardian  to  resign  or  removing  him  is,  of  course,  no 
judgment  that  a  full  settlement  and  accounting  has  been  had 
And  the  collusive  appointment  of  a  successor,  together  with  a  col 


8S 


86.  Ih.,  259;  Story,  Eq.  Juris.,  § 
1195;  Morgan  v,  Morgan,  1  Atk.  489. 

87.  Chaney  v.  Smallwood,  1  Gill, 
367;  next  chapter. 

88.  Sage  v.  Hammonds,  27  Gratt. 
651 ;  Manning  v.  Manning,  61  Ga. 
137;  Coles  v.  Allen,  64  Ala.  98.  Lee 
State  V.  Bolte,  72  Mo.  272. 

89.  King  V.  Hughes,  52  Ga.  600. 
No  such  settlement  is  practicable,  in 


fact,  as  many  American  codes  should 
be  construed,  until  at  all  events  the 
■ward  has  reached  full  age,  or  a  new 
probate  guardian  is  fully  clothed  -with 
his  office,  and  competent  to  receive 
the  estate.  See  as  to  such  decrees, 
Cheney  v.  Eoodhouse,  135  111.  257; 
Kingsberry  et  al.  v.  Hutton  et  dl.,  140 
111.  603. 


1077 


INVEMTOKY    AND    ACCOUNTS. 


§  949 


lusive  settlement,  cannot  conclude  the  rights  of  tJie  defrauded,  party 
in  interest.®" 

§  948.  Accounts;    When  Required. 

With  probate  guardians  it  is  the  usual  practice  to  present 
accounts  with  vouchers  annually,  and  in  some  States  once  in  three 
years  if  not  oftener,  or  as  otherwise  directed  by  the  court,  the  par- 
ties in  interest  other  than  the  ward  having  been,  first  cited,  unless 
their  approval  appears  upon  the  face  of  the  account. 

The  guardian  is  by  law  required  to  render  full  account  of  his 
oonduct  of  the  ward's  estate  usually  annually,'' 

Under  a  statute  requiring  accounts  to  be  presented  annually  it  is 
no  objection  that  the  first  account  was  filed  before  the  expiration 
of  a  year  from  the  appointment,®^  although  his  failure  to  render 
accounts  promptly  does  not  of  itself  render  him  responsible. 


93 


§  949.  Accounts;    Form. 

The  account  should  be  itemized  and  with  regard  to  chronological 
sequence.  The  account  is  considered  by  the  court  and  passed  after 
due  examination,  upon  the  oath  of  the  guardian.  The  vouchers 
are  retained  by  the  guardian,  but  the  account  is  recorded  and  filed 
in  the  court.®"* 

All  items  are  not  necessarily  proved  by  vouchers ;  small  charges 
may  be  allowed  on  the  guardian's  oath;  and  oral  proof  is  fre- 
quently admissible  as  in  the  settlement  of  other  probate  accounts. 
In  the  settlement  of  a  guardian's  account,  the  disposition  is  to 
adjust  items  without  resort  to  a  circuity  of  litigation  that  is  prac- 
tically needless. 


95 


90.  Ellis  V.  Scott,  75  N.  C.  108; 
Manning  v.  Manning,  61  Ga.  137. 

91.  See  Curtis  v.  Devoe,  121  Cal. 
468,  53  P.  936,  See  Powell  v.  Powell, 
52  Mich.  432,  18  N.  W.  203  (undue 
hsLste  in  settling  guardian's  accounts 
not  favored)  ;  Empire  State  Surety 
Co.  V.  Cohen,  156  N.  Y.  S.  935,  93 
Misc.  299;  In  re  Troy,  152  P. 
103,  recall  of  mandate  denied,  158 
P.  172 ;  Alcon  v.  Koons,  42  Ind.  App. 
.537,  82  N.  E.  92  (every  two  years)  ; 
Driskill  v.  Quinn  (Okla.),  170  P. 
495  (even  after  guardian  removed  he 
must  settle  his  accounts). 

92.  In  re  Hayden's  Es+ate,  146  Cal. 
73,  79  P.  588. 


93.  Curtis  v.  Devoe,  121  Cal.  468, 
53  P.  936. 

94.  As  to  the  effect  of  annual  set- 
tlements where  the  public  records  have 
been  destroyed,  see  Kidd  v.  Guibar, 
G3  Mo.  342.  The  contents  may  be 
proved  by  parol.  lb.  The  guardian 's 
final  account  should  purport  on  its 
face  to  be  such.  Bennett  v.  Hanifin, 
87  III.  31.  While  in  force  it  is  an 
adjudication  of  the  matters  lawfully 
embraced  therein.  Briscoe  v.  John- 
son, 73  Ind.  573. 

95.  Cutts  v.  Cutts,  58  N.  H.  602. 
As  to  reopening  administration  ac- 
counts, see  Denholm  v.  McKay,  148 
Mass.  434. 


§  949a 


GUARDIAN    AND    WAKD. 


10Y8 


The  account  should  show  the  dates  of  the  items/®  and  bills  paid 
for  medical  services  are  sufficiently  itemized  where  the  pay«e,  the 
nature  of  the  services  rendered  and  the  dates  of  payment  are 
given.®^  Valuations  should  be  reduced  to  the  lawful  standard  of 
currency/®  and  the  court  will  not  be  captious  over  slight  irregu- 
larities- of  form  where  it  apjDcars  that  the  guardian  honestly  dis- 
charged his  duties  and  finally  accounted  fully  and  satisfactorily.®^ 
The  guardian  may  correct  mistakes,  but  not  dispute  his  ward's 
rights  at  pleasure.^  The  accounts  should  be  accurate  in  debits  and 
credits,  and  inaccuracies  are  corrected.^ 

The  accounts  of  wards  having  different  and  unequal  interests  in 
property  should  be  kept  distinct  and  rendered  separately.^  But 
the  fact  that  a  guardian  of  two  wards  invested  on  their  joint 
account  without  distingniishing  their  several  interests  is  no  reason 
why  the  investment  should  be  disallowed,  if  sufficiently  for  each 
ward's  benefit.* 

In  some  States  the  guardian's  final  account  must  embrace  all 
items  contained  in  his  prior  accounts,  and  not  begin  with  the 
balance  on  the  last  one;  but  the  practice  in  this  respect  is  not 
uniform  in  the  United  States,  and  full  prior  accounts  on  file  might 
well  be  considered  in  the  final  connection." 

§  949a.  Accounts;  Intermediate  and  Final,  Distinguished. 

An  important  distinction  is  observable  in  the  American  practice 
concerning  the  accounts  of  probate  guardians,  between  the  final 
account  and  those  rendered  from  time  to  time,  as  the  local  practice 


96.  Succession  of  Guillebert,  133 
La.  603,  63  So.  237. 

97.  In  re  Hay  den 'a  Estate,  146 
Cal.  73,  79  P.  588. 

98.  See  McFarlane  v.  Eandle,  41 
Miss.  411;  Neilson  v.  Cook,  40  Ala. 
498. 

99.  La  Follette  v.  Higgins,  129 
Ind.  412. 

1.  Ee  Steele,  65  HI.  322.  Costs  in 
a  suit  not  connected  with  the  guar- 
dianship cannot  be  charged.  Carrie 
Allen,  40  N.  J.  Eq.  181.  As  to  com- 
pensation of  a  special  guardian  who 
defends  an  infant's  interest  in  the 
probate  of  a  will,  see  Matter  of  Will 
of  Bud  Long,  100  N.  Y.  203.  The 
guardinn  of  a  lunatic  may  include  in 
his  account  a  debt  due  from  the  luna- 


tic to   himself.      Carter  v.  Edmonds, 
80  Va.   58. 

2.  An  honest  error  which  charges 
the  guardian  twice  for  the  same  fund 
should  be  corrected.  85  Ga.  542.  Or 
an  honest  omission.  Purslow  v.  Brune, 
43  Kan.  175.  And  see  Euble  v.  Helm, 
57  Ark.  304. 

3.  Armstrong  v.  Walkup,  9  Gratt. 
372;  State  v.  Foy,  65  N.  C.  265; 
Hescht  V.  Calvert,  32  W.  Va.  215; 
§  370.  A  consolidated  account  for 
several  wards  having  unequal  interests 
should  be  rejected  by  the  court.  Crow 
v.  Reed,  38  Ark.  482;  Wood  v.  Black, 
84  Ind.  279. 

4.  Nance  v.  Nance,  1  S.  C.  (N.  S.) 
200. 

5.  Foltz's  Appeal,  55  Pa.  St.  428. 


1079  INVENTOEY  A>'D  ACCOUNTS.  §  949a 

may  require,  pending  the  minority  of  the  ward.  The  rule  13  that 
these  intermediate  accounts,  although  judicially  approved  and 
passed,  are  by  no  means  conclusive.  They  serve  to  show  the  guar- 
dian's liability  and  to  keep  the  court  informed  of  the  general 
condition  of  the  trust  funds,  to  determine  when  the  guardian's 
bond  should  be  increased,  and  to  ascertain  as  to  the  propriety  of 
sales  and  investments.  Such  accounts  remain  prima  facie  evidence 
of  the  sum  of  the  guardian's  indebtedness  to  his  ward,  and  are 
prima  facie  correct  accounts  but  nothing  more.®  Actual  notice  to 
the  ward  by  citation  is  not  indispensable  to  intermediate  accounts.*' 

The  decree  of  the  court  allowing  a  partial  account,  wherein  an 
item  is  omitted  or  improperly  stated,  does  not  relieve  the  guardian 
from  liability  for  the  error  on  his  subsequent  accounts.  He  must 
make  the  necessary  correction  as  soon  as  possible.  At  any  time 
before  final  settlement  and  discharge  of  the  guardian  ex  parte 
orders  made  by  the  court  may  be  set  aside,  corrected,  and  modi- 
fied ;  though  they  may  not  be  collaterally  attacked,®  and  the  guar- 
dian may  correct  an  erroneous  charge  he  has  made  against  himself.* 
The  mere  fact  that  the  several  current  reports  filed  by  the  guardian 
of  an  insane  person  were  approved  by  the  court  ex  parte  does  not 
prevent  action  by  the  ward  attacking  the  investments  shown  on 
the  accounts.  Such  ex  parte  orders  may  at  any  time  be  set  aside, 
corrected  or  modified,  if  the  requirements  of  justice  demand  it.^° 

But  on  the  final  account  of  the  guardian,  which  is  to  be  rendered 
at  the  expiration  of  his  trust,  the  question  comes  before  the  court 
as  to  the  general  fairness  of  his  management,  and  items  allowed  in 
former  accounts  may  then  be  stricken  out  as  improper.  The 
reason  of  this  is  that  the  cestui  que  trust  had  no  earlier  opportunity 
of  judging  as  to  the  correctness  of  the  trustee's  accounts,  and  ascer- 
taining that  final  balance,  which  is,  after  all,  the  estate  in  con- 
troversy. So,  too,  a  guardian  in  his  final  account  should  be 
allowed  to  correct  errors  to  his  prejudice,  satisfactorily  proved  to 
The  last  of  the  periodical  accounts  tacking  them  after  their  acceptance 
may  suffice.  Woodmansie  v.  "Wood-  by  the  court.  Turner  v.  Turner,  104 
inansie,  32  Ohio  St.  18.  X.  C.  566;  Bentley  v.  Dailey,  87  Ala. 

6.    Douglas's    Appeal,    82    Pa.    St.       406. 
169;   Bourne  v.  Maybin,  3  Woods  C.  7.  Davis  v.  Combs,  supra. 

C.  724;  Ashley  V.  Martin,  50  Ala.  537;  8.  State  v.  Wheeler,  127   Ind.  451. 

Matlock  V.  Rice,  6  Reisk.   33 ;   Davis  9.  Ferry  v.  McGowan,  68  Mo.  App. 

r.  Combs,  38  N.  J.  Eq.  473;  State  v.       C12. 

.Tones,  89  Mo.  470:  Jenkins  v.  Whyte  10.    Indiana   Trust   Co.   v.    Griffith, 

&■   Horwitz,   62   Md.    127.      But   even       176  Ind.  643,  95  X.  E.  573,  44  L.  R. 
thus,  the  burden  is  on  the  party  at-       A.  (N.  S.)  856. 


§  949a 


GUARDIAN    AND    WAKD. 


1080 


exist  in.  his  prior  accounts,  both  as  to  matters  of  form  and.  sub- 
stance/^ 

A  guardian's  final  account  should  cover  the  entire  period  of  the 
guardianship  where  the  intermediate  reports  are  incomplete,^^  and 
should  make  full  disclosure/' 

The  final  account  must  be  rendered  when  the  guardianship 
terminates/*  or  when  the  ward  becomes  of  age/^  It  would  appear 
that  a  guardian  cannot  be  cited  to  render  a  final  account  before  the 
ward's  majority,  unless  his  trust  has  been  first  determined;  and 
that  his  balances  should,  in  such  case,  be  paid  to  a  successor  and 
not  to  the  court/* 

ThA  guardian  should  be  prepared  to  sustain  by  satisfactory 
proof  the  items  which  indicate  his  dealings  with  the  estate.  But 
the  final  account,  once  examined  and  approved  by  the  court,  and 
not  reversed  on  appeal,  the  ward's  period  of  objecting  to  the  same 
having  also  expired  by  limitation,  such  account,  together  with  all 
which  preceded  it,  concludes  all  parties  interested,  inclusive  of  the 
guardian  and  his  own  representatives,  as  to  all  matters  involved  in 
the  settlement,  and  cannot  be  reopened  or  annulled  in  any  court: 
certainly  not  unless  by  direct  proceedings  to  obtain  a  reversal,  or 
setting  aside  for  fraud  or  manifest  error :  perhaps  in  some  States 
not  at  all,"     The  final  account  is  not  allowed  bv  the  court,  at  the 


11.  Crump  V.  Gerock,  40  Miss.  765; 
Burnham  v.  Dalling,  1  C.  E.  Green, 
144;  Willis  v.  Fox,  25  Wis.  646; 
Blake  v.  Pegram,  101  Mass,  592; 
Brewer  v.  Ernest,  81  Ala.  435. 

12.  Ellis  V.  Soper,  111  la.  631,  82 
N.  W.  1041;  Duffy  v.  McHale,  35 
E.  I.  16,  85  A.  36  (annual  partial 
account  is  not  a  final  account). 

13.  Euler  v.  Euler,  55  Ind.  App. 
547,  102  N.  E.  856;  In  re  Moore, 
112  Me.  119,  90  A.  1088;  Sroufe  v. 
Sroufe,    74    Wash.    639,    134    P.    471. 

14.  National  Surety  Co.  v.  State,  181 
Ind.  54,  103  N.  E.  105;  Pattison  v. 
Clingan  (Miss.  1908),  47  So.  503; 
Whitfield  V.  Burrell,  54  Tex.  Civ.  App. 
567,  118  S,  W.  153;  Buckley  v.  Herder 
(Tex.  Civ.  App.  1911),  133  S,  W. 
703. 

For  the  purposes  of  settlement  a 
guardianship  is  deemed  to  continue 
•ifter  it  has  in  law  ceased.     Mitchell 


V.   Penny,   66   W.   Va.   660,   66   S.   E. 
1003. 

15.  Miller  v.  Ash,  156  Cal.  544,  105 
P.  600;  Curran  v.  Abbott,  141  Ind. 
4:92,  40  N.  E.  1091,  50  Am.  St.  Eep. 
337;  Succession  of  Guillebert  (La. 
1906),  41  So.  654;  Probate  Judge  v. 
Stevenson,  55  Mich.  320,  21  N.  W. 
348. 

16.  Hughes  V.  Eingstaff,  11  Ala. 
564;   Lewis  v.  Allred,  57  Ala,  628. 

17.  Bonyton  v.  Dyer,  18  Pick.  1; 
Diaper  v.  Anderson,  37  Barb.  168; 
Manning  v.  Baker,  8  Md.  44 ;  Allman 
V.  Owen,  31  Ala.  167;  Eeynolds  v. 
Walker,  29  Miss.  250;  State  v. 
Strange,  1  Cart.  538;  Stevenson's 
Appeal,  32  Pa.  St.  318;  Cumnilngs  1. 
Cummings,  128  Mass.  532;  Holland 
V.  State,  48  Ind.  391;  Kattlemen  t. 
Estate  of  Guthrie,  142  HI.  357;  Brent 
V.  Grace,  30  Mo.  253 ;  Seaman  v.  Dur- 
yea,  1   Kern,  324;    Yeager's  Appeal, 


1081 


INVENTOEY    AND    ACCOUNTS. 


§    950 


ward's  majority,  until  the  ward  has  had  the  opportunity  of  exam- 
ining it.'* 

But  on  the  termination  of  a  guardian's  trust,  pending  the  infancy 
of  the  "ward,  a  final  account  is  sometimes  allowed  after  due  notice 
to  all  parties  interested,  and  examination  by  a  suitable  guardian 
«d  litem  on  the  ward's  behalf;  and  thus,  too,  may  it  be  with  an 
intermediate  account;  not,  however,  as  it  would  usually  appear, 
80  as  to  absolutely  debar  the  ward  from  disputing  the  account 
afterwards  on  reaching  majority.'* 

§  950.  Accounts;    With  What  Property  Guardian  Chargeable. 

The  accounting  should  cover  only  the  dealings  of  the  guardian 
while  in  office,*"  and  should  terminate  with  the  expiration  of  the 
trust;  since  the  relation  is  in  other  respects  as  between  debtor  and 


34  Pa.  St.  173;  Lynch  v.  Rotan,  39 
HI.  14;  Smith  v.  Davis,  49  Md.  470. 
Similar  rules  apply  often,  as  in  set- 
tlements by  executors  and  adminlB- 
tratflrs.  Irregular  allowance  of  a 
guardian 's  account  upon  an  alteration, 
and  the  discharge  thereupon  of  the 
guardian,  all  without  notice  to  the 
■ward,  cannot  be  permitted  to  deprive 
the  latter  of  his  rights.  Buchanan  v. 
Grimes,  52  Miss.  82.  The  administra- 
tor of  a  deceased  ward  cannot  ignore 
a  final  settlement  of  the  guardian's 
accounts,  duly  made  and  recorded, 
and  cause  another  decree  to  be  en- 
tered in  the  same  court.  Foust  v. 
Chamblee,  51  Ala.  75. 

Nor  can  the  deceased  guardian's 
representative.  Kattleman  v.  Estate 
of  Guthrie,  142  HI.  357.  When  the 
guardian's  settlement  is  surcharged 
in  equity,  the  particular  items  ob- 
jectionable should  be  specified.  Tan- 
ner V.  Skinner,  11  Bush,  120;  Moore 
y.  Askew.    See  85  N.  C.  199. 

Matters  only  collaterally  introduced 
into  the  settlement,  or  which  did  not 
properly  enter  into  the  accounts,  or 
over  which  the  court  had  no  jurisdic- 
tion, are  not  concluded  by  the  final 

account.     v.  ,   103 

Mo.  402.  Though  even  as  to  possibly 
omitted  or  improper  items  within  the 


fair  scope  of  settlement,  such  account 
cannot  be  reopened.  lb.  But  while 
the  probate  settlement  is  considered 
final  and  conclusive,  yet  where  the 
guardian  fraudulently  and  intention- 
ally concealed  the  existence  of  prop- 
erty to  which  his  ward  was  entitled, 
the  probate  settlement  will  not  deoar 
a  court  of  equity  from  calling  the 
guardian  to  account  for  euch  assets. 
Lataillade  v.  Orena,  91  Cal.  565.  The 
final  settlement  must  be  a  bona  fide 
and  not  a  colorable  one  with  false 
vouchers.  State  ex  rel.  Hospes  v. 
Branch,  112  Mo.  661. 

As  to  appeals  and  the  costs  of  ap- 
peal, see  Kingsbury  v.  Powers,  131 
ni.  182. 

18.  "Woodbury  v.  Hammond,  54  Me. 
332 ;  Whitney  v.  Whitney,  7  S.  &  M. 
740. 

19.  See   Smith,   Prob.   Pract.    182 
Eacouillat  v.   Eequena,   36   Cal.    651 
Blake    v.    Pegram,    101    Mass.    592 
592;   Jones  v.  Fellows,   58  Ala.  343 
Hutton  V.  Williams,  60  Ala.   133.     A 
final    settlement    with     minor    wards 
should  not  precede  resignation.     Glass 
V.  Glass,   80  Ala.  241. 

20.  Gaspard  v.  Coco,  116  La.  1096, 
41  So.  326;  In  re  Wolfe,  136  N.  Y.  8. 
333,  75  Misc.  454  (not  money  received 
aft«r  ward's  death). 


§  950 


GUABDIAISr    A^'D    WARD. 


1082 


22 


creditor.^^     Where  no  effects  tave  come  to  the  guardian's  posses 
eion  or  knowledge,  he  need  not  file  either  imventory  or  account ; 
but  so  soon  as  there  is  property  his  liability  becomes  fixed ;    and 
he  cannot  be  exempted  from  account  on  the  ground  that  the  ward's 
estate  does  not  more  than  balance  his  own  outlays  and  expenses. 

The  guardian  must  account  for  all  property  he  receives  as  such 
whether  he  should  have  had  it  or  not.^*  Services  of  the  ward 
rendered  to  the  guardian  are  assets  of  the  estate  which  should  be 
accounted  for.^*  At  common  law  a  father  is  required  to  account 
for  the  rents  and  profits  of  property  which  he  has  given  his  minor 
children  by  way  of  advancement  and  of  which  he  retains  possession 
during  his  minoritv.^^  If  notes  are  inventoried  and  the  guardian's 
accounts  do  not  charge  him  therein  with  the  interest  thereon,  or 
credit  him  with  their  loss  as  worthless,  the  presumption  is  that  he 
has  embezzled  the  property  or  else  neglected  to  make  collections; 
and  in  either  case  he  is  chargeable  for  the  full  amount.'* 

The  ward  cannot  be  forced  to  receive  in  settlement  a  building 
placed  by  the  guardian  on  the  ward's  property,^^  but  the  guardian 
may  be  credited  with  a  debt  incurred  by  the  ward  to  him  before 
the  guardianship  began  unless  the  debt  is  barred  by  limitations.'^ 

And  where  he  or  any  other  trustee  claims  credit,  upon  settling 
his  account,  for  moneys  expended,  losses,  or  charges,  the  onus  of 
proving  the  correctness  of  the  credit,  by  vouchers  or  otherwise, 
devolves  on  him.'® 

The  guardian  cannot  exonerate  himself  by  paying  the  funds  of 
the  estate  to  the  probate  judge  even  after  settlement  of  his  accounts, 
but  is  bound  to  pay  to  the  ward.*" 


21-  Cunningham  v.  Cunningham,  4 
Gratt.  43;  Crowell's  Appeal,  2  Watts, 
295. 

22.  McGale  v.  McGale  (1894),  E.I. 

23.  Porter  v.  Fillebro-w-n,  11 9"  Cal. 
235,  51  P.  322;  In  re  Camp,  161  N.  Y. 
651,  57  N.  E.  1105.  See  Gatlin  v. 
Lafon,  95  Ark.  256,  129  S.  W.  284 
(rent  of  homestead).  See  Bliss  v. 
Spencer  (Va.),  99  S.  E.  593  (guar- 
dian not  charged  with  money  value  of 
property  never  converted  into  money). 

24  Ackermann  v.  Haumueller,  148 
Mo.  App.  400,  427,  128  S.  W.  51,  56; 
Ohamplin  v.  Slocum  (K.  I.),  103  A. 
706. 


25.  Rhea  v.  Bagley,  63  Ark.  374, 
3S  S.  W.  1039,  36  L.  E.  A.  86. 

26.  Starrett  v.  Jameson,  29  Me. 
504. 

27.  Sims  V,  Billington,  50  La.  Ann. 
2083,  24  So.  637. 

28.  Bondie  v.  Bourassa,  46  Mich. 
321,  9  N.  W.  433. 

29.  Matter  of  Gill,  5  Thomp.  &  C. 
237;  Newman  v.  Eeed,  50  Ala.  297; 
Button  V.  Williams,  60  Ala.  133;  The 
State  ex  rel.  Wiseman  et  al,  v. 
Wheeler  et  al.,  127  Ind.  451. 

30.  Jacobson  v.  Anderson,  72  Minn. 
426,  75  N.  W.  607. 


1083  INVENTORY  AND  ACCOUNTS.  §  952 

§  951.  Accounts;  Effect  of  Lapse  of  Time. 

Guardians  sometimes  make  settlements  out  of  court,  rendering 
no  returns ;  but  this  practice  is  not  common  where  the  infant's 
estate  is  large;  nor  is  it  safe,  since  the  failure  to  account  is  a 
breach  of  the  guardianship  bond,  and  renders  the  sureties  and  the 
guardian  himself  liable.  Any  party  in  interest  may  compel  the 
guardian  to  present  his  accounts  years  after  the  guardianship  is  at 
an  end,  notwithstanding  he  has  a  receipt  in  full  from  the  ward; 
for  no  mere  lapse  of  time  can  be  set  up  against  a  trust,  except  that 
the  usual  limitation  to  suits  on  specialties  might  determine  the 
remedies  of  parties  aggrieved  as  against  the  guardian  and  his 
sureties.*^  But  lapse  of  time,  taken  in  connection  with  other  cir- 
cumstances showing  a  due  execution  of  the  trust,  will  be  favorably 
regarded  ;  and  the  guardian's  account  need  not  then  be  so  strictly 
made  up  and  proved  as  would  be  otherwise  necessary,  especially 
when  the  parties  interested  are  satisfied.^^ 
§  952.  Accounts;   In  Case  of  Death,  etc.,  of  Guardian. 

Where  the  same  person  is  both  the  executor  of  the  parent's  estate 
and  guardian  of  the  infant  heir,  he  should  first  settle  his  executor's 
account,  and  then  transfer  the  balance  by  way  of  distributive  share 
to  the  account  of  guardianship.^^  Accounts  of  joint  guardians 
may  generally  be  rendered  on  the  oath  of  one  of  them.^*  Where 
a  guardian  dies,  resigns,  or  is  removed,  his  final  account  must  be 
presented,  and  it  is  the  successor's  duty  to  see  that  the  former 
guardian  is  held  to  a  strict  compliance  with  his  bond ;  since  other- 
wise he  may  make  himself  liable  to  the  ward.^^  The  final  account 
of  a  deceased  guardian  is  properly  presented  by  his  personal  repre- 
sentatives, who  may  be  cited  into  court  for  that  purpose;  but  for 
a  deficit  beyond  the  actual  assets  in  their  hands  the  sureties  must 
answer.^"     Hence  the  administrator  of  a  deceased  suretv  has  been 

31.  Clarke  v.  Clay,   11  Fost.  393;  14;  State  v.  Tunnel!,  5  Harring.  94; 

Bard  v.  Wood,  3  Met.   74;   Crane  v.  Runkle    v.    Gale,    3    Halst,    Ch.    101; 

Barnes,  1  Md.  Ch.  151;  Wade  v.  Lob-  Huggins  v.  Blakely,  9  Rich.  Eq.  408. 

dell,  4  Cush.  510;  Gilbert  v.  Guptill,  See   Mcintosh's  Estate,   158   Pa.   St. 

34  111.  112.     See  next  chapter.  525,  where  a  guardian  collected  assets' 

82.  Gregg  v.  Gregg,  15  N.  H.  190;  of  the  deceased. 
Pierce  V.  Irish,  31  Me.  254;  Smith  v.  34.  See    Mass.    Revised    Laws,    ch. 

Davis,  49   Md.   470;    Ravrson  v.   Cor-  150,   §   18.     As  to  blending  accounts 

bett,  150  ni.  466.  as  guardian  and  trustee,  see  Lewis  v. 

S3.   Conkey   v.   Dickinson,    13    Met.  Allred,  57  Ala.  62S. 
51;  Mattoon  V.  Cowing,  13  Gray,  387;  35.   Sage   v.   Hammonds,  28    Gratt. 

O'Hara  v.  Shepherd,  3  Md.  Ch.  306;  651. 
Crenshaw   v.    Crenshaw,    4    Rich.   Eq.  36.  Gregg  v.  Gregg,  15  N.  H.  190 ; 


§  954 


GUABDLA.N    AND    WAKD. 


1084 


sometimes  permitted  to  supply  the  missing  final  acoount.^^  The 
administrator  of  a  deceased  guardian  cannot  invest  the  ward's 
funds;  nor  can  be  discharge  the  guardian's  general  indebtedness 
by  setting  apart  certain  effects  of  the  guardian's  estate  for  that 
purpose.'*  Where  a  guardian  absents  himself  and  has  left  an 
attorney  in  charge  of  the  estate,  such  attorney  may,  in  Pennsyl- 
vania, be  summoned  by  the  court.*' 

§  953.  Compensation  of  Guardians  in  England. 

One  rule  has  always  prevailed  in  England  as  to  the  compensation 
of  executors,  guardians,  and  other  trustees ;  namely,  that  the  ser- 
vices rendered  should  be  treated  as  honorary  and  gratuitous. 
Chancery  makes  no  allowance  of  any  sort  beyond  a  reimbursement 
for  the  necessary  expenses  actually  incurred.  However  much  the 
honor  of  being  trusted  may  be  deemed  a  fair  equivalent  for  the 
guardian's  time,  trouble,  and  responsibility,  it  is  not  found  to 
suffice  for  receivers  and  other  officers  of  the  court  of  chancerv, 
whose  fees  may  in  eome  measure  tend  sensibly  to  diminish  the 
ward's  sense  of  gratitude  to  the  custodians  of  his  fortune.  It  is 
found  necessary  to  allow  compensation  to  trustees  in  some  of  the 
British  colonies,  in  order  to  induce  suitable  men  to  accept  office; 
and  even  in  the  English  courts  at  the  present  day  there  is  a  strong 
inclination  to  multiply  exceptions  to  the  general  rule.  Considera- 
tions of  policy  are  alleged  in  support  of  the  established  doctrine 
of  chancery ;  but  the  arguments  seem  not  unanswerable. 

§  954.  Compensation  in  This  Country. 

In  this  country  compensation  is  allowed  the  guardian,  while  the 
probate  court  fees  are  usually  trifling  in  comparison,  and  it  does 
not  appear  that  the  English  rule  as  to  the  gratuitous  services  of 
trust  officers  was  ever  adopted  in  a  single  State.*"    In  this  country 


Royston  v.  Royston,  29  Ga.  82;  Peek 
V.  Braman,  2  Elackf.  141;  Waterman 
V.  Wright,  36  Vt.  164;  Farnsworth 
V.  Oliphant,  19  Barb.  30;  State  v. 
Grace,  26  Mo.  87;  Hemphill  v.  Lewis, 
7  Bush,  214;  Tudhope  v.  Potts,  91 
Mich.  490.  Nor  can  such  surety  al- 
lege waste  on  the  part  of  the  guar- 
dian's administrator,  as  against  the 
ward.  Huhphrey  v.  Humphrey,  79 
N.  C.  396,  As  to  rendering  account 
when  guardian  died  long  after  his 
ward's  majority,  see  In  Be  Allgier,  65 


Cal.  228.  Simple  interest  is  enough 
to  charge  a  deceased  guardian's  es- 
tate from  the  date  of  his  death.  Mc- 
Kay V.  McKay,  33  W.  Va.  724;  §  354. 

37.  Curtis  v.  Bailey,  1  Pick.  198. 

38.  Moorehead  v.  Orr,  1  S.  C.  (N. 
S.)  304;  Clark  v.  Tompkins,  1  S.  C. 
(N.  S.)   119. 

39.  Petition  of  Getts,  2  Ashm.  441. 

40.  2  Wms.  Ex'rs,  16S2-16S5,  and 
cases  cited.  In  some  parts  of  this 
country  custom  or  the  local  law  has 
established  a  commission  as  the  guar- 


1085 


INVENTORY    AND    ACCOUNTS. 


§    954: 


the  allowance  of  compensation  to  guardian  for  services  rendered 


dian's  compensation.  In  others  the 
statute  allows  what  the  court  may 
deem  just  and  reasonable.  The  com- 
mission allowed  the  guardian  has 
varied,  according  to  different  decisions 
and  under  special  circumstances,  all 
the  way  from  one  to  ten  per  cent., 
which  last  may  be  considered  the 
maximum.  Holcombe  v.  Holcombe, 
2  Beasl.  415  j  In  re  Harland's  Ac- 
counts, 5  Eawle,  323;  Walton  v.  Er- 
■"Aon,  1  Ired.  Eq.  136;  Armstrong  v. 
Walkup,  12  Gratt.  608.  In  New  York 
the  rule  established  for  trustees  is 
five  per  cent,  on  sums  not  exceeding 
one  thousand  dollars;  half  that 
amount  upon  all  sums  between  that 
and  five  thousand  dollars;  and  one 
per  cent,  on  all  sums  exceeding  that 
amount.  Matter  of  Roberts,  3  Johns. 
Ch.  43.  And  this  rule  practically  ob- 
tains in  many  other  States.  One  half 
the  commission  is  reckoned  for  sums 
received,  and  one  half  for  sums  dis- 
bursed. Tliey  are  to  be  computed  by 
a  guardian  at  the  foot  of  partial  ac- 
counts or  about  the  time  of  actual 
receipt  and  disbursement,  and  not 
when  they  are  brought  forward  upon 
his  final  account.  Huffer's  Appeal, 
2  Grant,  341 ;  Vanderheyden  v.  Van- 
derheyden,  2  Paige,  287.  Where  com- 
missions at  the  court's  discretion  are 
allowed,  special  services  performed 
by  the  guardian  may  be  considered  in 
fixing  the  rate  of  commission,  but  not 
as  an  additional  charge.  Yet  it  is 
justly  observed  in  a  Pennsylvania 
case,  that  since  the  guardian  is  a 
trustee  for  custody  and  management, 
and  not,  like  an  executor,  merely  for 
distribution,  what  is  allowable  to  the 
one  may  not  always  suffice  for  the 
other.  McElhenny's  Appeal,  46  Pa. 
St.  347.  Even  in  New  York  the  un- 
fairness of  an  inflexible  rule,  applica- 
ble to  all  who  hold  trust  moneys,  led 
to  the  assertion  of  a  doctrine  in  one 
case,  which  threatened  to  disturb  the 
chancery  rule;  namely,  that  services 
of    a   professional    or    personal    char- 


acter, rendered  the  ward,  may  be  al- 
lowed to  the  guardian,  besides  the 
usual  commission,  on  the  ground  that 
they  were  rendered  not  a  guardian  but 
as  an  individual.  Morgan  v.  Morgan, 
39  Barb.  20.  But  see  Morgan  v. 
Hannas,  49  N.  Y.  667.  In  Maine, 
Massachusetts,  and  other  States, 
where  the  court  allows  what  is  reason- 
able, the  guardian  may  charge  specific 
sums  for  special  aervices,  instead  of 
or  in  addition  to  a  commission,  pro- 
vided the  whole  does  not  exceed  a 
fair  rate  of  compensation.  Longley 
V.  Hall,  11  Pick.  120;  Rathbun  v. 
Colton,  15  Pick.  471;  Emerson,  Ap- 
pellant, 32  Me.  159;  Dixon  v.  Homer, 
2  Met,  420;  Roach  v.  Jelks,  40  Miss. 
754;  Evarts  v,  Nason,  11  Vt.  122. 
The  ordinary  commission  is  properly 
refused  for  disbursement  of  the  guar- 
dian's final  balance  to  the  ward,  and 
his  receipt  of  the  original  fund;  nor 
is  it  allowable  on  the  principal  in 
mere  reinvestments.  Commissions  may 
be  forfeited  by  the  guardian's  mis- 
conduct; as  where  the  fund  was  em- 
ployed in  his  own  business;  or  where 
he  was  removed  from  his  trust;  but 
not,  in  some  States,  for  the  mere 
omission  to  account  until  cited  in. 
Clerk  hire  is  properly  charged  as  an 
expense  to  the  estate  in  cases  of  mag- 
nitude and  difficulty,  where  such  as- 
sistance is  required.  Vanderheyden 
V.  Vanderheyden,  2  Paige,  287; 
Knowlton  v.  Bradley,  17  N.  H.  458; 
Trimble  v.  Dodd,  2  Tenn.  Ch.  500; 
Starrett  v.  Jameson,  29  Me.  504; 
Royston  v,  Royston,  29  Ga.  82;  Ma- 
gruder  v.  Darnall,  6  Gill,  269;  Reed 
V.  Ryburn,  23  Ark.  47;  Neilson  v. 
Cook,  40  Ala.  498 ;  Bond  v.  Lockwood, 
33  111.  212.  See  §  350  as  to  a  col- 
lector. Commissions  are  propertly 
credited  at  the  time  the  money  was 
received.  Suavely  v.  Harkrader,  29 
Gratt.  112.  Cf.  May  v.  May,  109 
Mass.  252.  A  guardian  who  is  also 
trustee  should  not  bo  allowed  full 
commissions  on  both  his  guardian  and 


§  954 


GUARDIAN    AND    WARD. 


1086 


is  within  the  discretion  of  the  oourt,*^  having  in  mind  that  his 
services  are  personal  and  honorary  and  not  undertaken  with  a  view 
of  profit.*^ 

Compensation  may  be  refused  where  the  guardian  fails  to 
account  as  ordered/^  or  acts  beyond  his  authority,**  or  where  no 
services  were  rendered.*^  No  compensation  will  be  allowed  where 
the  guardian  is  guilty  of  negligence  or  wrongdoing  in  the  man- 


trustee  accounts,  where  the  perform- 
ance of  double  services  is  merely 
nominal.  Blake  v.  Pegram,  101  Mass. 
592.  Only  on  sums  actually  collected 
and  paid  out  should  a  guardian  charge 
commissions.  Reeds  v.  Timmins,  52 
Tex.  84.  Vouchers  are  not  needed  to 
sustain  items  of  this  character.  New- 
man V.  Eeed,  50  Ala.  297.  See  Foster 
V.  Ives,  53  460. 

A  guardian  will  not  be  allowed  com- 
pensation for  taking  care  of  the  trust 
fund  while  he  himself  is  the  borrower 
of  it.  Farwell  v.  Steen,  46  Vt.  678. 
And  see  Pierce  v.  Prescott,  128  Mass. 
140.  As  to  compensation  for  chang- 
ing investments,  repairs,  etc.,  it  is  not 
good  policy  to  allow  it  by  way  of  a 
commission.  May  v.  May,  109  Mass. 
252.  Guardian  allowed  to  charge  spe- 
cial fees  for  collecting  a  pension  for 
his  ward.  Bickerstaff  v.  Marlin,  60 
Miss.  509;  Southwick  v.  Evans,  17 
R.  I.  198.  Commissions  not  allowed 
on  a  fund  of  ward  employed  in  guar- 
dian's own  business,  though  advan- 
tageously employed.  Seguin's  Ap- 
peal, 103  Pa.  St.  139;  cf.  Carr  v. 
Askew,  94  N.  C.  194.  Compensation 
for  maintenance  does  not  deprive  nec- 
essarily of  commissions.  14  Phil.  3,  9'. 
See,  further,  Phillips  v.  Lockwood,  4 
Dem.  299.  Remissness  in  duty  is  an 
objection  to  the  allowance  of  commis- 
sions. Hume  V.  Warters,  13  Lea,  554. 
And  where  one  collects  money,  uses 
it,  and  renders  no  account  until  com- 
pelled to,  he  may  be  charged  with  in- 
terest and  otherwise  sternly  dealt 
with.  In  re  Eschrich,  85  Cal.  98. 
But  making  a  doubtful  investment 
which    turns    out    beneficially    ought 


not  to   deprive  one   of  compensation. 
Small's  Estate,  144  Pa.  St.  293. 

41.  France  v.  Shockey,  92  Ark.  41, 
121  S.  W.  1056  Luke  v.  Kettenbach 
(Ida.),  181  P.  705  (not  on  commis- 
sion basis) ;  Trustees  of  Elizabeth 
Speers  Memorial  Hospital  v.  Makib- 
ben's  Guardian,  126  Ky.  17,  102  8. 
W.  820,  31  Ky.  Law  Rep.  467;  Hoga's 
Estate  v.  Look,  134  Mich.  34,  9-6  N. 
W,  439,  10  Det.  Leg.  N.  473;  In  re 
Switzer,  201  Mo.  66,  98  S.  W.  461; 
Switzer  v.  Switzer,  Id.;  In  re  Steele* 's 
Estate,  97  Mo.  App.  9,  70  S.  W. 
1075;  In  re  Cook's  Guardians  (N.  J. 
Prerog.),  105  A.  792;  In  re  Thaw, 
169  N.  Y.  S.  430,  182  App.  Div.  368; 
In  re  Rutherford's  Estate,  170  N.  T. 
S.  1039^,  103  Misc.  659;  Anderson  v. 
Silcox,  82  S.  C.  109,  63  S.  E.  128  (ex- 
tia  compensation)  ;  Turner  v.  Turner, 
(Tenn.  Ch.  App.  1901),  62  S.  W.  607. 
See  In  re  Tilden's  Estate,  172  N.  Y. 
S.  811  (compensation  for  appearance 
in  court  limited  to  costs). 

42.  Gott  V.  Culp,  45  Mich.  265,  7 
N.  W.  767. 

43.  See  Gilligan  v.  Daly,  79  N.  J. 
Eq.  36,  80  A.  994  (delay  which  is  not 
unreasonable  will  not  forfeit  com- 
pensation). See  Rogers  v.  Lindsay, 
89  Kan.  417,  131  P.  150  (mere  mis- 
takes in  accounts  not  fraudulent  will 
not  forfeit  compensation). 

44.  May  v.  Skinner,  149r  Mass.  375, 
21  N.  E.  870  (charge  for  superintend- 
ing building  stable  for  ward  disal- 
lowed) ;  Maxwell  v.  Harkleroad,  77 
Miss.  456,  27  So.  990  (dealing  with 
lands  in  another  State). 

45.  In  re  Brigg,  165  N.  Y.  673,  53r 
N.  E.  1119  (where  no  estate  vested  in 
wards  darings  guardianship). 


1087 


INVENTOKY  AND  ACCOUNTS. 


§  I) 


OO 


agement  of  tlie  estate  of  the  ward,"  as  where  be  mingles  the  fundd 
with  his  own  and  uses  them  for  his  own  benefit.*^ 

§  955.  Commissions. 

In  some  States  the  guardian  is  entitled  to  commissions*'  on 
interest  made*®  on  the  net  amount  of  sales'^"  and  on  all  other  sums 
which  pass  through  his  hands.^^  ISTo  commissions  will  be  allowed 
if  the  guardian  has  failed  in  his  trust,^^  as  where  he  uses  the  funds 
of  the  estate  for  his  own  purposes,^^  and  commissions  will  not  be 
allowed  on  commissions  paid  by  the  guardian  to  himself."     A 


46.  Donlon  v,  Maley,  110  N.  E.  92; 
In  re  Moore,  112  Me.  119,  90  A.  1088; 
Finnel  v.  Kellogg  (Mo.  App.),  186 
S.  W.  1169;  State  ex  rel.  Short  v. 
Hardy  (Mo.  App.)  206  S.  W.  904; 
In  re  Allard,  49  Mont.  219,  141  P. 
661;  Scheib  v.  Thompson,  23  Utah, 
564,  65  P.  499;  In  re  Pierce's  Estate, 
68  Vt.  639,  35  A.  546. 

47.  Glaasell  v.  Glassell,  147  Cal.  510, 
82  P.  42;  Eoborda  v.  Bryan,  105  Mo. 
App.  249,  79  S.  W.  979;  Jennings  v. 
Jennings,  22  Grat.  (Va.)  313;  In  re 
Anderson,  97  Wash.   688,  167  P.   71. 

48.  In  re  Tutorship  of  Eateliffe 
Minors,  139  La.  996,  72  So.  713; 
Bass  V.  Maxwell,  77  Miss.  117,  25  So. 
873  (ten  per  cent,  of  personal  es- 
tate) ;  Maxwell  v.  Harkleroad,  77 
Miss.  456,  27  So.  990;  State  ex  rel. 
Tygard  v.  Elliott,  82  Mo.  App.  458 
(not  on  amount  paid  widow  for  rent 
of  dower  land)  ;  Keeney  v.  Henning, 
64  N.  J.  Eq.  65,  53  A.  460  (though 
guardian  did  not  keep  full  accounts) ; 
Freedman  v.  Vallie  (Tex.  Civ.  App. 
1903,  75  S.  W.  322;  Kester  v.  Hill,  46 
W.  Va.  744,  34  S.  E.  798  (on  money 
included  in  return  to  court). 

49.  Hedges  v.  Hedges  (Ky.  1902), 
67  S.  W.  835;  Sims  v.  Billington,  50 
La.  Ann.  968,  24  So.  637;  In  re  Cook's 
Guardianship  (N.  J.  Prerog.),  107  A. 
818  (not  on  interest  already  accrued 
on  securities  at  time  of  purchase) ;  In 
re  Chenery  's  Estate,  152  N.  Y.  S.  312, 
89  Misc.  680, 

50.  Succession  of  Hargrove,  9  Ija. 
Ann.   505. 


51.  Beakley  v,  Cunningham,  181  S. 
W.  287  (not  on  amount  paid  over  on 
final  settlement)  ;  Commonwealth  v. 
Graves  County  Banking  &  Trust  Co., 
159  Ky.  455,  167  S.  W.  411  (five  per 
cent.);  Bell  v.  Bell's  Guardian,  167 
Ky.  430,  180  S.  W.  803  (five  per 
cent.);  In  re  Hill's  Estate,  250  Pa. 
107,  9^5  A.  426;  In  re  Mosley's  Es- 
tate, 91  S.  C.  557,  75  S.  E.  179. 

52.  Rowe  V.  Sanford,  74  Mo.  App. 
191;  In  re  Marcy,  24  N.  J.  Eq.  451; 
Martin  v.  Porter,  53  N.  Y.  S.  186, 
32  App.  Div.  602;  In  re  Nowak,  78 
N.  Y.  S.  288,  38  Misc.  713;  In 
re  Ward,  98  N.  Y.  S.  923,  49  Misc. 
181;  In  re  Kashner's  Estate,  15  Pa. 
Super.  Ct.  70;  Appeal  of  McMena- 
min,  4  Walk.  285  (commission  for- 
feited only  if  acted  dishonestly) ; 
American  Surety  Co.  of  New  York 
V.  Hardwick  (Tex.  Civ.  App.),  186 
S.  W.  804;  Bliss  v.  Spencer  (Va.), 
9^9  S.  E.  593.  Sec  Spies  v.  Stikes, 
112  Ala.  584,  20  So.  959  (guardian 
entitled  to  commission  though  has 
failed  to  render  account,  unless  in- 
jury to  estate  resulted).  See  Fisher 
V.  Brown,  135  N.  C.  198,  47  S.  E. 
398  (where  guardian  made  regular 
returns,  he  is  entitled  to  commissions 
though  he  wrongfully  used  money  in 
his  own  business,  charging  himself 
with  interest  thereon). 

53.  Blake    v.    Pcgram,    109    Mass. 
541. 

54.  GrifSn  v.  Collins,  125  Ga.   159, 
53  S.  E.  1004. 


§    955  GUAEDIAN    AND    WARD.  1088 

guardian  cannot  take  annual  rests  in  his  accounts  so  as  to  allo"VT 
him  commissions  at  full  rates  on  the  balance  thus  f ound,°^ 

A  statute  allowing  a  guardian  to  charge  a  commission  on 
"  revenues  "  does  not  allow  a  commission  on  rents  that  were  earned 
before  the  property  was  inherited  though  collected  by  the  guar- 
dian during  his  administration.  iSTeither  does  it  include  dividend© 
on  stock  of  the  estate  which  represented  the  proceeds  of  the  sale 
of  the  property  of  the  corporation.  Revenue  or  income  is  what 
is  produced  by  capital  without  impairing  the  capital.  What  is 
taken  from  the  capital  cannot  be  considered  revenue  or  income." 

55.  In  re  Decker,  76  N.  Y.  S.  315,  56.   Be  Eatcliffe,   139   La.  996,  72 

37  Misc.  527.  So.  713,  L.  E.  A.  1917C,  188. 


1089  THB  quakuian's  bond.  §  956 


CHAPTER  IX. 

THE  guardian's  BOND. 

Section  956.  Guardian's    Recognizance;     Receiver,    &c.;     English    Chancery 
Rule. 

957.  American  Rule;  Bonds  of  Probate  and  Other  Guardians. 

95S.  Liability  of  Guardian  and  Sureties. 

959.  The  Same  Subject. 

960.  Special     Bonds  in  Sales  of  Real  Estate. 

961.  Suit  on  the  Guardian's  Bond  for  Default  and  Misconduct. 

962.  Validity  of  Bond. 

963.  Accounting  as  Prerequisite. 

964.  Accounting  is  Conclusive. 

965.  Sureties  Held  on  Breach  Oecuring    ^vhile  Bond  Outstanding. 

966.  Sureties  on  Different  Bonds.     Special  Bonds. 

967.  For  what  Acts  of  Guardian  is  Surety  Liable. 

968.  Interest,  Costs  and  Penalty. 

969.  In  what  Capacity  Guardian  Acting. 

970.  For  what  Property  Sureties  Liable. 

971.  Duty  of  Sureties  as  to  Estate. 

972.  Surety  Taking  Collateral. 

973.  Contribution  Among  Sureties. 

974.  Subrogation  of  Sureties. 

975.  Limitation  of  Action. 

976.  Effect  of  Fradulent  Settlement  with  Ward. 

977.  "Ward's  Right  to  Impeach  Fraudulent  Transfers. 

978.  Release  of  Sureties. 

§  956.  Guardian's  Recognizance;  Receiver,  &c.;  English 
Chancery  Rule. 
It  is  the  practice  of  the  English  court  of  chancery  to  require 
chancery  guardians  appointed  on  petition  without  suit  to  enter 
into  recognizance  to  account.  When  reference  is  made  to  a  master 
on  the  original  petition  for  guardianship,  he  is  directed  to  make  a 
report  approving  of  the  security  offered  as  well  as  of  the  person 
desiring  the  appointment.  On  this  report  the  court  proceeds  to 
act.  A  recognizance  with  sureties  is  usually  taken ;  but  the  court 
uses  its  discretion  ;  and  sometimes  the  personal  recognizance  of  the 
guardian  is  deemed  sufficient.  This  recognizance  is  vacated  when 
the  infant  comes  of  age.  Xo  recognizance  in  modem  practice  is 
required  from  the  guardian  of  the  person  who  is  appointed  where 
the  infant  has  been  mad©  a  ward  of  chancery  during  the  pendency 
of  a  suit.  Nor  is  it  given  by  guardians  selected  by  the  court  for 
special  purposes;  as,  for  instance,  to  give  formal  consent  to  an 
69 


§    957  GUARDIAN    AND    WABD.  1090 

infant's  marriage  under  Lord  Hardwicke's  act.  In  a  word,  the 
chancery  rule  appears  to  be  that  guardians  of  the  estate  give  se- 
curity for  the  performance  of  their  trust,  but  guardians  of  the 
person  none.  Special  circumstances  may,  however,  arise  for  re- 
quiring recognizance  from  the  latter.^^ 

Since  the  active  management  of  the  infant's  estate  is  frequently 
intrusted  to  a  receiver,  selected  as  an  officer  of  the  court,  the  latter 
is  also  bound  to  account  annually  and  pay  his  balances  into  court. 
For  performance  of  these  duties  he  gives  proper  security ;  and  he 
is  allowed  a  salary  for  his  services. 


58 


§  957.  American  Rule;  Bonds  of  Probate  and  Other  Guar- 
dians. 

In  this  country,  as  we  have  seen,  most  guardians  of  the  estate 
are  what  may  be  termed  probate  guardians,  deriving  their  au- 
thority under  the  appointment  of  courts  which  most  resemble  the 
old  ecclesiastical  courts  of  England.  The  practice  which  has 
grown  up  in  most  of  the  States,  as  well  as  our  statute  law,  places 
guardians,  therefore,  in  many  respects,  on  the  same  footing  as 
executors  and  administrators.  Like  such  officers  they  give  bonds, 
file  inventories,  and  render  regular  accounts  to  the  court;  and 
the  same  principles  which  apply  to  the  one  class,  in  these  re- 
spects, apply  also  to  the  other.  But  as  these  three  requirements 
have  main  reference  to  the  ward's  property,  little  or  no  practical 
necessity  exists  for  pursuing  a  guardian  who  neglected  to  qualify 
or  file  inventory  or  account  where  there  were  no  assets  of  the 
infant. 

A  probate  guardian,  before  receiving  from  the  court  his  letters 
of  appointment,  is  obliged  to  give  bond,  with  good  security,  for 
the  faithful  performance  of  his  trust.°®  As  such  guardian  is  in- 
trusted with  both  the  person  and  estate  of  his  ward,  the  language 
of  his  bond  should  be  framed  accordingly.  In  some  States  the 
statute  prescribes  the  terms  substantially  as  follows :  To  make  a 
true  inventory  of  the  ward's  estate  which  shall  come  to  his  posses- 
sion or  knowledge;  to  manage  the  property  according  to  law  and 

57.  Macphers.  Inf.  108,  348,  553;  be  considered  actual  guardian  until 
2  Kent,  Com.  227.  he  files  a  statutory  bond.     Hatch  et 

58.  Macphers.  Inf.  266.  As  to  chan-  al.  v.  Ferguson  et  al.,  57  Fed.  966. 
eery  practice  in  New  York,  see  In  re  But  where  letters  issue  reciting  that 
Morrell,  4  Paige,  44;  Minor  v.  Betts,  bond  has  been  given,  it  will  bo  pre- 
7  Paige,  596.  sumed  that  the  bond  was  filed  though 

59.  No  one  should  receive  letters  or  it  cannot  be  found.     McGale  v.  Mc- 


1091 


THE    GUARDIAN  S    BOND. 


§  95Y 


the  best  interests  of  the  ward,  and  to  discharge  his  trust  faithfully 
in  relation  thereto ;  to  render  regular  accounts  to  the  court ;  and, 
finally,  to  make  due  settlement  with  the  ward  or  other  person  law- 
fully entitled  at  the  expiration  of  his  trust.  The  bond,  in  case  of 
an  infant,  stipulates  for  a  faithful  discharge  of  duties  as  to  custody, 
education,  and  maintenance ;  but  where  the  ward  is  an  adult  in- 
sane person  or  spendthrift,  for  custody  and  maintenance  only.*" 

The  penal  amount  of  the  guardian's  bond,  as  in  other  cases,  is 
usually  fixed  at  double  the  amount  of  the  estate  to  be  accounted 
for.  The  sureties  are  to  be  approved  by  the  court.  When  such 
sureties  are  insolvent  or  the  penal  sum  named  in  the  bond  is  in- 
sufficient, or  from  any  other  cause  the  bond  becomes  unsatisfactory, 
a  new  bond  may  be  ordered  with  such  security  as  the  court  deems 
proper.  This  bond  is  made  payable  to  the  judge  or  his  successors 
in  office,  and  is  kept  on  file,  to  be  sued  in  behalf  of  the  ward  or  by 
any  other  person  who  may  be  injured  by  the  misconduct  of  the 
guardian  while  in  office.*^  The  true  principle  which  distinguishes 
such  cases  seems  to  be  that  the  identity  of  the  parties  should 
sufficiently  appear. 

Where  there  are  several  wards,  one  probate  bond  is  sufficient 
for  all.*^     But  separate  bonds  for  each  ward  would  not  be  im- 


Gale  (1894),  R,  I.  Bond  not  an  es- 
sential to  a  valid  apointment  in  How- 
erton  v.  Sexton,  104  N.  C.  75. 

60.  Fuller,  Mass.  Prob.  Laws,  353. 
As  to  dispensing  with  sureties  where 
a  fidelity  company  guarantees  the 
bond,  see  1  Dem.    (N.  Y.)    75. 

61.  See  Mass.  Eev.  Laws,  ch.  149; 
lb.,  ch.  109;  Bennett  v.  Byrne,  2 
Barb.  Ch.  216;  Brunson  v.  Brooks,  68 
Ala.  248.  A  succeeding  guardian 
may  of  course  sue  such  bond.  Voris 
V.  State,  47  Ind.  345.  The  probate 
guardian  ought  to  file  an  approved 
bond  before  being  considered  duly 
qualified.  The  court  cannot,  after  ap- 
pointing him  guardian  of  one  child, 
appoint  him  guardian  of  another  sub- 
sequently, and  then  order  the  former 
bond  to  stand  for  both.  Vanderburg 
V.  Williamson,  52  Miss.  233.  Some 
statutes  hold  the  judge  to  ea'reful  in- 
quiry into  the  sufficiency  of  sureties 
before  accepting  them.  Colter  v.  Mc- 
Intire,  11  Bush,   565.     Delivery  of  a 


guardian's  bond  to  the  proper  of&ce 
cannot  readily  be  shown,  after  long 
lapse  of  time,  to  be  merely  in  escrow. 
Ordinary  v.  Thatcher,  41  N.  J.  L. 
403.  A  bond  filed  and  executed  by 
two  sureties,  though  calling  in  its 
premises  for  three,  may  bind  the  two. 
Ordinary  v.  Thatcher,  41  N.  J.  L.  403. 
In  general,  sureties  as  well  as  the 
guardian,  are  estopped  by  the  deliv- 
ered bond  itself  from  denying  its 
legal  effect  on  the  ground  of  fraud 
by  the  guardian,  or  arrangements 
with  him  as  to  other  signatures,  etc., 
to  which  the  court,  the  ward,  and 
parties  to  be  protected  by  the  bond 
were  not  privy.  Vincent  v.  Starks, 
45  Wis.  458;  Sasscer  v.  Walker,  5  Gill 
&  J.  102;  State  v.  Hewitt,  72  Mo. 
603;  Brown  v.  Probate  Judge,  42 
Mich.   501. 

62.  Cranston  v.  Sprague,  3  R.  I. 
205;  Ordinary  v.  Heishon,  42  N.  J. 
L.  15. 


§  957 


GUARDIAN    AND    WAED. 


1092 


proper,  and,  in  some  instances,  might  be  even  preferable.  The 
names  of  all  the  wards  should  be  embraced  in  the  bond,  where 
only  one  is  furnished. 

Natural  guardians  are  not  required  to  give  bond.  Nor  were 
guardians  in  socage.  Nor,  in  England,  are  testamentary  guardians 
to  furnish  security  to  the  court.  The  reason  is  that  these  guardians 
were  not  judicially  appointed  nor  answerable  in  general  to  the 
court.  The  same  law  prevails  in  many  parts  of  this  country.^' 
But  in  some  States  testamentary  guradians  are  treated  like  execu- 
tors, in  respect  to  their  appointment ;  that  is  to  say,  the  will  which 
names  them  must  be  admitted  to  probate  and  letters  issued;  and 
the  testator's  appointment  is  made  subject  to  judicial  approval. 
In  such  cases  the  testamentary  guardian,  like  the  executor,  is  re- 
quired to  give  security;  but  he  may  be  exempted  from  giving 
sureties,  if  the  testator  requested  such  exemption  and  the  court 
deems  it  safe  to  grant  the  request.** 

A  probate  bond  may  be  good,  though  inartificially  drawn,  if  sub- 
stantially in  compliance  with  the  statute.*^  And  if  it  contains 
more  than  the  law  requires,  it  is  nevertheless  good  for  such  portion 
as  is  lawful.**  But  perhaps  not,  if  it  contains  less.  A  bond  is  not 
to  be  avoided  for  slight  defects  committed  through  carelessness 
or  error.  In  some  instances  defective  bonds  have  been  cured  in 
equity,  so  as  to  hold  both  principal  and  sureties,  and  have  been 


63.  See  supra,  chs.  1,  2;  Thomas  v. 
Williams,  9   Fla.  289. 

64,  See  Mass.  Eev.  Laws,  ch.  149, 
§  3.  A  testamentary  guardian  ■will  be 
ordered  to  furnish  security  ■whenever 
tho  court's  interposition  appears 
proper.  Est.  of  Stanton,  13  Phila. 
213,  Bond  must  be  given.  Hatch  v. 
Ferguson,  57  Fed.  966. 

Even  if  the  guardian's  appoint- 
ment ■was  void  for  -want  of  jurisdic- 
tion, the  sureties  are  held  liable  ■with 
him  for  his  qunsi  guardianship  under 
■which  he  obtained  the  property.  Cor- 
bitt  V,  Carroll,  50  Ala.  315.  If  the 
appointment  ■was  simply  voidable  the 
surety  is  estopped.  Doner's  Estate, 
156  Pa.  St.  301.  A  guardian's  bond 
held  good,  although  there  was  a  blank 
■where  the  penalty  is  ordinarily  ■writ- 
ten, and  no  penalty  was  stated.    State 


V.  Britton,  102  Ind.  214.  Nor  waa 
it  invalid  for  want  of  approval.  Fb. 
A  guardian's  bond  is  not  converted 
from  a  statutory  to  a  common-la^w 
bond  merely  because  it  contains  pro- 
■vdsions  not  required  in  the  statutory 
form,  which  are  in  accordance  •with 
law.  McFadden  v.  Hewett,  78  Me. 
24.  But  the  legality  of  an  appoint- 
ment may  be  denied  by  virtue  of  re- 
citals in  a  bond  which  are  senseless 
and  uncertain.  Hayden  v.  Smith,  49 
Conn.  83.  The  surety  is  estopped  when 
sued  to  deny  the  appointment  of  the 
guardian  as  recited  in  the  bond.  State 
V.  Mills,  82  Ind.  126;  McGale  v.  Mc- 
Gale   (1894),  E.  I. 

65.  Probate  Court  v.  Strong,  27  Vt. 
202;  Alston  v.  Alston,  34  Ala.  15; 
Ordinary  v.  Heishon,  42  N.  J.  L.  15. 

66.  Pratt  v.  Wright,  13  Gratt.  175. 


1093  THE  guardian's  bond.  §  958 

made  enforceable  even  tbough  void  at  lav^^."^  Material  erasures 
on  the  face  of  the  bond  maj  be  explained,  and  the  presumption  is 
fair  that  they  were  made  before  delivery.*®  A  bond  is  not  vitiated 
which  contains  a  proper  recital  of  the  ward's  name,  although 
there  be  a  discrepancy  in  names  between  the  bond  and  letters  of 
guardianship;  and  yet  sureties  have  been  relieved  from  liability 
on  the  ground  that  the  ward  was  not  named  in  the  bond  at  all.®* 

§  958.  Liability  of  Guardian  and  Sureties. 

The  bond  of  a  probate  guardian  renders  him  and  his  sureties 
liable  for  all  estate  of  the  ward  which  shall  come  to  his  possession 
or  knowledge.  This  includes  chattels  due  from  the  guardian  to  the 
ward  at  the  time  of  his  appointment  or  of  the  execution  of  the 
bond,  even  though  the  fund  be  the  proceeds  of  land  already  sold 
and  paid  for,  and  the  rent  of  real  estate  occupied  by  the  guardian 
before  that  time.  It  embraces  chattels  and  rents  and  income  from 
every  species  of  property  that  the  guardian  actually  receives  in  his 
official  capacity,  or  that  he  might  have  received  if  he  had  faith- 
fully performed  his  duty.''"  Property  received  from  persons  resi- 
dent in  another  State  is  covered  by  the  bond  as  much  as  property 
originally  within  the  jurisdiction.'^  But  while  the  property  is 
beyond  his  reach,  and  cannot  be  obtained  without  a  foreign  ap- 
pointment, the  liability  of  his  bondsmen  would  not  seem  to  extend 
beyond  a  general  dereliction  of  duty  on  his  part  in  neglecting  the 
proper  means  of  obtaining  it.  The  bond  of  guardians  of  foreign 
wards,  appointed  for  recovering  estate  situated  in  their  own  State, 
binds  them  to  account  only  for  such  property,  nor  can  they  be 
held  liable  for  the  custody  of  the  wards  while  the  latter  remain 
non-residents.  A  legacy  due  from  the  executor  of  the  ward's 
father,  and  other  estate  lawfully  payable  to  the  guardian  by  the 
executor,  must  all  be  accounted  for,  and  for  this  the  guardian's 

67.  Wiser  v.  Blachly,  1  Johns.  Ch.  names.  Turner  v,  Alexander,  41  Ark. 
607;  Sikes  v.  Truitt,  4  Jones  Eq.  361;        254. 

Bumpus  V.  Dotson,  7  Humph.  310.  70.    Mattoon    v.    Cowing,    13    Gray, 

68.  Xander  v.  Commonwealth,  102  387;  Neill  v.  Neill,  31  Miss.  36;  Bond 
Pa.  St.  434.  This  presumption  may  v.  Lockwood,  33  111.  212;  Williams  v. 
be  rebutted.  Morton,    38    Me.    47;    MeClendon    v. 

69.  Shuster    v.    Perkins,    1    Jones,       Harlan,  2  Heisk.  337;  Hunt  v.  State, 


325;  Greenly  v.  Daniels,  6  Bush,  41 
State  V.  Martin,  69  N.  C.  175 
Shroyer  v.  Richmond,  16  Ohio  St.  455 


53   Ind.  321. 

71.  McDonald  v.  Meadows,  1  Met. 
(Ky.)     507;     Brooks    v.    Tobin,    135 


Eichardson  v.  Boynton,  12  Allen,  138.       Mass.  69;   State  v.  Williams,  77  Mo. 
Bond  not  invalid  where  a  blank  was       -103. 
left    for    the    initials    of    the    wards' 


§    958  GUARDIAN    AND    WARD.  1094 

sureties  SLve  doubtless  liable.  The  bond  covers  property  of  the 
ward  obtained  hj  the  guardian  and  disposed  of  before  his  appoint- 
ment and  charged  in  account.''^  But  for  property  unlawfully  re- 
ceived by  the  guardian,  and  not  belonging  to  his  ward,  although 
he  may  be  compelled  to  account  for  it  on  his  personal  responsi- 
bility, his  sureties  are  not  liable,  since  it  does  not  come  to  his  hands 
as  guardian.^^  Where  the  guardian  loans  his  ward's  money  im- 
providently,  he  and  his  sureties  become  and  continue  liable  for 
it.'* 

The  liability  of  sureties  lasts  to  the  full  extent  of  the  penal 
sum  named  in  the  bond,  while  the  responsibilities  of  the  guardian- 
ship continue,  and  it  does  not  terminate  by  the  resignation  or  death 
of  the  guardian.  For  the  ward's  estate  in  the  guardian's  hands  or 
subject  to  his  control  at  the  time  of  his  resignation  or  death,  they 
continue  liable.'^  Their  liability,  though  usually  recited  in  the 
bond,  extends  in  general  to  whatever  the  guardian  received  after 
the  bond  was  executed  and  by  culpable  negligence  or  misconduct 
wasted,  misapplied,  or  did  not  duly  account  for.'®  Not  even  the 
statutory  limitation  to  suits  against  executors  and  administrators 
operates  to  relieve  such  sureties  for  the  default  of  their  deceased 
principal."    The  estate  of  a  deceased  surety  is  liable  for  a  default 

72.  Sargent  v.  Wallis,  67  Tex.  483,  Ex'r  v.  The  State,  81  Ind.  455.     Or 

73.  Livermore  "v.  Bemis,  2  Allen,  where  he  converts  the  ■ward's  money 
394;  Allen  v.  Crosland,  2  Rich.  Eq.  before  giving  a  bond  and  afterwards 
68;  Ballard  v.  Brummitt,  4  Strobh.  replaces  it,  but  fails  to  account  for 
Eq.  171.  As  to  liability  where  court  the  money  so  replaced.  Parker  v. 
ordered  a  deposit  of  money,  see  Grif-  Medsker,  80  Ind.  155. 

fith  V.  Parks,  32  Md.  1.     Guardian's  The    guardian's    sureties    are    not 

bondsmen    held    liable    for    the    full  liable  for  money  paid  over  to  a  guar- 

amount  of  insurance  policy  on  the  life  dian  by  executors  contrary  to  direc- 

of  the  father  taken  for  two  children,  tions  of  the  will.     Hindman  v.  State, 

one    of    whom    died    soon    after    the  61   Md.   471;    Perkins  v.   Tooley,   74 

father.     Carr  v.  Askew  94  N.  C.  194.  Mich.  220.    Nor  for  money  paid  over 

For  a  claim  assigned  by  the  widow  by  mistake,  even  though  the  guardian 

against  the  administrator  of  the  es-  in  his  accounts  charged  himself.    The 

tate  of  the  child's  father.     Todd  v.  State  ex  rel.  Howe  v.  Bond,  121  Ind. 

Davenport,   22   S.   C.    147.      For   the  187,      And   see  Eiffe   v.   Proctor,   99 

guardian's   failure   to    make   a   rein-  Mo.  609. 

vestment.    Taylor  v.  Hemingway,  etc.,  74,  Eichardson  v,  Eoynton,  12  Al- 

81  Ky,  158.     For  a  loss  occurring  by  len,  138. 

reason  of  a  transfer  of  the  estate  by  75.  Moore  v,  Wallis,  13  Ala.  458; 

the  guardian  to  one  erroneously  sup-  State  v.  Thorn,  28  Ind.  306;   Ashby 

posed  to  be  a  qualified  successor.   Wil-  v.  Johnston,  23  Ark.  163. 
son   V.   Eailroad,   90   N.   C.   72,      Or.  76.  Huson  v.  Green,  88  Ga.  722. 

where  the  guardian  removes  from  the  77.  Chapin  v.  Livermore,  13   Gray, 

State     without     accounting.     English  561;  Ordinary  v.  Smith,  55  Ga.  15. 


1095 


THE    GUARDIAN  S    BOND, 


§    958 


of  the  guardian  which  occurred  after  such  surety's  death,  and  be- 
fore final  settlement  of  the  trust/®  Under  the  prevalent  rule  of 
American  statutes,  no  action  can  be  maintained  on  the  bond  of  a 
probate  guardian  until  after  a  citation  to  account  and  a  decree 
which  establishes  a  default  on  his  part ;  and  this  holds,  even  though 
the  guardian  should,  meanwhile,  die.^®  Sureties  are  liable  so  long 
as  the  official  bond  can  be  sued  at  all.  But  a  surety  may  be  dis- 
charged at  any  time  upon  his  petition  and  after  due  notice  to  all 
parties  interested;  and  thereupon  the  court  will  order  the  guar- 
dian to  furnish  new  security;  and,  upon  his  failure  to  do  so,  may 
remove  him.  But  such  surety  remains  liable  until  the  new  bond  is 
approved  ;®°  and  for  any  previous  embezzlement  or  other  miscon- 
duct or  culpable  mismanagement  committed  by  the  guardian  he 
must  still  respond.®^  The  personal  representative  of  a  deceased 
surety,  it  would  appear,  may  compel  the  guardian  to  furnish  new 
security  in  like  manner.®^  The  approval  of  a  new  bond  and  the 
discharge  of  a  former  surety  terminate  ipso  facto  the  liability 
of  such  surety  so  far  as  new  acts  of  the  guardian  are  concerned, 
notwithstanding  the  security  substituted  may  prove  insufficient, 
or  the  instrument  fatally  defective.*^  Release  of  a  surety  is  not 
to  be  readily  presumed.^*  One  surety  cannot  be  discharged  from 
his  liability  without  the  other,  unless  the  latter  by  words  or  acts 
shows  his  consent  to  remain  solely  responsible.*' 


78.  Voris  v.  State,  47  Ind.  345; 
Cotton  V.  State,  64  Ind.  573,  See 
Brooks  V.  Rayner,  127  Mass.  268, 

79.  Perkins  v.  Stimmel,  114  N.  Y. 
359.  For  in  such  case  his  representa- 
tives should  be  summoned  to  account, 

80.  Jamison  v.  Cosby,  11  Humph. 
273 ;  Mass.  Gen.  Sts.,  ch.  101 ;  Bellune 
V.  Wallace,  2  Rich.  80. 

81.  Eichelbergcr  v.  Gross,  42  Ohio 
St.  549;  Yost  v.  State,  80  Ind.  350. 
And  see  Bell  v.  Rudolph,  70  Miss,  234, 
that  no  artifice  of  the  guardian  over 
Buch  embezzlement  will  relieve  such 
surety. 

82.  Moore  v.  Wallis,  18  Ala.  458. 
The  heirs  of  a  deceased  surety  are  not 
liable  jointly  with  the  principal  on  the 
bond.  Strickland  v.  Holmes,  77  Me. 
197.  Where  a  guardian,  after  the 
death  of  one  surety,  gives  anotehr 
bond  with  other  sureties  conditioned 


like  the  first,  though  with  larger  pen- 
alty, the  sureties  on  both  bonds  are 
80-sureties.  Stevens  v.  Tucker,  87 
Ind.  109. 

83.  Hamner  v.  Mason,  24  Ala.  480. 
See  Kendrick  v.  Wilkinson,  18  Ind. 
206.  A  surety  may  sign  an  old  guar- 
dian's bond  as  well  as  a  new  one,  in 
the  stead  of  a  retiring  surety.  Ham- 
mond B.  Beasley,  15  Lea,  618;  Mc- 
Intyre  v.  The  People  (Use,  etc.),  103 
HI.  142. 

84.  Wann  v.  People,  57  111.  202. 

85.  See  Newcomer's  Appeal,  43  Pa. 
St.  43;  Sebastian  v.  Bryan,  21  Ark. 
447 ;  Frederick  v.  Moore,  13  B.  Monr. 
470;  Boyd  v.  Gault,  3  Bush,  644. 
Where  a  guardian  has  once  been  dis- 
charged with  money  in  his  hands  not 
paid  over,  and  is  subsequently  reap- 
pointed, and  accounts  only  for  money 
received     since     reappointment,     the 


§    958  GUAEDIAN    ANI>    WAKD.  1096 

The  sureties  on  a  guardian's  bond,  though  liable,  it  may  be, 
for  money  received  by  the  guardian  before  the  bond  was  made, 
are  not  liable  for  what  he  receives  after  having  resigned  or  been 
removed  from  office.®^  And  where  a  ward  dies  and  the  guardian 
administers  upon  his  estate,  the  liability  for  the  assets  formerly 
held  by  the  latter  as  guardian  becomes  transferred  to  him  as  ad- 
ministrator, and  the  sureties  on  his  administration  bond  are  made 
liable  in  place  of  those  who  were  his  bondsmen  in  the  guardian- 
ship.^^ But  redress  for  a  guardian's  conversion  should  bo  sought 
on  the  bond  or  bonds  in  force  at  the  time;  and  the  question  is  not 
when  does  the  guardian  charge  himself  with  assets,  but  when  do 
they  come  to  his  possession  or  knowledge  as  guardian.*^ 

Where  the  guardian  has  filed  an  additional  bond,  as  in  case  of 
a  large  accession  to  the  original  estate,  both  bonds  remain  valid,  the 
new  bond  is  taken  as  a  cumulative  security  and  the  sureties  (as 
such  statutes  are  generally  construed),  are  all  deemed  co-sureties, 
and  liable  as  such.^®  And  a  bond  voluntarily  offered  by  the  guar- 
dian and  approved  in  the  ordinary  form  is  as  binding  as  though  it 
had  been  ordered  by  the  court.^"  Where,  however,  the  sureties 
of  an  old  bond  are  discharged  and  a  new  bond  is  substituted, 
the  usual  rule  is  that  the  old  sureties  and  the  new  are  liable  to- 
gether as  co-sureties  for  the  defaults  of  the  guardian,  previous 
to  filing  the  new  bond,  and  that  the  new  sureties  alone  bear  the 
responsibility  of  his  subsequent  misconduct.^^  But  the  liability  of 
a  surety  on  a  new  bond  given  in  place  of  the  original  one  is  in 

sureties  on  his  first  bond  are  Kable.  19t),  where  one  is  administrator  and 

Naugle  V.  State,  101  Ind.  284.     See  guardian. 

Bond  V.  Armstrong,  88  Ind.  65,  for  89.  Loring  v.  Bacon,  3  Cosh.  465; 

the  rale  where  a  guardian  in  default  Commonwealth  v.  Cox,  36  Pa.  St.  442 ; 

gave  a  new  bond  and  then  committed  Alen  v.   State,   61    Ind.   268;    Huson 

other   defalcations   and   died,  his  es-  v.    Green,    88    Ga.    722.      In    absence 

tate  paying  a  percentage  on  the  en-  of  positive   evidence  of  the  time  of 

tire  defalcation.     For  the  California  any     misconduct,     the     sureties     are 

rale  see  Spencer  v.  Houghton,  68  Cal.  aU  liable  in  this  ease  for  the  entire 

82.  guardianship.      Douglass  v.    Kessler, 

86.  Merrells  v.  Phelps,  34  Conn.  57  la.  63.  And  see  Stevens  et  al.  v. 
109.      But  as  to  payments   made   to  Tucker  et  al.,  87  Ind.  109. 

some  person  by  one  not  aware  that  90.  Potter  v.  State,  23  Ind.  550. 

his   authority  has   been  revoked,   see  91.  Loring  v.  Bacon,  3  Cush.  465; 

Sage   V.    Hammonds,    27    Gratt.    651,  Bell    v.    Jasper,    2    Ired.    Eq.    597; 

See  Downing  v.  Peabody,  56  Ga.  40.  Hutehcraft  v.  Shrout,  1  Monr.  206; 

87.  Baker  v.  Wood,  42  Ala.  664.  Jones  v.  Blanton,  6  Ired.  Eq.  115 ;  Am- 

88.  Lowry  v.  State,  64  Ind.  421;  mons  v.  People,  11  111.  6;  Sayers  v. 
Johnson  v.  McCullough,  59  Ga.  212.  Cassell,  23  Gratt.  525;  McGloshlin  v. 
And  see  Ruffin  v.  Harrison,  86  N.  C.  Wyatt,  1  Lea,  717;  State  v.  Page,  63 


1097 


THE    GUAliDIAN  S    BOND. 


§    959 


some  States  treated  as  prospective  only,  on  the  equitable  principle 
that,  where  the  statute  bond  does  not  plainly  express  a  retrospec- 
tive operation,  such  should  not  be  its  construction.®^  Contribu- 
tion is  in  proportion  to  the  penal  sum  named  in  the  respective 
bonds.  But  in  special  instances  and  under  the  open  sanction  of 
the  court  and  of  an  infant's  counsel  a  new  surety  has  been  accepted 
upon  qualified  terms  of  liability  sufficiently  beneficial  to  the  ward, 
which  he  insisted  upon.^' 

§  959.  The  Same  Subject. 

Many  of  the  decisions  in  regard  to  administration  bonds  apply 
on  principle  to  those  of  guardians.  Thus  a  bond  which  is  not 
signed  by  the  guardian  is  not  binding  even  upon  his  sureties.'* 
And  if  altered,  after  being  signed  by  two  sureties,  with  the  con- 
sent of  the  principal  only,  and  then  signed  by  two  other  sureties, 
ignorant  of  the  alteration,  it  is  not  binding  upon  any  of  the  sure- 
ties ;  not  upon  the  first  two,  because  altered  without  their  consent ; 
not  upon  the  other  two,  because  they  were  not  informed  of  the 
release  of  the  two  former.®^  But  fraud  practiced  in  obtaining  a 
surety's  signature  affords  the  surety  whose  confidence  was  mis- 
placed no  defence  when  sued  on  the  bond,  as  against  those  his 

Ind.  209.  The  language  of  a  local  for  money  received  before  by  the  guar- 
code  must  be  resorted  to  for  the  rule 
in  such  cases  as  to  the  discharge  of 
former  bondsmen  from  liability.  See 
Sayers  v.  Cassell,  23  Gratt.  525.  A 
periodical  statutory  bond  is  required 
in  some  States,  and  even  such  bonds 
are  held  to  be  cumulative,  under  the 
statute,  as  to  the  wards,  though  con- 
tribution is  in  inverse  order  of  execu- 
tion. Tennessee  Hospital  v.  Fuqua, 
1  Lea,  608.  A  surety  is  not  liable  for 
money  paid  the  guardian  on  account 
of  a  ward  who  at  the  time  of  payment 
was  of  age.  Sheton  v.  Smith,  59  Tenn. 
82.  A  surety's  contingent  liability, 
being  provable  against  him  in  bank- 
ruptcy proceedings,  may  thus  have 
been  avoided.  Davis  v.  McOurdy,  50 
Wis.  569.  But  not  a  guardian 's.  Re 
Maybin,  15  Bankr.  Reg.  468.  Sureties 
on  a  bond  are  not  usually  liable  for 
past  defaults.  State  v.  Jones,  89  Mo. 
470 ;  McWilliams  v.  Norfleet,  60  Miss. 


dian.  Tuttle  v.  Northrop,  44  Ohio  St. 
178.  Or  for  money  already  lent  to  a 
firm  which  afterwards  turns  out  insol- 
vent. McWilliams  v.  Norfleet,  63 
Miss.  183.  The  sureties  on  a  guar- 
dian 's  additional  bond  may  be  liable 
for  his  failure  to  account  for  money 
on  hand  when  it  was  given;  the  pre- 
sumption being  that  the  misappro- 
priation was  afterwards.  Clark  v.  Wil- 
kinson, 59  Wis.  543.  See  further,  Lee 
V.  Lee,  67  Ala.  406;  Moody  et  al.  v. 
State  ex  rel.  Burton,  84  Ind.  433. 

92.  Lowry  v.  State,  64  Ind.  421; 
State  V.  Shackleford,  56  Miss.  648. 

93.  See  Spath's  Estate,  144  Pa.  St. 
383,  where  it  was  clearly  arranged  up- 
on the  insolvency  of  the  guardian  and 
his  original  surety,  that  the  new 
bondaman  was  not  to  be  held  liable 
beyond  the  balance  shown  upon  the 
account  then  filed. 

94.  Wood  V.  Washburn,  2  Pick.  24. 
987.  But  a  substituted  surety  is  liable           95,  Howe  v.  Peabody,  2  Gray,  556. 


§  960 


GUARDIAN    AND    WABD. 


1098 


conduct  led  to  rely  upon  it."®  So  joint  guardians  who  wish  to 
limit  their  respective  liabilities  must  furnish  separate  bonds; 
since  both  are  responsible  for  all  the  acts  of  each  other  during  the 
continuance  of  the  joint  guardianship  where  they  execute  a  joint 
bond.®^  And  the  usual  rule  is  that  no  more  than  the  penal  sum 
named  in  the  bond  can  be  recovered  upon  it,  unless  it  be  by  way  of 
interest  or  cost.®* 

§  960.  Special  Bond  in  Sales  of  Real  Estate. 

A  special  bond  is  in  many  States  required  where  a  guardian  is 
licensed  to  make  sale  of  his  ward's  real  estate.  Where  real  estate 
has  been  sold  by  a  guardian,  and  the  proceeds  remain  unaccounted 
for  at  the  expiration  of  his  trust,  it  is  a  question  whether  the 
sureties  on  his  general  bond  shall  be  held  responsible,  or  those  on 
the  special  bond  given  for  sale  of  the  real  estate.  The  best  au- 
thority is  in  favor  of  charging  the  latter  and  not  the  former 
sureties  for  the  guardian's  misapplication  of  such  moneys,**  un- 
less the  default  be  such  that  the  misapplication  cannot  be  identi- 
fied. The  rule  in  Massachusetts,  where  a  guardian,  who  has  been 
licensed  to  sell  real  estate  for  the  purpose  of  investment,  fails  to 
invest,  and  charges  himself  instead,  in  his  accounts,  with  the 
proceeds  and  interest  from  year  to  year,  has  been  to  hold  him 
responsible  for  the  proceeds  of  the  sale  upon  his  special  bond,  but 
for  the  interest  upon  his  general  bond.^     The  omission  to  give 


96.  Xander  y.  Commonwealth,  102 
Pa.  St.  434;  §  366,  note. 

97.  Brazier  v.  Clark,  5  Pick.  96; 
Sparhawk  v.  Buell's  Adm'r,  9  Vt.  41; 
Boyd  V.  Boyd,  1  Watts,  365.  But  see 
Williams   v.    Harrison,    19    Ala.    277. 

98.  Tyson  v.  Sanderson,  45  Ala. 
364;  Schouler,  Pcrs.  Prop.  465-470; 
Wilson,  i?e,  38  N.  J.  Eq.  205, 

99.  Williams  v.  Morton,  38  Me.  47; 
Brooks  V.  Brooks,  11  Cush.  22;  Potter 
V.  State,  23  Ind.  607;  Fay  v.  Taylor, 
11  Met.  529;  Blauser  v.  Diehl,  90  Pa, 
St.  350;  Madison  County  v.  Johnston, 
51  la.  152;  Bunce  v.  Bunce  et  al.,  65 
la.  106;  Morris  v.  Cooper,  35  Kan. 
156;  Henderson  v,  Coover,  4  Nev,  429; 
Withers  v.  Hickman,  6  B,  Monr.  292 ; 
Commonwealth  v.  Pray,  125  Pa.  St, 
542;  Judge  of  Probate  v.  Toothaker, 
83  Me.  195.  See  Andrew's  Heirs 
Case,  3  Humph.  592.     In  some  States 


the  requirement  of  an  additional  or 
special  bond  in  such  case  is  matter  of 
judicial  discretion.  See  Vanderburg 
T.  Williamson,  52  Miss.  233.  In  other 
States  such  bond  is  auxiliary  and  post- 
poned to  the  original  bond.  Hart  v. 
Stribling,  21  Fla.  136,  As  to  releas- 
ing sureties  and  taking  a  new  bond 
before  confirmation  of  the  sale,  see 
State  V,  Cox,  62  Miss,  786.  The  court, 
by  altering  the  terms  of  sale,  &c., 
does  not  impair  the  obligation  of 
such  bond,  Stevenson  v.  State,  69 
Ind.  257,  71  Ind.  52.  See  also  Col- 
burn  V,  State,  47  Ind.  310,  as  to  real 
estate  sale  on  applicaton  of  another 
than  the  guardian, 

1,  Mattoon  v.  Cowing,  13  Gray, 
387.  See  Pratt  v,  McJunktn,  4  Eich. 
5,  Sureties  on  the  guardian 's  general 
bond  are  liable  where  the  ward's 
land  is  sold  in  partition  proceedings. 


1099  THE  guardian's  bond.  §  962 

a  special  bond  for  the  sale  of  real  estate  is,  on  tlie  foregoing 
principles,  no  breach  of  the  guardian's  general  bond. 

§  961.  Suit  on  the  Guardian's  Bond  for  Default  and  Misconduct. 

For  the  default  and  misconduct  of  the  guardian  the  proper 
remedy  is  by  suit  on  the  probate  bond.  And  such  suits  are 
brought  in  the  name  of  the  judge,  or  the  State,  according  to  the 
requirements  of  statute,  for  the  benefit  of  the  person  or  persons 
injured.^ 

§  962.  Validity  of  Bond. 

Though  the  appointment  of  the  guardian  is  void  still  the  bond 
may  be  good  as  a  common-law  obligation,'  and  the  sureties  will 
be  liable  where  the  supposed  guardian  received  funds  for  which 
he  failed  to  account.*  A  guardian's  bond  is  binding  if  the  court 
has  jurisdiction  though  the  action  of  the  court  is  erroneous  but 
not  void,^  but  a  bond  given  for  unknown  heirs  being  a  nullity 
is  not  valid  as  a  common-law  bond.^  A  guardian's  bond  not  signed 
by  a  principal  is  good  against  the  surety  as  a  common-law  lia- 
bility.' Where  a  guardian's  bond  is  valid  on  its  face  the  sure- 
ties cannot  escape  liability  by  disputing  the  truth  of  its  recitals." 

The  fraud  of  the  guardian  in  obtaining  the  sureties  to  sign  by 
misrepresenting  the  condition  of  the  estate  is  no  defence  for  the 
sureties  in  an  action  on  the  bond.^ 

Action  Against  Sureties. —  As  to  sureties,  it  is  said  that  they 

Hooks  V.  Evans,   68   la.   52.     Where  3.   Cotton's   Guardian  v.   Wolf,   77 

both    general    and    special    bond    are  Ky.   238;    United   States   Fiedlity   & 

given,    and    the    guardian's    default  Guaranty  Co.  v.  Parker,  20  Wyo.  29, 

makes  it  impossible  to  ascertain  whe-  121  P.  531. 

ther  the  money  unaccounted  for  con-  4.  Hazelton  v.  Douglas,  97  Wis. 
eisted  of  proceeds  of  the  land  or  not,  214,  72  N.  W.  637. 
suit  may  be  brought  against  either  5.  Moore  v.  Hanseom,  103  S.  W. 
set  of  bondsmen.  Yost  v.  State,  80  665  (judg.  mod..  Sup,  1908,  101  Tex. 
Ind.  350.  And  see  State  v.  Mitchell,  293,  106  S.  W.  876)  (reduction  of 
132  Ind.  461.  As  to  moneys  derived  bond  unauthorized)  ;  Findley  v.  Find- 
under  a  sale  of  land  not  perhaps  au-  ley,  42  W.  Va.  372,  26  S.  E.  433. 
thorized,  the  bondsmen  cannot  set  up  6.  State  v.  McLaughlin,  77  Ind. 
want  of  authority.  Dodge  v.  St.  John,  335. 

96    N.    Y.    260.      Where    accounting  7.  Painter  v.  Maudlin,  119  Ala.  88, 

would  not  change  the  facts  of  liability  24  So.  769,  72  Am.  St.  E.  902. 

it  is  not  a  prerequisite  to  suing  such  8.  Gray  v.  State,  78  Ind.  68,  41  Am. 

a   bond.     Long   v.   Long,   142   N.   Y.  Rep.   545. 

545,     See  §  376.  9.  (19t)6)  Rouse  v,  Whitney,  102  N, 

2  Davis  V.   Dickson,   2   Stew,   370;  Y,   S,   899,   53   Misc,   56    (judg,   rev,, 

Potter  V.  State,  23  Ind.  607;  Pearson  Same  v.  Payne   (1907),  105  N,  Y.  8, 

V,  McMillan,  37  Miss,  588.  549). 


§  963 


GUARDIAN    AND    WAED. 


1100 


vnaj  be  sued  without  a  previous  suit  against  the  principal;  the 
common-law  rule,  that  an  executor  must  first  be  found  guilty  of 
devastavit^  being  held  inapplicable  to  guardians/"  But  here, 
again,  in  the  absence  of  an  accounting  or  a  delinquency  fixed  in 
the  proper  court  suit  cannot  usually  be  maintained." 

Parties. —  In  a  suit  against  sureties  on  a  guardianship  bond,  if 
one  of  the  sureties  is  dead,  his  personal  representative  should  be 
joined/" 

§  963.  Accounting  as  Prerequisite. 

In  most  States  the  guardian's  bond  cannot  be  sued  until  he  has 
been  summoned  before  the  proper  court  to  account;  nor  until 
leave  of  that  court  has  been  first  obtained ;  except  in  certain  cases 
of  debts  which  appear  of  record,^*  unless  an  accounting  is  im- 


10.  State  V.  Strange,  1  Smith 
(Ind.),  367;  Call  v.  Kuffin,  1  Call, 
333;  1  Met.  (Ky.)  22.  And  see  Hor- 
ton  V.  Horton,  4  Ired.  Eq.  54;  Moore 
V.  Baker,  39  Ala.  704 ;  Moore  v.  Hood, 
9  Rich.  Eq.  311;  Potter  v.  Hiscox, 
30  Conn.  508 ;  Clark  v.  Montgomery, 
23  Barb.  464.  In  a  suit  by  the  ward 
against  his  guardian  and  the  sure- 
ties on  the  bond,  a  decree  may  be 
rendered  at  once  against  all;  the 
ward  need  not  pursue  the  guardian 
first.  Barnes  v.  Trafton,  80  Va.  524. 
The  personal  representative  of  a  de- 
ceased insolvent  guardian  is  not  a 
necessary  party  to  the  ward's  suit  in 
equity  against  a  surety.  Fulgham  v. 
Herstein,  77  Ala.  496.  As  to  demand, 
see  Buchanan  et  al.  v.  The  State  ex 
ret,  106  Ind.  251;  Powers  v.  The 
State,  87  Ind.  102.  But  there  should 
usually  be  a  judgment  against  the 
guardian  before  money  can  be  made 
out  of  the  sureties.  Forest  v.  Vason 
et  ux.,  71  Ga.  49.  Cf.  "Wolfe  v.  State, 
59   Miss.   338. 

11.  See  §  376,  notes.    But  cf.  §  369. 

12.  Lynch  v.  Eotan,  39  111.  14.  A 
release  of  a  surety  by  payment  of  an 
amount  less  than  the  principal  owed 
is  not  a  full  discharge  of  the  princi- 
pal.    Carroll  v.  Corbitt,  57  Ala.  579. 

As  to  suits  on  a  guardian's  bond, 
on  the  relation  of  one  or  more  wards 
where  there  are  other  wards,  see  Col- 


burn  V.  State,  47  Ind.  310;  Scheel  v. 
Eidman,  68  111.  193.  The  bond  of  a 
guardian  of  several  infants  may  be 
sued  on  for  those  surviving,  where 
any  are  dead.  Winslow  v.  People, 
117  111.  152. 

A  surety  is  liable  for  a  debt  due 
from  the  guardian  to  his  ward  when 
appointed,  if  the  guardian  was  then 
solvent.  Black,  &c.  v.  Kaiser,  91  Ky. 
422. 

13.  Stillwell  V.  Miles,  19"  Johns. 
304;  Bailey  v.  Rogers,  1  Greenl.  186; 
78  Me.  24;  Salisbury  v.  Van  Hoesen, 
3  Hill,  77;  Bisbee  v.  Gleason, 
21  Neb.  534;  Jarrett  v.  State, 
5  Gill  &  Johns.  27;  Hunt  v. 
White,  1  Cart.  105;  Foteaux  v.  Le- 
page, 6  la.  123 ;  Ammons  v.  People,  11 
111.  6 ;  Pratt  v.  McJunkin,  4  Rich.  5 ; 
Justices  v.  Willis,  3  Yerg.  461 ; 
O'Brien  v.  Strang,  42  la.  643;  Allen 
V.  Tiffany,  53  Cal.  16 ;  Hailey  v.  Boyd, 
64  Ala.  399;  Ordinary  v.  Heishon,  42 
N.  J.  L.  15.  But  a  guardian  cannot 
prevent  an  action  on  his  bond  by 
failure  to  account.  Wann  v.  People, 
57  111.  202.  As  for  chancery  bill  of  ac- 
count, in  case  of  quasi  guardianship, 
see  next  chapter.  As  to  abatement  of 
summary  proceedings  to  account  by  the 
guardian's  death,  see  Harvey  v.  Har- 
vey, 87  111.  54. 

The  sureties  cannot  usually  he  sued 
until  the  guardian's  accounts  are  set- 


1101 


THE    guardian's    BOND 


963 


possible.^*  The  reason  is  tJiat  the  balances  due  from  the  guardian 
and  the  extent  of  his  liability  cannot  be  precisely  ascertained  until 
the  accounts  are  presented ;  moreover,  the  failure  to  account  in 
obedience  to  judicial  mandate,  or  to  turn  over  the  property  ac- 
cording to  a  balance  shown  on  such  accounting,  fixes  the  delin- 
quency. So,  too,  while  the  guardian  may  sue  his  ward,  after  the 
latter  attains  majority,  when  it  appears  that  the  final  indebted- 
ness is  in  his  own  favor,  he  must  wait  until  the  court  has  ascer- 
tained and  decreed  its  amount.^" 


tied  and  he  fails  to  pay  what  is  due. 
State  V.  Buck,  63  Ark.  218,  37  S.  W. 
881;  Beakley  v.  Cunningham,  112 
Ark.  71,  165  S.  W.  259;  Graff  v.  Mes- 
mer,  52  Cal.  636;  Hunt  v.  White,  1 
Ind.  105;  United  States  Fidelity  & 
Guaranty  Co.  v.  Jackson,  111  Mis3. 
752,  72  So.  150;  Wegner  v.  Wiltsie, 
23  Ohio  Cir.  Ct.  E.  302;  Fidelity  & 
Deposit  Co.  of  Maryland  v.  Schelper, 
37  Tex.  Civ.  App.  393,  83  S.  W.  871 ; 
Pinnell  v.  Hinkle,  54  W.  Va.  119,  46 
S.  E.  171;  contra,  State  ex  rel. 
Garesche  v.  Slevin  (Mo.  1887),  6  S. 
W.  71  (ward  who  has  reached  ma- 
jority may  sue  sureties  without  ac- 
counting) ;  State  ex  rel.  Leutert  v. 
Berger,  92  Md.  App.  631;  United 
States  Fidelity  &  Guaranty  Co.  v, 
Nash,  20  Wyo.  65,  121  P.  541  (reh. 
den.,  124  P.  269). 

14.  MiteheU  v.  Kelly,  82  Kan.  1, 
107  P.  782  (where  guardian  becomes 
insolvent  and  dies)  Miller  v.  Kelsey, 
502--5840--Bender — Domestic  Eelation 
100  Me.  103,  60  A.  717  (guardian  ab- 
sconded) ;  Kurz  v.  Hess,  S3  N.  Y.  S. 
773,  86  App.  Div.  529  (absconded)  ; 
Otto  V.  Van  Riper,  164  N.  Y.  536,  58 
N.  E.  643,  79  Am.  St.  R.  673  (death 
of  guardian  in  another  State)  ;  Gil- 
bert V.  Gilbert,  13  Ohio  Cir.  Ct.  R. 
29,  7  O.  C.  D.  58, 

15.  Smith  V.  PhUbrick,  2  N.  H.  395; 
Shollenberger 's  Appeal,  21  Pa.  St. 
337.  In  certain  peculiar  instances, 
where  the  extent  of  the  guardian's  li- 
ability has  been  otherwise  as  definitely 


determined  as  it  could  be  by  an  ac- 
counting, it  is  held  that  a  decree  may 
be  entered  against  the  guardian  for 
the  amount,  though  no  account  has 
been  taken.  Sage  v.  Hammonds,  27 
Gratt.  651 ;  and  even  that  an  account- 
ing is  not  a  prerequisite  to  an  action 
against  the  sureties.  Hughes  v.  City 
of  Auburn,  21  Hun,  316;  Long  v. 
Long,  142  N.  Y.  545.  See  McWilliams 
V.  Kalbach,  55  la.  110.  For  the  Illi- 
nois rule,  see  Mclntyre  v.  The  People 
Use,  103  HI.  142.  But  an  aceoimting 
is  usually  a  prerequisite  to  suit  on  the 
bond.  In  an  action  on  a  guardian's 
bond  the  writ  should  be  indorsed  with 
the  name  of  the  person  for  whose 
benefit  suit  is  brought.  Prob.  Court 
of  Hopkinton  v.  Lamphear,  14  R.  I. 
291.  And  see  Tudhope  v.  Potts,  91 
Mich.  490. 

In  an  action  on  a  guardian's  bond, 
the  burden  is  on  plaintiff  to  show  a 
breach  of  its  conditions;  while  in  ex- 
ceptions to  the  account,  the  burden  is 
on  the  guardian  to  justify  his  expend- 
itures, deductions,  and  allowances. 
The  State  ex  rel.  Wiseman  et  al.  v. 
Wheeler,  127  Ind.  451.  But  whatever 
the  onus  in  items  of  account,  the  ulti- 
mate decision  rests  with  the  court  on 
a  settlement ;  and  the  court  will 
neither  exercise  a  severity  which 
might  deter  prudent  men  from  ac- 
cepting such  trusts,  nor  sanction  a 
laxity  of  diligence  which  might  invite 
men  to  accept  for  gain.  Thompson  v. 
Thompson,  92  Ala.  54  5. 


§  964 


GUABDIAN    AND    WARD. 


1102 


§  964.  Accounting  is  Conclusive. 

Sureties,  'as  well  as  the  guardian,  are  concluded  in  the  absence 
of  fraud  or  prdpable  error,  bj  the  amount  deliberately  adjudged 
due  from  the  guardian  on  settlement  of  his  accounts,  usually  in 
a  probate  court,  although  the  sureties  were  not  parties  to  the  pro- 
ceedings.^®   They  cannot  become  parties  to  the  accounting  of  their 


16.  Beakley  v.  Cunninghain,  112 
Ark.  71,  165  S.  "W.  259;  Lynch  v. 
Eotan,  39  III.  14  (in  absence  of 
fraud)  ;  Eyan  v.  People,  163  111.  143, 
46  X.  E.  206  (affg.  62  111.  App.  355)  ; 
Chase  v,  Wright,  116  la.  555,  90  N. 
W.  357;  In  re  Caskey  (la.),  166  N. 
"W.  751;;  Rice  v.  Wilson,  129  Alich. 
520,  89  N.  W.  336,  8  Det.  Leg.  N. 
1055;  Cross  v.  White,  80  Minn.  413, 
83  N.  W.  393,  81  Am.  St.  R.  267; 
Botkin  V,  Kleinschmidt,  21  Mont.  1, 
52  P.  563,  69  Am.  St.  E.  641;  Deegan 
V.  Deegan,  22  Kev,  185,  37  Pac.  360, 
8  Am.  St.  E.  742 ;  Douglass  v.  Ferris, 
138  N.  Y.  192,  33  N.  E.  1041,  34  Am. 
St.  E.  435,  18  N.  Y.  S.  685; 
Douglass  V.  Ferris,  63  Hun,  413 ; 
Van  Zandt  v.  Grant,  175  X.  Y. 
150,  67  X.  E.  221,  73  N.  Y.  S.  600, 
67  App.  Div.  70;  In  re  Eansier,  57  N. 
Y.  S.  650,  26  Misc.  582;;  Eberle  v. 
Schilling,  65  X.  Y,  S.  728,  32  Misc. 
195;  Southern  Surety  Co.  v.  Burney, 
34  Okla.  552, 126  Pac.  748,  43  L.  E.  A. 
(X.  S.)  308;  Title  Guaranty  &  Surety 
Co.  V.  Slinker,  35  Okla.  128,  153,  128 
P.  696,  698;  Henry  v.  Melton,  46 
Okla.  278,  148  P.  730;  Cabell  v. 
McLish  (Okla.),  160  P.  592;  Smith 
T.  Garnett  (Okla.),  161  P.  1083; 
Southwestern  Surety  Ins.  Co.  t. 
Eichard  (Okla.),  162  P.  468;  Egan 
V.  Vowel!  (Okla.),  167  P.  205;  Dris- 
coll  V.  Quinn  (Okla.)  170  P.  495; 
Southern  Surety  Co.  v.  Jefferson 
(Okla.),  174  P.  563;  Etna  Accident 
&  Liability  Co.  v.  Langley  (Okla.), 
174  P.  1046;  Title  Guaranty  &  Surety 
Co.  V.  Cowcn  (Okla.),  177  P.  563; 
Neel  V.  Commonwealth  (Pa.),  7  Atl. 
74;  Homug  v.  Schramm,  22  Tex. 
Civ.  App.  327,  54  S.  W.  615;  Fahey 
V.   Boulmay,   24   Tex.   Civ.   App.   279, 


59  S.  W.  300;  Minchew  v.  Case  (Tex. 
Civ.  App.  1912),  143  S.  W.  366; 
contra,  United  States  Fidelity  & 
Guaranty  Co.  v.  Pittman,  183  Ala. 
602,  62  So.  784;  Lincobi  Trust  Co.  v. 
Wolff,  91  Mo.  App.  133;  State  ex  rel. 
Leutert  v.  Berger,  92  Mo.  App.  631; 
see  State  v.  Booth,  9  Mo.  App.  583; 
Judgment  Eouse  v.  Whitney  (1906), 
102  X.  Y.  S.  809,  reversed;  Eouse  v. 
Payne,  105  N.  Y.  S.  549,  120  App. 
Div.  667. 

Commonwealth  v.  Ehoads,  37  Pa. 
St.  60;  Braiden  v.  Mercer,  44  Ohio 
St.  339;  McCleary  v.  Menke,  109  HI. 
294;  Moore  &  Wife  v.  Xichols,  39 
Ark.  145.  In  numerous  instances, 
however,  a  decree  rendered  against  a 
guardian  is  held  not  conclusive  against 
sureties  who  were  not  parties  to  the 
final  accounting.  So  that  the  latter 
may  show,  in  reduction  of  their  lia- 
bility, that  the  guardian  failed  to 
charge  the  wards  with  boarding,  tu- 
ition, or  his  own  compensation;  or 
made  improper  charges  in  their  favor 
against  himself.  Davenport  v.  01m- 
stead,  43  Conn.  67;  State  v.  Hull,  53 
Miss.  626;  Kinsey  v.  State,  71  Ind. 
32;  Kinsey  et  al.  v.  The  State  ex  rel., 
81  Ind.  62;  Hauser,  Guardian,  v. 
King  et  al.,  76  Va.  731;  State  v. 
Hoster,  61  Mo.  544;  Sanders  v.  For- 
gasson,  3  Eaxt.  249.  And  see  Moore 
V.  Alexander,  96  N.  C.  34.  So  may 
the  sureties  have  the  benefit  of  a  debt 
lawfully  chargeable  in  account  with 
the  ward,  which  the  creditor  releases 
bo7ia  fide  to  the  guardian  personally. 
Kinsey  v.  State,  71  Ind.  32.  Special 
penalties  may  be  assessed  under  some 
local  statutes,  on  a  defaulting  guar- 
dian's bond.  Stroup  v.  State,  70  Ind. 
495;    Buchanan   et.   al.    v.   The   Stat© 


1103 


THE    GUARDIAN  S    BOND. 


§    965 


principal,  either  in  tho  original  proceedings  or  on  revision/^  and 
a  judgment  against  the  guardian  is  also  binding  on  the  sureties/* 
but  the  surety  may  plead  the  statute  of  limitations/®  and  is  not 
bound  by  the  reports  made  by  the  guardian.^" 

Notwithstanding  a  final  settlement  showing  an  amount  due  from 
the  guardian  the  surety  may  show  that  the  loss  occurred  before 
the  date  of  his  bond.^^ 

§  965.  Sureties  Held  on  Breach  Occurring  While  Bond  Out- 
standing. 

The  sureties  are  in  general  liable  only  for  a  breach  occurring 
while  the  bond  is  outstanding  and  not  for  losses  occurring  before 
the  execution  of  the  bond.^^  However,  the  sureties  on  a  guardian's 
bond  conditioned  on  his  proper  settlement  on  termination  of  the 
guardianship  are  liable  for  a  conversion  prior  to  the  execution  of 
the  bond,^^  and  are  charged  with  a  debt  owing  by  the  guardian  to 
the  wards  at  the  time  of  his  qualification.^* 

Where  a  guardian  misapplies  funds  the  sureties  on  his  bond  are 
liable  although  it  is  subsequently  ordered  that  a  new  bond  be  filed 


ex  rel.,  106  Ind.  251.  Sureties  cannot 
set  up  their  principal's  misappropria- 
tion with  the  ward's  connivance  while 
under  age.  Judge  of  Probate  v.  Cook, 
57  N.  H.  450.  See  also  Scobey  v. 
Gano,  35  Ohio  St.  550;  Fogartj  et  al. 
V.  Beam  et  al,  100  111.  366. 

17.  In  re  Scott's  Account,  36  Vt. 
297.  But  see  Curtis  v.  Bailey,  1  Pick. 
198.  In  an  action  on  a  guardian's 
bond  his  accounting  and  discharge  in 
court  cannot  be  attacked.  State  v. 
Slauter,  80  Ind.  597.  Sureties  cannot 
set  up  issues  as  to  the  guardian's  ac- 
count in  which  they  have  no  interest. 
May  and  Pasco  v.  May,  19f  Fla.  373. 
And  as  to  the  guardian's  neglect  to 
settle  accounts,  see  Judge  of  Probate 
V.  Grant,  59  N.  H.  547. 

18.  Baldwin  v.  State  of  Maryland, 
179  U.  S.  220,  21  S.  Ct.  105,  45  L. 
Ed.  160;  Parr  v.  State,  71  Md.  220, 
17  Atl.  1020;  contra,  Fidelity  &  De- 
posit Co.  of  Maryland  v.  M.  Eich  & 
Bros.,  122  Ga.  506,  50  S.  E.  338;  Kich 
&  Bros.  V.  Fidelity  &  Deposit  Co.  of 
Maryland,  126  Ga.  466,  55  S.  E.  336 ; 
National  Surety  Co.  v.  Rives'  Guar- 


dian, 164  Ky.  201,  175  S.  W.  351 
(default  judgment  not  binding)  ; 
Commonwealth  v.  Bracken,  17  Ky. 
Law.  Eep.  785,  32  S.  W.  609;  Gilbert 
v.  Gilbert,  13  Ohio  Cir.  Ct.  R.  29, 
7  Ohio  Dec.  58  (judgment  without 
notice  to  guardian  is  not  binding  on 
surety). 

19.  Perkins  v.  Cheney,  114  Mich. 
567,  72  N.  W.  595,  4  Det.  Leg.  N.  696, 
68  Am.  St.  R.  495. 

20.  Lowry  v.  State,  64  Ind.  421 

21.  State  ex  rel.  and  to  Use  of 
Short  V.  Hardy  (Mo.  App.),  206  S. 
W.  904. 

22.  Howe  V.  White,  162  Ind.  74,  69 
N.  E.  684;  Cotton's  Guardian  v.  Wolf , 
77  Ky.  238;  ^tna  Indemnity  Co.  v. 
State,  57  So.  9'80;  American  Bonding 
Co.  of  Baltimore,  Md.,  v.  Fountain 
(Tex.  Civ.  App.),  196  S.  W.  675. 

23.  State  v.  Buck,  63  Ark.  218,  37 
S.  W.  881.  See  People's  Bank  & 
Trust  Co.  v.  Nelson,  37  Okla.  500, 
132  P.  493. 

24.  Johnson  v.  Hicks'  Guardian,  97 
Ky.  116,  30  S.  W.  3,  16  Ky.  Law  Bep. 
827. 


§  966 


GUARDIAN    AND    WABD. 


1104 


and  that  the  sureties  be  relieved  from  further  liability  on  the  bond. 
The  breach  having  occurred  while  the  first  bonds  were  current 
those  bonds  are  liable  to  all  damages  that  accrue  to  the  wards  on 
account  of  the  breach.  As  the  guardian  was  solvent  when  the 
new  bonds  were  given  the  sureties  on  the  new  bonds  are  also  liable 
when  he  becomes  insolvent  after  the  new  bonds  are  excuted.  The 
amount  was  lost  because  the  guardian  failed  and  neglected  to  pay 
over  the  amount  to  the  wards  as  he  should  have  done  and  it  is 
immaterial  that  it  was  a  debt  due  from  the  guardian  himself 
which  he  failed  to  collect.  His  duty  to  collect  debts  rests  on  him 
more  heavily  when  he  was  the  debtor  by  his  own  wrongful  act 
than  it  would  if  he  had  merely  failed  to  collect  a  debt  from  eome 
third  party.^^ 

The  surety  will  be  liable  for  an  unwise  loan  while  the  bond  was 
in  force  though  the  surety  was  discharged  before  maturity  of  the 
loan.=^* 

§  966.  Sureties  on  Different  Bonds,  Special  Bonds. 

The  sureties  may  be  liable  to  an  action  by  the  succeeding  guar- 
dian,^'^  and  where  the  guardian  gives  a  statutory  bond  and  after 
devastavit  gives  a  common-law  bond  the  sureties  on  both  bonds  are 
liable.^^  Where  a  guardian  has  filed  a  general  and  also  a  special 
bond  it  is  error  to  divide  the  devastavit  and  find  against  the  sure- 
ties on  each  bond  for  only  a  portion  of  the  sum  due  from  the 
guardian.^®  A  breach  of  the  guardian's  bond  caused  by  his  giving 
up  a  nete  to  the  maker  can  only  be  continued  so  as  to  bind  the 
sureties  on  a  second  bond  by  the  guardian  carrying  the  note  for- 
ward to  a  final  settlement.^"    The  sureties  are  not  relieved  by  the 


25.  ^tna  Indemnity  Co.  v.  State 
(Miss.),  57  So.  980,  39  L.  R.  A.  (N. 
S.)  9G1.  See  Diffie  v.  Anderson, 
(Ark.),  208  S.  W.  428  (sureties  on 
both  bonds  liable) ;  Remington  v. 
Hopson,  137  Ga.  95,  72  S.  E.  918 
(where  additional  security  is  ordered 
the  new  bond  is  cumulative).  See 
Union  Trust  Co.  v.  Zynda,  129  Mich. 
156,  88  N.  W.  407,  8  Det.  Leg.  N. 
902  (liability  on  bond  to  secure  prior 
defalcation). 

26.  Des  Moines  Savings  Bank  v. 
Krcll,  176  la.  437,  156  N.  W.  858. 

27.  Southwestern  Surety  Ins.  Co.  v. 


Taylor  (Okla.),  173  P.  831;  Etna 
Accident  &  Liability  Co.  v.  Langley 
(Okla.),  174  P.  1046  (validity  of 
appointments  of  guardians  cannot  be 
denied). 

28.  Matthews  v.  Mauldin,  143  Ala. 
434,  38  So.  849.  See  Smith  v.  Moore 
(S.  C),  95  S.  E.  351. 

29.  Remington  v.  Hopson,  137  Ga. 
95,  72  S.  E.  918.  See  United  States 
Fidelity  &  Guaranty  Co.  v.  Hansen, 
36  Okla.  449,  129  P.  60,  67;  Jn  re 
Kress 's  Estate,  52  Pa.  Super.  Ct,  29. 

80.  Lincoln  Trust  Co.  v.  Wolff,  91 
Mo.  App.  133. 


1106 


THE    GUAKDIAN  S    BOND. 


§    966 


mere  filing  of  a  soibsequent  bond,^^  and  where  a  new  bond  is  or- 
dered it  is  error  to  discharge  the  sureties  on  the  old  bond  until 
the  new  is  approved/'  The  succeeding  sureties'  possession  of 
estate  funds  is  the  possession  of  the  ward  as  affecting  the  lia- 
bility of  the  original  sureties.^^ 

Where  a  bond  runs  to  three  wards  jointly  the  liability  of  the 
sureties  to  each  ward  is  limited  to  one-third  the  amount  of  the 
penalty,^*  and  where  separate  bonds  are  given  for  each  ward  the 
sureties  are  only  liable  on  each  bond  to  the  ward's  proportion  of 
the  penal  sum  of  the  bond.^^ 

Where  a  special  bond  is  required  for  sale  of  real  estate  the 
sureties  on  the  general  bond  are  not  liable  for  the  proceeds,^®  but 
the  sureties  on  the  special  bonds  are  liable  and  cannot  deny  the 
validity  of  the  proceedings.^^ 

The  guardian  cannot  enlarge  his  liability  on  his  general  bond 
by  t-aking  and  charging  himself  with  funds  of  the  ward  which  he 
had  no  legal  right  to  receive  and  for  which  a  special  bond  should 
have  been  given.'* 

The  sureties  on  a  special  bond  are  not  liable  for  the  misap- 
propriation of  funds  not  arising  from  the  sale  of  the  property. 


39 


31.  Kaspar  v.  People,  230  HI.  342, 
82  N.  E.  816  (affg.  132  111.  App.  1; 
Rush  V.  State,  19  Ind.  App.  523,  49 
N.  E,  839;  Middleton's  Adm'r  v. 
Hensley,  21  K7.  Law.  703,  52  S.  W. 
974;  Miller  v.  Kelsey,  100  Me.  103, 
60  A.  717. 

82.  Miller  v.  Miller,  21  Tex.  Civ. 
App.  382,  53  S.  W.  362. 

33.  (Civ,  App.  IffO?)  Moore  v. 
Hanscom,  103  S.  W.  665  (judg.  mod. 
[Sup.  1908],  101  Tex.  293,  106  S.  W. 
876). 

34.  United  States  Fidelity  &  Guar- 
anty Co.  V.  Nash,  20  Wyo.  65,  121 
P.  541    (reh.  den.,  124  P.  269). 

35.  Parker  v.  "Wilson,  98  Ark.  553, 
136  S.  W.  981  (stay  of  judgment 
granted,  99  Ark.  344,  137  S.  W.  926). 

36.  State  v.  Peterman,  66  Mo.  App. 
257;  Alen  v.  Fahy,  63  N.  Y.  S.  1031, 
30  Misc.  377;  Commonwealth  v.  Am- 
erican Bonding  Co.,  212  Pa.  365,  61 
A.    939;    Findley   v.   Findley,    42   W. 

70 


Va.  372,  26  S.  E.  433;  Kester  v.  Hill, 
42  W.  Ya.  611,  26  S.  E.  376.  See 
Allen  V.  Kelly,  171  N.  Y.  1,  63  N.  E. 
528,  67  N.  Y.  S.  97,  55  App.  Div.  454. 
See  Peed  v.  Hedges,  16  W.  Va,  167; 
contra,  Southern  Surety  Co.  v.  Bumey, 
34  Okla.  552, 126  P.  748.  See  Rudy  v. 
Rudy,  145  Ky.  245,  140  S.  W.  192 
(sale  of  land  void  where  no  special 
land  given). 

37.  Donnell  v.  Dansby  (Okla.),  159 
P.  317. 

38.  Allen  v.  Kelly,  171  N.  Y.  1,  63 
N.  E.  528,  67  N.  Y,  S.  97,  55  App. 
Div.  454.  See  Bank  of  Guntersville 
V.  United  States  Fidelity  &  Guaranty 
Co.  (Ala.),  75  So.  168  (surety  not 
liable  for  funds  received  by  guardian 
in  his  individual  capacity). 

39.  Smith  v.  Garnett  (Okla.),  161 
P.  1083 ;  National  Surety  Co.  of  New 
York  V.  Washington  (Okla.),  170  P. 
1142  Knox  V.  Cruel  (Okla.),  183  P. 
427. 


§  967 


GUARDIAN    AND    WABD. 


1106 


§  967.  For  What  Acts  of  Guardian  is  Surety  Liable. 

The  sureties  are  liable  generally  for  all  money  whicli  the  guar- 
dian should  pay  and  does  not*"  for  defalcation,*^  taxes*^  losses 
caused  by  the  negligence  of  the  guardian,*^  as  for  failure  of  the 
guardian  to  collect  assets,**  or  to  invest  funds,*"  or  from  unauthor- 
ized investments,*®  not  for  losses  made  in  good  faith.*' 

Failure  of  a  guardian  to  file  his  inventory  is  a  breach  of  his 
bond,  but  the  damages  assessed  will  be  nominal  only  unless  actual 
damages  are  proved.** 

Failure  to  comply  with  an  invalid  order  of  the  court  does  not 
constitute  a  breach  of  the  bond.*" 


40.  Schlee  v.  Darrow's  Estate,  65 
Mich.  362,  32  N.  W.  717;  State  ex 
rel.  Gregory  v.  Horton,  101  Mo.  App. 
701,  74  S.  W.  1117;  The  Ordinary  v. 
Hopler  (N.  J.  Sup.  1896),  36  A.  769 
(failure  to  pay  over  assets  to  a  new 
guardian  is  not  a  breach,  unless  on 
showing  new  guardian  properly  ap- 
pointed) ;  Eouse  v.  Whitney,  102  N. 
Y.  S.  899,  53  Misc.  56  (judg.  revd., 
Same  v.  Payne  [1907],  105  N.  Y.  S. 
549).  See  Kick  &  Eros.  V.  Fidelity  & 
Deposit  Co.  of  Maryland,  126  Ga. 
466,  55  S.  E.  336. 

41.  Steinhart  v.  Gregory,  176  Ala. 
368,  58  So.  266;  National  Surety  Co. 
V.  State,  181  Ind.  54,  103  N.  E.  105; 
Lincoln  Trust  Co.  v.  "Wolff,  91  Mo. 
App.  133  (surrender  of  note  to 
maker)  ;  State  ex  rel.  Leutert  v. 
Berger,  92  Mo.  App.  631;  Ordinary 
V.  Wolfson,  65  N.  J.  Law,  418,  47  A. 
457  (failure  to  turn  over  money 
found  due  as  on  accounting) ;  South- 
ern Surety  Co.  v.  Jefferson  (Okla.), 
174  P.  563  (fraud  of  guardian) ; 
Municipal  Court  of  Providence  v. 
TJnited  States  Fidelity  &  Guaranty 
Co.  (R.  L),  103  A.  996  (although 
stock  taken  be  considered  as  realty)  ; 
Allen  V.  Stovall,  94  Tex.  618,  63  S. 
W.  863  (money  received  in  settlement 
of  litigation,  although  guardian  had 
no  right  to  make  settlement)  ;  Mann 
V.  Mann,  119  Va.  630,  89  S.  E.  897 
(money  received  for  condemnation  of 
land). 


42.  Baldwin  v.  State  of  Maryland, 
179  U.  S.  220,  21  S.  Ct.  105,  45  L. 
Ed.  160  (affg.  89  Md.  587,  43  A. 
857),  (taxes  assessed  after  ward  be- 
came of  age,  but  before  gnardian 
stated  a  final  account). 

43.  Layne  v.  Clark,  152  Ky.  310, 
153  S.  W.  437. 

44.  Ames  v.  Williams,  74  Miss.  404, 
20  So.  877;  State  ex  rel.  Brebaugh 
V.  Bolte,  72  Mo.  272,  4  Mo.  App.  599. 

45.  United  States  Fidelity  &  Guar- 
anty Co.  V.  Taggart  (Tex.  Civ.  App.), 
194  S.  W.  482. 

46.  Leach  v.  Gray  (Ala.),  77  So. 
341;  American  Bonding  Co.  of  Balti- 
more V.  People,  46  Colo.  394,  104  P. 
81;  Des  Moines  Savings  Bank  v. 
Krell,  176  la.  437,  156  N.  W.  858 
(unwise  loan) ;  State  ex  rel.  Mount  v. 
Smith,  139  Mo.  App.  101,  120  S.  W. 
614  (taking  title  to  land  in  his  own 
name) ;  Empire  State  Surety  Co.  v. 
Cohen,  156  N.  Y.  S.  ?35,  93  Miac 
299. 

47.  State  ex  rel.  Garesche  v.  Slevin 
(Mo.  1887),  6  S.  W.  71;  United 
States  Fidelity  &  Guaranty  Co.  v. 
Jackson,  111  Miss.  752,  72  So.  150 
(mere  failure  of  bank  in  which  funds 
deposited  does  not  operate  ipso  facto 
as  a  breach). 

48.  Buchanan  v.  State,  106  Ind. 
251,  6  N.  E.  614;  Miller  v,  Kelsey, 
100  Me.  103,  60  A.  717. 

49.  Harter  v.  Miller,  67  Kan.  468, 
73  P.  74. 


1107 


THE    GUAEDIAN  S    BOND. 


§  969 


If  the  guardian  uses  the  funds  of  his  ward  in  his  own  business 
this  amounts  to  a  conversion  rendering  the  surety  liable/" 

The  refusal  of  a  guardian  to  pay  for  the  maintenance  of  the 
ward  out  of  property  under  his  control  constitutes  a  breach  of 
the  bond  for  which  a  creditor  may  bring  suit  on  the  bond.^^ 

The  sureties  may  be  liable  to  a  creditor  of  the  ward  if  the 
guardian  turns  over  to  the  ward  assets  instead  of  using  them  to 
pay  the  creditor. 


S2 


§  968.  Interest,  Costs  and  Penalty. 

The  sureties  are  liable  for  interest  from  the  date  of  the  settle- 
ment with  the  guardian  of  his  accounts,^^  and  for  interest  on  an- 
nual balances  which  the  guardian  has  used  in  private  specu- 
lations.®* 

In  an  action  on  a  guardian's  bond  interest  should  not  be  com- 
pounded after  the  marriage  of  the  ward,^^  and  the  surety  is  not 
liable  for  interest  after  the  death  of  the  guardian  until  the  ward 
demands  a  settlement  from  the  surety.^®  Sureties  on  a  guardian's 
bond  are  liable  for  costs  awarded  against  him."^^ 

The  penalty  imposed  on  a  guardian  who  fails  to  make  an  annual 
report  cannot  be  recovered  by  the  ward  against  the  sureties  in 
an  action  on  the  guardian's  bond  for  failure  to  account  for  and 
pay  over  the  ward's  money.^* 

§  969.  In  What  Capacity  Guardian  Acting. 

The  sureties  on  a  guardian's  bond  are  liable  only  for  his  acts  as 
guardian  and  not  for  acts  of  the  guardian  while  acting  in  a  sepa- 
rate capacity,^®  and  are  liable  for  all  property  held  as  guardian 
although  received  before  his  appointment." 

The  liability  of  the  sureties  on   the  guardian's  bond  can  be 


50.  TJnited  States  Fidelity  &  Guar- 
anty Co.  T.  State,  40  Ind.  App.  136, 
81  N.  E.  226. 

51.  State  V.  Fidelity  &  Deposit  Co. 
of  Maryland  (Md.),  104  A.  278. 

52.  Probate  Court  of  Exeter  v. 
Carr,  27  R.  I.  184,  61  A.  171. 

53.  Bealdey  v.  Cunningham,  112 
Ark.  71,  165  S.  W.  259. 

54.  Gay  v.  Whidden,  64  Fla.  295, 
59  So.  89-6. 

55.  Finnell  v.  O'Neal,  76  Ky.  176, 

56.  Freedman  v.  Vallie  (Tex.  Civ. 
App.  1903),  75  S.  W.  322;   American 


Bonding  Co.  of  Baltimore,  Md.,  v. 
Fountain  (Tex.  Civ.  App.),  196  S. 
W.  675. 

57.  Phillips  V.  Liebmann,  41  N.  T. 
S.  1020,  10  App.  Div.  128,  75  N.  Y. 
S.  1386. 

58.  Townsend  v.  Stern  (la.  1904), 
99  N.  W.  570. 

59.  In  re  Ranaier,  57  N.  Y.  S.  650, 
26  Misc.  532  (as  guardian  ad  litem). 
See  Newman  v.  Flowers'  Guardian, 
134  Ky.  557,  121  8.  W.  652, 

60.  Tanner  v.  Skinner,  74  Ky.  (11 
Bush),   120. 


§  970 


GUARDIAN    AND    WAKD. 


1108 


terminated  if  he  ceases  to  hold  securities  as  guardian  but  holds 
them  in  some  other  capacity,  but  this  must  appear  by  some  une^ 
quivocal  act. 


61 


§  970.  For  What  Property  Sureties  Liable. 

Sureties  are  liable  only  for  property  which  actually  came  into 
the  guardian's  hands  during  the  period  of  the  bond,**  including 
personal  estate  or  rents  of  real  estate.*' 

The  sureties  are  liable  for  all  money  which  came  into  the 
possession  of  the  guardian  prior  to  his  appointment  in  the  absence 
of  evidence  that  he  had  before  his  appointment  converted  it  to  his 
own  use,**  including  losses  on  property  placed  in  charge  of  the 
guardian  before  the  execution  of  the  bond."^ 

The  sureties  on  the  guardian's  bond  are  chargeable  with  funds 
which  the  guardian  as  administrator  is  directed  to  deposit  to  the 
credit  of  himself  as  guardian  although  he  had  previously  as  admin- 
istrator misappropriated  such  funds.** 

Where  the  wards  compensated  the  guardian  for  their  main- 
tenance by  their  services  to  him  the  sureties  on  his  bond  cannot 
defend  an  action  by  showing  the  guardian  was  poor  and  needed  the 
funds  for  their  support.*^ 

Where  on  the  guardian's  death  a  portion  of  his  estate  was  paid 
to  the  ward  as  a  dristributee  the  surety  may  set  off  such  amount 
against  his  liability  on  a  devastavit. ^^ 


61.  State  ex  rel.  Hospes  v.  Branch, 
112  Mo.  661,  20  S.  W.  6?3. 

G2.  American  Bonding  Co.  of  Balti- 
more V.  People,  46  Colo.  394,  104  P. 
81;  Eudy  v.  Eudy,  145  Ky.  245,  140 
8.  W,  192.  See  Newberry  v.  Wilkin- 
son, 199  F.  673,  118  C.  C.  A.  Ill 
(affg.  decree  [C.  CI,  190  F.  62) 
(sureties  estopped  by  guardian 's  re- 
ceipt showing  he  had  received  funds) ; 
Gillum  V.  Parker's  Guardian,  30  Ky. 
Law  Eep.  1191,  100  S.  W.  820  (where 
guardian  removed  to  another  State, 
where  he  was  appointed  again). 

63.  Eeed  v.  Hedges,  16  W.  Va.  167; 
Jennings  v.  Parr,  62  S.  C.  306,  40  S. 
E.  683. 

64.  In  re  Guardianship  of  Fardette, 
83  N.  Y.  S.  521,  86  App.  Div.  50; 
Loftin  V.  Cobb,  126  N.  C.  58,  35  8.  E. 


230     (money    which    came    into    his 
hands   as   administrator). 

65.  Beakley  v.  Cunningham,  112 
Ark.  71,  165  S.  W.  259;  State  ex  rel. 
Johnston  v.  United  States  Fidelity  & 
Guaranty  Co.,  188  Mo.  App.  700,  176 
8.  W.  542;  Smith  v.  Moore  (S.  C), 
95  S.  E.  351  (except  in  flagrant 
cases). 

66.  In  re  Noll,  154  N.  T.  765, 
49  N.  E.  1101,  41  N.  Y.  8.  765,  10 
App.  Div.  356,  75  N.  Y.  8.  1161. 
See  In  re  Switzer,  201  Mo.  66,  98  8. 
W.  461;   Switzer  v.  Switzer,  Id. 

67.  Bell  V.  Kinneer,  101  Ky.  271,  40 
S.  W.  686,  19  Ky.  Law  Eep.  545,  9 
Ky.  Law  Eep.  172. 

68.  American  Bonding.  Co.  of  Balti- 
more V.  Logan  (Tex.  Civ.  App.  1910), 
132  S.  W.  894. 


1109 


THE    GUARDIAN  S    BOND. 


§  974 


§  971.  Duty  of  Sureties  as  to  Estate. 

The  sureties  on  the  guardian's  bond  are  under  no  duty  after 
his  death  to  take  possession  of  the  property  or  to  manage  it," 
and  the  surety  is  not  bound  to  actively  concern  himself  with  the 
settlement  of  the  guardian's  accounts  and  his  failure  to  do  this 
does  not  render  him  liable  as  participating  in  the  guardian's 
fraud.^°  The  surety  on  a  bond  which  has  been  discharged  cannot, 
because  of  devastavit  prior  to  his  discharge,  require  the  guardian 
to  pay  into  court  funds  in  his  hands.'^ 

§  972.  Surety  Taking  Collateral. 

A  surety  may  always  take  security  from  his  principal  for  his 
own  indemnity,  and,  if  default  occurs,  reimburse  himself  from 
the  principal's  own  property  like  any  other  creditor.  But  it  stands 
to  reason  that  the  surety  of  a  guardian  cannot  secure  himself  by 
any  pledge  of  the  ward's  property;  for  this  would  be  permitting 
fraud  in  order  to  prevent  fraud,  and  the  infant's  pretended  security 
would  be  to  him  no  security  at  all.''^ 

§  973.  Contribution  Among  Sureties. 

Equity  allows  sureties  to  enforce  contribution  as  among  them- 
selves. Thus,  if  co-sureties  on  one  bond  pay  the  whole  amount  of 
a  deficiency,  they  may  use  the  other  bond  to  obtain  a  proportional 
reimbursement.^^  So  where  there  are  three  co-sureties,  and  one 
proves  insolvent,  the  surety  who  has  responded  in  damages  to  the 
full  extent  may  compel  his  solvent  co-surety  to  pay  him  one-half 
of  the  amount.'^* 

§  974.  Subrogation  of  Sureties. 

Where  sureties  are  compelled  to  respond  in  damages  for  the 
default  of  their  guardian,  they  may  seek  indemnity  from  his 
property;  they  are  entitled  to  be  subrogated  to  the  remedies  of 


ee.  Garrett  v.  Reese,  99  Ga.  494, 
27  8.  E.  750. 

70.  Newberry  v.  Wilkinson,  199  F. 
673,  118  C.  C.  A.  Ill  (affg.  decree 
[C.  C.l,  190  F.  62). 

71.  Hooks  V.  Fidelity  &  Deposit 
Co.  of  Maryland,  135  Ga.  396,  69  S. 
E.    484. 

72.  Poultney  v.  Randall,  9  Bosw. 
232;  Foster  v.  Bisland,  23  Miss.  296; 
Miller  v.  Camall,  22  Ark.  274 ;  Howell 
V.  C5obb,  2  Cold.  104.    It  is  not  against 


public  policy  for  the  guardian  to  de- 
posit part  of  the  ward's  securities 
with  the  surety  as  indemnity.  Rogers 
V.  Hopkins,  70  Ga.  454. 

73.  Commonwealth  v.  Cox,  36  Pa. 
St.  442.  See  Baugh  v.  Boles,  35  Ind- 
521. 

74.  Waller  v.  Campbell,  25  Ala. 
544.  See  State  V.  Paul's  Ex 'r,  21  Mo. 
51 ;  Jamison  v.  Crosby,  11  Humph. 
273;  Hocker  v.  Woods,  33  Pa.  St. 
466;  Haygood  v.  McKoon,  49  Mo.  77. 


§    978  GUARDIAN    AND    WABD.  1110 

the  ward  against  their  principal,  subject,  however,   to  equities 

against  the  ward.''' 

§  975.  Limitation  of  Action. 

To  all  suits  on  guardians'  bonds  there  is  a  limitation  prescribed 
by  law,  which  is  different  in  the  different  States.'^®  Where  no 
special  period  is  fixed  bj  law,  the  ordinary  limitation  to  suits  on 
sealed  instruments  must  be  held  to  apply.''' 

An  action  accrues  on  a  guardian's  bond  only  when  an  order  is 
entered  upon  an  accounting  removing  or  discharging  the  guardian, 
and  the  statute  of  limitations  does  not  begin  to  run  imtil  that 
time." 
§  976.  Effect  of  Fraudulent  Settlement  with  Ward. 

iN'o  fraudulent  and  deceptive  settlement  of  the  guardian  with 
his  ward  on  the  latter's  majority,  nor  even  the  court's  approval 
thus  induced,  can  shield  sureties  when  the  whole  transaction  is 
set  aside  on  judgment  as  void,'^  and  the  ward  on  setting  aside  a 
settlement  with  the  guardian  may  recover  of  the  sureties  if  they 
have  not  changed  their  position  relying  on  the  settlement.*" 

§  977.  Ward's  Right  to  Impeach  Fraudulent  Transfers. 

A  fraudulent  transfer  of  property  by  the  surety  of  an  insolvent 
guardian  may  be  impeached  on  the  ward's  behalf.*^ 
§  978.  Release  of  Sureties. 

A  discharge  of  the  guardian  will  relieve  the  surety,*^  but  the 
surety  is  liable  for  a  balance  due  at  the  time  of  the  discharge,*' 

75.  Adams  v.  Gleaves,  10  Lea,  367;  193;  Parr  v.  State,  71  Md.  220;  State 
Btate  V,  Atkins,  53  Ark.  303.  And  v.  Branch  (ISM),  Mo.  See  Greenup 
see  as  to  proceedings  against  the  v.  United  States  Fidelity  &  Guaranty 
lands  of  a  deceased  guardian.  Rich-  Co.,  159  Ky.  647,  167  S.  W.  910  (20 
ardson  v.  Day,  20  S.  C.  412,  months'    delay   is    bar    to    attacking 

76.  State  v.  Hughes,  15  Ind.  104;  settlement). 

Johnson    v.    Chandler,    15    B.    Monr.  80.  Baum  v.  Hartmann,  226  111,  160, 

(Ky.)   584;  Loring  v.  Alline,  9  Cush.  80    N,    E,    711    (revg,    122    111.    App. 

(Mass.)     68.     And    see    Favorite    v.  444). 

Booher,  17  Ohio  St,  548.  81.  Benson  v,  Benson,  70  Md.  253. 

77.  Benson  v,  Benson,  70  Md,  253,  82,  Haden  v.  Swepston,  64  Ark. 
As  to  time  of  a  guardian's  "dis-  477,  43  S.  W,  393;  Thomas  v.  Thomas, 
charge,"  Orleans  Probate  Court  v,  126  Ark.  579,  191  S.  W.  227;  Greenup 
Child,  51  Vt,  82.  Cf,  Motes  v.  Mad-  v.  United  States  Fidelity  &  Guaranty 
den,  14  S.  C.  488.  Co.,  159  Ky.  647,  167  S.  W.  9^10   (20 

78.  United  States  Fidelity  &  Guar-  months'  delay  is  bar  to  attacking  set- 
anty  Co.  v.  Citizens  State  Bank,   36  tlement). 

N.  D,   16,  161   N.  W.   562,  L.   R.  A.  83.  Boyd  v.  Withers,  103  Ky.  698, 

1918E,   326.  46  S.  W.  13,  20  Ky.  Law  Eep.  511. 

79.  Douglass  v.   Ferris,  138  N.  Y. 


1111 


THE    GUARDIAN  S    BOND. 


§   978 


and  a  final  receipt  in  full  may  not  be  conclusive  where  given  by  the 
ward.®*  The  sureties  will  be  relieved  by  placing  funds  in  the 
name  of  the  ward  in  the  hands  of  the  court  and  by  a  complete 
accounting  on  revocation  of  the  guardian's  appointment.®^  A 
surety  will  in  general  be  relieved  only  by  the  proper  payment  of 
the  money  in  the  hands  of  the  guardian.®*'  Where  letters  of 
guardianship  are  revoked  because  of  the  failure  of  the  guardian 
to  file  his  accounts  the  court  has  no  power  at  the  succeeding 
term  as  against  the  guardian's  sureties  to  annul  such  revocation.®^ 
The  surety  is  not  relieved  by  the  mere  fact  that  the  court  has 
failed  to  take  proper  steps  to  force  the  filing  of  an  inventory.®® 

The  liability  of  one  surety  will  not  be  abated  by  the  abate- 
ment of  an  action  against  the  other.®' 

Statutes  in  many  States  authorize  the  sureties  to  be  released  by 
making  direct  application  to  the  court,®"  but  the  release  of  a  surety 
does  not  protect  him  from  liability  for  a  devastavit  already  in- 
curred.*^ Such  a  release  will  be  construed  consistently  with  the 
statutes  providing  therefor.®^ 


84.  Beedle  v.  State,  62  Ind.  26  (to 
enable  guardian  to  settle  with  court)  ; 
Vick  V.  Ferrell,  85  S.  E.  549  (where 
ward  ignorant). 

85.  Fidelity  &  Deposit  Co.  of  Mary- 
land V.  Husted,  128  Md.  275,  97  A. 
370. 

86.  State  v.  Fidelity  &  Deposit  Co. 
of  Maryland  (Md.),  104  A.  278; 
State  ex  rel.  Scott  v.  Greer,  101  Mo. 
App.  669,  74  S.  W.  881. 

87.  Wallace  v.  Swepston,  74  Ark. 
520,  86  S.  W.  398,  109  Am,  St.  E.  94. 

88.  Mahan  v.  Steele,  109  Ky.  31,  58 
S.  W.  446,  22  Ky.  Law  Eep.  546. 

89.  Layne  v.  Clark,  152  Ky.  310, 
153  S.  W.  437. 

90.  National  Surety  Co,  of  New 
York  V.  Morris,  111  Ga,  307,  36  S,  E, 
690  (even  for  reasons  other  than  the 
misconduct  of  guardian  in  conduct  of 
the  trust) ;  Means  v.  American  Bond- 
ing Co.  of  Baltimore  (Ga.  App.),  ffS 
S.  E.  399;  Kendrick  v.  Wilkinson,  18 
Ind.  206 ;  Rush  v.  State,  19  Ind.  App. 
523,  49  N.  839 ;  Clymer  v.  State  (Ind. 
App.),  109  N,  E.  431;  In  re  Pope's 
Estate,  103  Me,  382,  69  A,  616;  Rice 


V.  Wilson,  129  Mich.  520,  89  N.  W. 
336,  8  Det.  Leg.  N.  1055  (discharge 
void  where  without  notice  to  ward)  ; 
In  re  American  Surety  Co.  of  Ne.? 
York,  115  N.  Y.  S.  860,  61  Misc.  542; 
United  States  Fidelity  &  Guaranty 
Co.  V.  Hansen,  36  Okla.  449,  129  P. 
60,  67 ;  Etna  Accident  &  Liability  Co. 
V.  Langley  (Okla.),  174  P,  1046; 
Reed  v,  Duncan  (Tenn.  Ch.  App. 
1900),  59  S.  W.  402  (although  no  for- 
mal petition  is  presented)  ;  Brehm  v. 
United  States  Fidelity  &  Guaranty 
Co.,  124  Wis.  339,  102  N.  W.  36.  See 
American  Bonding  Co.  of  Baltimore 
V,  Logan  (Tex.  Civ.  App,  1910),  132 
S,  W.  894  (after  death  of  guardian 
bond  cannot  be  released). 

An  approved  guardian's  iond  can- 
not he  released  even  by  the  court  with- 
out the  consent  of  all  parties  in  in- 
terest. Commonwealth  v.  American 
Bonding  Co.,  245  Pa.  535,  ?!  A.  938. 

91,  American  Bonding  &  Trust  Co. 
V,  Coons   (Okla.),  166  P,  887, 

92.  Des  Moines  Savings  Bank  v, 
Krell,   176   la,   437,    156   N,   W.   858. 


I    978  GUAKDIAN    AND    WAKD.  1112 

The  amount  of  the  liability  on  a  guardian's  bond  will  not  be 
reduced  by  the  mere  granting  of  an  application  by  the  guardian 
to  have  it  reduced  where  no  such  application  was  made  by  the 
surety  and  the  bond  was  never  changed. 


93 


.    93.   Commonwealth      v.      American       (judg.    mod.    [Sup.    1908],   101    Tex. 
Bonding  Co.,  245  Pa.  535,  91  A,  938.       293,  106  S.  W.  876). 
See  Moore  v.  Hanscom,  103  S.  W.  665 


1113!  BIGHTS    AND    LIABILITIES.  §    980 


CHAPTER  X. 

EIGHTS   AND    LIABILITIES   OF    THE   WARD. 

8acTK>N  97?.  General  Eights  of  the  Ward. 

980.  Doctrine  of  Election  as  to  Wards,  Insane  or  Infant. 

981.  Insane  Persons  and  Infants  Contrasted. 

982.  Responsibility  of  Guardian  to  Ward  as  Wrongdoer,  &c. 

983.  Ward's  Action  or  Bill  for  Account. 

984.  Limitations,  Laches. 

985.  Ward's  Eight  to  Eecover  Embezzled  Property,  &c. 
9'86.  Fraudulent  Transactions  Set  Aside  on  Ward's  Behalf. 

987.  Ward's  Eights  to  Eatify  or  Eepudiate  Transactions  of  Guar- 

dian, Estoppel. 

988.  Eesulting  Trusts;   Guardian's  Misuse  of  Funds;   Purchase  of 

Ward's  Property,  &c. 

989.  Transactions  Between   Guardian  and  Ward;    Undue   Influence. 

990.  Situation  of  Parties  at  Final  Settlement  of  Accounts. 
99'!.     Transactions  After  Guardianship  is  Ended. 

992.     Marriage  of  Ward  Against  Consent  of  Chancery  or  Guardian. 

§  979.  General  Rights  of  the  Ward. 

Having  treated  at  length  of  the  rights  and  liabilities  of  guar- 
dians, their  appointment  and  removal,  and  the  settlement  of  their 
accounts,  it  only  remains  for  us  to  consider  the  powers  and  duties 
of  the  ward  himself.  Some  of  these  have  been  already  noticed 
incidentally;  others,  so  far  as  minor  wards  are  concerned,  fall 
within  the  scope  of  Infancy;  hut  a  few  legal  principles  remain 
for  discussion  under  the  present  head,  to  which  we  shall  now  di- 
rect the  reader's  attention. 

§  980.  Doctrine  of  Election  as  to  Wards,  Insane  or  Infant. 

There  is  a  distinction  to  he  drawn  between  infant  wards,  and 
insane  pers'ons  or  spendthrifts  under  guardianship.  As  to  the 
former,  the  law  recognizes  a  growing  responsibility,  as  it  were, 
on  their  part;  a  postponement  of  many  rights  and  duties  to  the 
period  of  maturity,  but  not  utter  and  total  suspension  or  loss. 
Hence  sales  made  and  contracts  performed  while  an  infant  ward's 
disabilities  last  are  frequently  held  subjected  to  his  future  ap- 
proval, being  treated  as  neither  absolute  nor  yet  void  in  the  mean- 
tima  Hence  is  that  principle  of  election  so  constantly  asserted 
at  law  on  his  behalf;  hence,  too,  the  right  he  exercises,  when  of 
age,  of  passing  in  review  accounts  old  and  almost  forgotten,  to 
aaoertain  the  balance  justly  due  him.     But  as  to  insane  persons 


§  981 


GUAKDIAN    AND    WAED. 


1114 


and  spendtkrifts,  tJieir  responsibilities  are  for  the  time  blotted 
out;  the  disability  may  be  temporary  or  it  may  be  permanent; 
but  while  it  lasts,  it  is  complete;  and  it  may  be  essential  that 
transactions  on  their  behalf  should  stand  or  fall,  irrespective  of 
their  choice,  and  beyond  the  possibility  of  their  future  interfer- 
ence. This  suggestion  we  throw  out  simply  by  way  of  caution; 
for  while  the  same  principles  are  constantly  applied  by  inference 
to  all  wards  alike,  it  is  unsafe  to  draw  broad  conclusions  or  argue 
with  confidence  from  mere  analogies  between  these  different  classes 
of  wards.^* 

§  981.  Insane  Persons  and  Infants  Contrasted. 

Thus  it  is  asked  whether  an  insane  person  under  guardianship 
can  make  a  will,  if  in  fact  compos  mentis.  Clearly,  questions 
of  mental  capacity  and  undue  influence  may  arise  whenever  a 
will  is  presented  for  probate.  And  prima  facie  an  insane  person, 
if  not  a  spendthrift,  under  guardianship,  is  non  compos  mentis, 
and  his  testamentary  capacity  may  well  be  doubted.  It  is  settled, 
however,  in  various  States  that  a  valid  will  may  be  executed  by  a 
person  under  such  guardianship,  notwithstanding  the  circum- 
stances of  his  situation ;  the  fact  of  testamentary  capacity  at  the 
date  of  execution  being  open  to  proof. ^'^  As  to  the  contract  of  a 
spendthrift  or  insane  person  made  before  he  was  placed  under 
guardianship,  the  law  favors  the  guardian's  right  of  disaffirmance 
to  a  certain  extent,  notwithstanding  the  ward  was  an  adult  when 
the  contract  was  made ;  on  the  ground,  apparently,  that  the  person 
now  a  ward  was  not  fit  to  make  a  contract  in  his  own  right  which 
should  bind  his  estate.^®    And  yet  the  rule  here  must  differ  greatly 


94.  Thus,  in  Vermont,  it  is  held  that 
a  spendthrift  may  be  compelled  to 
give  security  to  the  town  of  his  set- 
tlement a,£^ainst  loss  by  his  becoming 
chargeable  afterwards  as  a  pauper,  as 
a  condition  for  his  release  from  guar- 
dianship. Williston  V.  White,  11  Vt. 
40. 

95.  Breed  v.  Pratt,  18  Pick.  115. 
The  letters  of  guardianship  afford 
prima  facie  proof  of  testamentary 
incapacity,  but  nothing  conclusive, 
save  perhaps  where  one  is  adjudged 
an  idiot.     Schouler,  Wills,  §§  81,  82. 

96.  Coombs  v.  Janvier,  2  Vroom, 
240;   Chandler  v.  Simmons,  97  Mass. 


508.  But  see,  as  to  the  wife's  agency 
to  manage  his  business,  Motley  v. 
Head,  43  Vt.  633.  The  contract  of  a 
person  not  under  guardianship  but  of 
unsound  mind  is  not  necessarily  void, 
but  will  be  held  voidable  or  not,  ac- 
cording to  circumstances.  Copenrath 
V.  Kienby,  83  Ind.  18.  And  see,  as  to 
vesting  chattel  mortgage  rights  in  the 
innocent  mortgagee,  where  the  mort- 
gage was  made  by  one  apparently 
sane  and  not  declared  insane.  Fay 
V.  Burditt,  81  Ind.  433.  Also,  as  to 
an  insane  i)€raon  's  note,  taken  by  one 
without  notice  of  his  insanity.  Shonl- 
tcrs  V.  Allen,  51  Mich.  529,     Cf.  Ed- 


1115 


EIGHTS    AND    LIABILITIES. 


§    982 


from  that  applicable  to  infants.  An  insane  person  having  no  legal 
guardian  may  sue  by  any  competent  person  as  his  next  friend,  and 
the  question  of  sanity  or  insanity  involved  in  the  transaction  may 
be  tried  collaterally. 


97 


§  982.  Responsibility  of  Guardian  to  Ward  as  Wrongdoer,  &c. 

For  assault  and  battery,  a  ward,  like  all  other  persons,  is  en- 
titled to  damages.  But  where  his  guardian  is  the  offender,  there 
are  technical  difficulties  in  the  way  of  maintaining  a  suit.  Many 
authorities  allow  an  infant  to  sue  his  guardian  by  next  friend 
for  a  tort;  though  a  spendthrift,  it  is  said,  cannot  do  so.  His 
remedy  may  be  found  in  getting  the  guardian  removed  for  mis- 
conduct and  securing  the  appointment  of  a  successor,  or  perhaps 
obtaining  his  discharge  from  guardianship  altogether.  An  action 
can  then  be  brought  by  himself  or  the  new  guardian,  as  the 
case  may  be.  The  guardian  may  in  all  cases  be  held  criminally 
responsible  for  an  injury  committed.^* 

A  guardian  may  be  restrained  by  injunction  from  committing 
waste.  So  he  is  responsible  for  damages  thus  occasioned;  and  it 
has  been  held  that  a  judgment  against  sureties  on  the  guardian's 
bond  for  waste  committed  by  the  guardian  will  not  before  satis- 


wards  V.  Davenport,  20  Fed.  R.  756, 
where  one  was  plainly  incapable.  An 
insane  person's  deed  of  real  estate 
is  treated  with  great  disfavor. 
Rogers  v.  Blackwell,  49  Mich.  192. 
The  guardian  may  maintain  a  bill  in 
equity  for  a  reconveyance.  Warfield 
V.  Fisk,  136  Mass.  219.  And  he 
should  not  attempt  to  ratify  a  con- 
veyance, or  convey  without  judicial 
authority .  Funk,  Guardian,  v.  Rontch- 
ler,  134  Ind.  68.  The  legal  disability 
of  spendthrifts  (and  semhle  of  the 
insane  under  local  statute)  begins 
when  the  guardian  is  appointed  and 
gives  bond.  Blake  v.  Potter,  51  Conn. 
78;  Myer  v.  Tighe,  151  Mass.  354, 
An  insane  person  under  guardianship 
usually  continues  liable  to  suit  and 
the  personal  Korvice  of  summons.  In- 
gcrsoll  v.  Harrison,  4S  Mich.  234; 
and  cases  cited.  The  guardian  should 
also  be  summoned  and  defend.  Jus- 
tice V.  Ott,  87  Cal.  530.  In  a  suit 
against   his   guardian   on   a  contract 


made  by  the  ward  before  he  was  de- 
clared insane,  the  negligence  of  the 
guardian  in  defending  is  imputable 
to  the  ward.  Weems  v.  Weems,  73 
Ala.  462.  When  a  lunatic  is  sup- 
ported at  an  asylum,  a  valid  personal 
debt  is  created,  and  proceedings  may 
be  taken  to  mortgage  his  estate  to  se- 
cure payment  thereof.  Agricultural 
Ins.  Co.  V.  Barnard,  96  N.  Y.  525. 

A  person  thus  under  guardianship 
may  with  the  guardian 's  assent  es- 
tablish a  domicile  sufficient  for  pro- 
bate of  his  will.  Culver's  Appeal,  48 
Conn.  165.  And  the  ward  may  some- 
times change  his  ovra  domicile,  if 
mentally  competent,  where  the  pre- 
mature death  of  his  guardian  pre- 
cludes an  assent.  Mowr  v.  Latham, 
17  R.  T.  480. 

97.  Reese  v.  Reese,  89  Ga.  646. 

98.  Mason  v.  Mason,  19  Pick.  506; 
The  State  v.  Willoughby,  76  Mo.  215. 
As  to  an  insane  ward,  see  89  Ga.  656. 
A  guardian  has  been  held  liable  in 


§  983 


GUARDIAN    AND    WAKD, 


lllG 


faction  bar  a  suit  by  the  ward  against  one  who  participated  in  the 
waste.®^  The  ward  may  also  sue  for  use  and  occupation,  altbougii 
lie  bas  a  general  guardian/  Wbere  one  assumes  to  be  guardian 
or  agent  of  a  guardian,  and  enters  an  infant's  lands,  the  infant 
may  elect  to  treat  bim  as  a  wrongdoer,  and  bring  trespass,  or 
charge  him  as  a  guardian.^  So  where  a  guardian  wrongfully 
holds  over.  But  the  ward  cannot  sue  his  guardian  for  money  had 
and  received.  His  proper  course,  at  least  in  this  country,  is  to 
institute  proceedings  for  the  latter's  removal,  with  settlement  of 
accounts,  and  then  to  sue  for  breach  of  the  official  bond.'  For  a 
tort  committed  upon  a  third  person  by  the  ward,  the  guardian  is 
not  usually  liable;  at  least  not  directly.^  And  in  general  it  is  so 
desirable  to  deprive  the  guardian  of  all  possession  and  control  of 
his  ward's  estate,  when  the  ward  has  a  civil  grievance  against 
him,  that  the  latter's  suit  in  damages  ought  to  be  at  least  accom- 
panied by  proceedings  for  removal  of  the  guardian  from  his  trust 

§  983.  Ward's  Action  or  Bill  for  Account 

Whenever  guardianship  has  been  terminated,  an  action  of  ac- 
count lies  in  favor  of  the  ward.  And  this  action  is  brought  by 
the  new  guardian,  or  by  next  friend ;  or  by  the  ward  himself,  if 
the  period  of  his  legal  disability  has  expired.  While  his  guar- 
dianship discontinues,  chancery  permits  the  ward  by  next  friend  to 
file  his  bill  against  the  guardian  for  account.  All  this  seems  to 
apply  rather  to  chancery  than  probate  guardians;  since  direct 
proceedings  for  account  in  the  court  which  issued  letters  of  guar- 
dianship, followed  by  removal  of  the  guardian,  if  unfaithful,  and 
suit  on  his  probate  bond,  afford  the  infant  under  such  guardian- 
ship an  ample  and  expeditious  remedy.  But  for  chancery  guar- 
dians, purely  testamentary  guardians,  and  quasi  guardians,  and 
under  peculiar  circumstances,  the  more  expensive  and  complicated 


damaf^es  for  corrupting  the  virtue  of 
his  ward.  Brittain  v.  Cannady,  9'6 
Ind.  266. 

99.  Powell  V.  Jones,  1  Ired.  Eq. 
337.  See  Bank  of  Virginia  v.  Craig, 
6  Leigh,  399. 

1.  Porter  v.  Bleiler,  17  Barb.  149. 
See  Senseman's  Appeal,  21  Pa.  St. 
331;  Sawyer  v.  Knowles,  33  Me.  208. 
And  see  Chilton  v.  Cabiness,  14  Ala. 
447;  Wilson  et  al.  v.  Galey,  Guardian, 
103  Ind.  257    (statute).     Cf.  Bonner 


V.  Evans,  89  Ga.  656;  Poullaine  et  al. 
V.  Poullain,  76  Ga.  420. 

2.  Sherman  v.  Ballou,  8  Cow.  304; 
Blomfield   v.    Eyre,    8    Beav.    250. 

3.  Brooks  v.  Brooks,  11  Cush.  18; 
Thorndike  v.  Hinckley,  155  Mass. 
263.  The  general  guardian  refusing 
to  collect  the  purchase  price  of  land, 
action  may  be  brought  in  the  ward's 
behalf  by  a  guardian  ad  litem.  Peter- 
son  V.   Baillif,   52   Minn.   386. 

4.  Garrigus  v.  Ellis,  95  Ind.  59S. 


1117 


EIGHTS    AND    LIABILITIES. 


§  983 


process  of  a  bill  in  equity  becomes  the  necessary  resort.  And  this 
in  England  is  still  the  usual  course  of  procedure,  while  in  most 
parts  of  the  United  States  it  has  gradually  gone  out  of  use  or 
has  been  superseded  in  great  measure  altogether."  But  in  some 
cases  of  qiia-si  guardianship  in  this  country, —  the  probate  court 
having  no  jurisdiction  at  all  in  the  premises, —  a  quasi  ward  on 
reaching  full  age  has  been  allowed  to  sue  in  assumpsit  for  money 
in  the  qimsi  guardian's  hands;  for  here,  as  it  would  appear,  the 
old  action  of  account  was  always  proper.*  In  considering  a  ward's 
action  at  law  on  reaching  full  age.  State  practice  concedes  often 
a  choice  of  remedies  to  the  ward  even  where  probate  intervention 
is  proper  for  compelling  an  account  in  court.  Thus  the  guardian's 
failure  to  settle  and  pay  over  within  a  reasonable  time  after  the 
ward's  disability  ends,  has  been  considered  of  itself  a  breach  of 
the  condition  of  the  probate  bond,  entitling  the  ward  to  sue  at  once 
his  late  guardian.'  But  if  the  ward,  as  he  should  more  prudently 
do,  goes  into  court  and  has  a  balance  found  by  its  adjudication 
against  the  guardian,  he  may  treat  the  failure  of  the  guardian  to 
pay  the  amount  as  a  new  breach  of  the  condition  of  the  bond, 
dating  from  the  time  of  default  in  performing  the  court's  order.* 
And  the  guardian's  failure  thus  to  pay  over  in  accordance  with  the 
court's  decree  creates  such  a  debt  in  the  ward's  favor  that  the 
remedy  of  the  ward  is  not  exclusively  confined  to  a  suit  on  the 
guardianship  bond,  but  he  may  instead  sue  in  his  own  name,  at 
his  own  choice.'  In  short,  the  general  theory  is  that  on  the 
infant  ward's  attainment  of  majority  the  guardianship  over  him 


5.  Monell  v.  Monell,  5  Johns.  Ch. 
283;  Linton  v.  Walker,  8  Fla.  144; 
Swan  V.  Dent,  2  Md.  Ch.  Ill ;  Lemon 
V.  Hansbarger,  6  Gratt.  301;  Man- 
ning V.  Manning,  61  Ga.  137;  Mac- 
phers.  Inf.  259,  348 ;  Fanning  v. 
Chadwiek,  3  Pick.  424;  Jones  v. 
Beverly,  45  Ala.  161.  The  sureties 
under  a  void  probate  appointment 
may  thus  be  held  responsible  together 
with  the  principal.  Corbitt  v.  Carroll, 
50  Ala.  315.  As  to  appointing  a  re- 
ceiver on  the  ward's  bill  for  account, 
see  Sage  v.  Hammonds,  27  Gratt.  651. 
To  the  ward's  action  against  his 
guardian  to  compel  a  settlement,  the 
surety  on  the  guardian 's  bond  where 
such  bond  was  given  should  be  made 


a  party.  Black  v.  Kaiser,  91  Ky. 
422.  Minter  v.  Clark,  92  Tenn.  459. 
And  equity  in  peculiar  and  compli- 
cated cases,  where  the  probate  juris- 
diction appears  inadequate,  will  apply 
it  remedies  on  the  adult  ward's  ap- 
plication. Camp,  Be,  126  N.  Y.  377. 
As  where  the  guardian  in  possession 
has  himself  a  life  tenant's  interest  in 
the  fund. 

6.  Pickering  v.  De  Eochemont,  45 
N.  H.  67 ;  Field  v.  Torrey,  7  Vt.  372. 

7.  People  V.  Seelye,  146  HI.  189. 

8.  People  V.  Seelye,  146  111.  189. 

9.  Cobb  V.  Kempton,  154  Mass.  266. 
An  analogous  rule  prevails  in  the  ad- 
ministration of  estates.  And  see  Lam- 
bert V.  Billheimer,  125  Ind.  519. 


§  984 


GUARDIAN    AND    WAKD. 


1118 


ipso  facto  terminates;  only  that  for  convenient  purposes  bene- 
ficial to  him  a  judicial  supervision  and  control  is  exercised  for 
bringing  about  a  business-like  adjustment  of  the  late  concerns  of 
his  wardship. 

The  ward  may  on  attaining  his  majority  bring  action  against 
the  guardian  for  money  due,^°  or  for  services  rendered,"  after  the 
guardian  has  settled  his  accounts  with  the  probate  court."  A 
ward  under  age  cannot  compel  an  accountings^  except  in  equity.^* 
Where  the  ward  dies  before  settlement  it  must  be  had  with  his 
legal  representative, s^  A  new  guardian  appointed  may  compel  an 
accounting  with  his  predecessor/"  A  guardian  de  son  tort  is  not 
entitled  as  of  right  to  an  accounting. 


IT 


§  984.  Limitations,  Laches. 

The  ward's  right  to  call  his  guardian  to  account  may  be  barred 
by  limitation,  computed  from  the  time  he  becomes  competent  to 
act.  In  Pennsylvania  it  is  said  that  the  same  principle  applies 
as  in  other  legal  proceedings ;  and  eighiteen  years'  delay  after 
the  ward  attains  majority  has  been  held  fatal  to  a  suit.^*  But  in 
Illinois  the  rule  is  differently  stated,  and  the  guardian's  liability 
to  account  is  there  considerer  to  last  as  long  as  the  bond  con- 
tinues in  force;  the  citation  to  account  before  the  probate  court 
being  merely  a  means  to  ascertain  delinquency  as  the  foundation 
of  a  suit,  and  not  of  itself  a  suit  at  law  or  in  equity.^'  The  former 
may  be  regarded  as  the  true  doctrine  for  chancery  guardianship  or 


10.  Smith  V.  Smith,  210  F.  947; 
State  V.  Joest,  46  Ind.  233,  235;  Hays 
V.  Walker,  90  Ind.  105;  Hix  v.  Dun- 
can (Tex.  Civ.  App.  1907),  99  S.  W. 
422  (altough  defendant  retired  as 
guardian  before  ward  reached  major- 
ity) ;    Scoville  v.   Brock,  76   Vt.   385, 

57  A.  967  (for  failure  to  sell  stocks). 

11.  Ziedeman  v.  Molasky,  118  Mo. 
App.  106,  94  S.  W.  754;  Champlin  v. 
Slocum  (R.  I.),  103  A.  706  (adult  by 
second  guardian  may  sue  first  guar- 
dian for  services). 

12.  Campbell  v.  Scott,  3  Ind.  T.  462, 

58  S.  W.  719 ;  Ludowig  v.  Weber,  35 
La.  Ann.  579;  Cobb  v.  Kempton,  154 
Mass.  266,  28  N.  E.  264;  Hopkins  v. 
Erskine  (Me.),  107  A.  829.  See  con- 
tra, Jones  v.  Jones,  91  Ind.  378  (set- 
tlement not  necessary). 


13.  McMurray's  Estate,  107  la. 
648,  78  N.  W.  691;  Guillebert  v. 
Grenier,  107  La.  614,  32  So.  238 
(unwise  ward  married  cannot  compel 
an  accounting  where  not  emanci- 
pated). 

14.  Peck  V.  Braman  (Ind.  1828)  2 
Blackf.   141. 

15.  Livermore  v.  Batti,  150  Oal. 
458,  89  P.  327. 

16  Cobleigh  v.  Matheny,  181  111. 
App.  170. 

17.  Stull  V.  Benedict,  10  Cal.  App. 
619,  102  P.  961. 

18.  Bones'  Appeal,  2T  Pa.  St.  492. 
See  Magruder  v.  Goodwin,  P.  &  H. 
561  ;    Adams  v.   Reviere,   59  Ga.   793. 

19.  Gilbert  v.  Guptill,  34  111.  112, 
And  see  last  chapter. 


1119 


KIGHTS    AND    LIABILITIES. 


§  984 


proceedings  in  the  nature  of  a  bill  for  account;  the  latter  for  pro- 
bate guardianship.  The  guardian's  administrator  in  either  case,  if 
the  guardian  dies,  should  close  up  the  trust  accounts,  if  not  already 
settled,  before  he  makes  distribution ;  since  he  may  otherwise  re- 
main liable  for  many  years.^°  But  in  most  States  the  general 
subject  of  limitation  in  all  trusts  is  expressly  regulated  by 
statute.^^ 

Short  delays  by  the  ward,  after  coming  of  age,  to  require  ac- 
counts and  institute  a  suit  on  the  bond,  are  not  to  be  construed 
to  the  prejudice  of  his  righits  against  either  guardian  or  sureties.^^ 
But  one  who  has  been  under  guardianship  is  charsreable  with  con- 
structive notice  of  the  probate  papers  on  file,  and  proceedings  in 
the  court  relative  thereto,  and  should  prosecute  his  rights  sea- 
sonably.^^ And  special  circumstances,  such  as  a  final  settlement 
with  the  ward  in  connection  with  lapse  of  time,  make  the  barrier 
stronger.** 

A  suit  for  failure  of  a  guardian  to  reedem  from  a  foreclosure 
is  barred  by  laches  when  it  is  brought  twenty  years  after  the 
plaintiff  has  come  of  age  and  after  the  guardian  had  died  and 
thirty^ve  years  after  the  transaction  complained  of  although  the 
plaintiff  claims  that  he  has  just  learned  of  his  interest  in  the 
property.  The  death  of  the  guardian  and  the  lapse  of  years 
renders  laches  an  equitable  defence  to  the  suit.*' 


20. 

362. 
224; 
399; 
588; 
rnd. 


Musser    v.    Oliver,    21    Pa.    St. 

See  Felton  v.  Long,  8  Ired.  Eq. 

Mitchell    V.    "Williams,    27    Mo. 

Pearson  v.  McMillan,  37  Miss. 

Horton   et  al.  v.   Hastings,  128 

103,  Equitable  claim  of  ward 
allowed  against  deceased  guardian's 
estate  in  Dodson  v.  McKelvey,  93 
Mich.  263. 

21.  No  statute  of  limitations  begins 
to  run  before  the  ward 's  legal  disabil- 
ity actually  ends.  Minter  v.  Clark,  9^ 
Tenn.  459.  And  peculiar  circumstances 
will  require  equity  to  extend  the 
period.  Matter  of  Petition  of  Camp, 
126  N.  T.  377. 

22.  Pfeiffer  v.  Knapp,  17  Fla.  144. 

23.  Robert  v.  Morrin,  27  Mich.  306. 
The  ward  reaching  age  should  either 
compel  the  guardian  to  settle  his  ac- 


count, or  obtain  a  judgment  on  the 
bond,  before  proving  a  claim  against 
the  estate  of  his  insolvent  guardian. 
Murray  v.  Wood,  144  Mass.  195.  No 
action  by  the  ward  lies  at  law  for 
moneys  in  the  guardian 's  hands  until 
his  accounts  have  been  settled  in 
court.  Kugler  v.  Prien,  imp.,  62  Wis. 
248.  And  see  Gillespie  v.  Winn,  65 
Cal.  429.  But  where  settlement  is  de- 
layed, suit  lies  on  the  guardian 's  bond 
in  a  fit  case  before  his  final  settle- 
ment. The  State  to  the  Use  of  Koch 
V.  Eoeper,  82  Mo.  57. 

24.  Eailsback  v.  Williamson,  88  111. 
494.     See  §  389. 

25.  Sweet  v.  Lowry,  123  Minn.  13, 
142  N.  W.  882,  47  L.  E.  A.  (N.  8.) 
451. 


I    986  GUARDIAN    AND    WAKD.  113d 

§  985.  Ward's  Right  to  Recover  Embezzled  Property,  &C. 

Courts  of  chancery  will  always  aid  the  ward  in  recovering  pn>|>- 
erty  embezzled,  concealed,  or  conveyed  away  in  fraud  of  his  rights. 
The  proper  mode  of  procedure  is  by  bill  in  equity.  And  while  a 
probate  guardian  suspected  of  fraud  should  be  cited  to  account, 
it  has  been  held  that,  his  estate  being  insolvent  and  his  sureties 
irresponsible,  it  is  not  necessary  for  the  ward  to  sue  them  before 
he  can  file  a  bill  to  recover  such  property  as  he  can  trace.^  A 
summary  process  in  the  nature  of  an  inquisition  is  provided  by 
statute  in  some  States,  for  ascertaining  the  whereabouts  of  stolen 
and  missing  property  belonging  to  wards,  by  means  of  which  all 
suspected  persons,  including  the  guardian  himself,  can  be  sum- 
moned before  the  probate  court  to  answer  lawful  inquiries  under 
oath.^'  And  a  writ  of  ne  exeat  is  sometimes  issued  to  protect  a 
minor's  interest,  where  the  latter's  property  has  been  squandered 
or  embezzled,  and  the  guardian  is  about  to  abscond.^* 

Where  a  guardian  squanders  the  funds  of  his  ward  they  may  be 
followed  into  the  hands  of  any  person  who  receives  them  with 
knowledge  of  the  trust. 


29 


§  986.  Fraudulent  Transactions  Set  Aside  on  Ward*s  Behalf. 

Fraudulent  transactions  cannot  stand  as  against  the  ward.  And 
in  cases  of  this  sort,  equity  will  go  to  the  substance  rather  than 
the  form,  in  order  to  ascertain  the  real  motives  of  one  who  pro- 
fesses to  turn  over  trust  property  to  third  parties,  and  justice 
will  be  done  if  possible.  Where  a  guardian,  for  instance,  trans- 
fers a  note  with  words  importing  trust  to  his  private  creditors  as 
security  for  his  own  debt,  the  ward  can  follow  it  into  their  hands, 
or  against  other  parties,  and  stop  payment,  whether  sufficient  con- 
sideration v/as  paid  by  the  holder  or  not.^°  But  in  all  cases  of 
this  sort,  third  parties  should  have  some  notice,  actual  or  con- 
structive, of  the  existence  of  a  trust;  otherwise  they  cannot  be 
made  to  suffer  loss  further  than  the  usual  rules  of  stolen  property 
apply.^^  Rights  of  wards  to  real  estate  are  frequently  protected 
on  these  principles.  Thus,  where  a  mother  interested  in  certain 
lands  with  her  children  obtained  partition  after  being  appointed 

26.  Hill  V.  Mclntire,  39  N.  H.  410.       N.  D.  16,  161  N.  W.   562,  L.  B.  A. 

27.  Sherman   v.   Brewer,    11   Gray,       IWSE,  326. 

210.  30,  Lockhart  v.  Phillips,  1  Ired.  Eq. 

28.  People  v.  Barton,  16  Col.  75.  342;  Lemlej  v.  Atwood,  65  N.  C.  46. 

29.  United  States  Fidelity  &  Guar-  31.   Hill   v.   Johnston,   3   Ired.  Hq. 
anty  Co.  v.  Citizens'  State  Bank,  36  432. 


1121 


BIGHTS    AND    LIABILITIES. 


§    986 


their  guardian,  bought  in  the  premises,  and,  without  pajmg  the 
full  purchase-money,  gave  a  mortgage,  taking  an  assignment  to 
herself  as  guardian,  the  claim  of  the  mortgagee  with  notice  waa 
postponed  to  the  children's  share.^"  So  where  a  guardian  who  held 
a  mortgage  in  his  own  right  agreed  with  the  mortgagor  to  sub- 
stitute the  ward's  money  for  his  own,  letting  the  securities  re- 
main as  before,  this  was  held  to  be  an  equitable  investment  of 
the  ward's  money,  and  good  against  any  subsequent  disposition 
which  the  guardian  might  make,  while  in  failing  circumstances, 
to  secure  his  own  creditor,^^  The  guardian's  collusion  with  third 
parties  to  defeat  any  equity  of  the  ward  in  land  cannot  prevail 
against  the  ward  who  seeks  in  season  to  set  the  conveyance  aside.'* 
And  in  any  strong  case  of  an  illegal  sale  of  the  ward's  property 
contrary  to  statute,  and  the  conversion  of  the  proceeds  to  the 
guardian's  own  use,  a  ward  has  not  only  his  remedy  upon  the 
guardian's  bond,  but  can  repudiate  the  sale  and  recover  his 
property.^' 

But  fraud  is  a  question  of  evidence.  And  the  payment  of  a  debt 
to  a  guardian  before  it  is  due  is  not  sufficient  in  itself  to  establish 
an  unfair  purpose.  Hence  it  was  decided  in  a  IN'orth  Carolina 
case,  that  where  one  owing  a  bond  to  a  guardian  in  failing  circum- 
stances, the  bond  being  in  behalf  of  the  ward,  and  not  yet  due, 
held  also  a  note  against  the  guardian  himself,  which  he  gave  to  an 
attorney  to  collect,  with  explicit  instructions  not  to  make  an  ex- 
change, but  to  collect  the  note  given  him,  and  with  the  proceeds  to 
take  up  the  bond  due  the  guardian,  and  such  attorney  received  a 
bank  check  from  the  guardian,  and  believing  the  money  to  be  in 
bank,  and  that  the  check  was  as  good  as  money,  returned  the  note 
to  the  guardian,  and  took  up  the  bond  in  his  hands,  these  acts 
having  been  performed  in  good  faith,  the  ward  could  not  pursue 
his  former  debtor.'* 


82.  Messervey  v.  Barelli,  2  Hill  CK 
567. 

33.  Evertson  v.  Evertson,  5  Paige, 
644.  In  this  case  the  creditor  had  not 
even  notice  of  the  ward 's  rights.  And 
see  Gannaway  v.  Tapley,  1  Cold.  572 ; 
■Robinson  v.  Robinson,  22   la.   427. 

34.  Bcar^lcy  v.  Harris.  1  Bnsh,  533. 
Bee  McFarland  v.  Conlee,  44  HI.  455. 

71 


35.  State  v.  Murray,  24  Md.  310. 
See  infra,  §§  787,  788. 

36.  Wynne  v.  Benbury,  4  Jones,  Eq. 
395.  And  see,  as  to  fraud  generally, 
Story,  Eq.  Juris,  §§  317-320;  Harri- 
son V.  Bradley,  5  Ired.  Eq.  136;  Daw- 
son V.  Massey.  1  Ball  &  B.  329 ;  Henry 
V.  Pennington,  11  B.  Monr.  55. 


§    987  GUARDIAN    AND    WARD.  1122 

§  987.  Ward's  Rights  to  Ratify  or  Repudiate  Transactions  of 
Guardian;   Estoppel. 

We  have  seen  that  the  transactions  of  a  guardian  on  bdialf  of 
his  infant  ward  are  valid,  if  within  the  scope  of  his  general  powers, 
or  authorized  by  the  courts  of  equity ;  sustainable,  though  neither 
within  the  scope  of  his  powers  nor  previously  authorized,  if  the 
court  afterwards  deems  them  prudent  or  beneficial  to  the  ward; 
in  other  cases,  subject  to  the  ward's  own  disafiirmance  on  reaching 
majority.  Herein  consists  the  infant's  right  of  election.  Few 
acts  of  the  guardian  can  be  pronoimced  valid,  except  in  the  sense 
that  they  are  authorized,  either  generally  or  specially,  by  the  court 
which  exercises  supervision ;  and  few  of  his  transactions  can  be 
so  utterly  without  authority  as  to  be  absolutely  void  per  se.  The 
general  rule  of  election  recognizes,  then,  two  principles :  fir^,  the 
privilege  of  the  infant  ward,  on  attaining  full  age,  to  avoid  his 
guardian's  doubtful  transaction;  second,  the  right  of  courts  of 
equity  to  control  this  privilege  by  interposing  to  pronounce  the 
transaction  good.  The  whole  doctrine,  therefore,  seems  in  strict 
accordance  with  that  more  general  rule,  that  the  accounts  of  the 
guardian  are  open  to  the  inspection  of  the  ward  at  majority,  and 
may  be  disputed  down  to  the  smallest  item.  And  where,  as  in 
the  case  of  probate  guardians,  settlements  out  of  court  do  not 
dispense  with  final  returns  for  preservation  and  public  record,  the 
tendency  of  the  decisions  must  be  in  favor  of  bringing  the  question 
of  affirmance  or  disaffirmance  of  the  guardian's  transaction  before 
the  court,  instead  of  leaving  it  to  acts  of  the  late  ward  in  pais. 
These  principles  suffice  for  general  application  to  compromises, 
submissions  to  arbitration,  investments  and  reinvestments  of  per- 
sonal property,  and  similar  transactions,  undertaken  by  the  guar- 
dian on  the  strength  of  a  previous  order  of  court,  or  at  the  risk  of 
its  subsequent  approval.'''  Yet  statutes  sometimes  interpose  to 
render  such  transactions  absolutely  perfect  on  permission  of  the 
court.  And  where  the  guardian's  position  in  a  transaction  is  that 
of  trustee  of  an  express  trust,  the  transaction  will  conclude  the 
ward.®^  Infants,  as  we  shall  see  elsewhere,  are  incapable  of  assentr 
ing  during  infancy  to  anything  prejudicial  to  their  property 
interests;    and  any  consent  so  procured,  if  not  actually  void,  can 

37.    Bamaby    v.    Barnaby,    1    Pick.  88.  Loehr  v.  Colborn,  92  Ind.  24. 

221.    See  supra,  chs.  6,  8. 


1123 


EIGHTS    AND    LIABILITIES. 


§  987 


at  all  events  be  retracted  after  the  infant  reaches  majority,  except 
BO  far  as  the  court  rightfully  controls  his  choice.^' 

The  ward  is  not  estopped  by  the  unauthorized  acts  of  the  guar- 
dian,*" and  the  ward  while  under  age  cannot  even  by  requesting 
an  unauthorized  act  estop  himself  from  complaining  of  it.*^ 

The  ward  may  ratify  the  guardian's  unauthorized  acts  after  he 
comes  of  full  agc.*^ 

But  the  ward  may  be  barred  by  the  lapse  of  time  alone,  or  of 
time  in  connection  with  his  own  acts,  from  disaffirming  in  law  or 
equity  his  own  transactions  or  his  guardian's  unauthorized  acts; 
though  to  be  barred  by  his  own  acts  in  all  such  transactions,  it 
should  appear  that  he  acted  after  termination  of  his  disability, 
with  deliberation  and  on  full  knowledge  of  the  essential  facts.** 
Thus,  where  a  guardian  has  exceeded  his  ward's  income  in  pur- 
chasing for  him  a  horse  and  buggy,  there  will  be  a  ratification 
presumed  from  circumstances  showing  that  the  ward  used  them 
after  majority  and  received  the  proceeds  of  their  sale.** 

But  mere  silent  acquiescence  in  a  guardian's  unlawful  and 
prejudicial  acts  is  not  readily  treated  as  debarring  the  ward  from 
asserting  his  rights  at  majority;  and  to  estop  the  latter  by  ratifi- 
cation, that  ratification  should  be  clear  and  founded  upon  a  knowl- 


89.  Part  V.,  chs.  2,  3. 

40.  Hobbs  V.  Nashville,  C.  &  St.  L. 
By.  Co.,  122  Ala.  602,  26  So.  139,  82 
Am.  St.  R.  103 ;  Brandau  v.  Greer, 
95  Miss.  100,  48  So.  519;  Draper  v. 
Clayton,  87  Neb.  443,  127  N.  W.  369-; 
Wipff  V,  Heder  (Tex.  Civ.  App.  1897), 
41  S.  W.  164;  Headley  v.  Hoopen- 
garner,  60  W.  Va.  626,  55  S.  E.  744. 

41.  Eeynolds  v.  Garber-Buick  Co., 
149  N.  W.  985,  L.  E.  A.  1915C,  362. 

42.  Dale  v.  Dale  (Ark.),  203  S.  W. 
258  (receipt  in  full)  ;  Brandau  v. 
Greer,  95  Miss.  100,  48  So.  519  (on 
proof  of  full  knowledge  only) ;  Hoyt 
V.  Dollar  Sav.  Bank  of  the  City  of 
New  York,  175  N.  Y.  S.  377.  See 
(Civ.  App.)  Merrill  v.  Bradley,  121  S. 
W.  561  (certified  questions  answered), 
102  Tex.  481,  119  S.  W.  297. 

43.  Fish  V.  Miller,  1  Hoflf.  Ch.  267; 
Binion  v.  Miller,  27  Ga.  78;  Scott  v. 
Freeland,  7  S.  &  M.  409;  Hume  v. 
Hume,   3   Barr,    144;    Worrell's    Ap- 


peal, 23  Pa.  St.  44;  Sherry  v.  Sans- 
berry,  3  Ind.  320;  Penn  v.  Heiaey,  19 
111.  295;  Trader  v.  Lowe,  45  Md.  1; 
Ferguson  v.  Lowery,  54  Ala.  510; 
Singleton  v.  Love,  1  Head,  357;  Mac- 
phers.  Inf.  538-543 ;  Lee  v.  Brown,  4 
Ves.  361;  Cory  v.  Gertcken,  2  Madd. 
40;  Allfrey  v.  Allfrey,  11  Jur.  981; 
Manson  v.  Simplot,  119  la.  94,  93  N. 
W.  75;  Manion  v.  Conley,  22  Ky.  Law 
Rep.  850,  59  S.  W.  11  (two  years) ; 
Davis  V.  Richards,  22  Ky.  Law  Rep. 
590,  58  S.  W.  477;  Jones  v.  Jones, 
51  La.  Ann.  636,  25  So.  368;  In  re 
Klunck,  68  N.  Y.  S.  629,  33  Misc. 
Rep.  267;  Baylor  v.  Fulkerson 's 
Ex'rs,  96  Va.  265,  31  S.  E.  63.  See 
Young  V.  Downey,  150  Mo.  317,  51 
S.  W.  751;  Le  Roy  v.  Jacobosky,  136 
N.  C.  433,  48  S.  E.  796,  67  L.  R.  A. 
077. 

44.  Caffey  v.  McMichael,  64  N.  C. 
507.  As  to  lapse  of  time  as  a  barrier, 
see  supra,  §  984. 


§  Ot 


ex 


OUAEDIAN    AND    WAKD. 


1124 


edge  of  the  whole  circumstances.*^  And  where  the  ward  was  not 
informed  of  his  rights  sooner,  he  is  free  to  assert  them.**  To  as- 
sert them,  however,  against  the  guardian  so  as  to  pursue  the 
innocent  sureties  on  the  guardian's  bond,  or  a  former  guardian,  is 
another  matter.*^  An  unauthorized  act  may  be  ratified  by  the 
court,**  or  by  a  final  settlement  after  the  ward  becomes  of  age.*" 

The  ward  or  a  succeeding  guardian  may  ratify  an  unauthorized 
investment  if  it  increases  in  value  and  disaffirm  it  if  it  depre- 
ciates.°°  A  demand  by  the  ward  on  attaining  full  age  of  the 
proceeds  of  an  investment  may  ratify  it,^^  but  suit  for  the  proceeds 
may  not  be  an  estoppel  to  set  aside  an  unauthorized  investment 
where  the  position  of  the  defendant  was  in  no  way  affected  and. 
the  suit  was  dismissed.^" 

But  as  to  transactions  which  involve  the  purchase  or  sale  of  real 
estate  on  the  infant  ward's  behalf,  the  rule  is  very  strict,  as  we 
have  already  seen.     The  ward  is  not  bound  even  by  his  guardian's 


45.  Foley  v.  Mutual  Life  Co.,  138 
N.  Y.  333.  Cf.  Young  v.  Walker,  70 
Miss.  813;  Curtis  v.  Devoe,  121  Cal. 
468,  53  P.  936;  Gulf,  C.  &  S.  F.  Ey. 
Co.  V.  Lemons  (Tex.  Civ.  App.),  152 
S.  W.  11S9'. 

46.  As  where  the  guardian  had  care- 
lessly and  without  right  paid  over  cer- 
tain proceeds  of  the  ward's  property 
to  the  ward's  mother.  Mulholland's 
Estate  V.  Meeker's  Appeal,  154  Pa. 
St.  491. 

47.  See  Hart  v.  Stribling,  25  Fla. 
435;  Hill  v.  Lancaster,  88  Ky.  338. 
Where  the  guardian  is,  at  the  ward's 
majority,  appointed  her  trustee,  or 
goes  on  as  her  attorney,  some  affirma- 
tive and  unequivocal  act  by  which  he 
elects  to  hold  the  fund  in  the  new 
capacity  may  be  regarded  favorably 
as  to  the  surety  on  the  guardianship 
bond.  Tittman  v.  Green,  108  Mo.  22. 
Cf.  §  961. 

Settlement  of  a  decedent's  estate  is 
not  to  be  reopened  after  fifty  years  at 
the  instance  of  one  distributee  who 
was  an  infant  when  the  decree  was 
entered.  Seldner  v.  McCrecry,  75 
Md.  287.  Nor  are  heirs  of  a  de- 
ceased ward  to  be  favored  in  re- 
opening what   appears   to   have   been 


fairly  aflirmed,  so  as  to  disturb  vested 
rights.  Kingsley  v.  Jordan,  85  Me. 
137. 

48.  In  re  Dilworth's  Estate,  243 
V:\.  475,  90  A.  356.  See  McCutchen  v. 
Eoush,  139  la.  351,  115  N.  W.  903  (or- 
der of  court  authorizing  guardian  to 
prosecute  a  claim  for  unauthorized 
transfer  is  not  a  ratification). 

49.  Ellender  v.  Ellender  Bros.,  135 
La.  45,  64  So.  977;  Hoverstock  v. 
Eogers,  177  Mo.  App.  446,  163  S.  W. 
924;  Borcher  v.  McGuire,  85  Neb. 
646,  124  N.  W.  Ill;  Kulp  v.  Hei- 
mann,  90  Neb.  167,  133  N.  W.  206; 
O'Donnell  v.  Same,  Id.  208;  Weekes 
V.  Same,  Id.;  Lasoys  Oil  Co.  v.  Zul- 
key,  40  Okla.  690,  140  P.  160.  See 
Crain  v.  Tremont  Lumber  Co.,  134  La, 
276,  63  So.  901  (not  where  proceeds 
received  without  knowledge).  See 
Fahey  v.  Fahey,  128  La.  503,  54  So. 
973.  See  Howe  v.  Blomenkamp,  88 
Neb.  389,  129  N.  W.  539  (not  by  set- 
tlement with  another  guardian). 

50.  Eogers  v.  Dickey,  117  Ga.  819, 
45  S.  E.  71. 

51.  Steinhart  v.  Gregory,  176  Ala. 
368,  58  So.  266. 

52.  Featherstone  v.  Betlejewski,  78 
rU.  App.  59. 


1125  RIGHTS    AND    LIABILITIES.  §    987 

exchange  of  his  lands  by  way  of  equivalent,^'  A  defective  sale  of 
real  estate  under  the  statute  may  in  some  States  be  set  aside  on 
a  bill  in  equity  filed  by  the  infant  against  the  guardian  and  the 
purchasers.^*  And  where  the  guardian  contracts  to  buy  real  estate 
for  the  ward's  benefit,  the  ward,  on  reaching  majority,  may  either 
complete  the  contract  or  reject  it,  and  look  to  the  guardian  for 
payment.^^  But  he  cannot,  in  absence  of  fraud,  compel  the  vendor 
to  refund  the  money  paid  down  as  a  bonus.^®  Nor  can  he,  having 
once  renounced,  seek  to  be  relieved  against  such  renunciation. °^ 
The  right  of  election  goes  to  the  ward's  personal  representatives  if 
he  dies  under  age.^^ 

And  it  would  appear  to  be  a  general  principle  that  where  the 
ward,  after  arriving  of  age,  with  full  knowledge  of  all  the  facts 
and  in  the  absence  of  fraud,  receives  and  retains  the  purchase- 
money  arising  from  the  guardian's  sale  of  his  land,  he  cannot 
question  the  validity  of  the  sale  afterwards,^'  and  the  ward  cannot 
keep  the  property  and  have  it  free  from  the  vendor's  lien,*°  but 
acceptance  of  returns  from  the  property  does  not  amount  to  a 
ratification.^^  In  other  words,  the  ward  may  choose  whether  to 
repudiate  the  sale  and  recover  the  land,  or  ratify  it  and  claim  the 
purchase-money.  Without  some  proper  judicial  sanction,  at  least, 
a  guardian  cannot  divest  his  ward  of  rights  in  real  estate  against 
the  ward's  power  to  assent  or  dissent,  when  sui  juris.^^ 

53.  Morsran  v.  Johnson,  68  HI.  190.  Parmele   v.   IMcGinty,   52   Miss.   476; 

54.  3  Kent,  Com.  230;  Eckford  v.  Shorter  v.  Frazer,  64  Ala.  74;  O'Con- 
De  Kay,  8  Paige,  89 ;  Westbrook  v.  ner  v.  Carver,  12  Heisk.  436.  See  -post, 
Comstoek,  Walker  Ch.  314.  See  supra,  Part  V,  ch.  5,  as  to  disaffirmance  by 
ch.  7.  As  to  adjustment  of  rents  and  infant  without  restitution;  Bevis  v. 
improvements  in  such  cases,  see  An-  Heflin,  63  Ind.  129. 

derson  v.  Layton,   3   Bush,  87;    Hoi-  60.  Howard  v.  Cassels,  105  Ga.  412, 

brook  V.  Brooks,  33  Conn.  347;  Sum-  31  S.  E.  562,  70  Am.  St.  E.  44. 

mers  v.  Howard,  33  Ark.  490.     And  61.  Knights  Templars'  &  Masons' 

see  Tatum  v.  Holliday,  59  Mo.  422.  LJfe   Indemnity  Co.   v.  Crayton,  209 

55.  Loyd  v.  Malone,  23  HI.  43;  HI.  550,  70  N.  E.  1066,  110  HI.  App. 
Hopk.  337;  Murrill  v.  Humphrey,  88  648;  Manternaeh  v.  Studt,  240  HI. 
N.   C.   138.  464,  88  N.  E.  1000;  Bachelor  v.  Korb, 

56.  Ycrger  v.  Jones,  16  How.  30.  58  Neb.  122,  78  N.  W.  485,  76  Am. 

57.  Floyd  v.  Johnston,  2  Litt.  109.  St.  R.  70  (proceeds  of  sale  applied  to 

58.  Singleton  v.  Love,  1  Head,  357;  maintenance  of  ward  does  not  amount 
Dean  v.  Feeley,  66  Ga.  273.    Whether  to  ratification). 

the   right    of   election    applies   where  62.  Rainey  v.  Chambers,  56  Tex.  17. 

the  guardian  took  land   in   discharge  And   see,   as   to   setting   aside   a   void 

of   a  predecessor's   indebtedness,   see  decree  of  sale,  Reynolds  v.  McCurry 

Beam  v.  Froneberger,  75  N.  C.  540;  et  al.,   100   HI.   356;   White  et  al.  v. 

Clayton  v.  McKinnon,  54  Tex.  206.  Clawson  et  al,  79^  Ind.  188. 

59.  Deford  v.  Mercer,  24  la.  118; 


§  988 


GUABDIAN    AND    WARD. 


1126 


The  ward's  disaffirmance  of  a  sale  maj  appear  by  his  suit  to 
recover  the  value  of  the  property  sold.®*  But  a  void  deed  executed 
by  a  guardian  in  the  name  of  the  ward  cannot  be  ratified  by  the 
ward.®* 

§  988.  Resulting  Trusts;    Guardian's  Misuse    of   Funds;    Pur- 
chase of  Ward's  Property,  &c. 

All  advantageous  bargains  which  a  guardian  makes  with  tlie 
ward's  funds  are  also  considered  subject  to  the  ward's  election, 
either  to  repudiate  or  to  uphold  the  contract  and  take  the  profits. 
This  applies,,  in  general,  to  improper  acts ;  as  where  the  guardian 
speculates  with  the  trust  funds,  or  invests  them  in  his  own  busi- 
ness, or,  in  a  word,  converts  them  to  his  own  use.  The  ward  may 
either  take  the  investment  as  he  finds  it,  with  all  the  profits,  or 
demand  the  original  fund,  with  interest ;  though  he  cannot  avoid 
a  transaction  in  part  and  ratify.®^  The  guardian  is  liable  for  the 
ward's  estate  which  he  has  converted  to  his  own  use,®*  and  for 
expenses  of  recovering  such  proeprty.®^  One  receiving  money  from 
the  guardian  knowing  that  it  belonged  to  the  ward  is  responsible.®' 
And  where  the  ward  has  declined  to  elect  whether  he  will  take 


63.  Ayer  &  Lord  Tie  Co.  v.  Wither- 
spoon's  Adm'r,  30  Ky.  Law  Eep. 
1067,  100  S.  W.  259. 

64.  Bellinger  v.  Foltz,  93  Va.  729, 
25  S.  E.  998.  See  Clay  v.  Thomas,  178 
Ky.  199,  198  S.  W.  762;  Slafter  v. 
Savage,  95  A.  790. 

65.  2  Kent,  Com.  230;  Docker  v. 
Somes,  2  M.  &  K.  664;  Kyle  v.  Bar- 
nett,  17  Ala.  306;  Singleton  v.  Love, 
1  Head,  357;  "White  v.  Parker,  8  Barb. 
48;  Jones  v.  Beverley,  45  Ala.  161; 
supra,  §§  352-354.  A  female  ward 
living  with  her  father  on  land  mort- 
gaged by  him  to  her  guardian  does 
not  necessarily  ratify  the  guardian's 
loan  on  the  mortgage.  Winslow  v. 
The  People,  117  111.  152.  After  re- 
pudiation of  the  transaction,  the  ward 
cannot  ask  to  have  the  deed  reformed. 
Eowley  v.  Towsley,  53  Mich.  329. 

66.  Moore  v.  Smith,  182  F.  540; 
Covey  V.  Neff,  63  Ind.  391;  In  re 
Stude's  Estate  (la.),  162  N.  W.  10; 
Sims  v.  Billington,  50  La.  Ann.  968, 
24  So.  637;   In  re  Terry's  Estate,  65 


N.  y.  S.  655,  31  Misc.  477;  In  re 
Klein,  142  N.  Y.  S.  557,  80  Misc. 
377;  Tonges  v.  Vanderveer  Canarsie 
Improvement  Syndicate,  148  N.  Y.  S. 
748 ;  Duffy  v.  Williams,  148  N.  C.  530, 
62  S.  E.  611  (where  funds  mingled) ; 
American  Surety  Co.  of  New  York  v. 
Hardwick  (Tex.  Civ.  App.),  186  S. 
W.  804 ;  Hunter  v.  Lawrence 's  Adm  'r 
(Va.),  11  Gratt.  Ill,  62  Am.  Dec. 
640;  Burwell  v.  Burwell's  Guardian, 
78  Va.  574.  See  Buffalo  Loan,  Trust 
&  Safe-Deposit  Co.  v.  Leonard,  41  N. 
Y.  S.  294,  9  App.  Div.  384,  75  N.  Y. 
St.  Eep.  705,  154  N.  Y.  141,  47  N.  E. 
966  (liability  for  negligently  allowing 
executor  to  waste  estate). 

67.  State  ex  rel.  Patterson  v.  Titt- 
man,  134  Mo.  162,  35  S.  W.  579. 

68.  Steinhart  v.  Gregory,  176  Ala. 
368,  58  So.  266;  Montgomery  v.  Eauer, 
125  Cal.  227,  57  P.  894  (although  ap- 
plied to  a  personal  debt  to  him  from 
the  guardian) ;  Empire  State  Surety 
Co.  v.  Cohen,  156  N.  Y.  S.  935,  93 
Misc.  299. 


1127 


BIGHTS    A^'D    LIABILITIES. 


§    988 


interest  or  the  profits  derived  by  his  guardian  from  an  investment 
which  he  was  not  authorized  to  make  (as  in  the  guardian's  busi- 
ness), the  court  may  make  the  election  for  the  ward.*'  And  so 
as  to  electing  to  take  land  which  has  enhanced  in  value  since  the 
guardian  took  title  to  himself.'"'  For  it  is  right  that  the  ward 
should  enjoy  all  the  advantages  which  have  accrued  from  the  use 
of  his  own  money;  and  it  is  also  right  that  the  guardian  should 
not  derive  gain  from  the  ward's  loss.  The  old  rule  of  chancery  in 
this  respect  has  been  gradually  relaxed;  so  that  many  acts  of  a 
trustee,  which  might  once  have  been  considered  fraudulent  and 
void  are  now  deemed  voidable  only.''^ 

Thus  it  is  that  the  rule  may  now  be  considered  well  settled  that 
the  guardian  who  buys  at  the  sale  of  his  ward's  lands  or  other 
property  is  secure  in  his  purchase,  and  retains  all  the  benefits 
arising  therefrom,  unless  the  ward  chooses  to  set  it  aside  and  claims 
to  be  reinstated  in  his  own  possession.  This  rule  is  laid  down, 
however,  with  great  caution  in  the  courts ;  '^  and  it  is  frequently 
said  that  the  transaction  is  treated  all  the  same,  whether  the  guar- 
dian bought  the  property  outright  or  there  was  a  colorable  pur- 
chase by  means  of  third  parties ;  moreover,  that  such  sales,  in 
order  to  stand  at  all,  must  have  been  conducted  fairly  and  in  good 
faith.''*  Where  the  circumstances  show  fraud  and  collusion,  courts 
of  equity  hesitate  little  in  setting  the  transaction  aside.''*  And  a 
material  question  for  consideration  in  such  sales  is  whether  a  fair 
price  was  paid  for  the  property.  Parties  affected  with  notice  of 
the  circumstances  cannot  complain  if  their  title  to  real  estate 
becomes  thereby  impaired ;  but  it  is  hard  that  purchasers  without 
notice  should  suffer.  On  this  latter  principle,  and  for  the  security 
of  title,  rests  a  decision  in  Massachusetts,  to  the  effect  that  the 
guardian's  purchase  of  his  ward's  real  estate  is  voidable  by  the 


69.  Seguin's  Appeal,  103  Pa.  St. 
139. 

70.  See  Tealie  v.  Hoyte,  3  Term.  Ch. 
651. 

71.  See  Hill  on  Trustees,  159,  536; 
Cassedy  v.  Casey,  58  la,  326. 

72.  See  Brockett  v.  Eichardson,  61 
Miss.  766,  as  to  a  joint  purchase; 
also  Barber  v.  Bowen,  47  Minn.  118, 
where  a  purchase  by  the  guardian  of 
minor  heirs  at  a  regular  administra- 
tor's sale  was  upheld. 

78.    2    Kent,   Com,    230;    Scott    v. 


Freeland,  7  S.  &  M.  409 ;  Doe  v.  Has- 
sell,  68  N.  C.  213 ;  Elrod  v.  Lancaster, 
2  Head,  571;  Patton  v,  Thompson,  2 
Jones  Eq.  285;  Chorpenning 's  Appeal, 
32  Pa.  St.  315;  Crump  et  al.,  Ex 
parte,  16  Lea,  732.  And  see  supra, 
chs.  6,  7. 

74.  Hayward  v.  Ellis,  13  Pick.  272. 
And  see  Winter  v.  Truax,  87  Mich. 
324,  where  a  guardian  sold  and  pro- 
cured an  immediate  reconveyance  to 
himself  by  the  purchaser  at  the  same 
price. 


§  988 


GUARDIAN    AND    WAED. 


1128 


ward  only  as  against  the  guardian,  or  a  purchaser  claiming  under 
him  with  knowledge  of  the  circumBtances ;  and  not  as  against  a 
subsequent  gTantee  or  mortgagee  without  notice/^ 

In  general,  if  with  the  ward's  funds  the  guardian  purchases 
land  and  takes  title  to  himself,  a  subsequent  purchaser's  rights 
should  depend  upon  good  faith  and  the  question  whether  he  had 
due  notice  of  the  ward's  title/*  The  fact  that  on  final  settlement 
a  decree  is  rendered  against  the  guardian  and  his  sureties  for  such 
funds,  does  not  estop  the  ward  from  enforcing  his  resulting  trust 
in  the  land/^  And  a  guardian's  sale  of  his  own  property  to  the 
ward  may  be  disavowed  by  the  latter  on  coming  of  age/* 

If  the  ward  does  not  ratify  an  unauthorized  investment,  neither 
purity  of  intention  nor  diligence  and  good  faith  in  endeavoring  to 
prevent  loss  thereby  will  absolve  the  guardian  from  liability  there- 
for/^ But,  in  general,  the  guardian  may  discharge  himself  by 
turning  over  what  securities  and  property  he  has  taken  in  good 
faith  and  in  the  rightful  exercise  of  his  trust,  if  it  remains  as  the 
result  of  prudent  management  of  the  estate  on  his  part,  whether 
valuable  or  worthless  at  the  time  of  final  settlement;  his  liability 
extending  to  property  of  the  ward  which  has  come  to  his  actual  or 
potential  control;  and  securities  being  turned  over  at  their  just 
valuation,  like  specific  corporeal  chattels/"  But  a  settlement  with 
the  ward  by  turning  over  what  the  guardian  knows  to  be  bad 
securities  improperly  taken  should  not  be  countenanced/^ 

A  guardian  ought  not  to  hold,  as  property  of  his  ward,  notes  or 
securities  which  on  their  face  evidence  a  debt  due  to  the  guardian 


75.  Wyman  v.  Hooper,  2  Gray,  141. 
As  to  the  English  doctrine,  see  Morse 
V.  Royal,  12  Ves.  372;  Gary  v.  Gary, 
2  Sch.  &  Lef .  173  ;  Naylor  v.  Winch,  1 
Sim.  &Stu.  567.  Here  that  construct- 
ive notice  which  the  public  records 
furnish  is  perhaps  to  be  deemed  un- 
availing on  the  ward's  behalf.  And 
see  Taylor  v.  Brown,  55  Mich.  482. 

76.  Title  running  to  the  guardian  as 
"trustee"  should  put  such  third  party 
upon  guard.  Morrison  v.  Kinstra,  55 
Miss.  71.  And  see  Armitage  v.  Snow- 
den,  41  Md.  119;  Bevis  v.  Heflin,  63 
Md.  129;  White  v.  Izelin,  26  Minn. 
487;  Webster  v.  Bebinger,  70  Ind.  9. 
For  a  case  where  A.  bought  land,  his 
grantor  retaining  a  lien  for  the  pur- 


chase-money, and  then  used  the  ward  *8 
money  to  pay  for  the  land,  see  French 
et  al.  v.  Sheplor  et  al.,  83  Ind.  266. 

77.  Bobinson  v.  Pebworth,  71  Ala. 
240. 

78.  Hendee  v.  Gleaveland,  54  Vt. 
142;   Grandstrand,  Ee,  49  Minn.  438. 

79.  May  v,  Duke,  61  Ala.  53. 

80.  Supra,  ch.  6;  State  v.  Foy,  71 
N.  C.  527 ;  Goodson  v.  Goodson,  6  Ired. 
Eq.  238.  Guardian  held  liable  for 
carelessness  in  procuring  the  issue  of 
an  erroneous  decree  of  distribution 
to  the  ward's  injury.  Pierce  v.  Pres- 
eott,  128  Mass.  140. 

81.  Burwell  v.  Burwell,  78  Va.  574. 
It  is  a  fraud  upon  the  ward  for  a 
guardian  to  turn  over  to  this  succes- 


1129  BIGHTS    AND    LIABILITIES.  §    988 

or  his  predecessor  in  his  individual  right,  unidentified  as  the 
ward's  property.*^  In  equity  the  ward  may  follow  not  only  money 
belonging  to  him  which  has  been  invested  in  land  by  his  guardian, 
but  any  specific  chattel  purchased  with  his  funds,  into  which  his 
funds  can  be  clearly  traced,  even  though  the  guardian  took  title  to 
himself,  if,  however,  the  ward  elects  to  take  the  money,  such 
property  vests  absolutely  in  the  guardian,  and  those  standing  upon 
the  guardian's  title.^'  And  unless  the  fund  can  be  traced  into 
some  specific  thing  or  be  clearly  identified,  the  ward,  of  course, 
cannot  assert  his  right  therein ;  ^*  and  the  usual  rules  apply  as  to 
hona  fide  third  parties  who  may  have  meantime  acquired  title.  We 
may  finally  observe  that  a  ward  who  repudiates  a  transaction  to 
the  disadvantage  of  some  hona  fide  third  person,  ought  in  justice 
to  offer  to  restore  the  consideration  as  far  as  he  is  able,^'  but  the 
ward  may  recover  from  one  who  takes  with  knowledge  of  improper 
use  of  the  ward's  funds. ^® 

A  resulting  trust  to  the  ward  may  be  established,  on  his  election, 
in  lands  which  the  guardian  has  taken  in  his  own  or  another's 
name,  but  upon  consideration  out  of  the  ward's  estate.®^  And  a 
guardian  may  for  convenience  have  taken  real  estate  or  even  mort- 
gage notes  or  other  securities  in  his  own  name,  and  yet  by  his 
dealings  show  a  plain  intent  to  hold  it  in  trust  for  his  ward,  sub- 
ject to  expenses  incurred  in  its  management  and  accounting  for 
its  income  and  proceeds,  and  giving  the  ward  the  right  to  claim 
title  by  proceedings  in  equity  or  otherwise.*' 

The  guardian  is  liable  for  losses  caused  by  his  unauthorized  use 

8or  the  latter '8  note   to  him  instead  his  own  note  in  payment  of  the  price 

of  funds  of  the  estate.     State  v.  Les-  of  his  ward 's  property,  is  a  breach  of 

lie,  83  Mo.  60.  duty.    Heflen  v.  Bevia  et  ux.,  82  Ind. 

82.  State   v.    Greensdale,    106   Ind.  388. 

?64.    For  a  guardian  to  take  notes  for  84.  Vason  v.  Bell,  53  Ga.  416. 

money  belonging  to  his  ward,  payable  85.   See   Myrick   v.   Jacks,   39   Ark. 

to  himself  in  his  own  name,  is  not  in  293 ;  Part  V,  ch.  5. 

law  a  conversion,  though  tending  per-  86.    Williams    v.    Francis    (Okla.), 

haps  to  show  a  conversion.     Kichard-  166  P.  699 ;  In  re  Anderson,  97  Wash. 

eon  V.  State,  55  Ind.  381,  doubted  in  688,  167  P.  71. 

State  V.  Greensdale,  s«pro.    See  §  385.  87.  Hamnett's  Appeal,  72   Pa.  St. 

83.  Chanslor  v.  Chanslor,  11  Bush,  337;  Pfeiffcr  v.  Knapp,  17  Fla.  144; 
663.  As  to  recovering  the  thing  from  Summers  v.  Howard,  33  Ark.  490; 
third  parties  after  an  unproductive  Sterling  v.  Arnold,  54  Ga.  690 ;  White- 
suit  on  the  guardian's  bond,  see  head  v.  Jones,  56  Ala.  152;  Patterson 
Branch  v.  De  Bose,  55  Ga.  21.     For  v.  Booth,  103  Mo.  422. 

the  guardian  to  take  a  surrender  of  88.  Fogler  v.  Buck,  66  Me.  205. 


§  989 


GUARDIAN    AND    WARD. 


1130 


of  fuiids/^  or  by  his  negligence  in  handling  them,'"  but  the  guar- 
dian is  not  an  insurer  and  is  not  liable  for  losses  where  he  has 
acted  in  good  faith  and  without  negligenoe.^^  The  guardian  must 
make  good  the  loss  whatever  it  may  ba*^ 

The  fact  that  the  guardian  took  a  note  in  his  own  personal  name 
is  an  indication  of  fraud.®^  That  a  guardian  should  have  been 
charged  a  greater  rate  of  interest  than  normal  on  some  transac- 
tions does  not  characterize  as  fraudulent  prior  transactions  which 
were  honest.^*  A  fraudulent  settlement  of  the  ward's  cause  of 
action  may  be  vacated  though  it  has  been  approved  by  the  court 
and  the  other  party  to  the  settlement  did  not  participate  in  the 
fraud.'' 

§  989.  Transactions    Between    Guardian    and    Ward;     Undue 
Influence. 

This  brings  us  to  the  general  subject  of  transactions  between 
the  guardian  and  ward,  from  which  the  former  derives  a  benefit. 
Here,  as  in  the  guardian's  purchases,  equity  is  not  disposed  to 
favor  him.  "  In  this  class  of  cases,"  says  Judge  Story,  "  there  is 
often  to  be  found  some  intermixture  of  deceit,  imposition,  over- 
reaching, unconscionable  advantage,  or  other  mark  of  direct  and 
positive  fraud."  ®^     Equity  will  relieve  against  such  transactions. 


89.  Eogers  v.  Dickey,  117  Ga.  819, 
45  S.  E.  71;  Selph  v.  Burton's  Adm'r, 
24  Ky.  Law  Eep.  310,  68  S.  W.  407 
(removal  of  property  from  State  by 
taking  mortgage  on  land  in  another 
State). 

90.  Boaz  V.  Milliken,  83  Ky.  634,  7 
Ky.  Law  Kep.  777  (fraud  of  another 
made  possible  by  gross  neglect  of 
guardian) ;  Taylor  v.  Kellogg,  103 
Mo.  App.  258,  77  S.  W.  130;  Ander- 
son V.  Anderson  (Okla.),  165  P.  145 
(failure  to  taking  security) ;  Mount- 
castle  V.  Mills,  58  Tenn.  267;  Abrams 
V.  United  States  Fidelity  &  Guaranty 
Co.,  127  Wis.  579,  106  N.  W.  1091,  5 
L.  E,  A.  575,  115  Am.  St.  E.  1091 
(leaving  funds  in  hands  of  attorney 
for  investment).  See  Easton  v.  Som- 
erville,  111  la.  164,  82  N.  W.  475, 
82  Am.  St.  E.  502  (no  liability  where 
no  damage). 

91.  Beach  v.  Moser,  4  Kan.  App. 
66,    46    P.    202    (default   of   agent); 


Owens  v.  Anderson,  6  K.  Law  Eep. 
446 ;  Hancock  v.  Cooper,  18  Ky,  Law 
Eep.  966,  38  S.  W.  883;  Succession  of 
Guillebert,  133  La.  603,  63  So.  237; 
In  re  Pinchefski,  166  N.  Y.  S.  204, 
179  App.  Div.  578;  In  re  Clark's  Es- 
tate, 39  Pa.  Super.  Ct.  445;  In  re 
Glassbumer's  Estate,  40  Pa.  Super. 
Ct.  134;  Murph  v.  McCullough,  40 
Tex.  Civ.  App.  403,  90  S.  W.  69  (fail- 
ure of  bank)  ;  Windon  v.  Stewart,  43 
W.  Va.  711,  28  S.  E.  776  (error  of 
judgment) . 

92.  Pearson  v.  Haydel,  87  Mo.  App. 
495  (loan  less  value  of  security). 

93.  Slauter   v.   Favorite,   107   Ind. 
291,  4  N.  E.  880,  57  Am.  E.  106. 

94.  Smith  V.  Smith,  45  Mont.   535, 

125  P.  987. 

95.  Dasieh  v.  La  Eue  Mining  Co., 

126  Minn.  194,  148  N.  W.  45.  See 
Bunch  V.  Foreman  Blades  Lnmber 
Co.,  174  N.  C.  8,  93  S.  E.  374. 

96.  Story,  Eq.  Juris.,  §  307. 


1131 


EIGHTS    AND    LIABILITIES. 


§    990 


on  the  general  principle  of  utility,  although  there  may  not  have 
been  actual  imposition;  but  if  an  improper  advantage  has  been 
taken,  the  ground  for  relief  is  still  stronger.  And  it  is  noticeable 
that  a  more  stringent  rule  has  been  laid  down  as  to  guardians  than 
applies  to  transactions  between  parent  and  child ;  for  a  guardian 
is  not  supposed  to  be  influenced  by  that  affection  for  his  ward 
which  parents  entertain  towards  their  own  offspring,  and  therefore 
has  no  such  powerful  check  upon  his  selfish  feelings.*^ 

From  the  confidential  nature  of  the  relationship  of  guardian 
and  ward,  it  will  be  presumed  that  the  ward  acts  under  the  influ- 
ence of  the  guardian,  and  all  transactions  and  dealings  between 
them,  prejudicially  affecting  the  interests  of  the  ward,  will  be  held 
to  be  constructively  fraudulent,  and  this  presumption  continues 
even  after  the  guardianship  is  ended,  when  the  affairs  of  the  guar- 
dianship have  not  been  fully  settled;  and  transactions  between 
them,  during  the  continuation  of  the  presumed  influence,  which 
are  injurious  to  the  ward,  will  be  set  aside,  unless  shown  to  be  the 
deliberate  act  of  the  ward  after  full  knowledge  of  his  rights.  The 
mere  fact  that  the  ward  at  the  time  of  the  settlement  had  inde- 
pendent counsel  does  not  of  itself  release  the  guardian,  but  only 
if  it  then  appears  that  he  made  a  full  disclosure  does  he  discharge 
his  duty.'' 

A  guardian  may  have  dealings  with  the  ward  provided  they  are 
on  close  scrutiny  shown  to  be  fair,'^  but  no  dealing  between  them 
to  the  advantage  of  the  guardian  will  be  upheld.^ 

§  990.  Situation  of  Parties  at  Final  Settlement  of  Accounts. 

Such  questions  generally  arise  at  and  about  the  time  the  ward 
attains  majority,  and  pending  the  final  settlement  of  the  guardian's 


97.  Pierce  v.  "Waring,  cited  1  Ves. 
380;  Hylton  v.  Hylton,  2  Ves.  547; 
Hatch  V,  Hatch,  9  Ves.  296.  See  Hill 
on  Trustees,  157-160.  A  ward  may, 
after  he  becomes  of  age,  disaffirm  a 
contract  which  he  made  while  an  in- 
fant with  his  guardian,  without  re- 
storing or  offering  to  restore  the 
property  which  he  purchased  and  re- 
ceived under  the  contract;  but  where, 
after  majority  and  without  fraud  or 
undue  influence,  such  ward  executes 
to  his  guardian  a  receipt  for  the  value 
of  the  porperty  received  by  him,  such 
act  is  a  valid  ratification  of  the  eon- 


tract;  and  this  even  though  the  ward 
was  ignorant  that  he  had  a  right  to 
disaffirm.  Clark  v.  Van  Court,  100 
Ind.  113. 

98.  Harrison  v.  Harrison  (N.  M.), 
155  P.  356,  L.  R.  A.  1916E,  854, 

99.  Waldstein  v.  Barnett,  112  Ark. 
141,  165  S.  W.  459  (purchase  of 
ward's  property);  Lamkin  v.  Eobin- 
son,  34  Ohio  Cir.  Ct.  R.  91  (judg. 
affd.,  88  Ohio  St.  603,  106  N.  E. 
1065).  See  Akin  v.  Bonfils,  150  P. 
194. 

1.  Beaven  v.  Stuart  (U.  S.  C.  C.  A. 
Ala.),  250  F.  972;  Stuart  v.  Beaven, 


§  990 


GUARDIAN    AND    WAED. 


1132 


accounts.  The  English  rule  is  very  strict,  and  courts  are  ex- 
tremely watchful  to  prevent  all  undue  advatnage  at  this  critical 
period.  Therefore  gifts  and  conveyances  of  the  veard's  property, 
in  consideration  of  the  guardian's  services,  on  a  final  adjustment, 
may  be  set  aside  afterward  in  equity,  even  after  the  ward's  death. 
"  Where  the  connection  is  not  dissolved,  the  accounts  not  settled, 
everything  remaining  pressing  upon  the  mind  of  the  party  under 
the  care  of  the  guardian,"  observes  Lord  Eldon,  "  it  is  almost 
impossible  that  the  transaction  should  stand."  ^  N'or  are  the  cir- 
cumstances under  which  the  gift  was  made  considered  of  much 
account;  for  the  guardian's  superior  age  and  knowledge  of  the 
world,  and  the  fact  that  he  holds  the  property  in  his  hands,  place 
him  at  a  decided  advantage,  whether  he  chooses  to  adopt  a  threat- 
ening tone  or  to  impose  upon  the  ward's  mind  by  excessive  kind- 
ness. These  general  principles  apply,  though  not  always  in  the 
same  degree,  to  all  others  sustaining  fiduciary  relations  ;  including 
receivers  and  agents  who  manage  the  property  of  a  cestui  que  trust. 
And  unfair  advantages  of  every  sort,  which  the  guardian  aims  to 
secure  on  a  final  adjustment  of  his  accounts, —  whether  it  be  in 
the  shape  of  compensation  or  the  waiver  of  indebtedness  incurred 
by  his  misconduct, —  follow  one  invariable  rule :  that  equity  will 
relieve  the  ward  against  the  consequences  of  his  one-sided  trans- 
action.^ 

In  this  country  the  rule  is  somewhat  different ;  for  certain  cir- 
cumstances, such  as  public  recognition  that  compensation  of  some 
sort  is  justly  due  a  trustee  for  his  services,  may  fairly  contribute 
to  relax  the  rule  in  the  guardian's  favor.  Settlements  and  bar- 
gains between  the  guardian  and  ward  out  of  court  are,  however, 
frequently  set  aside  for  corrupt  influence.     So  are  gifts  and  con- 


38  S.  Ct.  426;  Patterson  v.  Griffith, 
23  Ky.  Law  Eep.  334,  62  S.  W.  884 ; 
Smith's  Ex'r  v.  May,  24  Ky.  Law 
Eep.  873,  70  S.  W.  199 ;  Fidelity  Trust 
Co.  V.  Butler,  28  Ky.  Law  Eep.  1268, 
91  S.  W.  676;  Williams  v.  Davison's 
Estate,  133  Mich.  344,  94  N.  W.  1048, 
10  Det.  Leg.  N.  220;  Brandau  v. 
Greer,  95  Miss.  100,  48  So.  519;  De- 
cree (Sur.  1905)  gfe  N.  Y.  S.  222 
modified,  In  re  Tyndall,  102  N.  Y.  S. 
211,  117  App.  Div.  294  (Ex  parte 
order  of  surrogate  approving  contract 
is  not  binding  on  ward) ;   Pevehouse 


V.   Adams,    153    P.    65    (utmost   good 
faith  required). 

2.  Hatch  V.  Hatch,  9  Ves.  296, 

3.  Hylton   v.   Hylton,   2   Ves.   547 
Wood  v.   Do^raes,   18  Ves.  120;   Mul 
hallen   v.   Marum,   3   Dr.   &  W.   317 
Aylward  v.  Kearney,  2  Ball  &  B.  463 
Hunter   v.   Atkins,   3    M.   &   K.    135 
Macphers.    Inf.    260-264;     Eevett    v. 
Harvey,  1  Sim.  &  Stu.  502;  Duke  of 
Hamilton  v.  Lord  Mohun,  1  P.  Wms. 
118.    But  see  Cray  v.  Mansfield,  1  Ves. 
Sen.  379,  where  gift  to  an  agent  was 
supported. 


1133 


RIGHTS    AND    LIABILITIES. 


§    990 


veyances  in  consideration  of  the  guardian's  services ;  more  espe- 
cially when  undue  influence  is  shown  from  special  circumstances.* 
A  guardian  cannot  recall  his  own  gift  to  his  ward ;  though  such  a 
gift  might  lead  the  court  to  regard  the  guardian's  account  for 
expenditure  with  favor  towards  him.^ 

In  Pennsylvania  it  is  said  that  settlements  will  not  stand  unless 
full  deliberation  and  good  faith  are  manifest;  but  that  a  settle- 
ment made  in  good  faith,  especially  if  wise  and  prudent,  cannot  be 
impeached,  after  the  ward's  death,  by  his  representatives.®  This 
is  doubtless  the  rule  elsewhere.  And  the  mere  fact  that  a  settle- 
ment has  been  made  between  guardian  and  ward,  with  allowances 
in  the  guardian's  favor,  is  not  conclusive  of  fraud,  though  every 
intendment  is  still  to  be  construed  on  the  ward's  behalf.'' 

A  private  settlement  made  with  the  ward  on  termination  of  guar- 
dianship will  stand  if  fairly  made,^  but  the  burden  rests  on  the 
guardian  to  show  that  he  made  full  disclosure  at  the  time  of  settle- 
ment and  exercised  the  requisite  degree  of  care  in  caring  for  the 
estate,®  and  if  the  settlement  was  unfair  in  any  way  it  will  not  be 
sustained,^"   but   a   receipt   in   full   signed   by   the   ward    before 


4.  HaU  V.  Cone,  5  Day,  543 ;  Waller 
T.  Armistead,  2  Leigh,  11;  Sullivan  v. 
Blackwell,  28  Miss.  737;  Clowes  v. 
Van  Antwerp,  4  Barb.  416;  Briers  v. 
Hacknev,  6  Ga.  419;  Fridge  v.  State, 
3  Gill  &  Johns.  103 ;  Richardson  v. 
Linney,  7  B.  Monr.   571. 

5.  Bond  T.  Lockwood,  33  111.  212; 
Pratt  V.  McJunkin,  4  Rich.  5. 

6.  Hawkins's  Appeal,  32  Pa.  St. 
263. 

7.  Kirby  v.  Taylor,  6  Johns.  Ch. 
242;  McClellan  v.  Kennedy,  8  Md. 
230;  Spalding  v.  Brent,  3  Md.  Ch. 
411;  Meek  v.  Perry,  6  Miss.  190; 
Myer  v.  Eives,  11  Ala.  76. 

8.  Norris  v.  Norris,  83  N.  Y.  S.  77, 
85  App.  Div.  113;  Brown  v.  Adkinson, 
22  Ky.  Law  Rep.  64?,  58  S.  W.  524; 
Holcher's  Heirs  v.  Gehrig,  127  la. 
369,  101  N.  W.  759,  94  N.  W.  486 
(delay  of  four  years  before  objecting 
to  settlement) ;  Burch  v.  Swift,  118 
Ga.  931,  45  S.  E.  698;  Hooper  v. 
Hooper,  26  Mich.  435;  Epes  v.  Wil- 
liams' Adm'r  (Va.  1897),  27  S.  E. 
427    (after    eleven    years)  ;    Kelly   v. 


McQuinn,  42  W.  Va.  774,  26  S.  E. 
517 ;  Lanman  v.  Lanman,  206  Mass. 
488,  92  N.  E.  885;  Greenup  v.  United 
States  FideUty  &  Guaranty  Co.,  15? 
Ky.  647,  167  S.  W.  910;  Mouser  v. 
Nunn,  142  Ky.  656,  134  S.  W.  1148. 

9.  Harrison  v.  Harrison,  21  N.  M. 
372,  155  P.  356;  Hall  v.  Turner's  Es- 
tate, 78  Vt.  62,  61  A.  763;  Line  v. 
Lawder,  122  Lid.  548,  23  N.  E.  758; 
(1906)  Rouse  v.  Whitney,  102  N.  Y. 
S.  899,  53  Misc.  56  (judg.  rev..  Same 
V.  Payne   (1907),  105  N.  Y.  S.  549). 

10.  Wilson  V.  Fidelity  Trust  Co., 
30  Ky.  Law  Rep.  263,  97  S.  W.  753 
(when  ward  in  jail)  ;  In.  re  Lindsay 's 
Guardianship,  132  la.  119,  109  N.  W. 
473;  Hall  v.  Turner's  Estate,  78  Vt. 
62,  61  A.  763;  O'Connor  v.  O'Connor 
(R.  I.,  1897),  37  A.  634  (although  re- 
lease in  full  is  filed  in  court)  ;  Powell 
V.  Powell,  52  Mich.  432, 18  N.  W.  203; 
Succession  of  Lanphier,  104  La.  384, 
29  So.  122 ;  Succession  of  Vennard, 
50  La.  Ann.  808,  24  So.  283;  Line  v. 
Lawder,  122  Ind.  548,  23  N.  E.  758 
(when   property   not    turned    over    to 


§    990  GUARDIAN    AND    WARD.  1134: 

the  termination  of  the  guardianship  will  not  be  binding.** 
When  the  guardian  makes  a  fair  settlement  with  the  ward  just 
before  he  comes  of  age  the  ward  cannot  later  attack  the  account/^ 
Circumstances,  such  as  great  inadequacy  of  price  in  a  guardian's 
purchase  of  his  ward's  property  shortly  after  the  latter  reaches 
majority,  would  doubtless  suflSce,  if  not  rebutted  by  ample  proof 
of  fairness,  for  setting  aside  the  transaction  as  fraudulent.^^  In 
general,  the  burden  is  on  the  guardian  who  relies  upon  an  outside 
informal  settlement  to  show  a  full  disclosure  and  that  the  ward 
understood  himself  to  be  making  a  full  and  final  settlement/* 

The  fact  that  settlements  out  of  court  are  not  generally  regarded 
in  this  country  as  conclusive,  inasmuch  as  the  probate  guardian 
must  still  file  his  accounts  and  submit  his  transactions  to  the  court, 
is  a  great  safeguard  against  fraud.  A  fixed  rule  is  established  for 
the  final  adjustment  of  all  matters  in  controversy  between  guardian 
and  ward.^^  The  chancery  practice  is  to  allow  the  ward  a  reason- 
able time,  after  attaining  majority,  usually  one  year,  to  reopen  all 
accounts  between  himself  and  his  guardian/®  Hence  a  receipt  in 
full,  or  a  formal  release,  has  been  set  aside  as  inconclusive/^  And 
where  the  ward  has  made  a  partial  inspection  only,  without  exam- 
ining the  vouchers,  or  acted  without  advice,  or  upon  imperfect 
knowledge  of  the  facts,  so  much  the  greater  is  his  equity  to  relief/^ 
But  in  probate  guardianship,  settlements  out  of  court  usually  give 
way  to  settlements  in  court/®  A  settlement  made  out  of  court, 
with  no  filing  of  accounts,  and  shortly  after  the  ward  reaches  full 

ward) ;    Ellis  v.   Soper,   111   la.   631,  16.  Matter  of  Van  Home,  7  Paige, 

82   N,  W.   1041    (on   mistaken   assur-  46. 

ance    of    guardian    that    nothing    ia  17.   But   a  valid   release   absolving 

due)  ;    Baum   v.    Hartmann,   226    111.  from  all  liability  to  account,  and  in 

160,  80  N.  E.  711   (reversing,  122  111.  fact  'acquitting  the   guardian   of  lia- 

App.  444).  bility    for    unauthorized    acts,    is    in 

11.  Griffin  v.  Collins,  122  Ga.  102,  some  cases  recognized;  the  late  ward 
49  S.  E.  827.  having    thus    acted    when    free    from 

12.  Alexander  v.  Hillebrand,  140  undue  influence  and  as  one  clearly 
Mich.  490,  103  N.  W.  849,  12  Det.  Leg.  sui  juris.  Satterfield  v.  John,  53  Ala. 
N.  238,  112  Am.  St.  E.  417.  127 ;    Cheever   v.   Congdon,    34    Mich. 

13.  Eberts   v.    Eberts,    55    Pa.   St.  296. 

110;  Snell  v.  Elam,  2  Heisk.  82.  18.  Revett  v.  Harvey,  1  Sim.  &  Stu. 

14.  Gregory  v.  Orr,  61  Miss.  307.  502 ;   Wych  v.  Packington,  3  Bro.  P. 

15.  In  some  States  the  probate  C.  46;  Eapalje  v.  Norsworthy,  1 
courts  and  chancery  courts  have  con-  Sandf.  Ch.  399;  Johnson  v.  Johnson, 
current  jurisdiction,  and  the  ward  2  Hill  Ch.  277;  Womack  v.  Austin,  1 
may  at  his  election  proceed  in  either  S.  C.  (N.  S.)  421. 

forum  to  compel  a  settlement.   Hailey  19.  Although  the  guardian  has  set- 

V.  Bond,  64  Ala.  399^.  tied  with  his  ward  on  the  latter 'e  ar- 


1135 


EIGHTS    AND    LIABILITIES. 


§    990 


age,  is  regarded  with  suspicion,  and  the  guardian  should  satisfj 
the  court  that  it  was  a  fair  one.^"  A  settlement  out  of  court,  so- 
called,  without  turning  over  the  property,  is  no  settlement.^^  But 
if  the  guardian  seeks  the  court  of  his  own  choice,  and  the  ward 
makes  no  objection  to  the  guardian's  final  account  as  presented,  or 
records  his  approval,  and  it  is  thereupon  judicially  approved  and 
recorded,  and  appeal  is  not  taken,  no  neceesity  for  application  of 
the  chancery  rule,  of  reopening  the  account,  seems  to  exist,  except 
upon  vetj  strong  proof  of  fraud  or  error.^^     If  the  ward  be  dead, 


rival  at  full  age,  he  may  be  called 
afterward  to  file  and  settle  his  ac- 
count. Marr's  Appeal,  78  Pa.  St. 
66.  The  guardian  must  deliver  to  the 
proper  party  entitled.  A  guardian's 
deposit  of  funds  with  a  county  clerk, 
whb  afterwards  defaults,  held  (such 
oflBicer  not  being  ofiScially  accountable 
for  such  funds)  to  render  the  guar- 
dian and  his  bondsman  accountable 
and  not  the  defaulting  clerk's  bonds- 
man. Scott  V.  State,  46  Ind.  203; 
State  V.  Fleming,  46  Ind.  206.  And 
this  even  though  the  court  directed 
the  guardian  upon  resigning  to  de- 
posit thus.  lb.;  sed  qu.  Verbal  di- 
rections of  a  judge  of  probate  will 
not  protect  a  guardian.  Folger  v. 
Heidel,  60  Mo.  284.  A  guardian  hav- 
ing mortgaged  as  additional  security 
for  indebtedness  to  his  ward,  a  suit  to 
foreclose  is  no  bar  to  proceedings  for 
accounting  against  him  and  his  sure- 
ties. Lanier  v.  Griffin,  11  S.  C.  565. 
As  to  ex  parte  settlement  in  court,  see 
Gravett  v.  Malone,  54  Ala.  19.  A 
guardian's  so-called  account  is  incon- 
clusive as  such,  unless  submitted  to 
and  approved  by  the  court.  Beedle 
V.  State,  62  Ind.  26.  Judgment  for 
money  found  to  be  due  by  a  guardian 
to  his  ward  on  settlement  with  the 
ordinary  must  be  collected  by  process 
of  execution;  attachment  for  con- 
tempt based  on  the  failure  of  the  guar- 
dian to  pay  and  return  of  nulla  bona 
does  not  lie.  Burrow  v.  Gilbert,  58 
Ga.  70.  And  see  a3  to  indictment, 
State  V.  Henry,  1  Lea,  720.  Nor  has 
the  ward  a  lien,  equitable  or  other- 


wise, upon  his  guardian's  general  es- 
tate to  secure  an  honest  management. 
Chanslor  v.  Chanslor,  11  Bush,  663; 
Vason  v.  Bell,  53  Ga.  416.  As  to 
accepting  security  from  the  guardian 
in  lieu  of  the  security  of  his  bond,  see 
Querin  v.  Carlin,  30  La.  Ann.  1131. 

Final  settlement  with  infant  ward 
duly  represented  by  a  guardian  ad 
litem  is  as  binding,  as  a  rule,  as  a  sim- 
ilar one  made  with  an  adult.  Stabler 
V.  Cook,  57  Ala.  22.  But  no  final  set- 
tlement of  a  guardian 's  account,  so  as 
to  operate  against  the  ward's  rights, 
can  be  made  by  the  court  while  the 
relation  of  guardian  continues.  Lewis 
V.  Allred,  57  Ala.  628.  In  Brown  v. 
Chadwick,  79  Mo.  587,  a  guardian 
paid  over  a  certain  amount  to  his  late 
ward,  but  on  mutual  settlement  in  the 
probate  court,  a  balance  was  found 
due  the  guardian.  For  receipts  given 
by  the  ward  after  becoming  of  age, 
acquiesced  in  for  more  than  four 
years  and  held  prima  facie  binding, 
see  Steadham  et  al.  v.  Sims,  68  Ga.  741 ; 
Dunsford  v.  Brown,  19  S.  C.  560. 

20.  Eoth's  Estate,  150  Pa.  St.  261. 

21.  Line   v.  Lawder,   122   Ind.  548. 

22.  Kittredge  v.  Betton,  14  N.  H. 
401 ;  Musser  v.  Oliver,  21  Pa.  St.  362. 
Pierce  v.  Irish,  31  Me.  254;  Boynton 
v.  Dyer,  8  Pick.  1 ;  Hickman  '3  Appeal, 
7  Barr,  464;  Southall  v.  Clark,  3 
Stew.  &  Port.  338;  McDow  v.  Brown, 
2  S.  C.  (N.  S.)  95;  Bybee  v.  Tharp, 
4  B.  Monr.  313;  Stoudenmire  v.  De 
Bardelaben,  72  Ala.  3C0.  Yet  a  biU 
in  chancery  for  correction,  etc.,  may 
bo    maintained,    notwithstanding    the 


§  990 


GUARDIAN    AND    WARD. 


1136 


the  guardian's  settlement  musl  be  with  the  ward's  executor  or 
administrator;  but  even  thus  a  probate  guardian's  settlement  is 
usually  subject  to  the  court's  revision  upon  his  accounts.^^     In 


ward's  certificate  approving  the  pro- 
bate account.  Monnin  v.  Beroujon, 
51  Ala.  196;  Bruce  v.  Doolittle,  81 
III.  103;  Lindsay  v.  Lindsay,  28  Ohio 
St.  157,  These  are  matters  of  statute 
regulation.  High  v.  Snedicor,  57  Ala. 
403.  After  long  lapse  of  time  follow- 
ing a  probate  settlement,  every  in- 
tendment is  in  its  favor.  Morgan- 
stern  V.  Shuster,  66  Md.  250.  Among 
decisions  which  apply  to  transactions 
between  guardian  and  ward  the  fol- 
lowing may  be  noticed:  Where  a 
guardian  advances  money  on  his 
ward's  account,  he  may  have  an  as- 
signment of  the  security.  Kelchner  v. 
Forney,  29  Pa.  St.  47.  In  extending 
time  for  payment  of  a  security  the 
guardian  may  sometimes  arrange 
fairly  with  his  ward  for  special  com- 
pensation, Bumham  v.  Bailing,  3  C, 
E.  Green,  132.  The  guardian  who 
does  not  insist  on  surrendering  good 
securities,  properly  taken,  as  the  es- 
tate of  his  ward,  but  pays  out  of  his 
own  funds  instead,  in  part,  may  be- 
come to  a  corresponding  extent  joint 
owner  of  the  securities.  Higgins  v. 
McClure,  7  Bush,  379. 

But  the  guardian's  own  note  or 
bond  for  the  balance  of  money  ad- 
judged due  on  a  final  settlement  is 
no  payment  to  the  ward,  nor  does  it 
discharge  the  guardian's  sureties.  It 
is  a  mere  postponement  of  final  pay- 
ment, and  affords  evidence  of  an  ad- 
mitted liability  on  his  part.  Ward- 
law  V.  Gray,  2  Hill  Ch.  644;  Hamlin 
V.  Atkinson,  6  Eand.  574.  See  also 
Douglas  V.  State,  44  Ind.  67;  Cole- 
man V.  Davies,  45  Ga.  489.  The  guar- 
dian cannot  buy  up  an  equitable  en- 
cumbrance, and  enforce  it  against  the 
ward  who  is  ready  to  refund.  Taylor 
V.  Taylor,  6  B.  Monr.  559.  The  ward 
may  release  to  one  of  joint  guardians, 
and  thus  hold  the  sureties,  Kirby  v. 
Taylor,  6  Johns.  Ch.  242 ;  though  this 


principle  may  be  affected  by  general 
rules  as  to  probate  bonds.  A  receipt 
in  full  discharges  only  for  the  amount 
actually  received  by  the  wards,  may 
be  contradicted  by  parol,  and  binds 
only  such  wards  as  were  authorized 
to  give  it;  and  its  validity  and  effect, 
though  under  seal,  may  be  considered 
in  court. 

Witman's  Appeal,  28  Pa.  St.  376; 
Beedle  v.  State,  62  Ind.  26;  Bamee  v. 
Compton,  8  Gill,  391;  Felton  v.  Long, 
8  Ired.  Eq.  224;  Magruder  v.  Good- 
wyn,  2  P.  &  H.  561 ;  Stark  v.  Gamble, 
43  N.  H.  465;  Wade  v.  Lobden,  4 
Cush.  510.  Cf,  n.  7,  supra,  p.  625; 
4  Redf.  Surr.  310.  It  may  appear 
that  doubtful  notes,  like  the  guar- 
dian's own  note,  were  accepted  not  in 
settlement,  but  for  postponement  of 
payment.  Line  et  al.  v,  Lawder  et  al., 
122  Ind.  548.  The  settlement  of  an 
insolvent  guardian  with  his  ward  is 
sometimes  protected  by  a  court  of 
equity  as  against  the  guardian's  as- 
signee in  insolvency,  Moore  v.  Hazel- 
ton,  9  AUen,  102.  Statutes  are  found 
which  permit  the  ward  at  full  age  to 
waive  his  legal  right  to  an  account 
and  join  his  guardian  in  asking  the 
court  for  a  discharge.  Marr's  Ap- 
peal, 78  Pa.  St.  66.  A  guardian's 
probate  settlement  will  not  be  pre- 
sumed to  include  damages  sustained 
by  the  infant's  estate  through  fraud 
or  misconduct  of  the  guardian.  Ordi- 
nary V.  Dean,  44  N.  J.  L.  64. 

23.  Kenny  v.  TJdall,  5  Johns.  Ch. 
464,  473;  s.  c,  3  Cow.  591;  Van  Eppa 
V.  Van  Deusen,  4  Paige,  54 ;  ■\%ri 
Deusen  v.  Van  Deusen,  6  Paige,  366. 
See  also  Eedfield's  n.  to  Story,  Eq. 
Juris.,  §  1361;  Chambers  v.  Perry,  17 
Ala.  726.  The  guardian  of  a  ward 
who  has  imprudently  married  without 
his  assent  has  been  permitted,  in  this 
country,  to  bring  a  bill  in  equity  for 
procuring  the  settlement  of  the  ward  'a 


1137 


RIGHTS    AND    LIABILITIES. 


§    990 


short,  the  proper  place  to  seek  for  an  accounting,  according  to 
American  practice,  is  the  probate  court;  and  the  theory  is  that 
every  guardian  shall  settle  with  the  judge,  or  with  a  successor,  or 
with  the.  ward  at  full  age,  or  with  the  ward's  legal  representatives, 
as  the  case  may  be,  and  upon  final  settlement  pay  over  and  deliver 
all  the  ward's  property  and  balances  which  may  thus  be  found  due; 
otherwise  action  may  be  had  upon  his  bond  as  for  breach  of  con- 
dition thereof.^*  Accord  and  satisfaction  with  the  adult  husband 
of  a  married  minor  ward,  which  upon  the  theory  of  the  old  common 
law  might  have  been  admissible,  is  not  to  be  favored  in  these  days 
when  a  wife's  separate  property  is  so  zealously  protected ;  ^'  but 
joint  orders  and  joint  receipts  by  the  married  female  ward  and 
her  husband,  if  she  be  still  an  infant,  are  favorably  r^arded.^' 
Lapse  of  time,  following  an  informal  settlement  made  with  a  ward 
who  had  reached  majority,  will  bar  a  suit  for  an  account  in  chan- 
cery, and  raise  a  presumption  that  all  transactions  between  them 
have  been  properly  adjusted,^^  And  even  in  our  probate  guardian- 
ship the  late  ward's  release  and  receipt  in  full  may  under  favorable 
circumstances  be  shown  either  in  defence  to  a  citation  to  settle 
accounts  in  court  or  as  a  voucher  upon  such  settlement 


28 


moderate  fortune  upon  her,  against 
her  husband's  wishes.  Murphy  v. 
Green,  58  Tenn.  403.  Trusts  for  chil- 
dren are  sometimes  made  with  a 
proviso  as  to  the  child's  marrying 
with  the  approbation  of  the  trus- 
tee or  testamentary  guardian.  See 
Tweedale  v.  Tweedale,  7  Ch.  D.  633. 

As  to  a  settlement  upon  a  female 
infant,  a  ward  of  chancery,  who  mar- 
ried without  the  sanction  of  the  court 
or  the  knowledge  of  the  guardian,  and 
was  afterwards  divorced,  see  Buck- 
matser,  33  Ch.  D.  482;  §  399.  And 
see  Sampson  and  Wall,  25  Ch.  D. 
482.  No  jurisdiction  lies  to  compel 
an  infant  ward  of  court  to  make  set- 
tlement of  his  own  property  because 
of  his  marriage  without  leave.  Leigh 
V.  Leigh,  40  Ch.  D.  290, 

24.  But  as  to  the  guardian  of  a  per- 
son formerly  insane,  some  States  hold 
that  he  may  settle  with  his  ward  af- 
ter the  ward  has  recovered  his  reason, 
and  need  not  submit  his  account  to 

72 


the  probate  court.  Hooper  v.  Hooper, 
26  Mich.  435.  An  insane  person  un- 
der guardianship  cannot  sue  to  im- 
peach sales  of  his  property  made  by 
his  guardian.  Eobeson  v.  Martin,  93 
Ind.  420. 

25.  Married  wards  stand  essentially 
upon  the  same  footing  as  others,  as 
to  having  accounts  settled  in  probate 
court.  Wing  v.  Eowe,  69  Me.  282; 
Monnin  v.  Beroujon,  51  Ala.  196. 

26.  Dunsford  v.  Brown,  19  S.  C. 
560;  Steadman  et  al.  v.  Sims,  68  Ga. 
741 ;  Hodges  v.  Council,  86  N.  C.  181. 

27.  Bickerstaflf  v.  Marlin,  60  Miss. 
509.  An  infant  wife  cannot  pursue 
the  guardian 's  bond,  unless  her  hus- 
band is  of  full  age.  Berkani  v.  Tho 
State  ex  rel.  IVfiller  et  al,  88  Lid.  200; 
Cox  V.  Johnson  et  al.,  80  Ala.  22. 

28.  Alexander's  Estate,  Lightner's 
Appeal,  156  Pa.  St.  368;  Ela  v.  Ela, 
84  Me.  423.  Especially  when  given 
by  the  ward  two  years  or  more  after 
reaching  majority. 


§    991  GUARDIAN    AND    WAKD.  1138 

Tbough  a  settlement  with  a  minor  ward  of  the  age  of  discretion 
is  not  binding,  still  it  may  be  given  in  evidence.^^ 

Ratification  of  a  private  settlement  between  guardian  and  ward 
oan  be  shown  only  by  clear  evidence.^" 

§  991.  Transactions  After  Guardianship  is  Ended. 

Transactions  after  the  period  of  guardianship,  between  parties 
lately  holding  the  relation  of  guardian  and  ward,  especially  if  the 
ward  still  remains  under  the  influence  of  a  former  guardian,  may 
be  set  aside  upon  the  same  principle  of  constructive  fraud.  It  is 
true  that  bargains  between  them  are  good  whenever  the  influence 
is  fully  removed;  even  to  gifts  and  conveyances  in  consideration 
of  past  services,  the  accounts  having  been  finally  closed,  the  prop- 
erty duly  transferred,  and  the  late  parties  to  the  fiduciary  relation 
fctanding  toward  one  another  as  man  and  man.  Under  these  cir- 
cumstances, the  late  guardian  may  purchase  property  of  his  late 
ward,^^  and  a  contract  entered  into  between  a  guardian  and  his 
former  ward  after  termination  of  the  guardianship  may  be  valid,*'' 
but  dealings  between  them  soon  after  the  ward  comes  of  age  will 
be  scrutinized  by  the  court  with  suspicion.^^  And  where  the  influ- 
ence still  continues,  as  if  the  ward  be  a  female,  or  a  person  of  weak 
understanding,  and  the  guardian  continues  to  control  the  property 
or  to  furnish  a  home,  the  court  is  strongly  disposed  to  set  aside  the 
bargain  altogether.^*  Thus,  where  a  guardian  procures  the  late 
ward's  indorsement  of  his  own  notes  without  consideration,  the 
parties  who  take  such  notes  with  knowledge  of  the  fiduciary  rela- 
tionship have  been  enjoined  from  enforcing  them  against  the 
indorser.^^  And  if  the  guardian  purchase  rights  of  the  late  ward 
in  his  father's  property  for  a  grossly  inadequate  consideration,  it 
will  be  set  aside,^®     The  circumstance  that  the  guardian  had  better 

29.  Alexander  v.  Hillebrand,  140  Cannon,  133  N.  C.  10,  45  S.  E.  351; 
Mich.  490,  103  N.  W.  849,  12  Det.  Daniel  v.  Tolon  (Okla.),  157  P.  756; 
Leg.  N.  238,  112  Am.  St.  E.  417.  Baylor  v.  Fulkerson's  Ex'rs,  96  Va. 

30.  National  Surety  Co.  v.  State,  265,  31  S.  E.  63;  In  re  Anderson,  97 
IBl  Ind.  54,  103  N.  E.  105.  Wash.  688,  167  P.  71. 

31.  Oldin  V.  Sambom,  2  Atk.  15.  34.    See    Macphers.    Inf.    260;    Hu- 

32.  Williams  v.  Canary,  161  C.  C.  guenin  v.  Baseley,  14  Ves.  273;  Dent 
A.  352,  249  F.  344;  Ullmer  v.  Fitz-  v.  Bennett,  4  M.  &  C.  269;  Mellish 
gerald,  102  Ga.  815,  32  S.  E.  869.  v.  Mellish,  1  Sim.  &  Stu.  138;   Daw- 

33.  Willis  V.  Eice,  157  Ala.  252,  58  son  v.  Massey,  1  Ball  &  B.  219;  Har- 
8o.  397;   Taylor  v.  Calvert,  138  Ind.  ris    v.    Carstarphen,    69    N.    C.    416; 
67,  37  N.  E.  531;  Garvin's  Adm'r  v.  Garvin  v.  Williams,  50  Mo.  206. 
Williams,    50    Mo.    206;    Shiverick   v,  35.  Gale  v.  Wells,  12  Barb.  84. 
Bonsall,    173    N.   Y.    S.    90;    Hart   v.  36.  Wright  v.  Arnold,  14  B.  Moar. 


1139 


EIGHTS    AND    LIABILITIES. 


§  992 


opportunities  of  acquaintance  with  the  actual  condition  and  value 
of  the  property  than  tiie  ward  himself  is  properly  to  be  considered 
on  the  latter's  behalf.  Purchases  of  the  guardian's  property  by 
the  late  ward  are  to  be  closely  scrutinized  in  like  manner.^^  In  all 
such  cases  and  wherever  the  late  guardian  has  extended  the  influ- 
ence of  his  former  relation  to  procuring  some  undue  advantage, 
equity  may  interfere  and  enjoin  or  charge  him  as  trustee  or  com- 
pel him  to  make  restitution;  not  usually,  however,  in  the  sense 
that  he  is  still  a  guardian.^^ 

This  principle  applies  to  quasi  guardians,  even  to  parents.  For 
example,  a  girl,  who  had  been  living  for  thirteen  years  with  her 
mother  and  stepfather,  joined  the  latter  within  twelve  months  after 
she  became  of  age,  at  his  request  and  under  his  influence,  in  a 
promissory  note  for  which  she  received  no  consideration.  The 
payee  some  years  later  obtained  judgment  at  common  law,  and 
was  about  to  take  out  execution,  when  the  court  of  chancery  inter- 
fered on  motion,  restrained  the  payee  from  enforcing  his  execu- 
tion, and  ordered  the  money  paid  into  court,^^  And  the  composi- 
tion of  a  debt  on  fair  terms,  made  between  an  insolvent  guardian 
and  his  ward  about  eight  years  after  the  latter  became  of  age,  will 
not  readily  be  set  aside  for  the  purpose  of  enabling  the  ward  at  so 
late  a  day  to  reach  the  sureties  on  the  guardian's  bond.*"  Where 
the  late  ward  sets  aside  the  transaction  for  undue  influence  he 
ought  to  refund  the  money,  if  any,  which  he  received  by  way  of 
consideration.*^ 

§  992.  Marriage    of   Ward    Against    Consent    of   Chancery    or 
Guardian. 
It  is  the  rule  of  the  English  courts  of  chancery  that  no  one  can 
marry  a  ward  of  the  court  without  its  express  sanction.     And 


638;  Williams  V.  Powell,  1  Ired.  Eq. 
460;  Wickiser  v.  Cook,  85  111.  68. 

37.  Sherry  v.  Sansberry,  3  Ind.  320. 
But  as  to  carrying  out,  on  arriving  at 
age,  a  reasonable  family  arrange- 
ment, see  Cowan's  Appeal,  74  Pa.  St. 
329;  Be  Wood,  71  Mo.  623.  Such 
transactions  may  be  set  aside  against 
one  recent  fiduciary  and  upheld  against 
another,  as  the  equity  of  the  case 
may  warrant.  Berkmeyer  v.  Keller- 
man,  32  Ohio  St.  239. 

38.  People  v.  Seelye,  146  111.  189. 
But  ebonld   the   guardian    remain   in 


full  control  of  the  fund  after  the 
ward's  majority,  a  probate  court 
may  treat  it  as  in  effect  a  continu- 
ance of  the  guardianship,  and  require 
all  such  transactions  to  go  into  the 
account.  Pyatt  v.  Pyatt,  46  N.  J. 
Eq.  285. 

39.  Espey  v.  Luke,  15  E.  L.  &  Eq. 
579.  And  see  Maitland  v.  Backhouse, 
16  Sim.  58. 

40.  Motley  v.  Motley,  45  Ala.  555. 

41.  Wickiser  v.  Cook,  85  111.  68. 
See  a  delay  favorably  regarded  in 
Voltz  V.  Voltz,  75  Ala.  555. 


§    992  GUARDIAN    AND    WARD.  1140 

wherever  a  guardian  is  appointed  lie  must  give  a  recognizance  that 
the  infant  shall  not  marrj  without  its  leave. ^^  If  a  man  marry  a 
female  ward  without  the  approbation  of  the  court,  he,  and  all 
others  concerned,  will  be  treated  as  guilty  of  a  contempt  of  court, 
and  punished  accordingly.  So  where  there  is  reason  to  suspect  an 
improper  marriage  of  its  wards,  the  court  will  interfere,  by  injunc- 
tion, to  prevent  the  marriage,  to  forbid  all  intercourse  between  the 
lovers,  and  even  to  take  the  ward  from  the  custody  of  the  guardian 
or  any  other  person  who  is  supposed  guilty  of  connivance  with  the 
matck.  When  an  offer  of  marriage  is  made,  the  court  refers  it  to 
a  master  to  ascertain  and  report  whether  the  match  is  suitable,  an-d 
also  what  settlement  should  be  made  upon  the  ward.  Where  a 
marriage  has  been  celebrated  without  leave,  the  court  will  interfere 
to  protect  the  female  ward  against  the  consequences  of  her  indis- 
cretion, and  compel  the*husband  to  make  a  suitable  settlement  upon 
her.  This  whole  subject  is  peculiar  to  the  laws  of  England,  and 
has  no  application  whatever  to  courts  of  chancery  in  this  country ; 
unless  it  be  that  orders  might  issue  in  some  cases  of  improvident 
marriage  to  compel  the  settlement  of  a  suitable  portion  upon  the 
female  ward.  Yet  authority  is  wanting  for  even  the  exercise  of 
chancery  jurisdiction  to  this  full  extent:  so  repugnant  does  it  ap- 
pear to  the  whole  tenor  of  our  legislation.  But  where  property 
of  a  female  ward  is  under  the  control  of  a  court  of  equity,  and 
the  husband  needs  its  assistance,  a  suitable  provision  might  be 
compelled  on  her  behalf ;  for  this  would  be  in  accordance  with  the 
general  law  of  husband  and  wife.^ 


43 


42.  story,  Eq.  Juris,,  §§  1358-1361;  Staekpole   v.   Beaumont,    3    Vea.    98; 

Maephers.     Inf.     191-209;     Eyre     v.  Stevens  v.  Savage,  1  Ves.  Jr.  154. 

Countess  of  Shaftesbury,  2  P.  Wms.  43.  Ordway  v.  Phelpe,  45  la.  279. 
Ill;    Smith   v.    Smith,    3    Atk.    305; 


PART  V. 

INFANCY. 


CHAPTER  I. 

THE  GENERAL  DISABILITIES   OF  INFANTS. 

Section     993.     Age  of  Majority. 

994.  Enlarging  Capacity  During  Non-Age;  Legislative  Belief  from 

Non-Age. 

995.  Conflict  of  Laws  as  to  True  Date  of  Majority. 

996.  Infant's    Eight    of    Holding    Office    and   Performing    Official 

Functions. 

997.  Infant's  Eesponsibility  for  Crime. 

998.  Infant's  Criminal  Complaint;  Discretion  in  Case  of  Peril,  &c. 

999.  Power  to  Make  a  Will. 

1000.  Testimony  of  Infants. 

1001.  Marriage  Settlements  of  Infants. 

1002.  Infant's  Exercise  of  a  Power, 

1003.  Infant's  Commercial  Paper. 

1004.  Trusts. 

1005.  Adverse  Possession. 

§  993.  Age  of  Majority. 

All  persons  are  infants,  in  legal  contemplation,  until  tliev  have 
arrived  at  majority.  The  period  of  majority  differs  in  different 
States  and  countries ;   but  this  general  principle  remains  the  same. 

By  the  civil  law,  full  majority  was  not  attained  until  the 
person  had  completed  his  twenty-fourth  year;  he  was  then  said 
to  be  perfectw  cetatis  —  cetatis  legitimce.**  This  period  was  like- 
wise adopted  in  France  (though  it  was  afterwards  changed),  and 
it  prevails  still  in  Spain,  Holland,  and  some  parts  of  Germany.*" 
By  the  French  civil  code,  the  age  of  full  capacity  is  twenty-one 
years,  except  that  twenty-five  years  is  the  majority  for  contracting 
marriage  without  paternal  consent,  by  the  male,  and  twenty-one 
by  the  female.*'  The  law  of  Scotland  adopts  the  age  of  twenty- 
one.*^     Among  the  Greeks  and  early  Romans  women  were  never 

44.  1  Burge,  Col.  &  For.  Laws,  113  47.  Ersk.  Inst.,  b.  1,  tit.  vii.;  1  Bl. 

45.  lb.,  114.  Com.  464. 

46.  Oode  Civil,  §§  145,  488;  2  Kent, 
Com.  833. 


§  993  INFANCY.  1142 

of  age,  but  subject  to  perpetual  guardianship,  except  as  wives; 
this  gradually  changed,  and  the  civil  law,  as  it  stood  in  the  time 
of  Justinian,  permitted  females  as  well  as  males  to  attain  their 
majority  at  twenty-five/^ 

The  common  law  of  England,  from  the  remotest  times,  bas  fixed 
twenty-one  as  the  period  of  absolute  majority  for  both  sexes;  or, 
to  be  more  exact,  an  infant  attains  full  age  on  the  beginning  of 
the  day  next  preceding  the  twenty-first  anniversary  of  his  birth.*® 
The  same  rule  is  applied  in  most  parts  of  the  United  States,  though, 
in  some  of  the  States,  females  have  an  enlarged  capacity  to  act  at 
eighteen.^"  Under  the  statutes  of  Vermont,  Ohio,  and  Illinois, 
and  various  western  States,  females  are  deemed  of  age  at  eighteen.'^ 
The  Code  of  Louisiana  follows  common-law,  not  civil-law,  prin- 
ciples, and  adopts  twenty-one  as  the  limitation  for  both  sexes. "^ 
Thus  arbitrary  is  the  law  which  fixes  the  period  of  majority; 
nature  assigning  no  precise  and  uniform  period  at  which  the  dis- 
ability of  infancy  shall  cease,  yet  clearly  indicating  that  there  must 
be  some  such  period. 

A  man  bom  the  first  day  of  February,  1600,  after  eleven  o'clock 
at  night,  was  adjudged  in  England  to  be  of  full  age  after  one 
o'clock  on  the  morning  of  the  last  day  of  January,  1621.^^  This  is 
because  the  common  law  makes  no  allowance  for  fractions  of  a  day. 
But  the  civil  law,  in  order  to  secure  to  the  person  the  full  protec- 
tion afforded  on  account  of  his  minority,  did  not  hold  the  com- 
mencement of  the  day  to  be  its  completion,  if  injurious  to  bis 
interests.^* 

48.  Inst.  1,  23,  1 ;   1  Bl.  Com.  464.  ried  woman  attains  full  age  at  eigh- 

49.  2  Kent,  Com.  233;  1  Bl.  Com.  teen.  Bennett  v.  Bennett,  169  Ala. 
463;  1  Salk.  44;  Ld.  Eaym.  480,  618,  53  So.  9S6;  Sparhawk  v.  Buel, 
1096;  3  Wils.  274;  Hamlin  v.  Steven-  9  Vt.  41;  Stephenson  v.  Westfall,  18 
eon,  4  Dana,  597;  State  v.  Clarke,  3  111.  209. 

Barring.  557;   WeUs  v.  WeUs,  6  Ind.  52.  Inst.  1,  23,  1;  1  Bl.  Com.  464; 

447.  Texas,    Means    v.    Eobtnson,    7    Tex. 

50.  United  States  v.  Wright,  116  502.  See  Ward  v.  Laverty,  19  Neb. 
C.  C.  A.  659,  197  F.  297;  Banco  De  429. 

Sonora  v.  Bankers'  etc.,  Co.,  124  la.  53.  Fitzhue  v.  Dennington,  6  Mod. 

576,  100  N.  W.  532,  104  Am.  St.  R.  259;  1  Salk.  44,  and  citations  in  last 

367;    Beekman  v.   Beekman,   53   Fla.  section.    And  see  1  Jarm.  Wills,  Eng, 

858,  43  So.  923;   International  Text-  ed.  1861,  39;  Met.  Contr.  38.     Judge 

Book  Co.  V.  Connelly,  206  N.  T.  188,  Redfield  dissents  from  this  rule.     See 

99  N.  E.  722;  2  Kent,  Com.  233.    See  1  Eedf.  Wills,  18-20. 

Crapster  v,  Griffith,  2  Bland,  Ch.   5.  54,  J.  Voet,  lib.  4,  tit.  4,  n.  1. 
61.  In  Alabama  by  statute  a  mar- 


1143 


DISABILITIES. 


§    994 


§  994.  Enlarging  Capacity  During  Non-Age;    Legislative   Re- 
lief from  Non-Age. 

The  principle  of  an  enlarging  capacity  in  infants  has  been  inci- 
dentallj  noticed.  It  is  reasonable  to  suppose  that  they  who  are 
constantly  growing  become  naturally  competent  for  certain  pur- 
poses long  before  they  attain  complete  majority,  and  young  men 
and  women  may  well  be  allowed  the  exercise  of  more  discretion 
than  babes.  Hence  we  find  that  infants  of  suitable  age  are  allowed 
to  contract  a  valid  marriage;  that  males  of  the  age  of  fourteen 
and  upwards,  and  females  at  the  age  of  twelve,  could  once  dispose 
of  personal  estate  by  will,  and  at  fourteen  may  still  choose  or 
nominate  their  own  guardians ;  that  children  of  discretion  have 
a  voice  in  determining  the  right  of  custody  and  control.  But  not 
until  attaining  majority  could  a  person  at  the  common  law  convey, 
lease,  or  make  contracts  in  general  which  would  bind  him;  and 
the  foregoing  must  then  be  considered  as  among  the  exceptions  to 
the  rule  that  persons  are  legally  incapable  so  long  as  they  are 
minors." 

Majority  must  be  fully  attained  before  capacity  to  contract  is 

acquired.^®     Some  courts  hold  that  marriage  does  not  affect  the 

55.  Carpenter  v.  Carpenter   (Ala.),       527;    In   re   MacNeil,   151    N.   T.   S. 


75  So.  472;  Johnson  v.  Wright 
(Ariz.),  179  P.  958;  Kansas  City  P. 
&  G.  E.  Co.  V.  Moon,  66  Ark.  409,  50 
8.  W.  996 ;  Appeal  of  Ennis,  84  Conn. 
610,  80  A.  772;  Gannon  v.  Manning, 
42  App.  D.  C.  206;  Wickham  v.  Tor- 
ley,  136  Ga.  594,  71  S.  E.  881;  In  re 
Cummings'  Estate,  120  la.  421,  ?4 
N.  W.  1117;  Scantlin  v.  Allison,  12 
Kan.  85;  McKibben  v.  Diltz,  138  Ky. 
684,  128  S.  W.  1082;  Hudson's  Guar- 
dian V.  Hudson,  160  Ky.  432,  169  S. 
W.  891;  Fortier  v.  Labranche,  13  La. 
355;  White  v.  New  Bedford,  etc., 
Corp.,  178  Mass.  20,  59  N.  E.  642. 
An  infant  master  of  a  vessel  is  not 
liable  for  provisions  furnished  to  the 
ship.  A.  B.  Fogarty,  2  Dane.  Abr. 
(Mass.)  25;  Parker  v.  Gillis,  66  So. 
978;  Gambrcll  v.  Harper,  113  Miss. 
715,  74  So.  623;  O'Donohue  v.  Smith, 
114  N.  Y.  S.  536,  130  App.  Div.  214; 
Kelly  V.  Same,  Id.;  Aborn  v.  Janis, 
113  N.  T.  S.  309,  62  Misc.  05  (order 
afFd.,  106  N.  Y.  S.  115)  ;  Kamilv.  New 
York  College  of  Dentistry,  168  N.  Y.  S. 


162,  165  App.  Div.  842  (trans,  from 
the  Third  Department,  14?  N.  Y.  S. 
1095,  164  App.  Div.  911)  ;  Jefferson  v. 
Gallagher,  150  P.  1071;  Bruner  v. 
Cobb,  37  Okla.  228,  131  P.  165,  L. 
R.  A.  1916D,  377. 

He  may  disavow  his  mortgage  held 
in  escrow.  Citizens',  etc.,  Ass'n  v. 
Arvin,  207  Pa.  293,  56  A.  870;  Cha- 
bot  v.  Paulhus,  32  R.  I.  471,  79  A. 
1103;  Coleman  v.  Virginia  Stave  & 
Heading  Co.,  112  Va.  61,  70  S.  E. 
545;  Be  Farley,  213  N.  Y.  15,  106 
N.  E.  756,  L.  R.  A.  1916D,  816;  Peo- 
ple V.  Griesbach,  211  HI.  35,  71  N.  E. 
874. 

He  is  not  bound  by  admission  made 
while  an  infant.  Claxton  v.  Claxton, 
56  Mich.  557,  23  N.  W.  310.  Co. 
Lat*.  78b,  89b,  and  Harg.  note.  As  to 
the  privilege  of  wills,  see  stat.  1  Vict., 
ch.  26,  §  7;  infra,  §  397. 

56.  Ex  parte  McFerren,  184  Ala. 
223,  63  So.  159;  Marx  v.  Clisby,  130 
Ala.  502,  30  So'.  517. 

While   a   minor   may  not  bind  his 


§  994 


INFANCY. 


1144 


disability  of  infancj,^^  but  others  bold  that  it  does  remove  it.^® 
In  some  States  tbe  statute  so  provides.^'  In  case  of  a  female 
infant  marriage  may  suspend  the  duty  to  disaffirm  till  she  is  dis- 
covert, though  she  may  disaffirm  without  regard  to  coverture  if 
she  chooses.*^*^  Emancipation  does  not  usually  remove  the  dis- 
ability.^^ Some  statutes  provide  for  the  removal  of  the  disability 
of  infancy  before  majority,®^  w^hile  others  have  somewhat  changed 
the  period  at  which  the  infant  may  bind  himself  by  a  contract 


08 


estate,  yet  a  well  educated  person 
approaching  full  age  may  suggest 
facts  and  views  of  policy  worthy  of 
the  consideration  of  the  courts,  which 
may  well  be  given  great  weight.  In 
re  Hickey  (Okla.),  182  P.  233;  Ex 
parte  McFerren  (Ala.),  63  So.  159, 
47  L.  E.  A.  (N.  S.)  543;  Baker  v. 
Lovett,   6   Mass.   78,   4   Am.   Dec.   88. 

57.  Sims  V.  Gunter  (Ala.),  78  So. 
62;  Shipley  v.  Smith,  162  Ind.  526, 
70  N.  E.  803 ;  Hudson  v.  Hudson,  160 
Ky.  432,  169  S.  W.  891;  Guillebert 
V.  Grenier,   107  La.   614,  32   So.   238. 

58.  In  Indiana  it  has  been  held  that 
an  infant  wife  may  convey  her  lands 
if  the  husband  joins  in  the  deed. 
Kennedy  v.  Hudkins,  140  Ind.  570, 
40  N.  E.  52;  Losey  v.  Bond,  94  Ind. 
67;  Cochran  v.  Cochran,  196  N.  T. 
86,  89  S.  E.  470. 

"Where  it  is  uncertain  whether  an 
infant's  contract  benefits  or  preju- 
dices her,  and  she  marries  while  yet 
an  infant,  she  should  disaffirm  the 
contract  within  a  reasonable  time,  if 
she  desires  to  avoid  it.  Chambers  v. 
Chattanooga,  etc.,  Ry.  Co.,  130  Tenn. 
459,  171  S.  W.  84;  Town  of  North- 
field  V.  Town  of  Brookfield,  50  Vt. 
62;  Ex  parte  Hollopeter,  52  Wash.  41, 
100  P.  159. 

59.  Hays  v.  Bowden,  159  Ala.  600, 
49  So.  122;  Fields  v.  Mitchell,  112 
Me.  368,  92  A.  293. 

60.  Buchanan  v.  Hubbard,  9'6  Ind. 
1;  Appelgate  v.  Conner,  93  Ind.  185; 
Losey  v.  Bond,  94  Ind.  67;  Scranton 
V.  Stewart,  52  Ind.  68 ;  Linville  v. 
Greer,  165  Mo.  380,  65  S.  W.  579; 
Gaskins  v.   Allen,   137  N.   C.   426,  49 


S.  E.  919;  Blake  v.  Hollandsworth 
(W.  Va.),  76  S.  E.  814,  43  L.  R.  A. 
(N.  S.)    714. 

61.  Wickham  v.  Torley,  136  Ga. 
594,  71  S.  E.  881,  36  L.  R.  A.  (N.  S.) 
57. 

62.  Ketchum  v.  Eaircloth-Segrest 
Co.,  155  Ala.  256,  46  So.  476; 
Ketchum  v.  Faircloth-Segrest  Co.,  155 
Ala.  256,  46  So.  476;  Ex  parte  Single- 
ton (Ala.),  68  So.  253;  Ex  parte 
Price,  68  So.  866;  Wilkinson  v. 
Buster,  124  Ala.  574,  26  So.  940; 
Boykin  v.  Collins,  140  Ala.  407,  37 
So.  248;  Young  v.  Hiner,  72  Ark. 
299,  79  S.  W.  1062;  Bickle  v.  Turner 
(Ark.),  202  S.  W.  793;  Dalton  v. 
Bradley  Lumber  Co.  (Ark.),  205  8. 
W.  695. 

The  enactment  of  such  a  statute 
will  not  affect  the  status  of  an  infant 
who  has  attained  full  age  under  the 
former,  statute.  Smith  v.  Smith 
(Kan.),  18  P.  231;  State  v.  Lyons 
(Kan.),  180  P.  802;  Gaston  v. 
Rainach,  141  La.  162,  74  So.  890; 
Jackson  v,  Jackson,  105  Miss.  868, 
63  So.  275;  Lake  v.  Perry,  95  Miss. 
550,  49  So,  569;  Watson  v.  Peebles, 
102  Miss.  725,  59  So.  881;  Cunning- 
ham V.  Robison,  104  Tex.  227,  136 
S.  W.  441;  Gulf,  C.  &  S.  F.  Ry.  Co. 
V.  Lemons  (Tex.),  206  S.  W.  75; 
Durrill  v.  Robison  (Tex.),  138  8.  W. 
107. 

63.  In  California  by  statute  the 
deed  of  an  infant  under  eighteen  is 
void  in  the  absence  of  a  new  contract 
or  estoppel.  Hakes  Inv.  Co.  v.  Lyons, 
166  Cal.  557,  137  P.  911.  In  the  same 
State  a  minor  making  a  contract  while 


1145 


DISABILITIES. 


§    995 


Legiblative  or  judicial  emancipation  has  existed  in  Louisiana 
and  some  other  parts  of  this  country  once  under  the  dominion  of 
continental  Europe.  In  the  case  of  an  emancipated  minor  under 
fcuch  statutes,  by  which  he  is  relieved  from  the  time  prescribed  by 
law  for  attaining  the  age  of  majority,  he  is  invested  with  all  the 
capacities  in  relation  to  his  property  and  obligations  which  he 
would  have  had  he  actually  arrived  at  the  age  of  twenty-one  years. 
And  he  may  be  appointed  administrator  of  an  estate^*  or  surety 
on  a  bond.®'*  But  the  right  of  legislative  emancipation  seems  never 
to  have  been  distinctly  admitted  at  the  common  law  in  any  such 
exteaisive  sense. 

§  995.  Conflict  of  Laws  as  to  True  Date  of  Majority. 

Supposing  a  conflict  of  laws  should  arise  over  the  contract  of  an 
infant  by  reason  of  the  period  of  majority  being  differently  as- 
signed by  the  law  of  the  domicile  of  his  origin  and  that  of  his 
actual  domicile,  or  of  the  situation  of  real  property,  or  of  the  placo 
where  he  has  entered  into  a  contract.  The  rules  for  such  cases  are 
these:     First,  that  the  actual  domicile  will  be  preferred  to  the 


over  eighteen  years  old  may  disaffirm 
it  before  majority  on  certain  condi- 
tions. Spencer  v.  Collins,  156  Cal. 
2?8,  104  P.  320. 

By  statute  in  Iowa  a  minor  cannot 
disaffirm  a  contract  where  the  other 
party  has  been  misled  by  the  minor's 
misrepresentations  into  thinking  that 
he  is  of  full  age.  First  Nat.  Bank  v. 
Casey,  158  la.  349,  138  N.  W.  897. 

In  North  Dakota  by  statute  a 
minor  may  contract  at  eighteen  years 
of  age  as  an  adult,  except  that  he 
may  disaffirm,  within  one  year  after 
majority,  contracts  not  for  necessa- 
ries by  refunding  the  consideration, 
or  paying  its  equivalent  with  interest. 
Luce  V.  Jestrab,  12  N.  D.  548,  97  N. 
W.  848;  Casement  v.  Callaghan  (N. 
D.),  159  N.  W.  77;  Hamm  v.  Pru- 
dential Ins.  Co.  of  America,  122  N. 
T.  8.  35,  137  App.  Div.  504  (statute 
permitting  minor  to  make  certain  Jh- 
surance  contracts). 

Under  the  Oklahoma  statute  a 
minor  may  disaffirm  a  conveyance 
made  when  under  eighteen  years  of 
age   without    returning    or    tendering 


the  consideration.     Eice  v.  Anderson, 
39  Okla.  279,  134  P.  1120. 

Under  the  Pennsylvania  statute 
authorizing  minors  over  eighteen  to 
make  needful  contracts  to  become 
members  of  beneficial  associations,  it 
was  held  that  a  minor  was  bound  by 
a  contract  made  with  the  beneficial 
association  of  a  certain  railroad  mak- 
ing acceptance  of  its  benefits  a  re- 
lease of  liability  against  the  railroad. 
Eiddell  v.  Pennsylvania  E.  Co.  (Pa.) 
106  A.  80. 

64.  Succession  of  Lyne,  12  La. 
Ann.  155;  Gordon  v,  Gilfoil,  99  U.  S. 
168.  See  also  State  v.  Bunce,  65  Aio. 
349.  A  legislative  power  conferred 
upon  the  courts  to  emancipate  is  to 
be  exercised  in  a  summary  manner 
and  not  according  to  the  course  of 
the  common  law.  Hindman  v. 
O'Connor,  54  Xrk.  627;  State  v. 
Barker,  25  Fla.  598.  As  to  eman- 
cipation of  a  minor  in  our  usual 
sense,  see  supra,  §  807  et  seq. 

65.  Cooper  v.  Ehodes,  30  La.  Ann. 
533. 


§  996 


INFANCY. 


1146 


domicile  of  birth.  Second,  that  the  law  of  situation  of  real  prop- 
erty must  prevail  over  that  of  domicile.  Thirds  that  the  law  of 
the  place  where  a  contract  is  made  must  prevail  over  that  of 
domicile.®^  Fourth,  that  in  matters  of  practical  remedy  in  the 
courts,  the  law  of  the  forum  is  sometimes  conclusive.®^ 

The  right  of  action  for  the  recovery  of  real  estate  belonging  to 
an  infant  will  be  governed,  not  by  the  law  in  force  when  the  right 
of  action  accrued,  but  by  the  law  in  force  when  the  infant  became 
of  age.'^ 

§  996.  Infant's  Right  of  Holding  Office  and  Performing  Official 
Functions. 

Xext,  a.5  to  the  infant's  right  of  holding  office.  There  are 
numerous  old  cases  to  be  found  in  the  books  where  an  infant  has 
been  adjudged  capable  of  holding  offices  that  involve  no  pecuniary 
or  public  trust,  and  require  only  moderate  skill  and  diligence; 
such  as  the  office  of  park-keeper,  forester,  sheriff,  and  jailer; 
though  on  the  ground  apparently  that  such  offices  formerly  were 
capable  of  grant,  and  the  grantees  had  the  power  to  act  by  deputy.^® 
But  the  modem  doctrine  seems  to  be  clear  that  no  office  of  pecuni- 
ary and  public  responsibility  can  be  conferred  upon  an  infant; 
not  so  much  because  of  mental  incapacity  on  his  part,  as  for  the 
very  good  reason  that  a  person  who  is  not  legally  responsible  for 
the  duties  of  his  office  cannot  be,  in  point  of  law,  a  proper  person 
to  execute  them.  A  public  office  which  requires  the  personal  re- 
ceipt and  disbursement  of  money  is  not  then  to  be  filled  by  an 
infant.'"     iN'or  can  an  infant  act  as  administrator,  executor,  or 


66.  Harding  v.  Schapiro,  120  Md. 
541,  87  A.  951.  Where  an  in- 
fant's contract  is  voidable  by  the 
law  of  the  State  of  his  domicile  and 
was  made  by  the  infant,  and  is  to 
be  substantially  performed  in  that 
State,  that  law  will  govern  the  case, 
though  the  contract  was  completed 
by  acceptance  in  another  State,  where 
it  might  be  binding.  International 
Text-Book  Co.  v.  Connelly,  206  N.  Y. 
188,  99  N.  E.  722,  42  L.  R.  A.  (N.  S.) 
1115.  Male  v.  Roberts,  3  Esp.  163; 
1  Burge,  Col.  &  For.  Laws,  118  et 
seq.;  Story,  Confl.  Laws,  §§  75,  82, 
332;  Thomnson  v.  Ketcham,  8  Johns. 
189;  Hierstand  v.  Kuns,  8  Blackf. 
345;   Saul  v.  His  Creditors,   17  Mar- 


tin, 597;  2  Kent,  Com.  233,  n.; 
Huey's  Appeal,  1  Grant  (Pa.),  51; 
Wharton,  Confl.,  §  112.  An  order  of 
court  of  another  State,  made  in  con- 
formity to  a  statute  of  that  State, 
and  purporting  to  relieve  an  infant 
residing  in  that  State  from  the  dis- 
ability of  non-age,  can  have  no  opera- 
tion in  Missouri.  State  v.  Bunce,  65 
Mo.  349. 

67.  As  in  applying  the  bar  of  the 
statute  of  limitations.  Burgett  v. 
Williford,  56  Ark.  187. 

68.  Gilker  v.  Brown,  47  Mo.  105. 

69.  Bac.  Abr.  Infancy  and  Age 
(E.)  ;  3  Mod.  222;  Young  v.  Fowler, 
Cro.  Car.  555;  Macphers.  Inf.  448. 

70.  Claridge  v.  Evelyn,  5  B.  &  Aid. 


1147 


DISABILITIES. 


§     996 


trustee,  nor  by  his  concurrence  (in  the  absence  of  fraud  on  his 
part)  sanction  a  breach  of  trust.'^  He  cannot  be  a  guardian,  an 
attorney  under  a  power  (except  to  receive  seisin),  a  bailiff,  a 
factor,  or  a  receiver. '''  Nor  should  he  be  admitted  to  the  bar  as 
an  attorney  at  law.^* 

The  service  of  a  notice  of  replevy  by  an  infant  is,  in  England, 
illegal  and  void ;  and  it  v^^ould  appear  that  he  cannot  be  a  sheriff's 
officer.''*  But  in  New  Hampshire  it  is  held  that  an  infant  may  be 
deput^jd  to  serve  and  return  a  particular  writ ;  on  the  ground  that 
while  offices  where  judgment,  discretion,  and  experience  are  essen- 
tially necessary  to  the  proper  discharge  of  the  duties  they  impose, 
should  not  be  intrusted  to  infants,  offices  may  be  held  which  are 
merely  ministerial,  and  require  nothing  more  than  skill  and 
diligence.^^  But  a  distinction  is  properly  taken  between  the  case 
of  officers  of  justice  ordinarily  liable  for  false  return,  misfeasance, 
and  the  like,  and  those  who  have  no  such  liability;  and  for  this 
reason,  while,  in  Vermont,  an  infant  may  serve  a  particular  writ, 
he  cannot  be  specially  authorized  to  serve  mesne  process  by  the 
magistrate.'® 

In  ancient  times  minors  appear  to  have  frequently  sat  in  the 
British  Parliament.  Thus  it  is  related  that  a  son  of  the  Duke  of 
Albemarle  took  part  in  debate  when  only  of  the  age  of  fourteen ; 
and  history  states  that  about  the  10th  James  I.  there  were  forty 
members  not  above  twenty  years  of  age,  and  some  not  above  six- 
teen.''' But  by  statute  it  is  now  provided  that  an  infant  cannot 
sit  in  the  House  of  Lords,  or  vote  at  an  election  for  a  member  of 
the  lower  house,  or  be  elected.'*  There  are  provisions  in  the  Con- 
stitution of  the  United  States  and  of  the  different  States,  adopted 
undoubtedly  because  it  was  considered  contrary  to  sound  public 
policy  to  commit  any  offices  requiring  considerable  skill  and  pru- 


81.     See  Crosbie  v.  Hurley,  1  Alcock 
&  Napier,  431. 

71.  Maephers.  Inf.  449;  Wilkinson 
V.  Parry,  4  Russ.  372.  But  though 
\\rongly  appointed,  he  will  be  liable 
to  account  for  money  received  by 
him  after  reaching  majority.  Carow 
T,  Mowatt,  2  Edw.  Ch.  57.  And  see 
Knox  V.  Nobel,  77  Hun,  230. 

72.  Maephers.  Inf.  448,  449;  Co. 
l.itt.  3b,  172. 

73.  Coleman,  ex  parte,  54  Ark.  235. 
But  cf.  25  Fla.  298. 


74.  Cuckson  v.  Winter,  2  M.  &  Ry. 
306. 

75.  Moore  v.  Graves,  3  N.  H.  408. 
But  see  Tyler  Tyler,  2  Root,  519. 
And  see  Railroad  v.  Fisher,  100  N.  C. 
1. 

76.  Barrett  v.  Seward,  22  Vt.  176; 
Harvey  v.  Hall,  ib.  211;   53  Vt.  109. 

77.  See  Maephers.  Inf.  449,  n.;  1 
Pari.  Deb.  420,  notes. 

78.  7  &  8  Will.  III.,  ch.  25. 


§  996  i::^FANCY.  1148 

dence,  not  to  say  pecuniary  and  public  responsibility,  to  the  young 
and  immature.  By  the  Constitution  of  tbe  United  States,  no  per- 
son can  be  President  who  has  not  attained  the  age  of  thirty-five 
years ;  nor  a  senator,  who  is  under  the  age  of  thirty  years ;  nor  a 
representative  in  Congress  who  is  not  twenty-five  years  of  age. 
Corresponding  provisions  abound  in  the  different  States  as  to  the 
eligibility  of  local  officers.  So  is  the  disqualification  to  vote  uni- 
versally applied  by  our  laws  to  minors,  and  restrictions  upon  the 
right  of  suffrage  may  extend  even  further.''" 

The  true  principle  to  be  extracted  from  the  authorities  eeeons 
therefore  to  be  that  the  court  will  inquire  whether  an  infant,  as 
such,  is  by  law  capable  of  discharging  suitably,  faithfully,  and 
efficiently  the  duties  of  a  particular  office,  and  so  as  to  leave  open 
all  the  usual  remedies  to  others ;  and  this  is  a  proper  rule  of  guid- 
ance, the  statutes  being  silent,  rather  than  ancient  precedents  laid 
down  concerning  particular  offices  in  times  when  they  were  trans- 
missible in  families  and  mere  sinecures.*" 

There  are,  undoubtedly,  certain  offices  which  an  infant  may 
properly  hold.  And  the  legislature  is  competent  to  establish  an 
earlier  or  later  period  at  which  persons  shall  be  deemed  of  full 
age  for  certain  purposes.  Hence  in  Massachusetts,  under  a  law 
fixing  eighteen  years  as  the  age  for  military  duty,  and  empowering 
an  infant  at  that  age  to  enlist  of  his  own  accord,  and  without  the 
parent's  asent,  in  the  militia,  it  is  held  that  he  may  be  elected 
company  clerk,  or  even,  as  it  would  appear,  a  commissioned  officer 
of  the  company.^^ 

The  late  cases  show  a  tendency  to  a  more  liberal  rule,  under 
which  a  minor  has  been  held  to  be  competent  to  act  as  a  deputy 
sheriff,*^  a  notary  public,*^  and  clerk  of  a  court. 


84 


79.  The  officer  who  usually  admin-  82.  Irving  v.  Edrington,  41  La. 
isters  the  oath  of  office  cannot  refuse  Ann.  671,  6  So.  177;  JameeviHe,  etc., 
to  do  so  on  such  grounds.  People  E.  Co,  v.  Fisher,  109  N.  C.  1,  13  8.  E. 
V.  Dean,  3  Wend.  438.  698,  13  L.  R.  A.  (N.  S.)  721;  Gilson  v. 

80.  For  some  of  the  old  decisions  Kuenert,  15  S.  D.  291,  89  N,  W.  472; 
as  to  what  offices  an  infant  might  or  Bell  v.  Pruit,  51  S.  C.  344,  29  8.  E.  5; 
might  not  hold,  see  Bac.  Abr.  Infancy  State  v.  Toland,  36  S.  C.  513,  15 
and  Age  (E.)  ;  also  Moore  v.  Graves,  S.  E.  599. 

3  N.  H.  408,  passim.  83.  United  States  v.  Bixby,  9  Fed. 

81.  Dewey,  Petitioner,  11  Pick.  265.  78, 

See   Hands   v.  Slaney,   8   T.   E.    578.  84.    Talbott's   Deviseee   ▼.    Hooser, 

Infant  may  be  a  notary.     25  Alb.  L.  75  Ky.  408. 
J.  12. 


1149 


DISABILITIES. 


§    997 


§  997.  Infant's  Responsibility  for  Crime. 

Infants  who  have  arrived  at  sufficient  maturity  in  years  and 
understanding  are  capable  of  committing  crimes;  and  it  is  said 
that  they  cannot  plead  in  justification  the  restraint  of  a  parent,  as 
married  women  can  that  of  the  husband ;  although,  as  we  pre- 
sume, duress  or  compulsion  may  be  properly  set  up  in  defence, 
wherever  a  young  child  is  indicted  and  tried  for  a  crime.  The 
period  of  life  at  which  a  capacity  of  crime  exists  is  determined 
by  law  to  a  certain  extent ;  for  a  child  under  seven  is  conclusively 
incapable  of  crime,  one  between  seven  and  fourteen  only  prima 
facie  feo,  and  one  over  fourteen  prima  facie  capable  like  any  other. 


85 


85.  United  States  ex  rel.  Schorn- 
bach  V.  Behrendsohn,  197  F.  953.  The 
presumption  is  that  an  infant  un- 
der 14  years  had  not  the  requisite 
guilty  knowledge  of  the  wrongfulness 
of  an  act  to  authorize  a  conviction 
of  felony,  unless  there  is  proof  of 
knowledge  of  good  and  evil.  Reynolds 
V.  State,  154  Ala.  14,  45  So.  894; 
Garner  v.  State,  97  Ark.  63,  132  S. 
W.  1010;  Gilchrist  v.  State,  100  Ark. 
330,  140  S.  W.  260;  Harrison  v.  State, 
72  Ark.  117,  78  S.  W.  763;  Land  v. 
State  (Fla.),  71  So.  279,  L.  R.  A. 
1916E,  760;  Singleton  v.  State,  124 
Ga.  136,  52  S.  E.  156;  Vinson  v. 
State,  124  Ga.  19,  52  S.  E.  79;  Car- 
roll V.  State  (Ga.),  89  S.  E.  176; 
Vinson  v.  State,  124  Ga.  19,  52  S.  E. 
79;  Anthony  v.  State,  126  Ga.  632, 
55  S.  E.  479;  Siagleton  v.  State,  124 
Ga.  136,  52  S.  E.  156;  Stephens  v. 
Stephens,  172  Ky.  580,  189  S.  W. 
1143;  Commonwealth  v.  Smith,  14 
Gray  (Mass.),  33. 

The  criminal  intent,  which  is  an  es- 
sential element  of  every  crime,  cannot 
be  entertained  by  an  Infant  until  he 
has  developed  sufficient  intelligence 
and  moral  perception  to  enable  him 
to  distinguish  between  right  and 
wrong  and  to  comprehend  the  con- 
sequences of  his  acts.  Bcason  v. 
State,  96  Miss.  105,  50  So.  488 ;  Miles 
V.  State,  99  Miss.  1G5,  54  So.  946; 
State  ex  rcl.  Cave  v.  Tincher,  258  Mo. 
1,  166  S.  W.  1028;  State  v.  Fisk,  15 
N.  D.  589,  108  N.  W.  485. 


In  North  Dakota  the  statute  pro- 
vides that  children  under  seven  years 
of  age  are  legally  incompetent  to 
commit  crime,  and  between  the  ages 
of  seven  and  fourteen  are  presumed 
to  be  incompetent.  State  v.  Fisk,  15 
N.  D.  589,  108  N.  W.  485. 

The  presumption  is  not  satisfactor- 
ily rebutted  by  inferences  which  the 
judge  may  make  from  their  appear- 
ance and  from  conversation  with  them 
and  their  parents,  satisfying  him  that 
they  have  criminal  capacity.  A  plea 
of  guilty  is  insufficient  to  overcome 
the  presumption,  which  can  be  done 
only  by  affirmative  evidence.  People 
V.  Domenieo,  92  N.  Y.  S.  390,  45 
Misc.  309,  19  N.  Y.  Cr.  R.  8 ;  State  v. 
Nelson,   88   S.  C.   125,  70   S.   E.   445. 

A  homicide  by  an  infant  seventeen 
years  of  age  is  not  excused  by  his 
father's  coercion.  State  v.  Thrailkill, 
73  S.  C.  314,  53  S.  E.  482;  1  Bish. 
Crim.  Law,  §  460;  1  Russ.  Crimes, 
Grea.  ed.  2;  Marsh  v.  Loader,  14  C. 
B.  (N.  S.)  535.  The  text-writers 
have  said  that  an  infant  can  never 
plead  constraint  of  the  parent,  but 
this  may  be  doubted.  See  Humphrey 
V.  Douglass,  10  Vt.  71;  Commonwealth 
V.  Mead,  10  Allen,  398;  State  v. 
Learnard,  41  Vt.  585.  But  see  Wil- 
let  V.  Commonwealth,  13  Bush  (Ky.), 
230  (holding  that  an  infant  under 
twelve  years  of  age  may  be  shown  to 
have  criminal  capacity).  But  see 
In  re  Sanders  (Okla.),  168  P.  197 
(holding  that  as  an  infant  under  four- 


§    997  INFANCY.  1150 

An  exception  to  this  rule  is  usually  stated  in  certain  cases  of  physi- 
cal impotence;  for  it  is  argued  that  a  boy  under  fourteen  years 
of  age  is  physically  undeveloped,  and  therefore  cannot  be  legally 
guilty  of  rape  or  similar  crimes.*^  Nor  is  carnal  consent  an  ad- 
mitted palliation  to  one  who  commits  a  crime  upon  a  young  person, 
even  though  the  latter  made  no  resistance/^  Incapacity  for  com- 
mitting a  crime  might  properly  be  considered  in  connection  with 
incapacity  of  criminal  intent ;  and  yet  the  later  rule  of  Ohio  and 
some  other  States  seems  the  more  correct  one,  which  is  to  reject 
in  such  case  any  doctrine  of  conclusive  presumption  of  incapacity, 
and  allow  evidence  of  criminal  intent  to  be  furnished ;  ®®  though 
certain  investigations  on  this  point  might  be  held  contra  bonos 
mores.  The  general  rule  is  that  capacity  for  crimes  in  persons 
above  the  age  of  seven  years  is  a  question  of  fact ;  the  law  assuming 
prima  facie  incapacity  under  fourteen,  and  capacity  over  fourteen ; 
but  subjecting  that  assumption  of  guilty  intention  to  the  effect  of 
proof  concerning  the  real  fact.*' 

Where  a  statute  creates  an  offence,  infants  under  the  age  of  legal 
capacity  are  not  presumed  to  have  been  included,  yet  where  an  act 
is  denounced  as  a  crime,  even  felony  or  treason,  it  extends  as  well 
to  infants,  if  above  fourteen  years,  as  to  others.'"  And  a  child 
under  fourteen  may  be  within  the  fair  scope  of  a  particular  statute 
misdemeanor." 

An  infant  may  be  indicted  for  obtaining  goods  by  false  pre- 
teen  is  presumed  to  be  doli  incapax,  Where  a  child  is  under  fourteen  tho 
and,  therefore,  cannot  be  guilty  of  jury,  in  order  to  convict,  should  be 
murder).  But  see  People  v.  Martin,  satisfied  that  he  knew  the  distinction 
13  Cal.  App.  96,  108  P.  1034.  between   right   and  wrong  as  to  the 

86.  1  Bish.  Crim.  Law,  §§  466,  672,  particular  offence.  Willis  v.  State, 
and  cases  cited;  State  v.  Handy,  4  89  Ga.  188;  Bell  v.  The  State, 
Earring.  566;  Eeg.  v.  Phillips,  8  Car.  91  Ga.  15.  There  should  be  more 
&  P.  736.  But  see  Wagoner  v.  State,  than  the  infant's  own  statement 
5  Lea,  352,  which  holds  that  this  pre-  to  remove  the  presumption  of  guilty 
Bumption  as  to  a  boy  nearly  fourteen  intent  where  he  is  over  fourteen, 
years  is  not  conclusive,  but  subject  State  v.  Kluseman,  53  Minn.  541. 
to  proof.  See  State  v.  Howard,  88  N.  C.  650. 

87.  See  Eq.,  61  Conn.  50  90.  1  Hawk.  1 ;   4  Bl.  Com.  23 ;   1 


88.  Williams  v.  State,  14  Ohio,  222 
People  V.  Randolph,  2  Parker,  174 
Commonwealth  v.  Green,  2  Pick.  380 


Bish.  Crim.  Law,  §  462. 

91.  Statutes,  for  instance,  which  ar- 
rest for  begging  on  the  streets,  gath- 


Wagoner  v.  State,  supra.  ering  garbage  from  the  markets,  etc 

89.  State  v.  Learnard,  41  Vt.  585;  There     are     various     penal     statutes 

Willet    V.    Commonwealth,    13    Bush,  which  provide  for  sending  young  chil- 

230;    Martin   v.   State,   90   Ala.   602;  dren  who  are  found  offenders,  to  the 

State  V.  Toney,  15  S.  C.  4096  76  Mo.  house  of  refuge  or  some  similar  in- 

355.    See  Dove  v.  State,  37  Ark.  261.  stitntion  for  youth.     People  v.  N.  T. 


1151 


DISABILITIES. 


§    997 


tences,"^  or  for  stealing.®*  He  is  liable  to  bastardy  process.'* 
And,  follo\Aring  the  general  principle  already  announced,  cbildren 
less  than  fourteen  have  been  convicted  for  arson  and  murder,  the 
prima  facie  presumption  of  incapacity  being  overcome;  ®^  and  for 
perjury.'^^  But  a  child  less  than  seven  cannot  be  indicted  for 
nuisance,  though  owner  of  the  land,®"  And  it  is  reasonable  to  add 
that  the  evidence  of  malice  or  "  mischievous  discretion  "  which  is 
to  supply  age  ought  to  be  strong  and  clear,  beyond  all  doubt  and 
contradiction.*^ 

At  fourteen  years  of  age  infants  are  presumed  to  be  capable  of 
malice.*®  And  the  fact  may  be  shown  even  though  he  be  of  a 
lesser  age.**  The  government  has  the  burden  of  showing  the  crim- 
inal capacity  of  a  defendant  between  seven  and  fourteen  years  of 
age.^     The  question  of  such  capacity  is  for  the  jury.^ 


Catholic  Protectory,  101  N.  Y.  195; 
Hibbard  v.  Bridges,  76  Me.  324:  66 
How.  Pr.  178. 

92.  People  v.  Kendall,  25  Wend.  399. 

93.  Dove  V,  State,  37  Ark.  261. 
Infant  responsible  for  larceny  as 
bailee.  Queen  v.  McDonald,  15  Q.  B. 
D.  323. 

94.  Chandler  v.  Commonwealth,  4 
Met.   (Ky.)   66. 

95.  See  4  Bl.  Com.  23,  24;  1  Bish. 
Crim,  Law,  §  464,  and  cases  cited; 
State  V.  Barton,  71  Mo.  288;  Martin 
V.  State   (1891,  Ala.)- 

95a.  Willet  v.  Commonwealth,  13 
Bush,  230. 

96.  People  v.  To'ivnsend,  3  Hill,  479. 

97.  See  4  Bl.  Com.  24;  Common- 
wealth V.  Mead,  10  Allen,  398 ;  Steph- 
enson V.  State,  28  Ind.  272;  State 
V.  Tice,  90  Mo.  112.  As  to  recog- 
nizance to  answer  for  criminal  of- 
fence, see  State  v.  Weatherwax,  12 
Kan.  463.  Where  a  minor  is  impris- 
oned under  an  illegal  sentence,  the 
proper  remedy  is  by  habeas  corpus, 
and  not  annulment  of  the  sentence. 
Cathing  v.  State,  62  Ga.  243. 

98.  Birmingham,  etc.,  R.  Co.  v. 
Mattison,  166  Ala.  602,  52  S.  49; 
Young  V.  Sterling  Leather  Works 
(N.  J.),  102   A.   395. 

99.  State  v.  Jackson,  3  Pennewill 
(Del.),  15,  50  A.  270. 

1.  The  presumption  of  law  that  an 


infant  over  seven  and  under  fourteen 
years  of  age  does  not  possess  sufficient 
mental  capacity  to  commit  a  felony 
is  rebuttable  only  by  clear  evidence 
of   a   mischievous    disposition,   or   of 
knowledge  of  good  and  evil.     Key  v. 
State,   58   So.  946,  4  Ala.  App.  76; 
Garner  v.  State,  97  Ark.  63,  132  S.  W. 
1010;    Kear   v.    State,   84   Ark.    146, 
104   S.  W.   1097;    Harrison  v.   State, 
72  Ark.  117,  78  S.  W.  763;   Ledrick 
V.  United  States,  42  App.  D.  C.  384 
(an  infant  cannot  be  convicted  of  a 
crime  upon  a  plea  of  guilty,  unless 
it  is  established  that  he  is  of  crim- 
inal   capacity    and    understands    the 
nature  and  consequences  of  his  plea 
of   guilty)  ;    Singleton   v.    State,   124 
Ga.  136,  52  S.  E.  156 ;  Ford  v.  State, 
100  Ga.  63,  25  S.  E.  845;  Carroll  v. 
State   (Ga.),  89  S.  E.  176;  Stephens 
V.  Stephens,  172  Ky.  780,  189  S.  W. 
1143;    Willet    v.    Commonwealth,    13 
Bush   (Ky.),  230;   Miles  v.  State,  99 
Miss.   165,   54   S.  946;    State  v.   Tice, 
90  Mo.   112,  2   S.  W.  269;   State  v. 
Fisk,  15  N.  D.  589,  108  N.  W.  485; 
People  V.  Squazza,  81  N.  Y.  S.  254, 
40   Misc.   71;    State   v.   Mariano,    37 
R.  L  168,  91  A.  21;  State  v.  Nelson, 
88  S.  C.  125,  70  S.  E.  445;  State  v. 
Davis,  104  Tenn.  501,  58  S.  W.  122; 
State  V.  Vineyard,  81  W,  Va.  98,  93 
S.  E.   1034. 

2.   Key  v.  State,  4   Ala.  App.   78, 


§  999 


INFANCY. 


1163 


§  998.  Infant's    Criminal    Complaint;     Discretion    in    Case    of 
Peril,  &c. 

An  infant,  it  is  held  in  Tennessee,  may  make  a  criminal  com- 
plaint, and  be  what  is  known  as  the  prosecutor.*  There  are  varions 
criminal  offences  against  young  children  set  forth  in  our  codes.* 

Corresponding  to  the  presumption  of  criminal  capacity  in  an 
infant  is  that  of  presumed  capacity  to  be  diligent  for  his  own 
personal  safety  against  manifest  peril ;  though  such  presumptions 
yield  to  proof.^ 

§  999.  Power  to  Make  a  WiU. 

The  age  at  which  persons  may  dispose  of  their  property,  real  or 
personal,  by  last  will  and  testament,  is  now  determined  by  statute 
in  England,  and  in  most  parts  of  the  United  States.  In  England 
the  modem  statute  1  Vict.,  c.  26,  §  7,  provides  that  no  will  made 
by  any  person  under  the  age  of  twenty-one  years  shall  be  valid. 
This  went  into  effect  in  1838.°  And  the  provisions  of  this  statute 
have  been  substantially  enacted  either  before  or  since  in  most  of 
the  American  States;  so  that  the  policy  of  the  present  day  may 
be  said  to  exclude  the  testamentary  capacity  of  all  infants.'  Nor 
is  this  unjust ;  for  the  law  itself  draws  up  as  good  a  will  for 
children  as  they  are  likely  to  make  for  themselves. 

But  the  ancient  rule  was  otherwise:  namely,  to  the  effect  that 
males  at  fourteen  and  females  at  twelve  might  make  wills  of  their 
personal  property;  thus  conforming  to  the  older  rule  of  the  civil 
and  canon  law.*  And  fourteen,  as  we  have  seen,  was  the  age  when 
a  guardian  by  election  of  the  infant  might  be  appointed.*  But 
though  no  objection  was  admissible  to  the  probate  of  wills  in  the 
ecclesiastical  courts,  merely  for  want  of  age,  yet  if  it  could  be 
shown  that  the  testator  was  not  of  sufficient  discretion,  whether  of 
the  age  of  fourteen,  or  four-and-twenty,  that  would  overthrow  the 


58  So.  946;  State  v.  Mariano,  37  E.  I. 
16S,  91  A.  21;  State  v.  Nelson,  88 
S.  C.  125,  70  S.  E.  445. 

3.  State  V.  Dillon,  1  Head,  389. 

4.  Such  as  infanticide,  cruelty  to 
children  (which  certain  societies  seek 
to  suppress),  and  corruption  of 
morals).  See  State  v.  Hill,  58  N.  H. 
475;  Eobinson  v.  The  State,  67  Ga. 
29;  State  v.  Woolaver,  77  Mo.  103; 
Taylor  v.  The  State,   107   Ind.   483; 


Hickey    v.    Taaffe,    99    N.    Y.    »04; 
Mascolo  V.  Montesanto,  61  Conn.  50. 

5.  §  1034. 

6.  See  also  20  &  21  Vict.,  ch.  77. 

7.  Schouler,  Wills,  §§  39-43;  4 
Kent,  Com.  506,  507. 

8.  1  Wms.  Ex'rs,  15;  Schooler, 
Wills,  §§  40,  41.  But  there  are  some 
irreconcilable  opinions  on  the  snbject 
to  be  found  in  the  old  books.  See 
Co.  Litt,  89b,  Hargrave's  note. 

9.  See  §  816. 


1153  DISABILITIES.  §    999 

testam-ent.^"  This  always  operated  to  discourage  sucli  wills  from 
being  made.  And  jet  the  objection  was  not  insuperable ;  for  there 
is  a  clear  instance  on  record  where  an  infant  sixteen  years  of  age 
made  a  testament  in  favor  of  his  guardian  and  schoolmaster,  which 
was  established  by  evidence  of  the  child's  capacity  and  free  will.^* 

The  English  text  writers,  with  reference  to  the  old  law,  have 
laid  it  down  that  express  approval  of  a  former  will  after  the  infant 
had  accomplished  the  years  of  fourteen  or  twelve  would  make  it 
strong  and  effectual.^^  But  as  concerns  the  later  statutes,  if  not 
as  a  general  principle  for  modem  times,  it  appears  pretty  clear 
that  where  a  will  is  required  to  be  in  writing,  and  executed  before 
witnesses,  in  order  to  be  valid,  and  is  thus  executed  before  the 
testator  arrives  at  the  required  age,  it  cannot  be  rendered  valid 
after  the  testator  arrives  at  such  age,  except  by  republication  with 
all  the  usual  formalities.^^  And  even  the  old  books  admit  that  the 
mere  circumstance  of  an  infant  having  lived  some  time  after  the 
age  when  he  became  capable  of  making  a  will  cannot  alone  give 
validity  to  one  made  during  his  incapacity.^* 

The  maxims  of  the  older  law  on  this  subject  adhere  somewhat 
to  American  jurisprudence;  for  we  find  that  in  a  few  of  our 
States  a  distinction  is  still  made  between  personal  and  real  estate 
as  to  the  right  of  an  infant  to  dispose  of  his  property  by  will. 


15 


10.  2  Bl.  Com.  497;  1  Wms.  Ex'rs,  personalty.  Among  the  States  where 
15.  the  right  to   dispose   of  estate,  both 

11.  Arnold  v.  Earle,  2  Cas.  temp.  real  and  personal,  is  now  limited  to 
Lee    529.  persons   of   full    age,   are   Massachu- 

12.  1  "Wms.  Ex'rs,  16;  Swinb.,  pt.  setts,  Vermont,  New  Hampshire, 
2,  §  2,  pi.  7;  Bac.  Abr,  Wills,  B.  Maine,    Ohio,    Indiana,    New    Jersey, 

13.  Schouler,  Wills,  Part  IV.,  cb.  3.  Kentucky,      Virginia,      PennsylTania, 

14.  Herbert  v.  Torball,  1  Sid.  162;  Delaware,  and  Michigan,  For  latest 
Swinb.,  pt.  2,  §  2,  pi.  5;  1  Wms.  changes  see  Stimson,  American,  Stat- 
Ex'rs,  16.  Formerly,  as  we  have  ute  Law.  In  some  States  a  distinc- 
eeen,  a  father,  though  a  minor,  might  tion  is  made  between  males  and  fe- 
appoint  a  testamentary  guardian  of  males  as  to  testamentary  capacity,  and 
his  own  child;  but  this  right  also  is  the  latter  may  make  wills,  as  in  Ver- 
taken  from  a  minor  father,  under  the  mont  and  ]\Iaryland,  at  eighteen.  In 
modern  statute  of  wills.  1  Vict.,  ch.  New  York  and  lillinois  the  principle 
26;  see  §  814.  is  to   discriminate   between   real   and 

15.  Thus  in  Rhode  Island,  Virginia,  personal  estate,  and  between  males 
Arkansas,  and  Missouri,  the  age  for  and  females;  and  while  as  young  as 
making  wills  of  real  estate  is  fixed  at  sixteen  a  female  in  the  former  State 
twenty-one,  and  for  disposing  of  per-  may  make  a  valid  will  of  personalty, 
sonalty  in  the  same  manner,  at  eigh-  but  a  male  only  at  eighteen.  See 
teen;  and  in  Connecticut  at  twenty-  Schouler,  Wills,  §  43 ;  4  Kent,  Com. 
one  for  real  estate,  and  seventeen  for  506,  507;  Williams  v.  Heirs,  Busbee, 

73 


§  1000 


INFANCY. 


1154 


An  infant,  even  under  fourteem  years  of  age,  may  be  a  witness  to 
a  will,  if  of  sufficient  understanding.^* 

§  1000.  Testimony  of  Infants. 

Infants  may  be  admitted  to  testify  in  the  courts,  if  of  sufficient 
understanding.  There  is  no  precise  age  at  which  the  law  excludes 
them  on  the  conclusion  that  they  are  mentally  and  morally  incom- 
petent; but  one's  competency  in  any  case  will  depend  upon  his 
actual  intelligence,  judgment,  understanding,  and  ability  to  com- 
prehend the  nature  and  effect  of  a  solemn  statement  under  oath  as 
distinguished  from  falsehood.  By  the  common-law  rule,  every 
person  over  the  age  of  fourteen  is  presumed  to  have  common  dis- 
cretion and  understanding  until  the  contrary  appears;  but  under 
that  age  it  is  not  so  presumed ;  and  the  court  will  therefore  make 
inquiry  as  to  the  degree  of  understanding  which  the  child  offered 
as  a  witness  may  possess.  But  this  preliminary  examination, 
which  is  made  by  the  judge  at  discretion,  is  to  be  directed  to  the 
point  whether  the  witness  comprehends  the  solemn  obligation  of  an 
oath;  and  if  the  child  appears  to  have  sufficient  natural  intelli- 
gence to  distinguish  between  good  and  evil,  and  to  comprehend  the 
nature  and  effect  of  an  oath,  he  is  an  admissible  witness.^^  In 
Indiana  a  statute  provides  that  all  children  over  the  age  of  ten 
shall  be  presumed  to  be  competent.  And  in  various  States  a  child 
nearly  ten  years  of  age  has  been  deemed  competent  to  testify,  whose 
answers  when  she  was  examined  by  the  court  disclosed  that,  though 
she  was  ignorant  of  the  nature  of  the  punishment  for  false  swear- 
ing, yet  she  comprehended  the  obligations  of  an  oath  and  believed 
that  any  deviation  from  the  truth,  while  under  oath,  would  be 
followed  by  appropriate  punishment.^®  Less  expression  even  than 
this  hag  been  required  of  children  about  this  age,  where  the  due 
comprehension  appeared,  notwithstanding  nervous  agitation 
natural  to  the  surroundings.^®     Of  the  capacity  of  such  witnesses 


271;  Davis  v.  Baugh,  1  Sneed,  477; 
Moore  v.  Moore,  23  Tex.  637;  Posey 
V.  Posey,  3  Strobh.  167;  Corrie's 
Case,  2  Bland.  Ch.  488. 

16.  7?e  Spier,  99  Neb.  853,  157  N. 
W.  1014,  L.  E.  A.  1916E,  692;  Carl- 
ton V.  Carlton,  40  N.  H.  14; 

17.  Greenl.  Evid.,  §  367;  2  Ru3s. 
Crimes,  590;  Rex.  v.  Brazier,  1  East, 
P.  C.  443;  State  v.  Whittier,  21  Me. 
341.     Nor  is  a  court  of  appeal  dis- 


posed to  overrule  the  discretion  of  the 
judge  at  the  trial  below  who  makes 
this  examination,  unless  the  discretion 
was  plainly  abused.  People  v.  Linzey, 
79  Hun,  23. 

18.  Blackwell  v.  State,  11  Ind.  196; 
Draper  v.  Draper,  68  111.  17;  Vincent 
V.  State,  3  Heisk.  120. 

19.  Davidson  v.  State,  39  Tex.  129; 
State  V,  Seanlan,  58  Mo.  204. 


1155 


DISABILITIES. 


§     1000 


for  comprehending  the  matter  as  to  which  they  testify,  of  the 
strength  of  the  memory,  and  in  general  as  to  the  weight  which  may 
be  attached  to  their  testimony  in  any  particular  state  of  facts,  a 
jury  should  make  its  estimate  carefully.^" 

Children  have  been  admitted  to  testify  at  the  early  age  of  seven, 
and  even  of  five;  ^^  but  the  dying  declarations  of  a  child  only  four 
years  old  were  once  ruled  out,^"  for  the  reason  that,  however  pre- 
cocious the  child's  mind,  she  could  not  have  had  that  idea  of  a 
future  state  which  is  necessary  to  make  such  declaration  admis- 
sible.^^ Different  systems  of  religious  education  render  the  judi- 
cial test  in  this  respect  far  from  precise ;  for  while  there  are  cases 
where  the  court  has  put  off  a  trial,  in  order  to  specially  instruct  an 
infant  witness  as  to  the  nature  and  solemnity  of  an  oath,  this  prac- 
tice is  not  of  late  years  strongly  countenanced ;  the  opinion  gaining 
ground  that  the  effect  of  the  oath  upon  the  conscience  should  arise 
from  religious  feelings  of  a  permanent  nature  and  gradual 
growth.^*  But  in  cases  where  the  intellect  is  sufficiently  matured, 
and  the  education  only  has  been  neglected,  it  appears  that  a  post- 
ponement of  the  trial  might  properly  be  asked. ^^     Where  a  young 


20.  Competence  to  testify  is  not  in- 
consistent with  civil  immunity  at  such 
an  age  for  perjury.  Johnson  v.  State, 
61  Ga.  35.  See  Peterson  v.  State,  47 
Ga.  524. 

21.  76.  Female  child  of  eight  held 
a  competent  witness  in  prosecution 
for  a  criminal  assault  upon  her.  Wade 
V.  State,  50  Ala.  164. 

22.  Eex  V.  Pike,  3  Car.  &  P.  598; 
Eex  V.  Brazier,  1  Lat.  P.  C.  443. 

23.  Hex  V.  Pike,  3  Car.  &  P.  598.  And 
see  Eex  v.  Brazier,  1  East  P.  C.  443; 
1  Greenl.  Evid.,  §  367 ;  Commonwealth 
V.   Hutchinson,   10   Mass.   225. 

24.  Eex  V.  White,  2  Leach  C.  C.  48, 
n.;  1  Greenl.  Evid.,  §  367;  Eex  v. 
Williams,  7  Car.  &  P.  320;  Eegina 
V.  Nicholas,  2  Car.  &  K.  246, 

25.  Per  Pollock,  C.  B.,  Eegina  v. 
Nicholas,  2  Car.  &  K.  246.  A  child 
is  not  incompetent  to  testify  because 
instructed  by  a  minister  concerning 
the  nature  of  an  oath  between  the 
first  day,  when  offered,  and  the  next, 
when  permitted  to  testify.  Common- 
wealth V,  Lynes,  142  Mass.  577. 


With  regard  to  the  weight  and  ef- 
fect of  the  testimony  of  children, 
Blackstone  observes  that  when  the 
evidence  of  children  is  admitted,  "  it 
is  much  to  be  wished,  in  order  to  ren- 
der the  evidence  credible,  that  there 
should  bo  some  concurrent  testimony 
of  time,  place,  and  circumstances,  in. 
order  to  make  out  the  fact;  and  that 
a  conviction  should  not  be  grounded 
on  the  unsupported  accusation  of  an 
infant  under  years  of  discretion."  4 
Bl.  Com.  214.  To  this  Mr.  Phillips 
replies  that  in  many  cases,  undoubt- 
edly, the  statements  of  children  are 
to  be  received  with  great  caution ;  yet 
that  a  prisoner  may  be  convicted 
upon  such  testimony  alone  and  un- 
supported ;  and  that  the  extent  of  cor- 
roboration necessary  is  a  question  ex- 
clusively for  a  jury.  It  may  be  ob- 
served that  the  preliminary  inquiry 
as  to  the  competency  is  not  always 
of  the  most  satisfactory  description, 
and  is  such  that  a  child  might,  upon 
slight  practicing  of  the  memory,  ap- 
pear well  qualified.    The  severest  test 


§   1001 


INFANCY. 


1156 


child's  examination  shows  an  utter  want  of  anything  like  a  knowl- 
edge of  the  nature  or  character  and  consequences  of  an  oath,  or  of 
human  relations  to  God  and  the  Divine  penalties  denounced  against 
false  swearing,  the  chili  ought  not  to  be  allowed  to  testify.^^ 
§  1001.  Marriage  Settlements  of  Infants. 

With  respect  to  the  marriage  settlement  of  infants,  there  was 
formerly  considerable  controversy.  For,  on  the  one  hand,  it  was 
urged  that  infants  were  in  general  incapable  of  entering  into  valid 
contracts  with  respect  to  their  property;  on  the  other,  that  since 
infants  might  make  a  valid  contract  of  marriage,  they  ought  to  be 
able  to  arrange  the  preliminaries.  At  an  early  period  the  opinion 
prevailed  in  England  that  the  marriage  consideration  communi- 
cated to  the  contracts  of  infants,  respecting  their  estate,  an  efficacy 
similar  to  that  which  the  law  stamps  upon  marriage  itself;  and 
Lords  Hardwicke  and  Macclesfield  contributed  to  strengthen  it,  by 
maintaining  that  the  real  estate  of  an  infant  would  be  bound  by  a 
marraige  settlement.^^  Lord  Northington  held  later  to  a  different 
opinion;  and  Lord  Thurlow  overturned  the  doctrine  altogether, 
boldly  declaring  that  the  contracts  of  male  and  female  infants  do 
not  bind  their  estates,  and  that  consequently  a  female  infant  can- 
not be  bound  by  any  articles  entered  into  during  minority,  as  to  her 
real  estate ;  but  may  refuse  to  be  bound,  and  abide  by  the  interest 
the  law  casts  upon  her,  which  nothing  but  her  own  act  after  the 
period  of  majority  can  fetter  or  affect.^^  Other  distinguished 
equity  jurists,  including  Lord  Eldon,  subsequently  expressed  their 
approval  of  Lord  Thurlow's  decision.^*     And  the  rule  became  set- 


appears  in  the  examination  which  fol- 
lows ;  and  Mr.  Phillips  well  concludes : 
"  Independently  of  the  sanction  of 
an  oath,  the  testimony  of  children,  af- 
ter they  have  been  subjected  to  cross- 
examination,  is  often  entitled  to  as 
much  credit  as  that  of  grown  per- 
sons; what  is  wanting  in  the  per- 
fection of  the  intellectual  faculties 
is  sometimes  more  than  compensated 
by  the  absence  of  motives  to  deceive. ' ' 
1  Phil.  Evid.,  9th  ed.,  6,  7.  See  Sea- 
son V.  State,  72  Ala.  191;  State  v. 
Belton,  24  S.  C.  185. 

26.  On  the  principle  that  chancery 
is  bound  to  see  that  an  infant  liti- 
gant's rights  and  interests  are  pro- 
tected,  not   only   is   an   unwilling   in- 


fant not  compellable  to  testify  in  his 
suit,  but  his  deposition,  though  given 
freely  on  his  part,  may  be  suppressed, 
at  the  discretion  of  the  court,  as  con- 
taining admissions  unfavorable  to  his 
cause.  Serle  v.  St.  Eloy,  2  P.  Wms. 
386;  Napier  v.  Effingham,  2  P.  Wms. 
403;  Moore  v.  Moore,  4  Sandf.  Ch. 
37.  But  see  Walker  v.  Thomas,  2 
Dick.  781;  Bennett  v.  Welder,  15  Ind. 
332. 

27.  Harvey  v.  Ashley,  3  Atk.  607  j 
Cannel  v.  Buckle,  2  P.  Wms.  243; 
Peachey,  Mar.  Settl.  25  et  seq. 

28.  Drury  v.  Drury,  2  Eden,  58; 
Durnford  v.  Lane,  1  Bro.  C.  C.  115; 
CloufTh  V.  Clough,  5  Ves.  716. 

29.  See    Peachey,    Mar.    Settl.    28; 


1157 


DISABILITIES. 


§    1001 


tied  witllin  the  next  fifty  years,  that  the  real  estate  of  a  female 
infant  was  not  bound  by  the  settlement  on  her  marriage,  because 
her  real  estate  does  not  become  by  the  marriage  the  absolute  prop- 
erty of  the  husband,  although  by  the  marriage  he  takes  a  limited 
interest  in  it.^°  So  was  it  decided  that  neither  the  approbation  of 
the  parents  or  guardians,  nor  even  of  the  court  of  chancery,  inde- 
pendently of  positive  statute,  would  make  the  infant's  settlements 
binding.^^  The  inconvenience  of  such  a  state  of  things  called  for 
statute  remedy;  and  in  1855  an  act  was  passed  which  enabled 
male  infants  not  under  twenty,  and  female  infants  not  under 
seventeen,  with  the  approbation  of  the  court  of  chancery,  to  make 
valid  settlements  of  all  their  property,  real  or  personal,  and 
whether  in  possession,  reversion,  remainder,  or  expectancy.^^  The 
statute  has  already  received  some  interpretation  in  the  courts ; 
and  so  much  in  favor  was  it,  that  almost  immediately  upon  its 
passage  it  was  acted  upon  in  chancery.  Under  this  statute  settle- 
ments have  been  upheld  even  where  infant  wards  married  in  con- 
tempt or  defiance  of  court ;  and  a  settlement  may  be  made  on  the 
occasion  of  an  infant's  marriage  after  the  marriage  has  actually 
taken  place.^^  But  aside  from  the  operation  of  such  a  statute,  an 
infant  who  becomes  a  party  to  a  marriage  settlement  may  repudi- 
ate it  within  a  reasonable  time  after  attaining  majority. 


34 


Milner  v.  Lord  Harewood,  18  Ves. 
275;  Caruthers  v.  Caruthers,  4  Bro. 
C.  C.  509. 

30.  Simson  v.  Jones,  2  Euss.  &  M. 
376;  Campbell  v.  Ingilby,  21  Beav. 
567;  25  L.  J.  Eq.  760.  For  summary 
of  the  English  chancery  doctrine,  see 
Peachey,  Mar.  Settl.  37. 

31.  Peachey,  Mar.  Settl.  53,  54; 
Jb,,  29-43,  and  cases  cited  passim; 
In  re  Waring,  21  L.  J.  Eq.  784;  Sim- 
son  V.  Jones,  2  Russ.  &  M.  365;  Bor- 
ton  V.  Borton,  16  Sim.  552;  Field  v. 
Moore,  25  L.  J.  Eq.  69;  25  E.  L.  & 
Eq.  498. 

32.  18  &  19  Vict.,  ch.  53.  See 
Peachey,  Mar.  Settl.  45.  For  construc- 
tion of  this  statute,  see  In  re  Dalton, 
39  E.  L.  &  Eq.  145 ;  s.  c.  6,  De  G.  M. 
&  G.  201.  But  see  Be  Catherine 
Strong,  2  Jur.  (N.  S.)  1241;  5  W.  R. 
107.  Such  infant  may  consent  to  a 
proposed    reinvestment.    In    re    Card- 


ress,  L.  R.  7  Ch.  D.  728.  Or  exercise 
during  minority  a  power  which  was 
apparently  so  intended  in  trust  settle- 
ment. /&.;  Andrews  v.  Andrews,  15 
Ch.  D.  228. 

33.  Settlement  held  valid  either 
under  the  inherent  jurisdiction  of 
chancery  over  the  property  of  it3 
wards  or  under  the  infant 's  settle- 
ment act;  and  even  if  invalid  in  its 
inception  it  had  been  adopted,  con- 
firmed, and  acquiesced  in  by  the  in- 
fant, by  various  acts  during  and  af- 
ter her  coverture.  Buckmaster  v. 
Buckmaster,  33  Ch.  D.  482.  And  see 
Sampson  Be,  25  Ch.  D.  482  ;   §  390. 

34.  But  where  the  settlement  is 
made  by  the  court,  its  leave  is  neces- 
sary in  order  to  disaffirm.  Brown  v. 
Wadsworth,  168  N.  T.  225,  61  N.  E. 
250;  Smith  v.  Smith,  107  Va.  112,  57 
S.  E.   577. 

See  settlement  with  a  covenant   to 


§     1002  INFANCY.  1158 

This  subject  has  received  little  attention  in  the  United  States; 
notwithstanding  the  plenary  jurisdiction  over  the  estates  and 
persons  of  infants  which  a  court  of  equity  is  admitted  to  exercise 
in  many  of  our  States.  But  in  'New  York  some  decisions  have 
been  made,  of  a  like  tenor  with  those  in  the  English  chancery. 
Thus,  in  1831,  that  a  legal  jointure  settled  upon  an  infant  would 
bar  her  dower;  and,  by  analog}'  to  the  statute,  a  competent  and 
certain  provision  settled  upon  the  infant  in  bar  of  dower,  to  which 
there  is  no  objection  but  its  mere  equitable  quality.^^  And  in 
1843,  that  a  female  infant  was  not  bound  by  agreement  to  settle 
her  real  estate  upon  marriage.^^  So,  in  Maryland,  a  female  infant 
cannot  bind  her  real  estate  by  her  marriage  settlement.^^ 

An  objection  to  the  validity  of  a  marriage  settlement,  on  the 
ground  that  the  parties  to  it  were  infants,  can  only  be  made  by  the 
parties  themselves.  A  trustee  acting  under  it  has  no  such  power." 
But  since  privies  in  blood  can  avoid  an  infant's  voidable  convey- 
ance, it  is  held  that  if  the  infant  dies  after  making  a  settlement  of 
real  estate,  and  without  having  attained  majority,  her  privies  in 
blood  may  avoid  the  settlement.^®  There  are  circumstances  under 
which  the  infant's  confirmation  in  part  of  a  settlement  will  be 
taken  as  proof  of  an  intention  to  confirm  the  whole  of  it.*" 

Marriage  articles  are  not  of  themselves  binding  upon  the  infant 
or  her  privies;  but  they  are  binding  upon  the  adult  husband.*^ 
Yet  if  the  infant  dies  under  age,  her  privies  cannot  take  the  ben- 
efits of  the  proposed  settlement  and  of  the  inheritance  likewise; 
thev  mav  have  the  more  beneficial,  and  that  is  all.*^ 
§  1002.  Infant's  Exercise  of  a  Power. 

Where  a  power  is  given  to  an  infant  in  general  terms  to  direct 
a  sale  of  the  infant's  land,  this  power  cannot  be  exercised  during 
settle  after-acquired  property  thus  re-  365;  "Whitingham 's  Case,  8  Rep.  42; 
pudiated,  Edwards  v.  Carter  (1893),  Macphers.  Inf.  465;  Brown  v.  Brown, 
App.  C.   360.     Same   singular  effects       L.  R.  2  Eq.  481. 

upon  a  settlement  follow  the  Married  40.  Davies  v.  Davies,  L.  E.   9  Eq. 

Women's  Act  (1893),  2  Ch.  307.    See       468.     As  to  settling  a  small  fund  to 
also  Duncan  v.  Dixon,  44  Ch.  D.  211.       the  separate  use  of  a  chancery  ward 

35.  McCartee  v.  Teller,  2  Paige,  who  marries  the  day  after  she  comes 
511.  of  age,  see  White  v.  Herrick,  L.  R.  4 

36.  Temple  v.  Hawley,  2  Sandf.  Ch.  Ch.  345.  As  to  confirmation,  see 
153.  White  V.  Cox,  2  Ch.  D.  387. 

37.  Levering  v.  Levering,  3  Md.  Ch.  41.  Brown  v.  Bro^vn,  L.  R.  2  Eq. 
365.  See  Burr  v.  Wilson,  18  Tex.  481;  Whichcote  v.  Lyle's  Ex'rs,  28 
367.  Pa.  St.  73. 

38.  Jones  v.  Butler,  30  Barb.  641.  42.  Brown  v.  Brown,  lb. 

39.  Levering  v.  Levering,  3  Md.  Ch. 


1159 


DISABILITIES. 


§    1003 


infancy;  for  a  power  touching  his  own  estate  which  is  thus  in- 
tended should  be  explicitly  stated.*^  But  an  infant  may  exercise 
a  naked  power,  unaccompanied  with  any  interest,  and  requiring 
no  exercise  of  discretion.** 

§  1003.  Infant's  Commercial  Paper. 

An  infant's  commercial  paper  is  voidable,*^  whether  negotiable 
or  not.**  It  may  be  disaffirmed  at  majority,*^  even  though  the 
note  is  held  for  value  and  without  notice.*^  The  infant's  promis- 
sory note  as  surety  is  void,*^  and  he  may  avoid  it  or  his  accommo- 
dation note  though  he  misrepresents  his  age.*^"  A  note  given  by 
the  firm,  or  a  contract  to  purchase,  cannot  be  enforced  against  the 
minor  partner  when  he  pleads  infancy,  whether  the  firm  has  been 
already  dissolved  or  not.°^ 

We  may  here  add  that  infancy  of  the  maker  of  a  note  does  not 
excuse  the  want  of  a  demand  on  him  by  the  holder  in  order  to 
charge  the  indorsee.^"  The  Negotiable  Instruments  Act  does  not 
change  the  common  law  as  to  the  voidability  of  an  infant's  com- 


43.  Hill  V.  Clark,  4  Lea,  405. 

44.  Ih.;  Perry,  Trusts,  §  52. 

45.  "Wright  v.  Buchanan   (111.),  123 
N.  E.  53;   Murray  v.  Thompson,  136 
Tenn.   118,  188   S.  W.   578;   Heffing- 
ton  V.  Jackson,  43  Tex.  Civ.  560,  96 
S.  W.  108;   Watson  v,  Ruderman,  79 
Conn.  687,  66  A.  515;  Board  of  Trus- 
tees of  La  Grange  Collegiate  Institute 
T.  Anderson,  63  Ind.  367,  30  Am.  R. 
224 ;  Gray  v.  Grimm,  157  Ky.  603,  163 
S.  W.  762;   Minock  v.  Shortridge,  21 
Mich.   304;    Nichols  &  Shephard  Co. 
V.   Snyder,  78   Minn.   502,  81  N.  W. 
516;  Darlington  v.  Hamilton  Bank  of 
New  York  City,  116  N.  Y.  S.  678,  63 
Misc.     289;      Murray     v.     Thompson 
(Tenn.),    188    S.   W.    578,   L.   R.   A. 
1917B,    1172;    Grauman,    &c.,   Co.    v. 
Krienitz,    142    Wis.    556,    126   N.   W. 
50. 

46.  Wright  v.  Buchanan   (111.),  123 
N.  E.  53. 

47.  Watson  v.  Ruderman,  79  Conn. 
687,  66  A.  515. 

48.  Seeley   v.   Seeley,  &c.,  Co.,   128 
la.  294,  103  N.  W.  961. 

The  paper  may  not  be  voidable  in 


the  hands  of  a  hona  fide  purchaser 
where  there  is  evidence  of  emancipa- 
tion or  that  the  infant  was  so  en- 
gaged in  business  to  warrant  a  pru- 
dent person  in  believeing  that  he  waa 
competent  to  contract.  Seeley  v.  See- 
ley-Howe-Le  Van  Co.,  128  la.  294,  103 
N.  W.  961;  Darlington  v  Hamilton 
Bank,  63  Misc.  289,  116  N.  Y.  S.  678. 
But  see  Murray  v.  Thompson,  136 
Tenn.  118,  188  S.  W.  578  (holding 
that  constructive  notice  of  the  infancy 
of  the  maker  is  necessary  to  enable 
the  infant  indorser  to  disaffirm). 

49.  Maples  v.  Wightman,  4  Conn. 
376 ;  Curtin  v.  Patton,  11  S.  &  R.  305  ; 
Nightingale  v.  Withington,  15  Mass. 
272.  An  assignment  by  way  of  equi- 
table mortgage  to  secure  an  infant  who 
becomes  surety  becomes  inoperative 
when  the  condition  of  the  bond  is  per- 
formed. Trader  v.  Jarvis,  23  W,  Va. 
100. 

50.  Grauman,  &c.,  Co.  v.  Krienitz, 
142  Wis.  556,  126  N.  W.  50. 

51.  Stem    V.    Meikleham,    56    Hun, 
475;  Neal  v.  Berry,  86  Me.  193. 

52.  Wyman  v.  Adams,  12  Cush.  210. 


§  1005 


INFANCY 


1160 


mercial  paper.®^  It  merely  prevents  the  indorsement  from  being 
void,  but  does  not  affect  the  right  to  disaffirm.^*  Therefore  his 
indorsement  of  a  note  during  minority  gives  a  good  title  to  the 
indorsee,  subject  to  disaffirmance/^  The  infancy  of  one  joint 
maker  is  not  a  defence  to  the  others/' 

§  1004.  Trusts. 

An  infant  may  be  a  trustee. °^  If  he  takes  title  to  land  as  trus- 
tee he  can  convey  or  mortgage  it  as  snch,  but  cannot  disaffirm  such 
acts  on  the  ground  of  infancy.^®  He  may  be  liable  on  a  construc- 
tive trust.^®  His  declaration  of  trust  is  voidable,  but  is  good  till 
disaffirmed.^"  He  is  not  bound  by  the  accounts  of  trustees  for  him 
unless  he  attends  their  settlement  by  his  guardian,^^  nor  is  he 
bound  by  his  consent  to  the  trustee's  acts/^ 

§  1005.  Adverse  Possession. 

The  statute  of  limitations  will  not  run  against  an  infant  during 
minority  so  as  to  enable  an  adverse  occupier  of  his  land  to  obtain 
a  title  against  him/^  even  though  the  land  is  held  in  trust  for 


53.  Murray  v.  Thompson,  136  Tenn. 
118,  188  S.  W.   578. 

54.  Murray  v.  Thompson,  136  Tenn. 
118,  188  S.  W.  578,  L,  R.  A.  1917B, 
1172. 

The  provision  of  the  Negotiable  In- 
struments Act  that  the  note  of  an  in- 
fant passes  title  was  enacted  merely 
to  dofity  existing  law,  and  to  enable 
the  subsequent  holder  to  enforce  the 
paper  against  all  parties  prior  to  the 
infant.  Murray  v.  Thompson,  136 
Tenn.  118,  188  S.  W.  578,  L.  E.  A. 
1317B,  1172. 

55.  Nightingale  v.  Withington,  15 
Mass.  272,  8  Am.  Dec.  101. 

56.  Gray  v.  Grimm,  157  Ky.  603, 
163  S.  W.  762. 

57.  Sims  V.  Gunter  (Ala.),  78  So. 
62 ;  Des  Moines  Ins.  Co.  v.  Mclntire, 
99  la.  50,  68  N.  W.  565;  Hlawaty  v. 
Zeock,  253  Pa.  311,  98  A.  557;  Clary 
V.  Spain,  119  Va.  58,  89  S.  E.  130. 

58.  Des  Moines  Ins.  Co.  v.  Mclntire, 
99  la.  50,  68  N.  W.  565;  Hlawaty  v. 
Zeock,  253  Pa.  311,  98  A.  557. 

59.  Levin  v.  Ritz,  41  N.  Y.  S.  405, 
17  Misc.  737. 

60.  Eldriedge  v.  Hoefer,  93  P.  246 


(judg.  mod.,  52  Ore.  241,  94  P.  563). 

61.  Chandler  v.  Jones,  172  N.  C. 
569,  90  S.  E.  580. 

62.  Clay  v.  Thomas,  178  Ky.  199, 
198  S.  W.  762;  Gibney  v.  AUen,  156 
Mich.  301,  120  N.  W.  811,  16  Det. 
Leg.  N.  159. 

63.  Schauble  v.  Schultz,  137  F.  389, 
69  C.  C.  A.  581;  Buford  v.  Kerr,  33 
C.  C.  A.  166,  90  F.  513,  86  F.  97; 
Bradford  v.  Wilson,  140  Ala.  633,  37 
So.  295;  Taylor  v.  Leonard,  94  Ark. 
122,  126  S.  W.  387. 

In  Georgia  the  rule  is  established  by 
statute.  Vinton  v.  Powell,  136  6a. 
687,  71  S.  E.  119. 

In  the  same  State  the  reason  of  the 
rule  is  said  to  be  that  during  minority 
there  is  no  one  charged  with  the  duty 
to  bring  ejectment  to  interrupt  the 
running  of  the  statute.  Brown  v. 
Hooks,  133  Ga.  345,  65  S.  E.  780; 
Vinton  v.  Powell,  136  Ga.  687,  71  S. 
E.  1119;  Harris  v.  McCrary,  17  Ida. 
300,  105  P.  558;  Pope  v.  Brassfield, 
110  Ky.  128,  61  S.  W.  5,  22  Ky.  Law 
Rep.  1613;  Landry  v.  Landry,  105  La. 
362,  29  So.  900;  Jenkins  v.  Salmen 
Brick  &  Lumber  Co.,  120  La.  549,  45 


1161 


DISABILITIES. 


§    1005 


him,"  but  it  will  run  in  his  favor,'^  and  he  need  not  make  a  new 
entry  on  attaining  full  age.*'  The  statute  begins  to  run  or  resumes 
running  at  majority,'^  if  not  then  under  other  disability,  such  as 
coverture.**  The  suspension  of  the  statute  as  against  the  infant 
will  not  extend  to  his  cotenants,*'  unless  the  cotenants  are  also 
minors,  in  which  case  the  statute  will  be  suspended  till  the  young- 
est has  reached  majority.''" 


So.  435;  Parker  v.  Ricks,  114  La. 
942,  38  So.  687;  Pennington  v.  Early 
(N.  J.),  43  A.  707;  Bess  Mar  Realty 
Co.  V.  Capell,  164  N.  Y.  S.  803 ;  Cobb 
V.  Klosterman,  58  Ore.  211,  114  P. 
96;  Stahl  v.  Buffalo  R.  &  P.  Ry.  Co. 
(Pa.),  106  A.  65;  Long  v.  Cummings, 
91  S.  C.  521,  75  S.  E.  134;  Winter  v. 
Hainer,  107  Tenn.  337,  64  S.  W.  44; 
Bai-nham  v.  Hanly,  &c.,  Co.  (Tex. 
Civ.),  147  S.  W.  330;  Hays  v.  Hinkle 
(Tex.  Civ.),  l^'S  S.  W.  153;  Babcock 
Lumber  &  Land  Co.  v.  Ferguson  (U. 
S.  D.  C.  N.  C),  243  F.  623;  Futch  v. 
Parslow,  64  Fla.  279,  60  So.  343; 
Davis  V.  Threlkeld,  58  Kan.  763,  51 
P.  226;  Biedenstein  v.  Mount  Pleasant 
Inv.  Co.  (Mo.),  192  S.  W.  937. 

64.  Cameron  v.  Hicks,  141  N.  C.  21, 
53  S.  E.  728. 

65.  Killebrew  v.  Mauldin,  145  Ala. 
654,  39  So.  575;  Ross  v.  Richardson, 
173  Ky.  255,  190  S.  W.  1087;  Dunlap 
V.  Robinson,  87  S.  C.  577,  70  S.  E. 
313;  Wood  V.  Bapp  (S.  D.),  169  N. 
W.  518;  Woodruff  v.  Roysden,  105 
Tenn.  491,  58  S.  W.  1066,  80  Am.  St. 
R.  905;  Coke  v.  Ikard,  39  Tex.  Civ. 
409,  87  S.  W.  869 ;  E.  W.  Wier  Lum- 


ber Co.  V.  Conn.  (Tex.  Civ.),  156  S. 
W.  276 ;  Griffin  v.  Houston  Oil  Co.  of 
Texas  (Tex.  Civ.),  149  S.  W.  567, 

66.  Dunlap  v.  Robinson,  87  S.  C. 
577,  70  S.  E.  313. 

67.  Buford  v.  Kerr,  86  P.  97,  90 
F.  513,  33  C.  C.  A.  166. 

It  has  been  held  error  to  charge  that 
where  infants  were  minors  when  an 
adverse  possession  commenced  against 
them  the  statute  did  not  run  till  they 
conveyed  their  interest.  Carney  v. 
Hennessey,  74  Conn.  107,  49  A.  910, 
53  L.  R.  A.  699,  92  Am.  St.  R.  199; 
Brown  v.  Hooks,  133  Ga.  345,  65  S.  E. 
780;  Hooks  v.  Brown,  Id.;  Coe  v. 
Sloan,  16  Ida.  49,  100  P.  354 ;  Hamm 
V.  McKenny,  73  Ore.  347,  144  P.  435; 
Burnham  v.  Hardy,  &c.,  Co.  (Tex. 
Civ.),  147  S.  W.  330. 

68.  Pope  V.  Brassfield,  110  Ky.  128, 
61  S.  W.  5,  22  Ky.  L.  1613. 

69.  Sibley  v.  Sibley,  88  S.  C.  184, 
70  S.  E.  615. 

70.  Gilbert  v.  Hopkins,  204  F.  196, 
204;  Wenger  v.  Thompson,  128  la. 
750,  105  N.  W.  333 ;  Garrett  v.  Wein- 
berg, 48  S.  C.  28,  26  S.  E.  3. 


§    1006  INFANCY.  1162 


CHAPTEK  II. 

ACTS  VOID  AND  VOIDABLE. 

Section  1006.     General    Principle    of    Binding    Acts    and   Contracts,    as    to 
Infants. 

1007.  Test  as  to  Void  or  Voidable. 

1008.  Priviledge  of  Avoidance  Personal  to  Infant;  Eule  as  to  Third 

Person,  &c. 

1009.  Modem  Tendency  to  Regard  Infant's  Acts  and  Contracts  as 

Voidable  Bather  Than  Void. 

1010.  Same  Subject;  Bonds,  Notes,  &c. 

1011.  Eule  of  Zouch  v.  Parsons. 

1012.  Letters  of  Attorney;   Cognovits,  &c. 

1013.  Illustrations. 

1014.  Trading  and  Partnership  Contracts. 

1015.  Void    and    Voidable    Acts   Contrasted;    When   May   Voidable 

Acts  Be  Affirmed  or  Disaffirmed. 

§  1006.  General  Principle  of  Binding  Acts  and  Contracts,  as  to 
Infants. 

One  leading  principle  runs  througli  all  cases  whicli  relate  to 
infants.  It  is  that  sucii  persons  are  favorites  of  the  law,  which 
extends  its  protection  over  them  so  as  to  preserve  their  true  inter- 
ests against  their  own  improvidence,  if  need  be,  or  the  sinister 
designs  of  others.  This  principle  is  found  constantly  in  chancery 
practice.  We  have  traced  it  already  in  cases  of  custody,  control, 
and  guardianship,  and  particularly  in  such  as  come  before  the 
American  courts.  It  appears  again  in  matters  of  legal  emanci- 
pation and  the  minor's  right  to  his  own  wages.  It  generally  deter- 
mines the  result  of  transactions  between  an  infant  and  his  parent 
or  guardian,  where  fraud  and  undue  influence  are  suspected,  or 
in  resulting  trusts  to  preserve  the  child's  property.  It  is  applied 
when  a  guardian  presents  his  accounts  for  allowance.  We  are 
now  to  see  this  same  principle  at  work  in  the  general  transactions 
of  infants,  controlling  and  regulating  them  in  great  measure,  and 
serving  better  than  any  other  to  explain  the  shifting  and  contradic- 
tory decisions  of  the  English  and  American  courts  on  this  vexed 
subject. 

Infancy  is  a  personal  privilege,  allowed  for  protection  against 
imposition.  The  general  rule  of  the  present  day  is  that  an  infant 
shall  be  bound  by  no  act  which  is  not  beneficial  to  him.''^  And 
71.  Smith,  Contr,  225;  Met  .Contr.  38,  39;  2  Kent,  Com.  234. 


1163  ACTS  VOID  AND  VOIDABLE.  §  1007 

most  acts  and  contracts  of  infants  are  divided  into  the  two  classes 
of  void  and  voidable;  a  third  class  —  namely,  of  binding  acts  and 
contracts  —  still  remaining  for  separate  consideration  in  our  next 
chapter. 

§  1007.  Test  as  to  Void  or  Voidable. 

There  is  much  confusion  in  the  older  books  on  the  subject  of 
void  and  voidable  acts  and  contracts.'^  The  keenness  with  which 
such  a  distinction  must  always  cut  is  an  objection  to  its  practical 
use  at  the  present  day;  yet  writers  have  sought  to  adapt  the 
weapon  to  the  infant's  wants.  They  have  searched  for  some  in- 
fallible test  between  void  and  voidable.  Thus  Mr.  Bingham,  after 
a  review  of  the  English  cases,  years  ago,  concluded  that  the  only 
safe  criterion  was,  that  "  acts  which  are  capable  of  being  legally 
ratified  are  voidable  only;  and  acts  which  are  incapable  of  being 
legally  ratified  are  absolutely  void."  "  But  this  was  only  to  shift 
the  uncertainty,  and  replace  one  difiiculty  by  another.  What  acts 
can  be  legally  ratified  and  what  cannot?  As  Kent  property  ob- 
serves, such  a  criterion  does  not  appear  to  free  the  question  from 
its  embarrassment  or  afford  a  clear  and  definite  test.'*  Again,  a 
Massachusetts  judge  of  repute  declared,  many  years  ago,  that  the 
books  agree  in  one  result ;  that  whenever  the  act  done  rtiay  he  for 
the  infant's  benefit  it  shall  not  be  considered  void,  but  he  shall 
have  his  election,  when  he  comes  of  age,  to  affirm  or  avoid  it;  and 
this,  he  adds,  is  the  only  clear  and  definite  proposition  which  can 
be  extracted  from  the  authorities.''^  Even  this  rule,  though  much 
better,  is  found  difficult  of  application,  and  has  been  pronounced 
unsatisfactory  in  some  of  the  later  cases.'*  Besides,  it  is  lacking 
in  comprehensiveness  and  scope.  A  more  precise  and  intelligible 
test  than  either  was  that  applied  in  one  of  the  earlier  English  cases 
by  Chief  Justice  Eyre,  and  cited  since  with  approval  by  Judge 
Story  and  Chancellor  Kent : ''  namely,  that  where  the  court  can 
pronounce  that  the  contract  is  for  the  benefit  of  the  infant,  as,  for 
instance,  for  necessaries,  then  it  shall  bind  him ;    where  it  can 

7J.  See  Shep.  Touch.  232 ;  Bac,  Abr.  Dutch,    14    Mass.   457.      See    2    Kent, 

Infancy    and    Ape     (I.)>    and    cases  Com.  234;  !^^et.  Contr.  39. 

cited  in   Zouch   v.    Parsons,    3    Burr.  76.   Met.   Contr.   40;    1   Am.   Lead. 

1794.  Cas.,  4th  ed.,  242. 

73.  Bing.  Inf.  234.  77.  See  United  States  v.  Bainbridpe, 

74.  2  Kent,  Com.  234.  1  Mason,  82;  2  Kent.  Com.  2:^6:  Mo- 

75.  Per  Parker,  C.  J.,  Whitney  v.      Gan  v.  Marshall,  7  Humph.  121. 


I    1007  INFANCY.  1164 

pronounce  it  to  be  to  his  prejudice,  it  is  void;    and  that  where  it 
is  of  an  uncertain  nature,  as  to  benefit  or  prejudice,  it  is  voidable 
only,  and  it  is  in  the  election  of  the  infant  to  affirm  it  or  not." 
The  doctrine  seems  hardly  capable  of  a  closer  analysis ;   yet  even 
this  statement  of  the  legal  test  is  by  no  means  clear  and  conclusive. 
The  equitable  doctrine  differs  not  from  the  legal  as  to  the  con- 
tracts of  infants.     In  general,  when  a  contract  is  not  manifestly 
for  the  benefit  of  an  infant,  he  may  avoid  it,  as  well  in  equity  as 
at  law ;   and  when  it  can  never  be  for  his  benefit,  it  is  utterly  void. 
Infants  are  favored  in  all  things  which  are  for  their  benefit,  and 
are  saved  from  being  prejudiced  by  anything  to  their  disadvantage. 
For  infants  are  by  law  generally  treated  as  having  no  capacity  to 
bind  themselves,  from  the  want  of  snfiicient  reason  and  discern- 
ment of  understanding.     In  regard  to  their  acts,  some  are  void- 
able and  some  are  void ;    so  in  regard  to  their  contracts,  some  are 
voidable  and  some  are  void.^®     The  liberality  and  freedom  exer- 
cised in  common-law  courts  at  the  present  day,  in  shaping  general 
doctrines  with  reference  to  infants  and  their  contracts,  must  be 
ascribed  in  a  large  degree  to  the  influence  of  the  equity  tribunals 
and  their  decisions.     "  In  short,"  as  Judge  Story  observes,  "  the 
disabilities  of  an  infant  are  intended  by  law  for  his  own  protec- 
tion, and  not  for  the  protection  of  the  rights  of  third  persons ;   and 
his  acts  may  therefore,   in  many  cases,  be  binding  upon  him, 
although  the  persons,  under  whose  guardianship,  natural  or  posi- 
tive, he  then  is,  do  not  assent  to  them."  *"     Where  the  contract  is 
voidable,  not  void,  the  infant  has  his  election  to  avoid  it  either 
during  his  minority  or  within  a  reasonable  time  after  he  attains 
majority;    otherwise,  it  is  taken  to  have  been  confirmed,  and  so 
binds  him  forever,  since  he  became  capable,  when  an  adult,  of 
confirming  it. 

78.  Keane  v.  Boycott,  2  H.  Bl.  511.  word  "void"  may  mean  incapable  of 

And  see  Green  v.  Wilding,  59  la.  679.  Being  enforced;    and  the  plea  of  in- 

The  rule  is  that  contracts  of  an  in-  fancy  is  a  bar  to  any  demand  on  one 

fant,    caused    by    his    necessities    or  contract  as  -well  as  the  other.     But 

manifestly  for  his  advantage,  are  valid  ' '  void ' '  may  mean,  too,  incapable  of 

and   binding,   while   those  manifestly  being  ratified. 

for  his  hurt  are  void.     Contracts  fall-  79.  1  Story,  Eq.  Juris.,  §§  240,  241 ; 

ing  between  these  classes  are  voidable.  1  Fonbl.  Eq.,  b.  1,  ch.  2,  §  4.     And 

Philpot    V.    Bingham,    55    Ala.    A25.  see  Turpin  v.  Turpin,  16  Ohio  St.  270. 

Parke,  B.,  in  Williams  v.  Moor,  11  M.  80.  United  States  v.  Bainbridge,  1 

&  W.  256,  264,  alludes  to  the  uncer-  Mason,  83. 
tain  sense  of  the  word  "void."     The 


1165  ACTS  VOID  AND  VOIDABLE.  §  1008 

§  1008.  Privilege  of  Avoidance  Personal  to  Infant;    Rule  as  to 
Third  Person,  &c. 

The  privilege  of  avoiding  his  acts  or  contracts,  where  these  are 
voidable,  is  a  privilege  personal  to  the  infant,  which  no  one  can 
exercise  for  him,  except  his  heirs  and  legal  representatives.*^ 
Hence  the  other  contracting  partj  remains  bound,  though  the 
infant  be  not;  for  being  an  indulgence  which  the  law  allows 
infants,  to  secure  them  from  the  fraud  and  imposition  of  others,  it 
can  only  be  intended  for  their  benefit,  and  is  not  to  be  extended  to 
persons  of  the  years  of  discretion,  who  are  presumed  1x)  act  with 
sufficient  caution  and  security.*^  And  were  it  otherwise,  this  priv- 
ilege, instead  of  being  an  advantage  to  the  infant,  would  in  many 
cases  turn  out  greatly  to  his  detriment.  Being  thus  personal,  the 
defence  of  infancy  does  not  go  to  any  stranger. 

Thus,  where  a  person  of  full  age  promises  to  marry  a  minor  and 
afterwards  breaks  off  the  match,  he  may  be  sued  by  the  minor  upon 
this  contract ;  though  he  would  have  had  no  corresponding  remedy 
against  the  minor  for  breach  of  promise.®^  So  a  third  person,  not 
a  party  to  the  contract  or  transaction,  cannot  take  advantage  of 
the  infancy  of  the  parties.  Thus,  in  an  action  for  seducing  a 
servant  from  his  master's  service,  the  defendant  cannot  justify  on 
the  ground  that  the  serv^ant  was  an  infant,  and  therefore  not  by 
law  bound  to  perform  his  contract  for  service  made  with  the 
master.®*     On  the  same  principle   (connected  with   others),   the 

81.  United  States  v.  Bainbridge,  1  Abr.  Inf.  I.  4 ;  1  Pars.  Contr.  275 
Mason,  83 ;  "Keane  V.  Boycott,  2  H.  Bl.  Johnson  v.  Kockwell,  12  Ind.  76 
511;  Met.  Contr.  38;  Smith,  Contr.  Hartness  v.  Thompson,  5  Johns.  160 
231 ;  Harvey  v.  Briggs,  68  Miss.  60.  Brown  v.  Caldwell,  10  S.  &  E.  114, 

82.  Riley  v.  Dillon  (Ala.),  41  S.  A  contract  of  bailment  made  by  the 
768;  Smoot  v.  Eyan  (Ala.),  65  So.  bailee  with  the  agent  of  an  undis- 
828 ;  Chapman  v.  Duffy,  20  Colo.  App.  closed  principal,  who  proves  a  minor, 
471,  79  P.  746;  Wright  v.  Buchanan  cannot  be  rescinded  by  the  bailee  on 
(Dl.),  123  N.  E.  53;  Lafollett  v.  the  ground  of  the  bailor '3  minority, 
Kyle,  51  Ind.  446;  Johnson  v.  Eock-  without  delivering  the  goods  to  him. 
well,  12  Ind.  76 ;  Latrobe  v.  Dietrich,  Stiff  v.  Keith,  143  Miss.  224. 

114  Md.  8,  78  A.  983;  Widrig  v.  Tag-  83.  Holt  v.  Ward,  2  Stra.  937;  Har- 

gart,  51  Mich.  103,  16  N.  W.  251.  vey  v.  Ashley,  3   Atk.   610;    Hunt  v. 

An  infant's  right  to  disaffirm  a  con-  Peake,  5  Cow.  475;  Willard  v.  Stone, 

veyanee  of  her  reality  is  a  legal  privi-  7    Cow.    22 ;    Warwick    v.    Cooper,    5 

lege,  of  which  all  persons  must  take  Sneed,    659;    Cannon    v.    Alsbury,    1 

notice.     Watson  v.  Peebles,  102  Miss.  Marsh.  78 ;  Rush  v.  Wick,  31  Ohio  St. 

725,  59  So.  881;  Griffith  v.  Schwender-  521. 

man,  27  Mo.  412 ;  Near  v.  Williamson,  84.  Keane  v.  Boycott,  8  H.  Bl.  511 ; 

166  Mo.  358,  66  S.  W.  160;  Webb  v.  O'Eourke  v,  John  Hancoc"k  Mut.  Life 

Harris    (Okla.),    121    P.    1082;    Bac.  Ins.  Co.,  23  E.  I.  457,  50  A.  834,  57 


§  1008 


INFANCY. 


1166 


acceptor  of  a  bill  of  exchange,  or  the  maker  of  a  promissory  note, 
cannot  resist  payment  in  a  suit  by  an  indorsee,  though  the  indorser 
be  an  infant.*^  Isor  can  the  purchaser  at  a  sale  under  an  execu- 
tion set  up  infancy  to  defeat  prior  transactions  of  the  judgment 
debtor. ®®  ISTor  can  the  vendor  avoid  the  infant's  purchase  on  such 
a  ground.*^  Nor  can  infancy  of  the  mortgagor  be  set  up  by  one 
with  a  junior  lien  to  advance  his  own  security.®^  Nor  is  a 
stranger  permitted  to  impeach  the  conveyance  of  an  infant.*"  Kor 
can  a  corporation  in  which  an  infant  owns  stock  reject  his  transfer 
of  it.^°  I^or  can  an  insurance  company  which  insures  the  prop- 
erty of  an  infant  repudiate  its  liability  on  the  ground  that  the 
infant  is  not  bound."^  Furthermore,  the  copartners  of  an  infant 
cannot  use  his  right  of  avoidance  for  their  own  benefit.'^  In  fine, 
the  defence  of  infancy  is  for  the  benefit  and  protection  of  the 
infant ;  and  other  persons  may  not  set  it  up  for  their  own  benefit, 
at  all  events  if  the  contract  be  not  void.^^  Therefore  his  creditors 
cannot  compel  him  to  disaffirm,^*  or  exercise  the  power  for  him  to 
subject  his  property  to  their  debts.^^  So,  too,  it  is  the  settled 
doctrine  that  infancy  does  not  protect  the  indorsers  or  sureties  of 
an  infant;    or  those  who  have  jointly  entered  into  his  voidable 


L.  E.  A.  496,  91  Am.  St.  R.  643  (hold- 
ing that  the  beneficiary  may  reply 
the  insured's  infancy  to  the  insurer's 
defence  of  false  warranties). 

85.  Met.  Contr.  39;  Taylor  v. 
Croker,  4  Esp.  187 ;  Nightingale  v. 
Withington,  15  Mass.  273;  Hardy  v. 
Waters,  38  Me.  450;  Frazier  v.  Mas- 
sey,  14  Ind.  382. 

86.  Alsworth  v.  Cordtz,  31  Miss.  32. 

87.  Oliver  v.  Houdlet,  13  Mass.  237. 
A  sale  to  an  infant  is  a  valid  transfer 
of  the  property  out  of  the  vendor,  even 
though  the  infant  be  not  bound  after- 
wards to  pay  the  stipulated  price. 
Crymes  v.  Day,  1  Bail.  320.  Where  a 
minor  agrees,  as  the  considera;tion  of 
the  conveyance  of  land,  to  pay  certain 
debts  of  the  grantor,  and  afterwards 
does  in  fact  pay  them,  it  is  held  that 
the  agreement  constitutes  a  valuable 
consideration  for  such  conveyance,  and 
will  support  it  against  the  grantor's 


creditors.      Wash"band    v.    Washband, 
27  Conn.  424. 

88.  Baldwin  v.  Rosier,  ^8  Fed.  810. 

89.  Dominick  v.  Michael,  4  Sandf. 
374. 

90.  Smith  v.  Railroad,  91  Tenn.  221. 

91.  Monaghan  v.  Fire  Ins  Co.,  53 
Mich.  238. 

92.  Brown  v,  Hartford  Ins.  Co.,  117 
Mass.  479;  Winchester  v.  Thayer,  129' 
Mass.  129. 

93.  Beardsley  v.  Hotchkiss,  96  N,  Y. 
201,  a  case  of  marriage  settlement. 

94.  Watson  v.  Ruderman,  79  Conn. 
687,  66  A.  515;  Nutt  v.  Summers,  78 
Va.  164. 

95.  McCarty  v.  Murray,  3  Gray 
(Mass.),  578;  Kendall  v.  Lawrence, 
22  Pick.  (Mass.)  540;  Nutt  v.  Sum- 
mers, 78  Va.  164;  Gayle  v.  Hayes' 
Adm'r,  79  Va.  542  (holding  that  a 
creditor  occupies  not  higher  ground 
as  to  the  infant  or  his  property  than 
a  guardian). 


1167 


ACTS    VOID    AND    VOIDABLE. 


§    1009 


undertakings.     They,  if  of  full  age,  niav  be  held  liable,  though 
the  infant  himself  should  escape  responsibility.®*' 

But  third  persons  should  be  allowed  to  protect  themselves 
against  incurring  undue  liabilities  on  an  infant's  behalf.  Thus, 
an  officer  selling  property  at  public  auction  is  not  bound  to  accept 
the  bid  of  an  infant.®"  And  although  infancy  is  a  personal  priv- 
ilege, yet  the  administrator  of  the  estate  of  an  infant  may  avail 
himself  of  the  infancy  of  his  intestate,  to  avoid  or  uphold  a  trans- 
action to  which  the  latter  was  a  party  during  his  life,  and  which 
remained  voidable  at  his  death.®*  And  as  a  rule  the  right  of  avoid- 
ance, with  due  limitations  of  time  and  circumstances,  passes  to 
privies  in  blood  entitled  to  the  estate;  ®®  in  short,  to  his  heirs  or 
legal  representative. 

§  1009.  Modern  Tendency  to  Regard  Infant's  Acts  and   Con- 
tracts as  Voidable  Rather  Than  Void. 

The  strong  tendency  of  the  modern  cases  is  to  regard  all  acts  and 
contracts  and  all  transactions  of  infants  as  voidable  only;  and 
thus  almost  to  obliterate  the  ancient  distinction  of  void  and  void- 
able contracts  altogether.^     And  the  dicia  are  of  frequent  occur- 


96.  Motteaux  v.  St.  Aubin,  2  Black, 
1133;  Jaffray  v.  Fretain,  5  Esp.  47; 
Hartness  v.  Thompson,  5  Johns.  160; 
Parker  v.  Baker,  1  Clarke  Ch.  (N.  T.) 
136:   Taylor  v.  Dansby,  42  Mich.  82. 

97.  Kinney  v.  Showdy,  1  Hill,  544. 

98.  Counts  V.  Bates,  Harp.  464; 
Parsons  v.  Hill,  8  Mo.  135;  Turpin  v. 
Turpin,  16  Ohio  St.  270. 

99.  Eiley  v.  Dillon  (Ala.),  41  So. 
768;  Hill  V.  Weil  (Ala.),  80  So.  526; 
Riley  v.  Dillon  &  Pennell,  148  Ala. 
283,  41  So.  768;  Bartlett  v,  Cowles,  81 
Mass.  445;  Bartlett  v.  Drake,  100 
Mass.  176,  97  Am.  Dec.  92,  1  Am.  R. 
101 ;  Walsh  v.  Young,  110  Mass.  399 ; 
Lurville  v.  Greer,  165  Mo.  380,  65  S. 
W.  579;  O'Rourke  v.  Hall,  56  N.  Y. 
S.  471,  38  App.  Div.  534;  Blake  v. 
Hollandsworth  (W.  Va.),  76  S.  E. 
814,  43  L.  R.  A.  N.  S.  714;  Blake  v. 
Hollandsworth,  71  W.  Va.  387,  76  S. 
E.   814. 

The  heirs  may  disaffirm  at  any 
time  before  they  are  barred  by  the 
fdatute,  or,  if  the  ancestor  is  a  mar- 
ried womaji,  till  after  the  expiration  of 


the  statutory  period  after  the  termin- 
ation of  an  estate  of  curtesy,  and 
mere  silence  or  inertness  is  immaterial 
unless  there  are  facts  amounting  to 
ratification.  Blake  v.  Hollandsworth 
(W.  Va.),  76  S.  E.  814,  43  L.  R.  A. 
N.  S.  714;  Dominick  v.  Michael,  4 
Sandf .  374 ;  Beeler  v.  BuUett,  3  A.  K. 
Marsh.  281;  Nelson  v.  Eaton,  1  Redf. 
(N.  Y.  Sur.)  498;  Jefford  v.  Ring- 
gold, 6  Ala.  544;  Hlinois  Land  Co.  v. 
Bonner,  75  111.  315;  Veal  v.  Fortson, 
57  Tex.  482;  Sharp  v.  Robertson,  76 
Ala.  343;  Harvey  v,  Briggs,  68  Miss. 
60.  And  see  Nolte  v.  Libbert,  34  Ind. 
163.  The  principle  of  the  text  ap- 
plies to  marriage  articles.  See  supra, 
§  399.  Devisees  under  a  will,  as 
strangers  privy  in  estate  only,  cannot 
avoid  the  infant's  contract.  Bozoman 
V.  Browning,  31  Ark.  364.  But  see 
Shreeves  v.  Caldwell,  135  Mich.  323,  97 
N.  W.  764,  10  Det.  Leg.  N.  782,  106 
Am.  St.  R.  396. 

1.  In  re  Huntenberg,  153  F.  768; 
Carmen  v.  Fox,  &c.,  Corp.,  258  F.  703; 
Sims  V.  Gunter   (Ala.),  78  S.  E.  02; 


§.  1009 


INFANCY. 


1168 


rence  at  the  present  day  that  acts  and  contracts  of  an  infant  are  not 
absolutely  void,  but  voidable  only,  unless  manifestly  to  the  infant's 
prejudice ;  and  that  beneficial  contracts  are  only  voidable  at  most.^ 
This  makes  all  the  stronger  the  position  already  taken,  that  an 
adult  party  cannot  disaffirm  such  a  transaction. 

Yet  there  are  cases  where  a  contract  may  still  be  pronounced 
absolutely  void.  In  Eegina  v.  Lord,  an  English  case,  the  question 
arose  on  the  conviction  of  a  sen^ant  for  unlawfully  absenting  him- 
self from  his  master's  employment.  Denman,  C.  J.,  in  delivering 
the  judgment  of  the  court,  observed:  "Among  many  objections, 
one  appears  to  us  clearly  fatal.  He  was  an  infant  at  the  time  of 
entering  into  the  agreement  which  authorizes  the  master  to  stop 
his  wages  when  the  steam-engine  is  stopped  working  for  any  cause. 
An  agreement  to  serve  for  wages  may  be  for  the  infant's  benefit; 
but  an  agreement  which  compels  him  to  serve  at  all  times  during 
the  term,  but  leaves  the  master  free  to  stop  his  work  and  his  wages 
whenever  he  chooses  to  do  so,  cannot  be  considered  as  beneficial  to 
the  servant.  It  is  inequitable  and  wholly  void."  *  And  conform- 
ably to  such  a  principle,  a  contract  which  sets  a  minor  child  work- 


Walker  V.  Goodlett,  102  Ark.  383,  144 
S.  W.  189;  Grievance  Committee  v. 
Ennis,  84  Conn,  594,  80  A.  767;  Gan- 
non V.  Manning,  42  App.  D.  C.  206; 
Putnal  V.  Walker,  61  Fla.  720,  55  So. 
844;  Strain  v.  Hinds,  277  111.  598, 
115  N.  E.  563;  Wuller  v.  Chuse  Gro- 
cery Co.,  241  111.  398,  89  N.  E.  79^6; 
Appell  V.  Appell,  235  111.  27,  85  N. 
E.  205;  Pope  v.  Lyttle,  157  Ky.  659, 
163  S.  W.  1121;  Henderson  v.  Clark, 
163  Ky.  192,  173  S.  W.  367;  Halcomb 
V.  Ison,  140  Ky.  189,  130  S.  W.  1070; 
McCarty  v.  Murray,  3  Gray  (Mass.), 
578;  Holmes  v.  Kice,  45  Mich.  142,  7 
N,  W.  772;  Missouri,  &c.,  Ass'n  v. 
Eveler,  237  Mo.  679,  141  S.  W.  877; 
Shaffer  v.  Detie,  191  Mo.  377,  9^0  S. 
W.  131;  Eobinson  v.  Allison,  192  Mo. 
366,  91  S.  W.  115;  Parrish  v.  Tread- 
way,  267  Mo.  91,  183  S.  W.  580;  Bag- 
get  V.  Jackson,  160  N.  C.  26,  76  S.  E. 
86;  Hoan  v.  Utter,  175  N.  C.  332,  95  S. 
E.  565;  Clapp  v.  Byrnes,  155  N.  Y. 
535,  50  N.  E.  277;  New  York,  &c., 
Co.  V.  Fisher,  23  App.  Div.  363,  48 
N.  Y    S.  152;   McBroom  v.  Whitfield, 


108  Tenn.  422,  67  S.  W.  794;  Hobbs 
V.  Hinton,  &c.,  Co.,  74  W.  Va.  443, 
82  S.  E.  267;  Carrigan  v.  Davis  (W. 
Va.),  100  S.  E.  91;  Grauraan,  Marx  & 
Cline  Co.  v.  Krienitz,  142  Wis.  556, 
126  N.  W.  50;  Jones  v.  Valentine's 
School  of  Telegraphy,  122  Wis.  318, 
9^  N.  W.  1043.  See  Met.  Contr.  40; 
Shaw,  C.  J.,  in  Eeed  v.  Batchelder,  1 
Met.  559. 

2.  See  Ridgely  v.  Crandall,  4  Md. 
435;  N.  H.  M.  Fire  Ins.  Co.  v.  Noyes, 
32  N.  H.  345;  Jenkins  v.  Jenkins,  12 
la.  195;  Scott  v.  Buchanan,  11 
Humph.  468;  Babcock  v.  Doe,  8  Ind. 
110;  Irvine  v.  Irvine,  9  Wall.  617; 
Eobinson  v.  Weeks,  56  Me.   102, 

3.  Clark  v.  Stanhope,  109  Ky.  521, 
59  S.  W.  856;  Ward  v.  Sharpe,  139 
Tenn.  347,  200  S.  W.  9-74;  Eegina  v. 
Lord,  12  Q.  B.  757.  Cf.  Leslie  v. 
Fitzpatrick,  3  Q,  B,  D,  229.  In  Corn 
v,  Matthews  (1893),  1  Q,  B,  310,  an 
apprenticeship  deed  somewhat  of  this 
character  was  refused  enforcement 
against  the  minor.  And  see  De 
Francesco  v.  Bomum,  45  Ch.  D.  430. 


1169 


ACTS    VOID    AND    VOIDABLE. 


§     1010 


ing  to  pay  off  a  creditor  of  someone  else  should  be  pronounced 
prejudicial  to  his  interest  and  void,  when  the  wages  that  ought  to 
be  his  own  are  thus  appropriated/  In  general,  any  transfer  of  an 
infant's  real  or  personal  property  which  cannot  possibly  be  for  his 
benefit  and  is  without  consideration  is  void." 

§  1010.  Same  Subject;  Bonds,  Notes,  &c. 

So  an  infant's  bond  with  penalty  and  for  the  payment  of  interest 
is  held  to  be  void  on  the  gTOund  that  it  cannot  possibly  be  for  his 
benefit.*  And  a  bond  executed  by  a  minor  as  surety  is  void."^  So 
is  declared  to  be  a  mortgage  of  a  minor's  property  to  secure  her 
husband's  debt.®  And  so  is  said  to  be  a  release  by  a  minor  to  his 
guardian,  which  affords  the  latter  more  protection  than  a  receipt.* 
But  in  Vermont  it  was  decided  that  there  is  no  general  rule  ex- 
empting an  infant  from  paying  interest  as  necessarily  injurious 
to  him.^°  An  infant's  release  of  his  legacy  or  distributive  share  is 
held  to  be  void  in  Tennessee."  In  such  cases  an  infant  is  called 
upon  to  become  the  party  to  some  undertaking  substantially  for 
the  benefit  of  another,  and  not  for  his  own  profit.  His  indorse- 
ment or  guaranty  exposes  him  to  a  dangerous  liability,  and  such 
act5  are  held  void.^^     The  construction  of  a  local  statute  will  in 


But  see  (1892)  Baring  v.  Stanton,  3 
Ch.  502 ;  Danvilla  v.  Amoskeag  Co.,  62 
N.  H.  133. 

4,  Such  contracts  have  been  consid- 
ered where  the  minor  son  of  a  deceased 
father  undertook  to  pay  his  father's 
debt  by  entering  into  the  creditor's 
service;  an  undertaking  not  wholly 
without  honor,  from  a  family  point  of 
view,  and  yet  apt  to  be  oppressive  on 
the  other  side,  and  properly  disap- 
proved judicially  even  under  mitigat- 
ing circumstances.  In  Dube  v.  Beau- 
dry,  150  Mass.  448,  such  a  contract  was 
fully  executed  during  minority,  but 
the  court  allowed  the  minor  to  re- 
pudiate on  reaching  full  age  and  re- 
cover. In  ancient  times,  as  the  court 
remarked,  this  contract  would  have 
been,  pronounced  absolutely  void. 

5.  Bloomingdale  v.  Chittenden,  74 
Mich.  698;  Robinson  v.  Coulter,  90 
Tenn.  705;  Person  v.  Chase,  37  Vt. 
647;  Oxley  v.  Tryon,  25  la.  95. 

74 


6.  Baylis  v.  Dineley,  3  M.  &  S.  477 ; 
Fisher  v.  Mowbray,  8  East,  330. 

7.  Allen  v.  Minor,  2  Call,  70;  Met. 
Contr.  40;  Camahan  v.  Allderdice,  4 
Barring.  99.  It  should  naturally  fol- 
low that  an  infant 's  undertaking  to 
become  bail  for  another  is  void.  Yet 
it  is  lately  held  that  his  indorsement 
upon  a  writ  to  become  bail  for  the 
defendant  is  voidable  only.  Reed  v. 
Lane,  61  Vt.  481. 

8.  Chandler  v.  McKinney,  6  Mich. 
217;  Cronise  v.  Clark,  4  Md.  Ch.  403. 
See  Colcock  v,  Ferguson,  3  Desaus. 
482. 

9.  Fridge  v.  State,  3  Gill  &  Johns. 
115. 

10.  Bradley  v.  Pratt,  23  Vt.  378. 

11.  Langford  v.  Frey,  8  Humph. 
443. 

12.  Helland  v.  Colton  Stat*  Bank, 
20  S.  D.  325,  106  N.  W.  60;  Margrett, 
Ex  parte  (1891),  1  Q.  B.  413;  and 
this  however  valuable  be  the  consider- 
ation.    7b. 


1010 


INFANCY. 


1170 


some  cases  determine  that  an  instrument  is  void,  not  voidable." 
An  infant's  stock  speculations  on  margin  have  been  declared  in  the 
nature  of  a  wager  contract  and  void."  And  an  assignment  by 
the  infant  in  trust  for  the  benefit  of  creditors  is  held  in  New  York 
void  and  not  voidable.^'' 

Now  it  is  admitted  that  the  decisions  are  frequently  contradic- 
tory and  uncertain ;  yet  these  cases  of  void  contracts  almost  invari- 
ably proceed  upon  the  doctrine  that  the  infant's  act  was  positively 
prejudicial  to  his  interest;  and  certainly,  if  any  contract  can  be 
so  pronounced  on  mere  inspection,  it  is  a  contract  whereby  an 
infant  becomes  bound  upon  another's  debt  or  disability.  The 
technical  form  of  the  transaction  is  of  less  importance.  There  are 
many  cases  where  an  infant's  bonds,  mortgages,  and  promissory 
notes  have  been  held  not  void,  but  under  the  circumstances  of  the 
case  voidable  only ;  as  where  given  in  ordinary  transactions  which 
may  possibly  prove  beneficial  with  relation  to  the  minor's  prop- 
erty.^® And  reference  to  the  latter  cases  will  show  that  the  modem 
rule  is  broadly  announced  in  many  States,  that  an  infant's  promis- 
sory note,  his  statutory  recognizance,  and  his  mortgage,  whether 
of  real  estate  or  chattels,  are  all  voidable,  rather  than  void  in 
general."  Even  an  infant's  contract  as  surety  or  indorser  has 
lately    been    pronounced    voidable    and    not    void    in    numerous 


13.  Hoyt  V.  Swar,  53  111.  134. 

14.  Euchizky  v.  De  Haven,  97  Pa. 
St.  202. 

15.  Yates  v.  Lyon,  61  Barb.  205. 

16.  State  V.  Plaisted,  43  N.  H.  413; 
Eichardson  v.  Boright,  9  Vt.  368; 
Palmer  v.  Miller,  25  Barb.  399;  Eeed 
V.  Batchelder,  1  Met.  SoQ';  Patchkin  v. 
Cromack,  13  Vt.  330;  Conroe  v.  Bird- 
sail,  1  Johns.  Cas.  127;  Everson  v. 
Carpenter,  17  "Wend.  419;  Monu- 
mental, etc.,  Association  v.  Herman, 
33  Md.  128;  Dubose  v.  "Whedon,  4 
McCord,  221;  Little  v.  Duncan,  9 
Eich.  55.  See  Adams  v.  Eoss,  1 
Vroom  (N.  J.),  505;  Kempson  v. 
Ashall,  L.  E.  10  Ch.  15;  Garin  v. 
Burton,  8  Ind.  69.  But  see  McMinn 
V.  Eichmond,  6  Yerg.  9;  Beeler  v. 
Young,  1  Bibb,  519. 

17.  See  e.  g.  Goodsell  v.  Myers,  3 
"Wend.  479 ;  Eeed  v.  Batchelder,  1  Met. 
559;    Patchkin    v.    Cromack,    13    Vt. 


330;  State  v.  Plaisted,  43  N.  H.  413, 
and  cases  cited;  Palmer  v.  Miller,  25 
Barb,  399;  Mustard  v.  "Wohlford,  15 
Gratt.  329.  "Whether  an  infant's  own 
statutory  recognizance  in  a  criminal 
proceeding  may  not  be  more  than 
voidable,  i.  e.,  binding,  see  next  chap- 
ter; State  V.  "Weatherwax,  12  Kan. 
463;  Losey  v.  Bond,  94  Ind.  67; 
Uecker  v.  Koehn,  21  Neb.  559; 
Catlin  V.  Haddox,  49  Conn,  492; 
Hoyt  V.  "Wilkinson,  57  Vt.  404. 
No  recovery  can  be  had  on  a  note 
given  by  an  infant  for  what  he  does 
not  need, — e.  g.,  a  buggy  or  horse, — 
even  by  a  iona  fide  holder;  the  usual 
protection  of  a  negotiable  instrument 
taken  when  not  overdue  will  not  avail. 
Howard  v.  Simpkins,  70  Ga.  322. 
See,  as  to  assignee  of  an  infant's 
mortgage,  Bridges  &  "White  v.  Bid- 
well,  20  Neb.  185. 


1171  ACTS    VOID    AND    VOIDABLE.  §    1011 

instances/*  Tliis  we  conceive  to  be  tlie  reasonable  view  of  the 
subject;  the  rule  of  voidable,  rather  than  void,  applying  wherever 
the  transaction  was  not  from  its  very  nature  such  as  could  be  pro- 
nounced prejudicial  to  the  infant's  interest,  but  might  under  some 
conditions  be  in  a  sense  for  his  personal  benefit^* 

§  1011.  Rule  of  Zouch  v.  Parsons. 

It  is  true,  however,  that  the  decisions  are  not  invariably  placed 
by  the  court  upon  such  a  ground.  The  rule  of  Perkins,  which  was 
adopted  by  the  Court  of  King's  Bench  in  the  celebrated  case  of 
Zouch  V.  Parsons,  is  that  all  deeds  of  an  infant  which  do  not  take 
effect  by  delivery  of  his  hand  are  merely  void,  and  all  such  as  do 
take  effect  by  delivery  of  his  hand  are  voidable.  For  in  the  one 
case  an  interest  is  conveyed,  in  another  a  mere  power.^°  This  case 
has  come  down  as  authority  for  all  future  times ;  and  the  rule  has 
frequently  been  cited  with  approval,  in  support  of  mortgages, 
bonds,  and  deeds  being  as  voidable  only,  in  contrast  with  deeds 
delegating  a  mere  power  to  sell  or  encumber,  which  are  void. 
But  we  question  the  propriety  of  its  modern  application  as  a  prin- 
ciple, however  useful  in  describing  an  incident.  So  manual  deliv- 
ery, it  was  said,  must  accompany  the  sale  of  an  infant's  personal 
property  in  order  to  render  it  valid.^^  The  real  reason  of  such  a 
rule  might  have  been  that  solemn  instruments  and  transactions  of 
grave  importance  ought  not  to  be  lightly  entered  upon,  or  be  made 

18.  Owen  v.  Long,  112  Mass.  403;  a  lien  for  storage  and  repairs  does 
Hardy  V.  Waters,  38  Me.  450;  Harner  not  bind  an  infant's  automobile, 
V.  Dipple,  31  Ohio  St.  72;  Fetrow  v.  where  the  obligation  is  predicated  on 
Wiseman,  40  Ind.  148;  Williams  v.  the  infant's  obligation  to  pay.  La. 
Harrison,  11  S.  C.  412.  And  see  Rose  v.  Nichols  (N.  J.),  103  A.  390; 
Reed  v.  Lane,  €1  Vt.  481.  Aborn  v.  Janis,  113  N.  Y.  S.  309;  62 

19.  Where  the  grantees  in  a  deed  of  Misc.  95  (afF.  106  N.  Y.  S.  1115). 
gift  are  minors,  the  law  will  presume  Nor  is  he  bound  by  warranties  in  an 
an  acceptance  on  account  of  the  bene-  application  for  a  policy  of  insurance, 
ficial  character  of  the  conveyance.  O'Rourke  v.  John  Hancock,  etc.,  Ins. 
Petre  v.  Petre  (Ind.  App.),  121  N.  Co.,  23  R.  I.  457,  50  A.  834,  57  L.  R. 
E.  285.     Thus,  infants  are  not  bound  A.  496,  91  Am.  St.  R.  643. 

by    conditions    in    a    deed    to    them.  20.   Perkins,   §    12;    Zouch  v.   Par- 

Strothers   v.   Woodcox,    142    la.    648,  sons,  3  Burr,   1804;   Bool  v.  Mix,  17 

121  N.  W.  51.    Stock  transactions  re-  Wend.   131;   2   Kent,  Com.   236,   237, 

suiting  in  a  loss  are  within  the  rule.  «.;     State    v.    Plaisted,     43     N.    H. 

Benson   v.   Tucker,   212   Mass.   60,   98  413;  Conroe  v.  Birdsall,  1  Johns.  Cas. 

N.  E.  589,  41  L.  R.  A.  (N.  S.)   1219;  127;   Seavey  v.  Hunter,  81  Tex.  644; 

Young   V.    Sterling,   etc..   Works    (N.  Dexter  v.  Lathrop,  136  Pa.  St.  568. 

J.)    102  A.  395.  21.  Fonda  v.  Van  Home,  15  Wend. 

A   statute   giving  a  garage  keeper  631. 


§  1011 


INFANCY. 


1172 


effective  in  future;  but  it  is  clear  that  ere  the  present  day  much 
of  the  ancient  veneration  for  parchment  deeds  under  seal  has  dis- 
appeared, vp^hile  the  tendency  is  to  place  real  and  personal  estate 
transactions  on  much  the  same  footing,  distinguishing  rather  by 
the  value  than  the  nature  of  the  property  and  by  the  consideration 
involved.  We  admit,  however,  that  the  common  law  draws  a 
strong  line  of  demarcation  between  real  and  personal  property ;  so 
that  title  transfer  of  the  former  kind  requires  far  more  positive 
formality  than  that  of  the  latter. 

Now  to  continue.  It  is  held  that  an  infant  may  make  a  void- 
able purchase  and  take  a  voidable  conveyance  of  land,  for,  says 
Lord  Coke,  striking  the  legal  principle  with  wonderful  clearness 
for  that  day,  "  it  is  intended  for  his  benefit,  and  at  his  full  age  he 
may  either  agree  thereunto  and  perfect  it,  or,  without  any  cause 
to  be  alleged,  waive  or  disagree  to  the  purchase."  *^  For  this 
reason,  rather  than  the  technical  one  just  referred  to,  it  may  be 
said  in  general  that  the  conveyance  of  land  by  a  minor  is  also 
voidable  and  not  void ;  ^^  though  here  again  the  courts  have  been 
prone  to  cite  the  rule  of  Perkins.  But  the  decided  cases  usually 
presume  that  a  valuable  consideration  has  passed  to  the  infant,  or 
at  least  that  there  is  nothing  prima  facie  prejudicial  to  him.  Lord 
Chancellor  Sugden,  in  1842,  in' Allen  v.  Allen,  took  occasion  to 
review  Lord  Mansfield's  decision  in  Zouch  v.  Parsons,  and  com- 
mended it  as  sound  law  in  respect  that  a  deed  which  takes  effect 
by  delivery,  and  is  executed  by  an  infant,  is  voidable  only ;  though 
he  intimated  that  his  own  decision  might  equally  well  be  referred 


22.  Co.  Litt.  2b;  Met.  Contr.  40; 
Bac.  Abr.  Inf.  6;  Ferguson  v.  Bell, 
17  Mo.  347.  And  see  Spencer  v.  Carr, 
45  N.  Y.  406;  also  Hook  v.  Donald- 
son, 9  Lea,  56.  Where  a  deed  to  an 
infant  was  destroyed  by  the  father 
before  it  was  recorded,  and  a  new 
deed  was  executed  by  the  same 
grantor  to  the  father,  it  was  held  that 
the  destruction  of  the  deed  did  not, 
even  with  the  assent  of  the  infant, 
divest  his  title,  and  that  equity  would 
restore  him  to  his  former  position. 
Brendle  v.  Herron,  88  N.  C.  383. 

23.  Kendall  v.  Lawrence,  22  Pick. 
540;  Gillet  v.  Stanley,  1  Hill,  121; 
Bool  V.  Mix,  17  Wend.  119;  Wheaton 
V.  East,  5  Terg.  41 ;  Phillips  v.  Green, 


5  Monr.  344;  Eagle  Fire  Ins.  Co.  v. 
Lent,  6  Paige,  635;  Allen  v.  Poole,  54 
Miss.  323 ;  Illinois  Land  Co.  v.  Bon- 
ner, 75  HI.  315;  Dixon  v.  Merritt,  21 
Minn.  196;  Davis  v.  Dudley,  70  Me. 
236;  Weaver  v.  Carpenter,  42  la. 
343 ;  Schaffer  v.  Lavretta,  57  Ala.  14 ; 
Nathans  v.  Arkwright,  66  Ga.  179; 
Welch  V.  Bunce,  83  Ind.  382;  Brant- 
ley V.  Wolf,  60  Miss.  420;  Ellis  ▼. 
Alford,  64  Miss.  8 ;  Dawson  v. 
Helmes,  30  Minn.  107;  Bingham  v. 
Barley,  55  Tex.  281;  Bagley  t. 
Fletcher,  44  Ark.  153;  Birch  v.  Lin- 
ton, 78  Va.  584;  Haynes  v.  Bennett, 
53  Mich.  15.  And  so  as  to  infant 
wife.  Scranton  v.  Stewart,  52  Ind. 
68;   Eichardson  v.  Pate,  93  Ind.  423. 


1173 


ACTS    VOID    AND    VOIDABLE. 


§    1012 


to  the  benefit  arising  to  the  infant  from  the  d^^ed ;  which,  indeed, 
was  one  of  the  grounds  on  which  Lord  Mansfield  had  decided  that 
celebrated  case.^*  And  to  confirm  our  former  distinction  as  the 
crucial  one,  it  is  held  that  an  infant's  conveyance  of  land  by  way  of 
gift  or  without  consideration  or  upon  mere  nominal  consideration 
is  absolutely  void,  because  obviously  prejudicial  to  his  interests.^' 
So  leases  to  infants  are  not  absolutely  void,  but  voidable  only.^" 
And  an  exchange  of  property  made  by  an  infant  is  voidable.^^ 
And  it  is  held  that  the  infant's  bond  for  title  to  real  estate  or  his 
parol  contract  to  convey  is  voidable  and  not  void.^*  Also  that  his 
contract  for  the  purchase  of  land  is  voidable. ^^  A  minor's  tenancy 
bv  lease  or  otherwise  is  usuallv  voidable  bv  him."* 

§  1012.  Letters  of  Attorney;  Cognovits,  &c. 

So  a  power  of  attorney  to  authorize  another  to  receive  seisin  of 
land  for  an  infant,  in  order  to  complete  his  title  to  an  estate  con- 
veyed to  him  by  feoffment,  is  voidable  only ;  it  being  an  authority 
to  do  an  act  for  his  probable  benefit.^^ 

But  letters  of  attorney  from  an  infant  conveying  no  present 
interest  are  held  to  be  absolutely  null.  This  point  was  discussed 
in  Zouch  v.  Parsons,  and  on  the  distinction  of  Perkins'  rule,  it 
was  maintained  that  writings  "  which  take  effect "  cannot  include 
letters  of  attorney,  or  deeds  which  delegate  a  mere  power  and 
convey  no  interest.  Whatever  might  be  thought  of  this  explana- 
tion, the  conclusion  follows :  "  that  powers  of  attorney  are  an 
exception  to  the  general  rule,  that  the  deeds  of  infants  are  only 
voidable ;  and  a  power  to  receive  seisin  is  an  exception  to  that. 
The  end  of  the  privilege  is  to  protect  infants ;  and  to  that  object 
all  the  rules  and  their  exceptions  must  be  directed."  '^  And  the 
English  courts  have  uniformly  held  the  infant's  warrant  of  attor- 


Or  infant  husband.  Barker  v.  Wil- 
son, 4  Heisk.  268 ;  Yourse  v.  Nor- 
cross,  12  Mo.  549. 

24.  Allen  t.  Allen,  3  Dru.  &  War. 
340.  See  Co.  Litt.  51b,  n.  by  Har- 
grave. 

25.  Swafford  v.  Ferguson,  3  Lea, 
292;  Robinson  v.  Coulter,  90  Tenn. 
705.  Cf.  Slaughter  v.  Cunningham, 
24  Ala.  260.  As  to  an  infant's  deed 
for  necessaries,  sec  ch.  3. 

26.  Zouch  V.  Parsons,  3  Burr.  1806; 
Hudson  V.  Jones,  3  Mod.  310;  Taylor, 


Landlord  &  Tenant,  and  cases  cited; 
Griffith  V.  Schwenderman,  27  Mo.  412. 

27.  Co.    Litt.     51b;     Williams    v. 
Brown,  34  Me.  594. 

28.  Weaver  v.  Jones,  24  Ala.  420; 
Yeager  v.  Knight,  60  Miss.  730. 

29.  McCarty  v.  Woodstock  Co.,  92 
Ala.  463. 

30.  Valentine  v.  Canali,  24  Q.  B.  D. 
16G. 

31.  Met.    Contr.    41;    1    Roll.    Abr. 
730;   Zouch  v.  Parsons,  supra. 

32.  Per  Lord   Mansfield,  in  Zouch 


1012 


INFANCY. 


1174 


ney  void,  even  though  executed  jointly  with  others.^'  In  this 
country  there  are  decisions  in  some  States  to  the  same  effect;'* 
in  others,  again,  the  rule  is  deemed  somewhat  doubtful.'' 

An  infant's  power  of  attorney  to  another  to  sell  his  lands  is 
deemed  so  manifestly  unbeneficial  on  the  face  of  it  as  to  be  void, 
and  a  sale  made  under  such  a  power  does  not  confer  even  an  in- 
choate title.^®  But  a  power  of  attorney  from  an  infant  to  sell  a 
note  is  lately  held  voidable,  not  void,  in  California.^^  In  Massa- 
chusetts an  instrument  of  assignment,  not  under  seal,  which  ap- 
points the  assignee  attorney  to  receive  the  fund  to  his  own  use,  is 
not  void.^^  And  in  Maine  the  act  of  an  infant  in  transferring  a 
negotiable  note,  though  his  name  be  written  by  another  under  parol 
authority,  is  voidable  only.^^  The  good  sense  of  the  rule  seems 
to  be,  as  an  American  writer  observes,  tbat  an  authority  delegated 
by  an  infant  for  a  purpose  which  may  be  beneficial  to  him,  or 
which  the  court  cannot  pronounce  to  be  to  his  prejudice,  should  be 
considered  as  rendering  the  contract  made,  or  act  done  by  virtue 
of  it,  as  voidable  only,  in  the  same  manner  as  his  personal  acts  and 
contracts  are  considered.*"  And,  we  may  add,  the  English  and 
most  of  the  American  decisions  do  not  seem  to  carry  the  rule 
beyond  cases  of  the  technical  "  warrant  of  attorney,"  to  appear  in 
court  and  bind  the  infant,  as  in  confessing  judgment,  except  it  be 
with  reference  to  an  infant's  land,  which  power  stands  also  upon 
a  strong  footing  of  objection.  What  we  call  "  powers  of  attorney  '^ 
are  less  likely  than  the  warrant  of  attorney  to  be  to  the  infant's 
prejudice;  though  we  may  well  assume  that  whatever  an  infant 
cannot  do  he  cannot  authorize  another  to  do  for  him,  so  as  to  make 
the  transaction  more  binding. 


V.  Parsons,  3  Burr.   1804.      And  see 
Cummings  v.  Powell,  8  Tex.  88. 

33.  Saunderson  v.  Marr,  1  H.  Bl. 
75 ;  Ashlin  v.  Langton,  4  Moore  & 
S.  719,  and  cases  cited. 

34.  Lawrence  v.  McArter,  10  Ohio, 
37 ;  Waples  v,  Hastings,  3  Harring. 
403;  Bennett  v,  Davis,  6  Cow.  393; 
Semple  v.  Monison,  7  Monr.  298; 
Pyle  V.  Cravens,  4  Litt.  17;  Knox  v. 
Flack,  22  Pa.  St.  337 ;  Wainwright  v. 
Wilkinson,  62  Md.  146. 

35.  Pickler  v.  State,  18  Ind.  266. 
But  see  Trueblood  v.  Truehlood,  8 
Ind.  195.     See  Whitney  v.  Dutch,  14 


Mass.  457;  Met.  Contr.  41;  Cummings 
V.  Powell,  8  Tex.  88;  1  Am.  Lead. 
Cas.,  4th  ed.,  142  et  seq. 

36.  Philpot  V.  Bingham,  55  Ala. 
435.  Cf.  Weaver  v.  Carpenter,  42 
la.  343;  Armitage  v.  Widoe,  36  Mich. 
124. 

37.  Hastings  v.  DoUarhide,  24  Cal. 
195. 

38.  McCarty  v.  Murray,  3  Gray, 
578.  And  see  Kingman  v.  Perkins, 
105  Mass.  111. 

39.  Hardy  v.  Waters,  38  Me.  450. 

40.  Met.  Contr.  42.  And  see  Powell 
V.  Gott,  13  Mo.  458. 


1175 


ACTS    VOID    AND    VOIDABLE. 


§    1013 


An  infant  cannot  bind  himself  by  cognovit.  "  We  come  to  this 
inclusion,"  said  Lord  Abinger,  "  on  three  grounds,  each  of  which 
is  fatal  to  the  validity  of  the  cognovit.  First,  it  is  bad  because  it 
falls  within  the  principle  which  prevents  an  infant  from  appoint- 
ing and  appearing  in  court  by  attorney ;  he  can  appear  by  guardian 
only.  Secondly,  by  this  means  the  minor  is  made  to  state  an  ac- 
count, which  the  law  will  not  allow  him  to  do,  so  as  to  bind  him- 
self; if  an  action  be  brought  against  him,  the  jury  are  to  determine 
the  reasonableness  of  the  demand  made.  Thirdly,  the  general 
principle  of  law  is,  that  a  minor  is  not  to  be  allowed  to  do  anything 
to  prejudice  himself  or  his  rights."*^  Nor  can  he  bind  himself 
by  the  appointment  of  an  agent.^^  The  cases  are  not  harmonious 
as  to  whether  the  act  is  void  or  only  voidable.*^  Where  such  a 
contract  is  voidable  merely,  the  appointment  and  the  acts  of  the 
agent  thereunder  may  be  ratified  or  disaffirmed  after  majority.** 

§  1013.  Illustrations. 

An  infant  may  in  some  States  avoid  his  usurious  contracts,  and 
recover  the  money  so  lent  under  the  count  for  money  had  and 
received.*^  But  the  policy  of  usury  is  becoming  abandoned  in 
many  parts  of  tJie  country. 

An  infant  may  avoid  his  release  of  damages  for  an  injury  or  an 
award  upon  a  submission  entered  into  by  him.  But  if,  upon  trial, 
the  jury  shall  find  such  damages  to  have  been  satisfied  by  an  ade- 
quate compensation,  the  infant  shall  recover  nominal  damages 
only.*'     The  rule  is  general  that  an  infant  is  not  bound  by  his 


41.  Oliver  v.  Woodroffe,  4  M.  & 
W.  653  (1839).  But  the  second  of 
these  grounds  is  not  now  tenable.  See 
Williams  v.  Moor,  11  M.  &  W.  256. 

42.  Smoot  V.  Eyan,  65  So.  828; 
Benson  v.  Tucker,  212  Mass.  60,  9S 
N.  E.  589.  So  where  a  power  of  sale 
mortgage  of  real  estate  appointed 
the  mortgagee  the  attorney  of  an  in- 
fant mortgagor  to  sell  the  property 
on  foreclosure,  a  sale  thereunder  waa 
not  binding  on  the  infant.  Rocks  v. 
Cornell,  21  R.  I.  532,  45  A.  552. 

43.  Sims  V.  Gunter  (Ala.),  78  So. 
62  (void) ;  Simpson  v.  Prudential 
Ins.  Co.,  184  Mass.  348,  68  N.  E.  673, 
€3  L.  R.  A.  741,  100  Am.  St.  Rep. 
560    (voidable) ;    Coursolle  v.   Weyer- 


hauser,  69  Minn.  328,  72  N.  W.  697 
(voidable)  ;  Smoot  v.  Ryan  (Ala.),  65 
So.  828  (void)  ;  Penson  v.  Tucker, 
212  Mass.  60,  98  N.  E.  589  (voida- 
ble). 

44.  In  Louisiana  it  is  held  that  a 
minor  cannot  disaffirm  the  act  of  an 
agent  as  far  as  not  beneficial,  and 
affirm  it  to  the  extent  to  which  it  is 
beneficial.  State  ex  rel.  Stempel  v. 
New  Orleans,  105  La.  768,  30  So.  97; 
Courselle  v.  Weyerhaeuser,  69'  Minn. 
328,  72  N".  W.  697. 

45.  Millard  v.  Hewlett,  19  Wend. 
301. 

46.  Baker  v.  Lovett,  6  Mass.  78.  A 
mechanic's  lien,  where  incident  only 
under   the   local   statute,   to   a   legal 


I  1013 


INFANCY. 


1176 


agreement  to  refer  a  dispute  to  arbitration;    nor  bj  an  award, 


47 


even  in  his  own  favor ;   thougli  this  is  usually  voidable  only. 

Among  the  acts  of  the  infant-s  which  are  in  the  later  cases 
regarded  as  voidable  and  not  void  (nor  of  course  binding)  are  the 
following:  His  appeal  from  a  justice's  decision.**  Judgments 
against  him.*^  His  covenant  to  carry  and  deliver  money.'°  His 
chattel  mortgage.^^  His  agreement  to  convey.^*  His  written  obli- 
gation for  the  rent  of  land.^^  His  agreement  with  others  for  the 
compensation  of  counsel  retained  in  a  lawsuit  for  their  common 
benefit.^*  His  executory  contracts  generally.^^  And,  in  short,  his 
deeds  and  instruments  under  seal,  with  perhaps  the  exception  of 
l)0wers  of  attorney ;  though  it  is  otherwise,  perhaps,  if  the  instru- 
ment should  manifestly  appear  on  the  face  of  it  to  be  fraudulent 
or  otherwise  to  the  prejudice  of  the  infant ;  "  and  this,"  says  Judge 
Story,  "  upon  the  nature  and  solemnity,  as  well  as  the  operation 
of  the  instrument."  °®  In  Massachusetts  a  contract  of  charter  to 
an  infant,  though  by  parol,  is  voidable  and  not  void.'*^  So,  too,  an 
infant's  promise  to  pay  money  borrowed  on  joint  account  with 
another.^*  And  in  various  instances  a  family  arrangement  as  to 
liability  to  pay,  cannot  attach  against       Sporr  &  Duvol  v.  Fla.  Southern  Ey. 


an  infant's  land,  Davis  v.  State,  47 
N.  J.  L.  340. 

47.  "Watson  on  Awards,  ch.  3,  §  1; 
Smith,  Contr.  280;  Britton  v.  Wil- 
liams, 6  Munf.  453 ;  Barnaby  v. 
Barnaby,  1  Pick.  221.  See  Guardian 
and  Ward,  supra. 

48.  Eobbins  v.  Cutler,  6  Fost.  173. 

49.  Trapnall  v.  State  Bank,  18  Ark. 
63;  Kemp.  v.  Cook,  18  Md.  130; 
Bickel  V.  Erskine,  43  la.  213 ;  Wheeler 
V.  Ahrenbeak,  54  Tex.  535;  Walken- 
horst  V.  Lewis,  24  Kan.  420;  Eng- 
land V.  Garner,  90  N.  C.  197;  Parker 
V.  Starr,  21  Neb.  680;  Gates  v. 
Pickett,  97  N.  C.  21.  Thus  a  judg- 
ment of  partition  is  voidable  as 
against  minors  who  were  not  duly 
represented.  Williams  v.  Williams, 
94  N.  C.  732;  Montgomery  v.  Carlton, 
56  Tex.  361.  But  the  judgment  is  not 
to  be  impeached  in  a  collateral  suit. 
lb.    See  ch.  6,  post. 

50.  West  V.  Penny,  16  Ala.  186. 

51.  Miller  v.  Smith,  26  Minn.  248; 
Corey  v.  Burton,  32  Mich.  30 ;  Hongan 
V.   Hochmeister,  49  N.  Y.  Super.   34; 


Co.,  25  Fla.  185.  But  semhle  void 
under  some  circumstances,  and  at  all 
events  unenforceable  against  him  dur- 
ing his  minority.  Barney  v.  But- 
ledge  (1895),  Mich. 

52.  Carrell  v.  Potter,  23  Mich.  377. 

53.  Flexner  v.  Dickerson,  72  Ala. 
318. 

54.  Dillon  v,  Bowles,  77  Mo.  603. 
So  as  to  an  infant's  contract  cre- 
ating an  easement  in  his  land.  Mc- 
Carthy V.  Nicrosi,  72  Ala.  332.  So 
as  to  infant's  agreement  to  accept  a 
consideration  in  lieu  of  dower.  Drew 
v.  Drew,  40  X.  J.  Eq.  458.  And  as 
to  his  assignment  of  wages,  where  no 
parental  right  intervened,  see  O'Neil 
v.  Chicago  E.,  33   Minn.  489. 

55.  But  see  next  chapter. 

56.  Per  Story,  J.,  Tucker  v.  More- 
land,  10  Pet.  71;  2  Kent,  Com.  236, 
11th  ed.,  n.,  and  cases  cited.  And 
see  Eegina  v.  Lord,  12  Q.  B.  757. 

57.  Thompson  v.  Hamilton,  12 
Pick.  425. 

58.  Kennedy  v.  Doyle.  10  Allen, 
161.     So,  too,  a  purported  gift  to  an 


1177  ACTS    VOID    AND    VOIDABLE.  §    1013 

settlement  of  an  estate  in  which  the  minor  is  interested.*'  So  is 
an  infant's  marriage  settlement  voidable  in  general.®"  In  so  many 
cases  of  the  character  discussed  in  this  chapter  is  the  infant  before 
or  at  majority  presented  as  seeking  and  being  permitted  to  set 
aside  the  transaction,  that  the  voidable  rather  than  void  nature  of 
the  transaction  is  assumed,  rather  than  asserted,  and  the  decision 
is  more  to  the  point  that,  void  or  voidable,  it  does  not  under  the 
circumstances  bind  him.^^ 

It  has  been  repeatedly  decided  in  England  that  where  an  infant 
becomes  the  holder  of  shares  by  his  own  contract  and  subscription 
be  is  prima  facie  liable  to  pay  calls  or  assessments ;  but  he  may 
repudiate  that  contract  and  subscription ;  and  if  he  does  so  while 
an  infant,  although  he  may  on  arriving  at  full  age  affirm  his  repu- 
diation, or  receive  the  profits,  it  is  for  those  who  insist  on  this 
liability  to  make  out  the  facts.®^  A  minor's  contract  for  stock  is 
doubtless  voidable  at  least  in  this  country,®^  or  if  purely  specula- 
tive and  prejudicial  to  him  may  be  even  void,^*  but  in  general  his 
assignment  of  stock  which  he  holds  is  voidable  only.®^ 

An  absolute  gift  of  articles  of  personal  property  made  by  an 
infant  can  be  revoked  or  avoided  by  him.®^  So  may  his  sale  of 
personal  property.®^  So  may  his  assignment.®^  And  the  executed 
contract  of  an  infant  follows  the  same  rule  as  an  executory  one; 
he  may  rescind  the  one  as  well  as  the  other ;  the  more  so,  where 
the  other  party  can  be  put  substantially  in  statu  quo.^^  But  if 
before  rescission  the  adult  make  a  bona  fide  sale  of  property  pur- 
infant  of  a  contract  of  purchase  in-  63.  Indianapolis  Chair  Co.  v.  Wil- 
volving  pecuniary  obligation.  Armi-  cox,  59  Ind.  429. 
tage  V,  Widoe,  36  Mich.  124.  64.  Euchizky  v.  De  Haven,  97  Pa. 

59.  Turpin  v.  Turpin,  16  Ohio  St.  St.  202.  Cf.  Crummey  v.  Mills,  40 
270;  Jones  v.  Jones,  46  la.  466.  Hun,  370. 

60.  §  1001.  65.  Smith  v.  Railroad,  91  Tenn.  221. 

61.  See  e.  g.,  Dube  v.  Beaudry,  150  66.  Person  v.  Chase,  37  Vt.  647 ; 
Mass.  448;  Queen  v.  Lord,  12  Q.  B.  Oxley  v.  Tryon,  25  la.  95.  So,  too, 
759.                                                                      his  deed  of  gift  to  a  trustee.    Slaugh- 

62.  Smith,    Contr.    285;    Newry    &  ter  v.  Cunningham,  24  Ala.  260.     Qu., 
Bnniskillen   R.   R.   Co.   v.   Coombe,   3  whether  not  rather  void.    §  403. 
Exch.    565;    London    &   Northwestern  67.   Towle  v.  Dresser,  73   Me.  252. 
R.  R.  Co.  V.  McMichael,  5  Exch.  114.  68.  City  Savings  Bank  v.  Whittle, 
See,   as  to   the   liability   of   a   stock-  G3  X.  H.  5S7. 

jobber  in  such  cases,  Brown  v.  Black,  69.  Hill  v.  Anderson,  5  B.  &  M.  £16; 

L.  E.   8  Ch.   939;   Merry  v.  Nickalls,  Robinson  v.  Weeks,  56  Me.  102.      Set 

L.   R.   7   Ch.   733.       And   see    (1894),  Petty  v.  Rousseau,  94  N.  C.  355. 
Mayd  v.  Field,  3  Ch.  589. 


1014 


INFANCY. 


1178 


chased  of  the  minor,  trover  will  not  lie  against  him.'"  And  it  is 
held,  on  the  ground  of  an  executed  agency,  the  money  belong- 
ing to  an  infant  soldier  and  received  from  him  by  his  brother, 
with  authority  to  use  it  for  the  support  of  their  needy  parents, 
and  so  used  by  the  brother,  cannot  be  recovered  by  the  infant  upon 
reaching  majority.^^  But,  in  general,  an  infant  soldier's  gift 
of  his  bounty  and  pay,  even  to  his  own  father,  is  treated  as  void- 
able and  revocable.'^ 

§  1014.  Trading  and  Partnership  Contracts. 

The  rule  is  a  general  one  that  an  infant  cannot  trade,  and  conse- 
quently cannot  bind  himself  by  any  contract  having  relation  to 
trade.  "  We  know,  by  constant  experience,"  says  Mr.  Smith, 
"  that  infants  do,  in  fact,  trade,  and  trade  sometimes  very  exten- 
sively. However,  there  exists  a  conclusive  presumption  of  law 
that  no  infant  under  the  age  of  twenty-one  has  discretion  enough 
for  that  purpose.'"^  In  Dilk  v.  Keighley,  the  infant  was  a 
glazier,  and  the  person  who  sued  him  sought  to  make  out  that 
the  goods  furnished  were  in  the  nature  of  necessaries,  to  enable 
the  infant  to  earn  a  livelihood ;  but  this  plea  did  not  avail.'*  And 
an  infant,  rescinding  a  trading  contract  with  another,  was  al- 
lowed to  recover  back,  in  an  action  for  money  had  and  received, 
a  sum  which  he  had  paid  towards  the  purchase  of  a  share  in  the 
defendant's  trade,  if  without  consideration  and  he  had  actually 
derived  no  benefit  or  profit  from  the  business.'^  So,  too,  as  an 
infant  cannot  trade,  he  cannot  become  a  bankrupt,  and  a  fiat 
against  him  is  void.'® 

Yet,  even  in  trading  contracts,  it  must  not  be  forgotten  that 
the  current  of  modern  decisions  is  to  make  the  transaction  of 
an  infant  voidable  and  not  void.  The  English  case  of  Goode  v. 
Harrison  is  exactly  in  point;  where  a  person  was  held  liable  for 


70.  Carr  v.  Clough,  6  Fost.  280; 
Eiley   v.   Mallory,   33   Conn.   201. 

71.  Welch  V.  Welch,  103  Mass.  562. 

72.  Holt  V.  Holt,  59  Me.  464;  su- 
pra, §  252. 

73.  In  Georgia  it  is  held  that  where 
an  infant,  with  the  permission  of  ihs 
parent,  engages  in  business,  his  con- 
tracts in  relation  thereto  are  binding. 
Jemmerson  v.  Lawrence,  112  Ga.  340, 
37  S.  E.  371:  Wuller  v.  Chuae  Gro- 
cery Co.,  241  111.  39'8,  89  N.  E.  796; 


M.  M.  Sanders  &  Son  v.  Schilling, 
123  La.  1009,  49  So.  689;  Crew-Levick 
Co.  V.  Hull,  125  Md.  6,  93  A.  208; 
Smith,  Contr.  278.  See  Why  wall  v. 
Champion,  2  Stra.  1083;  Dilk  v. 
Keighley,  2  Esp.  480. 

74.  Bilk  V.  Keighley,  2  Esp.  480. 

75.  Corpe  v.  Overton,  10  Bing.  252; 
Holmes  v.  Blogg,  8  Taunt.  508.  See 
next  chapter. 

76.  Smith,  Contr.  282,  and  casefl 
cited;  Belton  v.  Hedges,  9  Bing.  3«6; 


1179 


ACTS    VOID    AND    VOIDABLE. 


§    1014 


goods  supplied  liim  as  one  of  a  partnership,  on  the  ground  that 
the  contract  was  voidable,  not  void,  and  that  the  infant  on  be- 
coming of  age  had  substantially  ratified  his  former  act.  "  It  is 
clear,"  says  Justice  Bayley,  "  that  an  infant  may  be  in  partner- 
ship. It  is  true  that  he  is  not  liable  for  contracts  entered  into 
during  his  infancy;  but  still  he  may  be  a  partner.  If  he  is,  in 
point  of  fact,  a  partner  during  his  infancy,  he  may,  when  he 
comes  of  age,  elect  whether  ho  will  continue  that  partnership  or 
not.  If  he  continue  the  partnership,  he  will  then  be  liable  as  a 
partner.''^  Xor  is  another  principle  to  be  lost  sight  of  in  trading 
contracts ;  namely,  that  fraudulent  representations  and  acts,  though 
made  by  an  infant,  may  sometimes  make  his  contract  binding  upon 
him,  or  at  least  afford  a  means  of  holding  him  answerable  for  the 
transaction ;  but  of  this  hereafter. 

In  this  country,  it  is  likewise  admitted  that,  in  point  of  fact, 
infants  do  sometimes  trade  ;^*  but  that,  nevertheless,  their  trading 
contracts  do  not  absolutely  bind  them,  being  voidable  at  their 
option  and  not  absolutely  void;^^  and  statutes  sometimes  permit 
such  trading.^"  Aside  from  his  affirmation  on  reaching  majority, 
however,  an  infant  partner  is  not  liable  individually  for  the  firm 
debts  beyond  what  he  put  into  the  business.*^  An  infant's  partner- 
ship agreement,  too,  is  not  void,  but  voidable.^^     He  is  not  liable 


Rex  V.  Wilson,  5  Q.  B.  D.  28;  Jones 
V.  Jones,  18  Ch.  D.  109.  And  see 
Winchester  v.  Thayer,  12?  Mass.  129. 

77.  5  B.  &  Aid.  147.  See  Smith, 
Contr.  283. 

78.  Whitney  v.  Dutch,  15  Mass.  457; 
Houston  V.  Cooper,  Penning.  865; 
Kitchen  v.  Lee,  11  Paige,  107;  Beller 
V.  Marchant,  30  la.  350.  An  infant 
partner  sued  for  goods  sold  £he  firm 
may  plead  infancy.  Folds  v.  Allardt, 
35  Minn.  488. 

79.  Mason  v.  Wright,  13  Met.  306; 
Kinnen  v.  Maxwell,  66  N.  C.  45. 

80.  Beickler  v.  Guenther,  121  la. 
419,  96  N.  W.  895.  Under  the  Iowa 
statute  providing  that  a  minor  who 
"engages  in  business"  as  an  adult 
in  such  fashion  that  the  other  party 
has  reason  to  believe  him  capable  of 
contracting  he  cannot  disaffirm,  the 
nnoted  expression  should  be  construed 
as  sisnifying  an  employment  of  oc- 


cupation occupying  the  minor's  time 
for  livelihood  or  profit,  and  hence  the 
purchase  of  land,  while  engaged  as  a 
farm  laborer,  was  not  within  the 
statute.  Beickler  v.  Guenther,  121  la. 
419,  96  N,  W.  985;  White  v.  Sikes, 
129  Ga.  508,  59  S.  E,  228. 

Under  a  similar  Georgia  statute  a 
single  transaction  in  the  sale  of  land 
is  not  engaging  in  business  within 
its  meaning.  White  v.  Sikes,  129  Ga. 
508,   59   S.  E.   228. 

81.  Bush  V.  Linthicum,  59  Md.  344. 
But  the  firm  may  be  dissolved  by  pro- 
ceedings in  equity,  and  in  such  bill  the 
infant  is  not  liable  for  costs.     76. 

82.  Latrobe  v.  Dietrich,  114  Md.  8, 
78  A.  983;  Osbum  v.  Farr,  42  Mich. 
134,  3  N.  W.  299;  Jaques  v.  Sax,  39 
la.  367;  Dunton  v.  Brown,  31  Mich. 
182.  That  the  minor  had  an  interest 
in  profits,  but  had  not  put  in  capital, 
does    not    operate    to    discharge    him 


§  1014 


INFAJS^CY. 


1180 


for  the  debts  of  a  partnership  of  which  he  is  a  member.*'  An 
infant  may  become  a  general  partner  in  a  limited  partnership  ;  and 
in  such  a  case  an  adult  special  partner  cannot  set  up  the  plea  of 
such  infancy  in  disclaimer  of  his  own  liability.**  ^STor,  as  it 
would  appear,  can  any  adult  partner  with  an  infant  shield  him- 
self by  any  such  plea  from  the  firm's  engagements ;  but  the  true 
situation  is  rather  that  the  minor  may  set  up  his  own  infancy, 
to  release  himself  from  liability  on  contracts  of  purchase  whereby 
assets  have  been  obtained,  and  thus  throw  the  whole  liability  upon 
the  adult  members  of  the  firm ;  at  the  same  time  that  the  law  pre- 
sumes his  liability  in  the  concern  and  treats  him  as  responsible  until 
his  plea  of  infancy  is  asserted.*^  In  such  arrangements,  however, 
while  the  infant  is  protected,  on  the  one  hand,  he  is  not  on  the 
other  permitted  to  derive  undue  advantages  from  his  disability. 
Thus,  it  is  held  that  one  engaged  in  trade  cannot  by  his  own  act 
make  children  of  tender  years  his  partners  in  business ;  though  he 
may,  if  indebted  to  them,  prefer  them  in  assigning  for  the  benefit  of 
his  creditors,  wherever  the  law  permits  a  preference.*®  Again,  an 
infant  partner  is  not  bound  by  an  assignment  of  partnership  assets 
executed  by  his  adult  co-partner.*'  He  may  by  his  assertion  break 
up  the  partnership.  But  as  to  firm  assets  obtained  by  any  such 
firm  contract,  these  should  in  justice  be  devoted  to  satisfying  the 
liabilities  incurred  in  procuring  them,  and  the  infant  is  not  al- 
lowed to  retain  the  partnership  property  nor  to  assert  title  to  any 


from  liability.  Jaques  v.  Sax,  39  la. 
367.  See,  as  to  pleadings,  Kine  v. 
Barbour,  70  Ind.  35. 

83.  The  fact  that  a  partner  was  a 
minor  at  the  time  a  contract  with  the 
partnership  was  made  cannot  be  as- 
serted as  a  defence  to  an  action  of 
replevin,  based  on  such  contract,  where 
no  personal  liability  is  claimed  and 
there  is  no  showing  that  the  minor 
has  ever  elected  to  disaffirm.  Richards 
V.  Hellen,  153  la.  66,  133  N.  W.  393; 
Crew-Levick  Co.  v.  Hull,  125  Md.  6, 
93  A.  208. 

It  has  been  held  that  an  infant's 
right  to  disaffirm  his  partnership  con- 
tract is  limited  to  a  right  to  avoid 
its  debts,  and  that  he  cannot  pre- 
vent  the   subjection    of   its   property 


to  such  debts.     Hill  v.  Bell,  111  Mo. 
r'.S,   19   S.  W.  959. 

An  infant  cannot,  as  against  his  co- 
partners, insist  that  in  taking  the 
partnership's  accounts  he  shall  be 
credited  with  profits  and  not  debited 
with  losses,  and  as  against  the  credit- 
ors of  the  firm  he  has  no  higher  rights 
to  the  firm  property  than  the  adult 
partner.  His  only  right  is  immunity 
from  personal  liability.  Elm  City, 
etc.,  Co.  V.  Haupt,  50  Pa.  Super.  489. 

84.  Continental  Bank  v.  Strauss, 
137  N.  Y.  148. 

85.  Continental  Bank  v.  Strauss,  137 
N.  Y.  148;  Pelletier  v.  Couture,  148 
Mass.   269. 

86.  Baer  v.  Rooks,  50  Fed.  898. 

87.  Foot  V.  Graham,  68  Miss.   529. 


1181  ACTS  VOID  AND  VOIDABLE.  §  1015 

portion  of  it,  until  the  firm  creditors  are  satisfied.*'  He  is  thus 
likelj  to  lose  what  he  has  put  into  the  concern,  if  the  firm  prove 
insolvent,  at  the  same  time  that  he  is  not  individually  liable.  On 
reaching  majority  an  infant  may  by  his  acts  keep  an  undissolved 
partnership  continuing  and  by  his  own  acts  and  conduct  commit 
himself  fully  to  outstanding  obligations.*^  In  South  Carolina  it 
was  once  expressly  decided  that  a  person's  express  or  implied  ratifi- 
cation of  the  partnership  upon  reaching  majority  made  him  liable 
for  a  debt  of  the  firm  contracted  during  his  infancy,  although  he 
was  ignorant  of  the  existence  of  the  debt  at  the  time  of  such  ratifi- 
cation, and  had,  on  being  informed  of  it,  refused  to  pay  for  it."° 
For  the  principle  thus  indicated  is,  that  to  affirm  a  partnership  con- 
tract on  reaching  majority,  and  continuing  to  receive  its  benefits, 
and  to  induce  the  confidence  of  others,  is  to  affirm  it  with  its 
usual  inseparable  incidents.  Certainly,  the  infant  member  of  a 
firm  should  not  be  permitted  to  derive  undue  advantage  over  his 
partner.®^ 

§  1015.  Void  and  Voidable  Acts  Contrasted;   When  May  Void- 
able Acts  Be  Affirmed  or  Disaffirmed. 

What,  then,  is  the  difference  between  the  void  and  the  voidable 
contracts  of  an  infant?  Simply  this:  that  the  void  contract  is  a 
mere  nullity,  of  which  any  one  can  take  advantage,  and  which  is, 
in  legal  estimation,  incapable  of  being  ratified;  while  a  voidable 
contract  becomes  at  the  option  of  the  infant,  though  not  otherwise, 
binding  upon  himself  and  all  concerned  with  him.*^  Acts  or  cir- 
cumstances, then,  which  amount  to  a  legal  ratification,  serve  to 
make  the  voidable  contract  of  an  infant  completely  binding  and 
perpetually  effectual ;  and  this  period  of  ratification  is  usually  to 
be  referred  to  the  date  when  the  disability  of  infancy  ceases,  and 
he  becomes  of  full  age,  —  though  not  always.  "Wliat  amounts  to 
a  legal  ratification,  under  such  circumstances,  we  shall  show  in  a 
subsequent  chapter.     On  the   other  hand,   acts  or  circumstances 

88.  Pelletier  v.  Couture,  14 S  Mass.       ^fich.   304,  where  an  infant  refused, 
209 ;  Bush  v.  Linthicum,  supra.  on  majority,  after  the  goods  had  been 

89.  Salinas    v.    Bennett,    33    S.    C.       disposed     of     and     the     partnership 
285.  closed,   to   pay   the   partnership   note, 

90.  Miller  v.  Sims,  2  Hill   (S.  C),  though  recognizing  the  late  partner- 
479.  ship  in  some  other  respects. 

91.  See  Kitchen  v.  Lee,  11  Paige,  92.  See  Met.  Contr.  41;  Story,  Eq. 
107;  DuEton  v.  Brown,  31  Mich.  182.  Juris.,  §  241. 

But    see    Minoek    v.    Shortridge,    21 


§   1015 


INFANCY. 


1182 


which  at  the  proper  time  amount  to  disaffirmance  will  render  the 
infant's  voidable  contract  of  no  effect. 

An  infant's  voidable  conveyance  of  land,  which  is  a  solemn 
instrument,  and  perhaps  his  deeds  generally,  cannot  be  avoided 
or  confirmed  during  his  minority.®*  But  as  to  many  other  trans- 
actions it  is  different,  particularly  where  the  contract  relates  to 
personal  property,  or  is  an  unexecuted  one,  to  perform  services,  for 
instance,  and  relates  to  the  minor's  person;  so  one  may  at  any 
time  during  minority  put  an  end  to  a  continuing  lease.**  And 
the  American  cases  seem  to  establish  clearly  the  doctrine  that  an 
infant's  sale  or  exchange  or  purchase  of  personal  property,  or  con- 
tract for  such  sale  or  exchange  or  purchase,  may  be  rescinded  by 
him  at  any  time  during  minority ;  and  when  the  transaction  is  thus 
avoided,  the  title  to  the  property  revests  in  the  infant.'^  This 
distinction  appears  to  be  recognized  out  of  regard  to  the  infant's 
benefit;  since  land  might  be  recovered  after  long  lapse  of  time 
upon  disturbing  the  possessor's  title,  while  personal  property 
would  often  be  utterly  lost  if  one  could  not  trace  out  and  recover 
it  until  he  became  of  age.  Furthermore  it  is  easier  thus  to  make 
restitution  to  the  other  party  and  place  things  in  statu  quo.  To 
repudiate  one's  executed  contract  while  yet  an  infant,  so  as  to  gain 
an  unfair  advantage,  is  not  usually  permitted  f^  but  the  court  re- 
quires his  decision  to  be  postponed  to  mature  age,  or  otherwise 
attempts  justice  by  requiring  such  restitution  as  he  is  able  to 
make.®^  An  infant's  void  conveyance  he  may  have  set  aside  at 
any  time  during  infancy."* 


93.  Zouch  V.  Parsons,  3  Burr.  1794 ; 
McCormie  v.  Leggett,  8  Jones,  425; 
Bool  V.  Mix,  17  Wend.  119;  Emmons 
V.  Murray,  16  N".  H.  385;  Cummings 
V.  Powell,  8  Tex.  80;  Sims  v.  Ever- 
hardt,  102  U.  S.  Supr.  300;  Phillips 
V.  Green,  3  A.  K.  Marsh.  7;  Til- 
linghast  v,  Holbrook,  7  E.  I,  230; 
Welch  V.  Bunce,  83  Ind.  382.  So  his 
chattel  mortgage  cannot  be  made 
binding  to  his  prejudice  by  any  act 
of  affirmance  during  minority.  Corey 
V.  Burton,  32  Mich.  30. 

94.  Gregory  v.  Lee    (1895,  Conn). 

95.  Grace  v.  Hale,  2  Humph.  27; 
Shipman  v.  Horton,  17  Conn.  4^1; 
Kitchen  v.  Lee,  11  Paige,  107;  Willis 
V.  Twombly,  13  Mass.  204;  Carr.  v. 
Clough,    6    Post.    280;     Monumental 


Building  Association  v.  Herman,  33 
Md.  128;  Eiley  v.  Mallory,  33  Conn. 
201;  Briggs  v.  McCabe,  27  Ind.  327; 
Hoyt  V.  Wilkinson,  57  Vt.  404;  Mc- 
Carthy V.  Henderson,  138  Mass.  310. 
An  infant's  contract  for  purchasing 
stock  may  be  avoided  or  go  unfulfilled 
during  minority.  Indianapolis  Chair 
Co.  V.  Wilcox,  59  Ind.  429.  So  his 
contract  to  marry,  or  to  perform  la- 
bor for  a  specified  time,  as  seen  in 
chapters  3,  5,  post. 

96.  Dunton  v.  Brown,  31  Mich.  182. 
And  see  §  408, 

97.  See  ch.  5. 

98.  Swafford  v.  Ferguson,  3  Lea, 
292.  A  statute  provision  is  sometimes 
found  as  to  disaffirmance  during  mi- 
nority.   Murphy  v.  Johnson,  45  la.  57. 


1183  ^CTS    BINDING.  §    1017, 


CHAPTER  III. 

ACTS  BINDING  UPON  THE  INFANT. 

eEcnoN  1016.  General  Principle  of  Binding  Acts  and  Contracts. 

1017.  Contracts  for  Necessaries;  "What  Are  Such  for  Infants. 

1018.  Illustrations. 

1019.  Contracts  for  Necessaries;  Same  Subject. 

1020.  Money  Advanced  for  Necessaries;  Infant's  Deed,  Note,  &c.; 

Equity  Eules. 

1021.  Illustrations. 

1022.  Binding  Contracts  as  to  Marriage  Relation ;  Promise  to  Marry 

Contrasted. 

1023.  Acts  Which  Do  Not  Touch  Infant's  Interest;  Where  Trustee, 

Of&cer,  &c. 

1024.  Infant  Members  of  Corporations. 

1025.  Acts  Which  the  Law  Would  Have  Compelled. 

1026.  Contracts  Binding  Because  of  Statute ;  Enlistment;  Indenture. 

1027.  Infant's  Recognizance  for  Appearance  on  Criminal  Charge. 

1028.  Whether  Infant's  Contract  for  Service  Binds  Him. 

§  1016.  General  Principle  of  Binding  Acts  and  Contracts. 

We  have  seen  that  the  general  acts  and  contracts  of  infants  are 
either  void  or  voidable,  and  that  the  tendency  at  this  day  is  to  treat 
them  as  voidable  only.  But  keeping  in  view  the  principle  that 
an  infant's  beneficial  interests  are  to  be  judicially  protected,  we 
shall  find  that  there  are  some  acts  and  contracts  which  he  ought 
to  be  able  for  his  own  good  to  perform  and  make ;  some  acts  and 
contracts  of  which  it  may  be  said  that  the  privilege  of  standing 
upon  a  clear  footing  is  worth  more  to  him  than  the  privilege  of 
repudiation.  Some  such  acts  and  contracts  there  are,  recognized  as 
exceptions  to  the  general  rule ;  these  are  neither  void  nor  voidable, 
but  are  obligatory  from  the  outset,  and  thus  neither  require 
nor  admit  of  ratification  on  the  infant's  part.®'  Again,  there  are 
acts  and  contracts  which  public  policy  makes  obligatory. 

§  1017.  Contracts  for  Necessaries;  What  Are  Such  for  Infants. 
The  most  important  of  these  binding  contracts  are  those  for 
necessaries ;  which  in  fact  are  so  important  that  they  are  often 
mentioned  as  the  only  exception  to  the  rule  of  void  and  voidable 
contracts.  The  general  signification  of  the  word  "  necessaries  " 
has   already  been   discussed   with  reference  to  married  women : 

99.   See    Met.    Contr.    64 ;     Smith,  Contr.  et  seq.  268. 


§  1017 


INFANCY. 


1184 


but  it  is  readily  perceived  that  what  are  necessaries  for  a  wife 
may  not  be  equally  necessaries  for  a  child,  and  what  are  neces- 
saries for  young  children  may  not  be  equally  necessaries  for  those 
who  have  nearly  reached  majority.  The  leading  principles  of 
the  doctrine  of  necessaries  being  made  clear,  and  a  rule  of  l^al 
classification  judicially  announced,  any  man  of  ordinary  intelli- 
gence knows  how  to  apply  it;  and  yet  juries  will  not  and  cannot  al- 
ways agree  in  their  conclusions  on  this  point,  every  one  having 
some  preconceived  notions  of  his  own  on  topics  so  constantly  oc- 
curring in  our  every-day  life,  and  to  so  great  an  extent  involving 
individual  tastes  and  preferences.  Plainly,  it  is  wrong  to  prevent 
an  infant  from  attaining  objects  not  only  not  detrimental,  but  of 
the  utmost  advantage,  to  him ;  "  since,"  as  it  has  been  observed, 
"  otherwise  he  might  be  unable  to  obtain  food,  clothes,  or  educa- 
cation,  though  certain  to  possess  at  no  very  distant  period  the 
means  of  amply  paying  for  them  all."^ 

Food,  lodging,  clothes,  medical  attendance,  and  education,  to 
use  concise  words,  constitute  the  five  leading  elements  in  the 
doctrine  of  the  infant's  necessaries.  But,  to  apply  a  practical 
legal  test,  we  must  construe  these  five  words  in  a  very  liberal 
sense,  and  somewhat  according  to  the  social  position,  fortune, 
prospects,  age,  circumstances,  and  general  situation  of  the  infant 
himself.  "  It  is  well  established  by  the  decisions,"  says  one 
writer,  "  that  under  the  denomination  necessaries  fall  not  only 
the  food,  clothes,  and  lodging  necessary  to  the  actual  support  of 
life,  but  likewise  means  of  education  suitable  to  the  infant's  de- 
gree; and  all  those  accommodations,  conveniences,  and  even  mat- 
ters of  taste,  which  the  usages  of  society  for  the  time  being  render 
proper  and  conformable  to  a  person  in  the  rank  in  which  the  in- 
fant moves."^     Savs  another :     "  The  word  necessaries  is  a  rela- 


1,  Smith,  Contr.  269.  An  infant 
father  may  be  liable  for  the  neces- 
saries of  his  children.  McConnell  v. 
McConnell,  75  N.  H.  385,  74  A.  875. 

2.  Smoot  V.  Eyan  (Ala.),  65  So. 
828;  Gannon  v.  Manning,  42  App. 
D.  C.  206;  International  Text-Book 
Co.  V,  Doran,  80  Conn.  307,  68  A. 
255;  Slusher  v.  Weller,  151  Ky.  203, 
151  S.  W.  684;  Cain  v.  Garner,  169 
Ky.  633,  185  S.  W.  122;  Angel  v. 
McLellan,  16  Mass.  28,  8  Am.  Dec. 
118;  Stanhope  v.  Shambow,  54  Mont. 


360,  170  P.  75i2;  McConnell  v.  Mc- 
Connell, 75  N.  H.  385,  74  A.  875. 
The  word  "necessaries"  is  a  rela- 
tive term,  except  when  applied  to 
such  things  as  are  obviously  requieiite 
for  the  maintenance  of  existence,  and 
depends  on  the  social  position  and 
situation  in  life  of  the  infant,  as  well 
as  on  his  own  fortune,  and  that  of 
his  parents.  International  Text-Book 
Co.  V.  Connelly,  206  N.  Y.  188  &9  N. 
E.  722;  Frank  Spangler  Co.  v.  Haupt, 
53  Pa.  Super.  Ct.  545. 


1185 


ACTS    BINDING. 


§   1017 


tive  term,  and  not  confined  to  such  things  as  are  positively  re- 
quired for  mere  personal  support.'"  The  language  of  an  Ameri- 
can judge  is  this :  "  It  would  be  difficult  to  lay  down  any  general 
rule  upon  this  subject,  and  to  say  what  would  or  would  not  be 
necessaries.  It  is  a  flexible,  and  not  an  absolute  term."*  Dental 
services  are  usually  necessaries.^ 

Articles  of  mere  ornament  are  not  necessaries.  The  true  rule 
is  taken  to  be  that  all  such  articles  as  are  purely  ornamental  are 
not  necessary,  and  are  to  be  rejected,  because  they  cannot  be 
requisite  for  any  one;  and  for  such  matters  therefore  an  infant 
cannot  be  made  responsible.  But  if  they  were  not  of  this  de- 
scription, then  the  question  arises  whether  they  were  bought  for 
the  necessary  use  of  the  party,  in  order  to  support  himself  prop- 
erly in  the  degree,  state,  and  station  of  life  in  which  he  moved ;  if 
they  were,  for  such  articles  the  infant  may  be  made  responsible." 
The  result  of  the  cases  on  both  sides  of  the  Atlantic  seems  to  be 
that  unless  the  articles  are,  both  as  to  quality  and  quantity,  such 
as  must  be  necessaries  to  any  one,  the  burden  of  proof  lies  on  the 
plaintiff  to  show  such  a  condition  of  life  of  the  defendant  as  might 
raise  to  the  rank  of  necessaries  things  which  would  otherwise  be 
considered  luxuries  and  superfluous.'^ 

A  pair  of  solitaires  (or  shirt-fasteners),  worth  £25,  are  not,  it 
would  appear,  necessaries  for  any  infant.^  But  it  seems  that  pres- 
ents to  a  bride,  when  she  becomes  the  defendant's  wife,  may  be 


A  telegram  by  an  infant  to  his 
parents  for  money  when  he  was  des- 
titute has  been  held  to  be  necessaries, 
obliging  the  infant,  in  order  to  sue 
for  statutory  penalties  for  negligent 
transmission  of  the  message,  to  com- 
ply with  the  conditions  of  the  con- 
contract.  Western  Union  Telegraph 
Co.  V.  Greer,  115  Tenn.  368,  89  S,  W. 
327,  1  L.  E.  A.  (N.  S.)  525;  Gayle 
V.  Hayes'  Adm'r,  79  Va.  542;  Wal- 
lace V.  Leroy,  57  W.  Va.  263,  50  S.  E. 
M3,  110  Am.  St.  R.  777. 

Articles  purchased  by  an  infant  in 
carrying  on  a  business,  and  services 
rendered  in  connection  therewith  are 
not  necessaries,  though  the  infant  de- 
rives his  living  from  the  business. 
Walace  v.  Leroy,  57  W.  Va.  263,  50 

75 


S.    E.   243,    110   Am.    St.   Eep.    777; 
Smith,  Contr.   269'. 

3.  Met.  Contr.  69.  And  see  Peters 
V.  Fleming,  6  M.  &  W.  42. 

4.  Breed  v.  Judd,  1  Gray,  458,  per 
Thomas,  J. 

5.  McLean  v.  Jackson,  12  Ga.  App. 
51,  76  S.  E.  792 

6.  Per  Parke,  B.,  Peters  v.  Flem- 
ing, 6  M.  &  W.  42. 

7.  Smith,  Contr.  272,  5th  Am.  ed., 
Rawle's  ».,  and  cases  cited;  Harrison 
V.  Fane,  1  Man.  &  Gr.  550;  Wharton 
V.  Mackenzie,  5  Q.  B.  606;  Rundel  v. 
Keeler,  7  Watts,  239;  Bent  v.  Man- 
ning, 10  Vt.  225;  Merriam  v.  Cun- 
ningham,  11  Cush.   40. 

8.  Ryder  v.  Wombwell,  L.  R.  4 
Exch.  32.  As  to  a  watch  and  chain, 
see  Welch  v.  Olmstead,  90  Mich.  492. 


§  1017 


INFANCY. 


1186 


necessaries.*  Betting-books  are  not  an  infant's  necessaries.^"  Nor 
tobacco,  though  for  a  minor  soldier. ^^  Nor  money  paid  to  relieve 
an  infant  from  draft  for  military  duty.^^  Horses,  saddles,  har- 
ness, and  carriages  may  be  necessaries  under  some  circumstances, 
but  not  ordinarily;  and  this  is  the  better  doctrine,  English  and 
American.^^  Wedding  garments  for  an  infant  who  marries  are, 
within  reasonable  limits,  necessaries.^*  But  not  the  treats  of  an 
undergraduate  at  college. ^^  Nor,  in  Arkansas,  as  it  appears,  kid 
gloves,  cologne,  silk  cravats,  and  walking-canes.^®  The  uniform  of 
an  officer's  servant  is  adjudged  a  necessary;  but  not  cockades  for 
his  company."  An  insurance  contract  is  not  a  necessary.^*  But 
a  solicitor's  bill  for  preparing  a  marriage  settlement  may  be.** 
The  following  have  been  held  not  necessaries:  motorcycle,^**  bicy- 
cle,^^  huggy,^^  janitor's  services  for  building  owned  by  the  in- 
fant,^^  articles  furnished  to  an  infant  for  use  in  business  as  a 
common  carrier  by  means  of  automobiles.^*  Those  who  incline  to 
pursue  the  subject  still  further  will  find  some  interesting  decisions 
as  to  balls,  seranades,  suits  of  satin  and  velvet,  and  doubtless  of 
fustian,  among  the  ancient  cases  which  have  survived  the  fashions 
they  describe. 


25 


9.  Genner  v.  Walker,  19  Law  Times 
(N.  S.),  338;   3   Am.  Law  Eev.   590. 

10.  76. 

11.  Bryant  v.  Richardson,  L.  E.  3 
Ex.   93,  n. 

12.  Dorrell  v.  Hastings,  28  Ind. 
478. 

13.  Harrison  v.  Fane,  1  Man.  &  Gt. 
350;  Grace  v.  Hale,  2  Humph.  67; 
Aaron  v.  Harley,  6  Eich.  26 ;  Merriam 
V.  Cunningham,  11  Gush.  40;  Beeler  v. 
Young,  1  Bibb,  519 ;  Owens  v.  Walker, 
2  Strobh.  Eq.  289. 

14.  Sams  v.  Stockton,  14  B.  Monr. 
2.32. 

15.  Wharton  v.  Mackenzie,  5  Q.  B. 
606;  Brooker  v.  Scott,  11  M.  &  W.  67. 

16.  Lefils  V.  Sugg,  15  Ark.  137. 

17.  Hands  v.  Slaney,  8  T.  E.  578; 
Coates  V.  Wilson,  5  Esp.  52. 

18.  Simpson  v.  Prudential  Ins.  Co., 
184  Mass.  348,  68  N.  E.  673,  63  L. 
E.  A.  741,  100  Am.  St.  E.  560;  New 
Hampshire  Ins.  Co.  v.  Noyes,  32  N. 


H.  345.  See  Harrison  v.  Fane,  1 
Man.  &  Gr.  550;  Davis  v.  Caldwell, 
12  Gush.  512;  Bent  v.  Manning,  10 
Vt.  225;  Stanton  v.  Wilson,  3  Day, 
37;  Glover  v.  Ott,  1  McCord,  572; 
Eundel  v.  Keeler,  7  Watts,  239. 

19.  Helps  v.  Clayton,  17  C.  B.  (N. 
S.)    553. 

20.  Eaymond  v.  General  Motorcy- 
cle Co.,  230  Mass.  54,  119  N.  E.  359. 

21.  Eice  V.  Butler,  49  N.  Y.  S.  494, 
25  App.  Div.  388  (for  a  domestic  re- 
siding in  the  house  of  her  employer). 

22.  Heffington  v.  Jackson,  43  Tex. 
Civ.  560,  96  S.  W.  108  (for  one  not 
needing  it  to  ride  to  and  from  school 
or  business). 

23.  Covault  v.  Nevitt,  157  Wis.  113. 
146  N.  W.  1115  (contract  for  janitor's 
services). 

24.  La  Eose  v.  Nichols  (N.  J.), 
103  A.  390. 

25.  See  cases  cited  Met.  Contr.  69, 
70:   Cro.  Eliz.  583. 


1187 


ACTS    BINDING. 


§    1018 


§  1018.  Illustrations. 

It  is  usual  to  leave  the  question  of  necessaries  in  each  case  to  the 
jury,  without  very  positive  directions.  But  the  dividing  line  be- 
tween court  and  jury  is  not  in  this  respect  clearly  marked,  as  the 
latest  cases  teach  us.  Ryder  v.  Wombwell  lays  it  down  that  the 
question  whether  articles  are  necessaries  is  one  of  fact,  but,  like 
other  questions  of  fact,  should  not  be  left  to  the  jury  unless  there 
is  evidence  on  which  they  could  reasonably  find  that  they  were.^° 
The  immediate  object  of  this  decision  was  to  set  aside  a  verdict 
deemed  improper;  as  to  the  fitness  of  such  a  rule  in  its  broader 
application  there  is  considerable  doubt.^^  But  it  has  frequently 
been  said,  that  in  a  very  clear  case  a  judge  would  be  warranted  in 
directing  a  jury  authoritatively  that  some  articles,  like  diamonds 
and  race-horses,  would  not  be  necessaries  for  any  minor.^* 

The  propriety  of  classing  education  as  among  the  necessaries 
of  an  infant  rests  rather  upon  respectable  dicta  than  precedents. 
Lord  Coke  includes  among  the  necessaries  for  which  an  infant  may 
bind  himself  by  contract,  "  good  teaching  and  instruction,  whereby 
he  may  profit  himself  afterwards ;"  and  the  doctrine  within  strict 
limits  is  undoubtedly  correct.^*  In  Vermont  and  l^ew  York  it  is 
decided  that  a  collegiate  education  is  not  to  be  ranked  among 
those  necessaries  for  which  an  infant  can  render  himself  abso- 
lutely liable.^"  But  the  court  seems  to  make  it  but  a  'prima  facie 
rule,  and  to  admit  that  extraneous  circumstances  mia^ht  be  shown 
to  make  even  this  a  necessary ;  while  a  good  common-school  edu- 
cation is  strongly  pronounced  to  be  such.  And  the  judge  adds: 
"  I  would  not  be  understood  as  making  any  allusion  to  profes- 
sional studies,  or  to  the  education  and  training  which  is  requisite 


26.  Ryder  v.  Wombwell,  L.  R.  4 
Exch.  32. 

27.  Of  this  rule,  says  Cockburn,  C. 
J.,  of  the  Queen's  Bench,  still  later: 
' '  I  really  cannot  understand  it,  unless 
it  means  that  it  is  to  be  a  question 
of  law  for  the  judge  to  determine 
whether  the  articles  disputed  are,  or 
are  not,  necessaries.  If  that  is  to  be 
taken  to  be  law,  of  course  I  must  act 
upon  it;  but  I  should  certainly  have 
preferred  the  law  as  it  was  previously 
understood  to  be,  that  it  was  for  the 
.iury  to  say  what  articles  were  rea- 
sonably  necessary   with    reference   to 


the  position  of  the  defendant,  the 
infant."  Genner  v.  Walker,  19  Law 
Times  (N.  S.)  398.  And  see  John- 
stone V.  Marks,  19  Q.  B.  D.  509. 

28.  See  Harrison  v.  Fane,  Davis  v. 
Caldwell,  and  other  cases,  supra; 
Mohney  v.  Evans,  51  Pa.  St.  80. 

29.  Co.  Litt.  172;  1  Sid.  112;  Met. 
Contr.  69,  n.;  Smith,  Contr.  269,  273. 

30.  Turner  v.  Gaither,  83  N.  C. 
357,  35  Am.  Eep.  574;  International 
Text-Book  Co.  v.  Connelly,  206  N.  T. 
188,  99  N.  E.  722,  42  L.  R.  A.  (N.  S.) 
1115;  Middlebury  College  v.  Chandler, 
16  Vt.  683. 


§  1018 


INFANCY. 


1188 


to  the  knowledge  and  practice  of  mechanic  arts.  These  partake  of 
the  nature  of  apprenticeships,  and  stand  on  peculiar  grounds  of 
reason  and  policy.  I  speak  only  of  the  regular  and  full  course  of 
collegiate  studj."^^ 

An  infant  is  not  liable,  at  common  law,  for  the  expense  of  re- 
pairing a  dwelling-house  on  a  contract  made  by  him  or  his  guar- 
dian or  parent  for  that  purpose ;  although  such  repairs  were  neces- 
sary for  the  prevention  of  immediate  and  serious  injury  to  the 
house.^'  Thus  a  course  in  pharmacy  f^  a  course  in  stenography,^* 
and  a  course  in  steam  engineering^^  have  all  been  held  not  neces- 
saries unless  special  circumstances  make  them  so.^^  So  materials 
or  services  furnished  to  an  infant  for  building  on  his  own  land 
are  not  necessaries.^^  Nor  is  a  dwelling-house  built  for  him  a 
necessary.^^  A  mechanic's  lien  is  not  to  be  thus  acquired.^*  The 
law  is  extremely  reluctant  to  permit  an  infant's  real  estate  to  be 
encumbered  by  others  in  any  possible  way  so  as  to  exclude  his 
disaffirmance. 

So  it  is  ruled  that  the  services  and  expenses  of  counsel  in  a 
suit  brought  to  protect  the  infant's  title  to  his  real  estate  cannot 
for  similar  reasons  be  charged  against  the  infant  on  his  own  con- 
tract.*°  But  the  doctrine  that  legal  expenses  cannot  be  charged 
as  necessaries  for  an  infant  appears  not  to  prevail  in  Connecticut ; 
and  the  more  liberal  rule  is  asserted,  that  in  cases  where,  under 
peculiar  circumstances,  a  civil  suit  is  the  only  means  by  which  an 
infant  can  procure  the  absolute  necessaries  which  he  requires, 


31.  Per  Royce,  J.,  76.  A  board  bill 
contracted  to  enable  attendance  at 
school  is  a  necessary.  Kilgore  v.  Eich, 
83  Me.  305.  To  the  same  effect  see 
International,  etc.,  Co.  v.  Connelly, 
206  N.  T.  188,  99  N.  E.  722,  42  L.  E. 
A.  (N.  S.)  1115. 

32.  Tupper  v.  Caldwell,  12  Met.  559 ; 
West  V.  Gregg,  1  Grant,  53;  Wallis 
V.  Bardwell,  126  Mass.  366;  Price  v. 
Sanders,  60  Ind.  310;  Phillips  v. 
Lloyd  (1895),  E.  I. 

33.  "Wallin  v.  Highland,  etc.,  Co., 
127  Ta.  131,  102  N.  W.  839. 

34.  In  order  to  determine  whether 
a  contract  of  an  infant  for  a  course 
in  stenography  was  a  contract  for 
"necessaries,"  the  evidence  must 
show  the  condition  in  life  of  the  in- 


fant, and  that  the  parents  or  guardian 
of  such  infant  refused  to  furnish  such 
alleged  necessary.  Mauldin  v.  South- 
ern Shorthand  Business  tTniversity, 
126  Ga.  681,  55  S.  E.  922. 

35.  International  Text-Book  Co.  v. 
Connelly,  206  N.  Y.  188,  99  N.  E.  722 
(affg.  judg.,  125  N.  Y.  S.  1125,  140 
App.  Div.  939). 

36.  International,  etc.,  Co.  v.  Con- 
nelly, 206  N.  Y.  188,  99  N.  E.  722. 

42  L.  E.  A.  (N.  S.)  1115. 

37.  Freeman  v.  Bridger,  4  Jonea 
Jjnw,   1. 

38.  Allen  v.  Lardner,  78  Hun,  603. 

39.  Bloomer  v.  Nolan,  36  Neb.  51. 

40.  Phelps  V.  Worcester,  11  N.  H. 
51. 


1189 


ACTS    BINDING. 


§    1018 


power  cannot  be  denied  him  to  make  the  necessary  contracts  for 
its  commencement  and  prosecution;  for  it  would  jbe  a  reproach 
to  the  law  to  hold  otherwise.*^  In  this  particular  case  the  circum- 
stances justifying  relief  were  very  strong.  Moreover,  the  English 
cases  long  ago  established  that  money  advanced  to  an  infant  to 
procure  him  liberation  from  arrest,  where  he  was  in  execution  or 
taken  in  custody  on  a  debt  for  necessaries,  could  be  recovered  as 
necessaries.^^  Services  of  an  attorney  in  defending  the  infant 
against  a  criminal  complaint  may  likewise  be  recovered.**  And 
we  have  already  seen  that  legal  expenses  may  sometimes  be  classed 
as  necessaries  for  maiTied  women.**  On  the  whole,  it  may  be  said 
that  legal  expenses  on  behalf  of  a  minor  may  or  may  not  be  re- 
garded as  a  necessary  for  him,  according  to  circumstances  and  the 
reasonableness  of  incurring  them.  If  a  liability  exists  to  pay  for 
legal  services  whenever  necessary  for  the  infant's  personal  protec- 
tion or  that  of  his  estate,  the  liability  is  limited,  at  all  events  to 
the  actual  value  of  those  services,  and  not  extended  to  whatever 
the  infant  may  have  agreed  to  pay.*^  In  Oklahoma  it  is  held  that 
attorney's  services  are  necessaries  when  rendered  in  proceedings 
relating  to  the  liberty  or  person  of  the  minor  are  necessaries,** 
while  those  rendered  in  litigation  over  property  are  not,*^  while 
others  hold  the  contrarv,  if  the  services  are  beneficial.*^  Still 
others  hold  that  such  services  are  unqualifiedly  necessaries, 
whether  rendered  in  behalf  of  the  infant's  personal  or  property 
rights.*®  If  the  contract  was  for  a  contingent  fee,  the  infant  is 
liable  for  the  amount  of  the  fee  in  case  of  success,  and  not  merely 
for  the  reasonable  value  of  the  services  rendered.^"  In  Massachu- 
setts, under  peculiar  statutory  provisions,  such  services  are  held 


41,  Munson  v.  Washband,  31  Conn. 
303. 

42,  Clarke  v.  Leslie,  5  Esp.  28;  2 
Eden,  72, 

43,  Barker  t.  Hibbard,  54  N.  H. 
539;  Askey  v,  Williams,  74  Tex.  294. 

44,  Supra,  p,  100. 

45,  68  Hun,  589;  Searcy  v.  Hunter, 
81  Tex,  644. 

46,  Grissom  v.  Beidleman  (Okla,), 
129  Pac.  853,  44  L.  R.  A,  (N,  S.) 
411. 

47,  Watts  V,  Houston  (Okla.),  165 
P.  128;  Marx  v.  Hefner  (Okla.),  149 
P.    207;    Grissom    v.    Beidleman,    35 


Okla.    343,    129    P,    853     (attorneys 
services) . 

48.  Sutton  V.  Heinzle,  84  Kan.  756, 
115  P.  560,  34  L.  E,  A,  (N.  S.)  238 
(reh.  den.,  116  P.  614,  85  Kan.  332, 
34  L.  R.  A.  [N.  S,]  239), 

49.  Hickman  v.  McDonald,  164  la. 
50,  145  N.  W.  322:  Slusher  v.  Weller, 
151  Ky.  203,  151  S.  W.  684;  Crafts 
V.  Carr,  24  R.  T.  397,  53  A.  275,  60 
L.  R.  A.  128,  96  Am.  St.  R.  721; 
Vance  v.  Calhoun  (Ark.),  90  S.  W, 
619. 

50.  Hickman  v.  McDonald,  164  la. 
50,  145  N.  W.  322. 


§    1019  INFANCY.  1190 

not  necessaries  unless  the  attorney  is  employed  by  the  minor's 
guardian.^^  And  it  would  appear  that  the  burden  of  proof  is 
upon  an  attorney  to  show  that  the  suit  could  be  viewed  in  such 
a  light  as  to  entitle  him  to  recover  for  his  fees  and  disbursements/^ 
Generally,  a  guardian  or  next  friend  would  assume  the  responsi- 
bility of  employing  counsel  for  advice  or  suits  on  an  infant's 
behalf.  A  court  of  equity  will  enforce  against  an  infant  an  agree- 
ment settling  a  suit  made  by  his  guardian,  when  it  appears  to 
have  been  made  for  the  infant's  benefit.^' 

The  doctrine  of  necessaries  is  manifestly  not  to  be  extended  to 
an  infant's  trading  contracts,  as  we  have  already  intimated.  Thus 
the  board  of  four  horses  for  six  months,  the.  principal  use  of 
which  was  in  the  business  of  a  hackman,  is  not  within  the  class 
of  necessaries  for  which  an  infant  is  liable,  although  the  horses 
are  occasionally  used  to  carry  his  family  out  to  ride.^*  The  board 
of  an  infant,  again,  is  included  among  the  necessaries  for  which 
he  may  pledge  his  credit.^^  But  here,  too,  we  must  keep  within 
our  principle.  Thus,  where  an  infant  took  a  house  to  carry  on  the 
business  of  a  barber, —  the  house  containing  five  rooms,  two  on 
the  ground  floor,  one  of  which  he  occupied  as  a  shop,  the  other 
to  reside  in,  and  three  above,  which  he  underlet, —  he  was  held 
not  to  be  liable  for  the  rent.^*  An  infant  may  contract  for  his 
necessary  lodgings,  but  he  cannot  bind  himself  for  more.  'Not 
are  farm  implements,  live  stock,  wagons,^^  and  the  like,  to  bg 
deemed  necessaries  when  purchased  to  carry  on  a  farm ;  inasmuch 
as  articles  for  business  or  trade,  whether  agricultural,  commercial, 
or  mercantile,  cannot  be  brought  within  the  present  rule. 

§  1019.  Contracts  for  Necessaries;  Same  Subject. 

But  the  question  in  all  such  cases  is  one  of  mixed  law  and  fact. 
And  articles  prima  facie  to  be  classed  as  luxuries,  such  as  wines, 
fruits,  and  the  use  of  a  horse  and  carriage,  might,  under  some 
circumstances,  become  necessaries ;  as  if,  for  instance,  medically 
prescribed,  for  an  infant's  health;  though  this  salutary  rule  is 

51.  Melsaac  v.  Adams,   190  Mass.  to    secure   the    estate    to    the    infant. 
117,  76  N.  E.  654  (where  the  attorney  Epperson   v.   Nugent,   57   Miss.   45. 
volunteered  his   services   at   the   sug-  54.    Merriam    v.    Cunningham,    11 
geation  of  the  infant's  relatives).  Cush.  40;  supra,  §  1014.   But  see  Hall 

52.  Thrall  v.  Wright,  38  Vt.  494.  v.  Butterfield,  59  N.  H.  354. 

63.  In  re  Livingston,  34  N.  Y.  555.  55.  Bradley  v.  Pratt,  23  Vt.  378. 

And  80  where  there  is  no  guardian,  56.  Lowe  v.  Griffith,  1  Scott,  458. 

and  the  counsel 's  services  contributed  57.  Paul  v.  Smith,  41  Mo.  App.  275. 


1191  ACTS    BINDING.  §    1019 

not  designed  to  support  a  quibble."  The  infant's  clothes  may  be 
fine  or  coarse,  according  to  his  rank;  his  education  may  vary 
according  to  the  station  he  is  to  fill,  and  the  extent  of  his  prob- 
able means  when  of  age;  and  as  to  servants,  attendance,  and 
the  like,  this  will  depend  on  his  social  position.'^®  Stock  pur- 
chased for  a  farm,  too,  may  under  some  special  circumstances, 
though  not  usually,  be  treated  as  necessaries.*^"  And  so  with  plan- 
tation supplies,  where  a  married  infant  is  intrusted  by  law  with 
the  estate.®^  And  upon  such  issues,  quantity  may  be  as  much  for 
the  consideration  of  the  jury  as  quality.®^  Primarily,  the  parent 
or  guardian  who  supplies  the  necessaires  is  the  judge  of  wbat 
quantity  and  quality  are  suitable  for  the  infant.^*  And  if  the 
natural  protector  with  whom  the  child  lives  does  his  legal  duty 
as  best  he  may  according  to  his  means,  the  fact  that  he  is  poor 
and  unable  to  pay  for  what  was  furnished  to  the  child,  will  not 
render  the  child's  estate  liable.®* 

If  one  furnish  an  infant  with  necessaries,  and  also  other  articles 
not  necessary  under  his  circumstances  and  condition,  he  is  not 
on  that  account  precluded  from  recovering  for  the  necessaries ; 
though,  as  to  the  balance  of  his  claim,  he  may  be  without  a 
remedy.*^ 

An  infant  is  not  liable  for  necessaries  when  he  lives  under 
the  roof  of  his  father,  who  provides  everything  which  seems 
proper.  I^ot  only  is  there  here  no  implied  agreement  on  the 
infant's  part  to  pay  for  such  support,  but  if  one  were  expressly 
made  by  him  it  would  be  in  derogation  of  parental  duty.  And 
so  when  he  is  supplied  by  a  guardian  or  widowed  mother,  or  any- 
one assuming  the  place  of  parent.  The  parent  or  the  legal  pro- 
tector having  the  means  and  being  willing  to  furnish  all  that  is 
actually  necessary,  the  infant  can  make  no  binding  contract  for 

58.  See  Wharton  v.  Mackenzie,  5  62.  Burghart  v.  Angerstein,  6  Car. 
Q.  B.  606.                                                          &  P.  690. 

59.  See  Alderson,  B.,  Chappie  v.  63.  Thus,  a  journey  for  the  child's 
Cooper,  13  M.  &  W.  258.  Gold  filling  recreation,  without  the  parent's  or 
and  dentist's  work  upon  his  teeth  guardian's  approval,  cannot  generally 
should  be  classed  among  the  neces-  be  deemed  a  necessary.  McKanna  v. 
saries  of  a  minor  of  good  means  and  Merry,  61  111.  177. 

social  position.     Strong  v.  Toote,  42  64.  Hoyt  v.  Casey,  114  Mass.  397. 

Conn.  203.  65.    Turberville   v.    Whitehouse,    12 

60.  Mohney  v.  Evans,  51  Pa.  St.  80.       Price,  692 ;   Bent  v.  Manning,  10  Vt. 

61.  Chapman  v.  Hughes,  61  Miss.  225.  And  see  Johnson  v.  Lines,  6  W. 
339.  &   8.    80;    Wilhelm   v.    Hardman,    13 

Md.  140. 


§    1019  INFANCY.  1192 

any  article  without  such  protector's  consent,  ^or  can  the  infant 
be  charged  for  wliat  such  protector  ordered  on  his  own  credit. 
Prima  facie,  where  the  child  resides  at  home,  proper  maintenance 
is  furnished  him:  and  the  tradesman  who  furnishes  goods  to  an 
infant  or  the  professional  person  rendering  services  does  so  at  his 
peril ;  it  is  incumbent  upon  him  to  show  the  necessity  of  his  supply 
or  service.®^  But  an  infant,  when  absent  from  home,  and  not 
under  the  care  of  his  parent  or  guardian,  is  usually  liable  for  his 
own  necessaries.®^  An  emancipated  infant  may  agree  with  his 
employer  in  such  matters.®^  And  the  law  will  imply  a  promise, 
on  the  part  of  an  infant  having  no  legal  protector,  to  make  pay- 
ment ;  ®*  though  not  for  any  fixed  amount,  but  only  a  reasonable 
price,''"  and  certainly  not  for  what  were  not  necessaries  at  all.'^ 

There  is  no  inflexible  rule  of  law,  however,  which  makes  it 
incumbent  on  the  tradesman  who  supplies  an  infant  to  inquire 
as  to  his  situation  and  resources  before  giving  him  credit  for 
necessaries ;  though  it  would  be  prudent  always  for  him  to  do  so.''^ 
And  the  parent  or  guardian  may  sanction  by  words  or  conduct  the 
child's  purchase,  so  as  to  make  it  obligatory.  As  in  a  case  where 
the  infant  daughter,  living  with  her  mother  at  a  hotel,  drove  to 
the  plaintiff's  store  in  a  carriage,  accompanied  by  her  mother,  who 

66.  Mauldin  v.  Southern,  etc.,  Uni-  Kraker  v.  Byrum,  13  Eich.  163;  Til- 

versity,   126   Ga.   681,   55   S.  E.   922.  ton  v.  Eussell,   11  Ala.  497;    Hussey 

It  is  otherwise   where  the  child   has  v.  Eoundtree,  Busbee  Law,  110.    Per- 

been  emancipated.    Eobinson  v.  Hath-  haps  for  a  return  of  such  necessaries 

away,   150   Ind.   679,   50  N.  E.    883;  as  the  minor  has  not  consumed  the 

Angel   V.   McLellan,    16   Mass.    28,   8  tradesman  may  sue.    Nichol  v.  Steger, 

Am.  D.   118;    Harris  v.  Crawley,   17  2  Tenn.  328. 

Det.   Leg.   N.   303,   126   N.  W.   421;  67.    Angel   v.    McLellan,    16    Mass. 

International  Text -Book  Co.  v.  Con-  28;  Hunt  v.  Thompson,  3  Scam.  179. 

nelly,  206  N.  T.  188,  99  N.  E,  722,  68.  Genereux  v.  Sibley  (1895,  E.  I.). 

42  L.  E.  A.    (N.  S.)    1115;   Coler  v.  68.  Hyman  v.  Cain,  3  Jones  Law, 

Cllahan,    174    N.    Y.    S.    504;    Potter  111;  Epperson  v.  Nugent,  57  Miss.  45. 

V.  Thomas,  164  N.  Y.  S.  923;  Inter-  70.  Parson  v.  Keys,  43  Tex.  557. 

national,    etc.,    Co.    v.    Connelly,    206  71.  Genereux     v.      Sibley,     supra; 

N.  Y.  88,  99  N.  E,  722;  Bainbridge  Morse  v.  Ely,  154  Mass,  458.    An  in- 

V.  Pickering,  2  Blacks.  1325;  Story  v.  fant   thrown   upon   his  own   support, 

Pery,    4    Car.    &    P.    526;    Angel    v.  and  without  a  legal  protector,  ought, 

McLellan,    16   Mass.    28;    "Wailing  v.  in  case  of  medical  expenses  incurred, 

Toll,  9  Johns.  146;  Johnson  v.  Lines,  through   another's   wrongful   act,   re- 

6  W.  &  S.  80;   Kline  v.  L'Amoreux,  cover   such    damages   for   himself  by 

2  Paige,   419 ;    Perrin  v.   Wilson,   10  way  of  reimbursement.     See  Eailroad 

Mo.  451 ;  Freeman  V.  Bridger,  4  Jones  Company  v.  Maddux,   134   Ind.   571; 

Law,   1 ;    Smith   v.   Young,   2   Dev.   &  §§  262,  427-430. 

Bat.  26 ;  Connolly  v.  Hull,  3  McCord,  72.    Brayshaw   v.    Eaton,    7    Scott, 

6;    Elrod    v.    Myers,    2    Head,    33;  183. 


1193  ACTS    BINDING.  §    1019 

waited  in  the  carriage  wHle  her  daughter  purchased  the  g3ods, 
some  of  which  she  took  home  in  the  carriage,  while  others  were 
delivered  at  the  hotel;  here  it  might  be  reasonably  inferred,  as 
the  court  decided,  that  the  whole  had  come  under  the  mother's 
inspection,  so  as  to  make  the  infant  liable  for  the  purchase.'^ 

The  English  cases  seem  to  lay  especial  stress  upon  tlie  question 
whether  articles  are  or  are  not  of  themselves  necessaries.  And  it 
is  held,  not  only  that  an  infant  may  enter  into  a  contract  for  neces- 
saries for  ready  money,  but  that  he  may  be  bound  by  any  reason- 
able contract  for  necessaries  on  a  credit,  though  he  has  an  income 
of  his  own,  and  an  allowance  amply  sufficient  for  his  support.''* 

In  South  Carolina  a  contrary  doctrine  is  maintained ;  namely, 
that  an  infant  who  is  regularly  furnished  with  necessaries,  or  the 
means  in  cash  of  procuring  them,  by  his  parent  or  guardian,  or 
from  any  other  source,  is  prima  facie  not  liable  for  necessaries 
furnished  him  on  credit.^^ 

This  is  likewise  the  rule  in  some  other  States.'*  Claims  against 
an  infant  for  necessaries  being  perfectly  valid  at  law,  the  creditor 
cannot  sue  in  equity ;  '^  but  it  is  held  that  where  a  minor  cannot 
legally  contract  a  debt  on  the  ground  that  his  parent  or  guardian 
has  properly  supplied  him,  equity  will  compel  him  to  return  the 
furnished  articles  if  he  has  them.'^  And  while  it  is  true  that  an 
infant  cannot  bind  himself  when  he  has  a  parent  or  guardian  who 
supplies  his  wants,  he  may  be  bound  by  the  purchase  of  necessaries 
under  the  express  or  implied  authority  of  his  guardian.''®  But  not 
for  anything  absurd  or  improper  in  quantity  or  quality.*"  And 
where  credit  is  given  to  a  parent  or  guardian,  the  infant's  estate  is 
not  answerable.®^ 

The  rule  as  to  necessaries  in  general  is,  that  it  is  the  province 
of  the  court  to  determine  whether  the  articles  sued  for  are  within 
the  class  of  necessaries,  and,  if  so,  it  is  the  proper  duty  of  the  jury 

73.  Dalton  v.  Gibb,  5  Bing.  (TT.  C.)  saries  sold  to  the  defendant  during 
IQ'S;  Atchison  v.  Bruff,  50  Barb.  381.  minority,  the  burden  is  on  the  latter 
And  see  Strong  v.  Foote,  42  'Conn.  to  show,  by  way  of  defence,  that  dur- 
203.  ing  minority  his  parent  or  guardian 

74.  Burghart  v.  Hall,  4  M.  &  W.  supplied  him.  Parsons  v.  Keys,  43 
727 ;  Smith,  Contr.  273.  Tex.   557. 

75.  Eivers   v.    Gregg,   5   Rich.   Eq.  77.  Oliver  v.  McDuffie,  28  Ga.  522. 
274.      And    see   Mortara   v.    Hall,    6           78.  Nichol  v.  Steger,  6  Lea,  393. 
Sim.  465.                                                                79.  Watson  v.  Hensel,  7  Watts,  344. 

76.  Nicholson  v.  Wilborn,  13  Ga.  80.  Johnson  v.  Lines,  6  W.  &  S.  80. 
467;  Nichol  v.  Steger,  6  Lea,  393.  In  81.  Sinklear  v.  Emert,  18  HI.  63; 
a  suit  to  recover  the  price  of  neces-  148  N.  Y,  Super.  152. 


§  1019 


INFANCY. 


1194 


to  pass  upon  the  questions  of  quantity,  quality,  and  their  adapta- 
tion to  the  condition  and  wants  of  the  infant**^  But,  as  the  reader 
is  already  apprised,  this  rule  is  neither  stated  nor  applied  with 
invariable  precision  in  all  cases.  Generally,  the  question  is  one  of 
fact  for  the  jury;  and  the  two  principal  circumstances  are, 
whether  the  articles  are  suitable  to  th©  minor's  estate  and  condition, 
and  whether  he  is,  or  is  not,  without  other  means  of  supply.^^  An 
infant  will  be  held  to  pay  for  necessaries  what  they  are  reasonably 
worth,  but  not  what  he  may  foolishly  have  agreed  to  pay  for  them.** 
Nor  can  the  court  be  precluded,  by  the  form  of  the  contract,  from 
inquiring  into  their  real  value.*^  By  the  better  opinion  it  may  be 
shown,  when  the  infant  is  sued,  not  only  that  the  articles  were  not 
of  the  kind  called  necessaries,  but  that  the  infant  at  the  time  they 
were  furnished  was  sufficiently  provided  with  articles  of  that 
kind.®®  The  creditor  must  plead  and  show  the  reasonableness  of 
the  price,®^  the  fact  that  the  articles  are  necessaries,*®  and  that  they 
are  really  needed,  and  that  the  articles,  or  the  money  therefor, 
were  not  supplied  by  others.®^     The  infant  is  not  bound  by  an 


82.  Peters  v.  Fleming,  6  M.  &  W. 
42 ;  Harrison  v.  Fane,  1  Man.  &  Gr. 
550;  Phelps  v.  Worcester,  11  N.  H. 
51;  Merriam  v.  Cunningham,  11 
Gush.  40;  Beeler  v.  Young,  1  Bibb, 
519. 

83.  Per  Shaw,  C.  J.,  Davis  v.  Cald- 
well, 12  Cush.  512. 

84.  Sims  V.  Gunter  (Ala.),  78  So. 
62;  Appeal  of  Ennis  (Conn.),  80  A. 
772;  Hickman  v.  McDonald,  164  la. 
50,  145  N.  W.  322 ;  MoConnell  v.  Mc- 
Connell,  75  N.  H.  385,  74  A.  875; 
Locke  V.  Smith,  41  N.  H.  346;  Plum- 
mer  v.  Northern  Pac.  Ry.  Co.,  ?8 
Wash.  67,  167  P.  73. 

85.  See  10  Mod.  85;  Met.  Contr. 
73;  2  Kent,  Com.  240;  Parsons  v. 
Keys,  43  Tex.  557.  An  infant  sued 
for  the  price  of  goods  has  not  the 
burden  of  showing  that  they  were  not 
necessaries,  but  the  plaintiff  must 
show  that  they  were.  Wood  v.  Losey, 
50  Mich.  475 

86.  Johnstone  v.  Marks,  19  Q.  B. 
D.  509;  Barnes  v.  Toye,  13  Q.  B.  D. 
410.      It    is   immaterial    whether    the 


plaintiff  did  or  did  not  know  of  the 
existing  supply.    lb. 

87.  In  order  that  an  infant's  con- 
tract may  be  "fair"  and  "reason- 
able," it  must  not  waste  his  estate, 
and  must  be  provident  and  advan- 
tageous to  him.  Berglund  v.  Ameri- 
can Multigraph  Sales  Co.  (Minn.), 
160  N.  W.  191;  Gray  v.  Sands,  73 
N.  Y.  S.  322,  66  App.  Div.  572;  In- 
ternational, etc.,  V.  Alberton,  30  Ohio 
Cir.  Ct.  R.  352. 

88.  Thus,  where  the  defendant 
pleads  infancy,  he  states  a  good  de- 
fence, and  the  plaintiff  must  set  up 
the  fact  of  necessaries  by  replica- 
tion where  that  is  required.  Medders 
V.  B^ley,  etc.,  Co.,  17  Ga.  App.  730, 
88  S.  E.  407;  International  Text- 
Book  Co.  V.  Connelly,  206  N.  Y.  188, 
99  N.  E.  72^  (affg.  judg.,  125  N.  Y. 
S.  1125,  140  App.  Div.  939);  Marx 
V.  Hefner  (Okla.),  149  P.  207. 

89.  Brent  v.  Williams,  79  Miss.  355, 
30  So.  713.  But  see  Lynch  v.  John- 
son, lOS  Mich.  640,  67  N,  W.  908. 


1195 


ACTS    BINDING. 


§    1020 


executory  contract  for  necessaries.®"     But  usually  the  question  as 
to  whether  the  contract  is  for  necessaries  is  for  the  jury."^ 

§  1020.  Money  Advanced  for  Necessaries;   Infant's  Deed,  Note, 
&c. ;  Equity  Rules. 

An  infant  is  liable  to  an  action  at  the  suit  of  a  person  advancing 
money  to  a  third  party  to  pay  for  necessaries  furnished  to  the 
infant.""     But  it  is  thought  to  be  otherwise  as  to  money  supplied 
directly  to  the  infant,  to  be  by  him  thus  expended,  notwithstanding 
the  money  be  actually  laid  out  for  necessaries.^'     The  reason  for 
this  distinction  is  said  to  be  that  in  the  latter  case  the  contract 
arises  upon  the  lending,  and  that  the  law  will  not  support  contracts 
which  are  to  depend  for  their  validity  upon  a  subsequent  contin- 
gency.'*    The  same  is  true  of  a  loan  to  enable  the  infant  to  pay 
a  debt  incurred  for  necessaries."^      The  purpose  for  which  the 
minor  uses  the  money  must  be  in  fact  necessaries.""     One  writer 
admits  that,  according  to  some  reports  of  a  leading  case,  the  court 
held  that  if  the  money  were  actually  expended  for  necessaries  the 
infant  would  be  chargeable ;  "'^  but  adds  that  the  weight  of  author- 
ity is,  that  the  infant  is  not  liable  at  law  for  money  thus  lent  and 
appropriated."^     What  this  weight  of  authority  may  be  is  not  ap- 
parent, but  the  analogies  elsewhere  noticed  as  to  a  wife  are  to  be 
considered  as  in  point.     The  equity  rule  is,  that  if  money  is  lent 
to  an  infant  to  pay  for  necessaries,  and  it  is  so  applied,  the  infant 
becomes  liable  in  equity;    for  the  lender  stands  in  place  of  the 


90.  Valentines'  School  of  Telegra- 
phy,   122    Wis.    318,    99    N.   W.    1043, 

91.  International  Text-Book  Co.  v. 
Doran,  80  Conn.  307,  68  A.  255; 
Nielson  v.  International  Textbook 
Co.,  106  Mo.  104,  75  A.  330. 

92.  Price  v.  Sanders,  60  Ind.  310; 
Equitable  Trust  Co.  of  New  York  v. 
Moss,  134  N.  T.  S.  533,  149  App,  Div. 
615;  Swift  V.  Bennett,  10  Cu3h.'436; 
Eandall  v.  Sweet,  1  Den.  460. 

93.  Macphers.  Inf.  505,  506;  Ellis 
V.  Ellis,  5  Mod.  368;  12  Mod.  197; 
Earle  v.  Peele,  1  Salk.  386;  Clarke 
V.  Leslie,  5  Esp.  28. 

94.  See  Swift  v.  Bennett,  10  Cush. 
436. 

95.  Price  v.  Sanders,  60  Ind,  310. 

96.  Burton  v.  Anthony,  46  Ore.  47, 


79'  P.  185,  114  Am.  St.  R.  847  (hold- 
ing that  a  loan  for  the  purpose  of  en- 
abling a  minor  to  redeem  where  he 
was  not  bound  to  do  so,  and  where 
redemption  was  not  necessary,  was 
not  necessaries). 

97.  Ellis  V.  Ellis,  12  Mod.  197. 

98.  Met.  Contr.  72.  The  learned 
writer  quotes  a  dictum  from  10  Mod. 
€7,  to  controvert  that  of  12  Mod.  197, 
which  last  held  that  money  might  be 
sometimes  properly  charged  upon  the 
infant.  But  the  context  only  contem- 
plates the  "great  difference  between 
lending  an  infant  money  to  buy  nec- 
essaries, and  actually  seeing  the  money 
so  laid  out."  Besides,  it  is  not  clear 
which  of  the  two  is  the  better  dictum. 


§    1020  INFANCY.  1196 

payee.®*  This  is  the  ^ew  York  doctrine,  whether  legal  or  equi- 
table.^ And  other  States  assert  the  same  rule.^  An  innkeeper's 
lien  on  the  baggage  of  his  infant  guest  has  been  protected  in  our 
courts,  notwithstanding  the  infant  acted  improperly  and  contrary 
to  his  guardian's  wishes,  so  long  as  the  innkeeper  acted  in  good 
faith ;  and  this,  even  to  the  extent  of  protecting  the  innkeeper  for 
money  furnished  the  infant,  which  was  expended  for  necessaries.* 
Circuity  of  action  should  not  be  favored  at  this  late  day,  especially 
when  the  object  is,  after  all,  to  enforce  a  moral  obligation  in  small 
transactions. 

The  old  books  say  that  an  infant  may  bind  himself  by  his  deed 
to  pay  for  necessaries.'*  Yet  it  has  been  considered  clearly  settled 
that  he  cannot  do  so  by  a  bond  in  a  penal  sum ;  since  it  cannot  be 
to  his  advantage  to  become  subject  to  a  penalty.^  But  on  the  ques- 
tion whether  an  infant  is  bound  by  a  note  not  negotiable  given  for 
necessaries,  there  is  an  irreconcilable  difference  of  opinion  in  the 
authorities ;  though  Story  considers  the  weight  of  modem  English 
and  American  authorities  greatly  in  favor  of  holding  promissory 
notes  given  or  indorsed  by  an  infant  to  be  voidable  only,  and  not 
void,  and  therefore  capable  of  being  ratified  after  the  party  comes 
of  age.®  The  mischief  of  holding  an  infant's  promissory  note  for 
necessaries  to  be  worthless  or  even  voidable  is  the  same  as  in  loans 
of  money  for  the  same  purpose ;  namely,  that  an  infant  is  thereby 
allowed  to  get  his  supplies  without  paying  for  them.  Equity  in- 
fluence the  later  cases ;  that  somewhat  novel  and  yet  manifestly  just 
principle  gaining  ground  that  one  who  receives  advantages  is  liable 
on  an  implied  contract  to  furnish  a  suitable  recompense.  Reeve  and 
others  state  the  law  thus :  that  an  infant  is  not  bound  by  any 
express  contract  for  necessaries  to  the  extent  of  such  contract,  but 
is  bound  only  on  an  implied  contract  to  pay  the  amount  of  their 
value  to  him ;  that  when  the  instrument  given  by  him  as  security 
for  payment  is  such  that,  by  the  rules  of  law,  the  consideration 
cannot  be  inquired  into,  it  is  void  and  not  merely  voidable ;  that 
whenever  the  instrument  is  such  that  the  consideration  may  be 
inquired  into,  he  is  liable  thereon  for  the  true  value  of  the  articles 

99.  Marlow  v.  Pitfeild,  1  P.  Wms.  4.  Com.  Dig.  Infant.    But  see  next 

558.  page. 

1.  Smith  T.  Oliphant,  2  Sandf.  306.  5.  Ayliff  v.  Archdale,  Cro.  Eliz.  920; 
And  see  Eandall  v.  Sweet,  1  Den.  460,  Corpe  V.  Overton,  10  Bing.  252; 
per  Bronson,  C.  J.  Smith,  Contr.  281;  Met.  Contr.  75. 

2.  Kilgore  v.  Rich,  83  Me.  305.  6.    Story,  Prom.   Notes,   6th   ed.,   § 

3.  "Watson  v.  Cross,  2  Duv.  147,  78,  and  cases  cited.    And  see  2  Kent, 


1197 


ACTS    BINDING. 


§    1020 


for  whicli  it  was  given.''  This  excellent  statement  could  hardly 
be  improved  upon,  except  so  far  as  equitable  doctrine  may  prop- 
erly enlarge  the  expression;  and,  for  a  topic  so  much  unsettled, 
is  as  well  entitled  to  be  called  good  law  as  anything  else;  and, 
what  is  more,  it  has  justice  in  it.  The  doctrine  has  received  sub- 
stantial encouragement  in  Massachusetts.*  Even  a  bond  for  neces- 
saries has  been  deemed  binding  in  a  State  where  the  statute  allows 
its  consideration  to  be  impeached  and  a  judgment  pro  tanto  ren- 
dered for  the  amount  actually  doie.'  The  same  practical  result 
seems  to  be  reached  in  New  Hampshire,  and  other  States,  so  as 
further  to  give  the  infant's  indorser  or  surety  a  remedy  against 
him ;  ^°  and  the  broad  doctrine  conforms  to  equitable  procedure  in 
other  analogous  cases."     A  deed  of  land  or  mortgage  given  by  a 


Com.,  11th  ed.,  257;  Bayley,  Bills,  ch. 
2,  pp.  45,  46,  5th  ed.  Askey  v.  Wil- 
liams, 74  Tex.  294. 

7.  Eeeve,  Dom.  Eel.  229,  230;  2 
Dane,  Abr.  364,  365;  Met.  Contr.  75. 

8.  Stone  v.  Dennis,  13  Pick.  6,  7, 
per  Shaw,  C.  J.;  Earle  v.  Keed,  10 
Met.  387. 

9.  Guthrie  v.  Morris,  22  Ark.  411. 

10.  McCrillis  v.  How,  3  N.  H,  348 ; 
Conn  V.  Coburn,  7  N.  H.  368;  Dubose 
V.  Wheddon,  4  McCord,  221;  Haine 
V.  Tarrant,  2  Hill  (S,  C),  400;  Mc- 
Minn  v.  Richmonds,  6  Yerg.  9.  See, 
contra,  S'wasey  v.  Vanderheyden,  10 
Johns.  33. 

A  late  Indiana  case  tends  in  the 
same  direction.  Here  it  is  said  an 
infant  is  not  liable  at  law  on  his  note 
or  other  contract  whereby  he  obtains 
money  to  build  a  barn  or  work  his 
farm,  although  the  money  be  actually 
expended  for  necessaries;  since  the 
indebtedness  for  necJessary  for  which 
he  is  liable  must  be  created  directly 
therefor.  But,  in  equity,  the  infant  is 
liable  for  the  money  so  obtained, 
where  the  creditor  can  show  that  it 
was  actually  expended  for  necessaries. 
Price  V.  Sanders,  60  Ind.  310.  But  a 
surety  on  an  infant 's  note,  given  for 
necessaries,  who  has  been  compelled 
to  pay  it,  cannot  sue  the  infant  dur- 
ing his  infancy  for  reimbursement. 
Ayers  v.  Burns,  87  Ind.  245. 


11.  We  have  seen  a  similar  rule  ap- 
plied of  inquiry  into  consideration  in 
the  case  of  a  married  woman's  con- 
tract under  equity  and  modern  stat- 
utes. Supra,  Part  II„  ch.  11.  An  ac- 
count for  necessaries  was  allowed  in 
equity,  with  a  lien  on  the  infant's 
reversionary  interest,  in  a  recent  Eng- 
lish case,  although  the  minor's  deed 
of  sale  of  his  reversionary  interest, 
given  during  minority,  as  security, 
was  declared  not  binding  upon  him. 
Martin  v.  Gale,  4  Ch.  D.  628.  A  sim- 
ilar rule  is  observed  in  charging  a 
married  woman's  separate  estate.  In 
a  Vermont  case  this  later  rule  re- 
ceived a  striking  illustration.  An 
infant  boarded  in  a  country  town  for 
some  twenty  weeks  at  a  reasonable 
price.  The  person  to  whom  he  was 
indebted  owed  his  own  adult  son 
money,  and  for  the  convenience  of 
the  parties  drew  an  order  upon  the 
infant,  authorizing  him  to  pay  the 
amount  of  the  board  to  his  son; 
which  order  was  duly  received,  and 
the  infant  agreed  to  pay  it.  Soon 
after,  by  consent  of  the  parties,  this 
order  was  surrendered,  and  the  in- 
fant substituted  in  its  place  his  prom- 
issory note.  The  note  was  negotiable, 
but  never  was  negotiated;  and  tho 
holder,  the  adult  son  of  the  person 
furnishing  board,  brought  a  suit 
thereon.      The   evidence    showed    that 


§    1022  INFANCY.  1198 

minor    in   consideration    of   necessaries    furnished    receives    late 

favor." 

§  1021.  Illustrations. 

While  stress  was  formerly  laid  upon  the  infant's  contract  for  his 
necessaries,  infants  appear  liable  in  various  modem  instances  on 
the  ground  rather  of  an  implied  liability  based  upon  the  necessity 
of  the  situation,  and  because  the  infant  derives  a  substantial  benefit 
at  another's  cost.  Thus,  v^^here  the  infant  seeks  to  recover  what 
his  services  are  reasonably  worth,  the  adult  is  permitted  to  set  off 
the  reasonable  value  of  what  the  infant  may  have  received  from 
him  in  support  or  otherwise.^^  And  it  is  held  that  one  may 
recover  for  necessaries  furnished  to  a  minor,  taken  from  an  alms- 
house, and  supported  on  the  credit  of  property  which  was  to  be- 
come his  on  his  father's  death."  But  necessaries  purely  in  futuro, 
or  upon  some  executory  contract  of  the  infant,  cannot  charge  him, 
for  his  liability  only  arises  when  the  necessaries  are  furnished.^'* 
§  1022.  Binding  Contracts  as  to  Marriage  Relation;  Promise  to 
Marry  Contrasted. 

There  are  other  contracts  besides  necessaries  which  are  excepted 
from  the  general  rule,  and  are  made  obligatory  upon  the  infant; 
being  neither  void  nor  voidable. 

the  defendant's  board  constituted  the  his  perfect  safety.  All  the  cases  and 
sole  consideration  of  the  note.  It  was  all  the  elementary  writers  expressly 
held  that  the  consideration  of  the  hold  that  it  is  for  the  benefit  of  the 
note  was  open  to  inquiry,  and  that,  infant  that  he  should  be  able  to  con- 
upon  the  facts  found,  the  defendant  tract  for  necessaries;  and  we  see  no 
wa3  liable  to  the  plaintiff  for  the  full  reason  why  he  may  not  be  allowed  to 
amount  of  the  note ;  and,  as  the  court  contract  in  the  ordinary  modes  of  con- 
also  decided,  with  interest.  Bradley  tracting,  so  far  as  his  perfect  safety 
V,  Pratt,  23  Vt.  378.  Says  the  learned  is  maintained  always."  See  Thing  v. 
judge  who  gave  the  opinion  in  this  Libbey,  16  Me.  55;  Ray  v.  Tubbs,  50 
case,  after  a  full  examination  of  the       Vt.  688. 

conflicting   authorities   as   to   the   in-  12.  Searey  v.  Hunter,  81  Tex.  644. 

fant 's  liability  on  his  promissory  note       But  not  beyond  what  may  be  truly 
for  necessaries:   "We  may  then,  we       classed    as    necessaries.      Deeds    and 
think,  regard  the  question  as  still  in       mortgages   are  generally  voidable   at 
dxibio,    and    justifying    the    court    in       least.     See  last  chapter. 
treating  it  as  still  an  open  question.  13.   Hall  v.   Butterfield,   59   N.   H. 

And  being  so,  we  should  desire  to  put  354,  358.  But  there  is  no  set-off  of 
it  upon  safe  and  consistent  ground.  what  the  minor  was  not  bound  to  pay 
We  are  led,  then,  to  inquire  what  is  for.  Wright  v.  McLarinan,  92  Tnd. 
the  true  principle  lying  at  the  found-       103;  §  236. 

ation  of  all  these  inquiries.    We  think  14.  Trainer  v.  Trumbell,  141  Mass. 

it  is,  that  the  infant  should  be   en-       527. 

abled  to  pledge  his  credit  for  neces-  15.  Gregory  v.  Lee   (1895),  Conn, 

earies  to  any  extent  consistent  with 


1199 


ACTS    BINDING. 


§    1023 


Thus  contracts  of  marriage  are  binding,  if  executed :  they  can- 
not be  avoided  on  the  ground  of  infancy,  as  we  have  shown  in 
another  connection,^®  except  for  the  non-age  barrier ;  "  while  on 
the  other  hand  no  such  considerations  of  policy  attach  to  an  infant's 
promise  to  marry,  and  such  promise  is  not  binding.^®  So,  too,  the 
general  rights  and  liabilities  of  a  husband  as  to  custody,  mainte- 
nance, and  the  like,  which  are  incidental  to  the  marriage  relation, 
apply,  from  reasons  of  policy,  to  infants  as  to  adults.^*  So  is  a 
contract  for  the  burial  of  a  spouse  held  beneficial  and  binding  upon 
an  infant.^" 

§  1023.  Acts  Which  Do  Not  Touch  Infant's  Interest;    Where 
Trustee,  Officer,  &c. 

The  acts  of  an  infant  that  do  not  touch  his  interest,  but  which 
take  effect  from  an  authority  which  he  is  by  law  trusted  to  exer- 
cise, are  binding;  as  if  an  infant  executor  receives  and  acquits 
debts  to  the  testator,  or  an  infant  officer  of  a  corporation  joins  in 
corporate  acts,  or  any  other  infant  does  the  duties  of  an  office 
which  he  may  legally  hold.^^  And  his  conveyance  of  land  which 
he  held  in  trust  for  another,  in  accordance  with  the  trust,  is  not 
to  be  disaffirmed  by  him  on  the  ground  of  infancy;  a  principle 
which  may  extend  sometimes  to  conveyances  from  a  parent  made 
to  defraud  creditors.^^  This  seems  to  arise  from  the  consideration 
which  the  law  pays  to  the  rights  of  others  besides  the  infant ;  or, 
to  put  it  differently,  the  doctrine  may  rest  upon  this  fact,  that  the 
infant  in  such  cases  does  not  act  as  an  infant.     So  the  acts  of  the 


16.  Binningham,  etc.,  R.  Co.  v.  Mat- 
tison,  166  Ala.  602,  52  So.  49. 

A  minor  husband  may  be  liable 
criminally  for  non-support.  Land  v. 
State,  71  Fla.  270,  71  So.  279 ;  Coch- 
ran V.  Cochran,  196  N.  T.  86,  89  N. 
E.  470.  See  §  20 ;  Bonney  v.  Reardin, 
6  Bush,  34. 

17.  Such  marriages  are  only  in- 
choate even  though  the  statute  de- 
clares them  void.  Smith  v.  Smith, 
84  Ga.  440;  §  20;  Land  v.  State 
(Fla),  71  So.  279,  L.  R.  A.  1916E, 
760;  Com.  v.  Graham,  167  Mass.  73, 
31  N.  E.  706,  16  L.  R.  A.  578.  Con- 
tra, People  V.  Todd,  61  Mich.  234,  28 
N.  W.  79. 

18.  Schouler,  Hus.  &  Wife,   S§   24, 


42;   Rush  V.  "Wick,  31  Ohio  St.   521; 
McConkey  v.  Barnes,  42  111.  App.  511. 

19.  Bac.  Abr.,  Infancy  and  Age 
(B);  3  Burr.  1802;  Met.  Contr.  66. 
Even  though  such  marriage  failed  of 
the  parent's  consent.  Commonwealth 
V.  Graham,  157  Mass.  73. 

20.  Chappie  v.  Cooper,  13  M.  &  W. 
259;  Shouler,  Hus.  &  Wife,  §§  412, 
413. 

21.  Met.  Contr.  66.  See  Butler  v. 
Breck,  7  Met.  164;  Roach  v.  Quick,  9 
Wend.  238.  As  to  devastav^it  by  an 
infant  administrator,  see  Saumm  v. 
Coffclt,  79  Va.  510. 

22.  Prouty  v.  Edgar,  6  Clarke  (la.), 
353;  Starr  v.  Wrigh*:,  20  Ohio  St.  97; 
Elliott  V.  Horn.  10  Ala.  348;  Nord- 
holt  V.  Nordholt,  87  Cal.  553. 


§  1025 


INFANCY. 


1200 


king  cannot  be  avoided  on  the  ground  of  infancy ;  partly  for  tJie 
same  reasons,  partly  as  one  of  the  attributes  of  his  sovereignty.^' 
This  attribute  of  sovereignty  may  perhaps  enter  as  an  element  into 
the  public  acts  of  infants  in  this  country  who  are  improperly 
chosen  to  civil  offices,  yet  whose  official  acts  should  be  sustained. 

§  1024.  Infant  Members  of  Corporations. 

It  is  held  that  infants  and  married  women,  owning  proprietary 
rights  in  townships,  are  not  by  reason  of  legal  incapacity  prevented 
from  being  bound  by  the  acts  of  proprietors  at  legal  meetings.^* 
And  the  same  is  doubtless  true  of  infant  shareholders  in  corpora- 
tions generally.^^  Their  incapacity  would,  otherwise,  block  the 
wheels  of  business  altogether  in  matters  where  it  is  really  prop- 
erty, and  not  persons,  that  are  usually  represented.^' 


§  1025.  Acts  Which  the  Law  Would  Have  Compelled. 

It  is  an  old  and  well-settled  doctrine  that  an  infant  will  be 
bound  by  any  act  which  the  law  would  have  compelled  him  to  per- 
form ;  as  if  the  infant  make  equal  partition  of  lands,  or  assign 
dower,  or  release  a  mortgaged  estate  on  satisfaction  of  the  debt.^^ 
But  it  is  held  that  this  rule  does  not  apply  to  the  case  of  a  volun- 
tary distribution ;  for  the  law,  though  it  would  have  coerced  a  dis- 
tribution, might  not  have  made  just  such  a  one  as  was  made  by  the 


23.  Met.  Contr.  66. 

24.  But  -where  a  corporation  was  dis- 
solved and  a  new  one-  formed,  it  was 
held  that  an  infant  stockholder  was 
not  bound  by  a  contract  to  take  shares 
in  the  new  corporation  in  lieu  of  his 
stock  in  the  old  one.  White  v.  New 
Bedford,  etc.,  Corp.,  178  Mass.  20,  59 
N,  E.  642;  Wuller  v.  Chuse  Grocery 
Co.,  241  111.  398,  89  N.  E.  796;  Town- 
send  V.  Downer,  32  Vt.  183. 

25.  An  infant  may  be  a  member  of 
a  mutual  benefit  association  on  a  vol- 
untary basis,  with  the  usual  conse- 
quences. Chicago  Mutual  Association 
V.  Hunt,  127  111.  257.  Cf.  Matter  of 
Globe  Mutual  Assn.,  63  Hun,  263. 

26.  As  to  the  binding  force  of  a 
decree  in  equity  upon  the  infant's 
property,  see  post,  ch.  6. 

27.  Sims  V.  Gunter  (Ala.),  78  So. 
62. 


So  infancy  is  no  defence  in  an  ac- 
tion on  an  instrument  of  settlement 
between  the  father  and  mother  of  a 
bastard.     Gavin  v.  Burton,  8  Ind.  69. 

An  infant  may  be  restrained  by  an 
injunction  from  making  such  a  use 
of  his  real  estate  as  to  do  irreparable 
injury  to  the  property  of  another. 
Cole  V.  Manners,  76  Neb.  454,  107  N. 
"W.  777;  Young  v.  Sterling  Leather 
Works  (N.  J.),  102  A.  395. 

An  infant  has  been  restrained  from 
violating  a  contract  not  to  solicit  cer- 
tain business.  Mutual  Milk  &  Cream 
Co.  V.  Prigge,  98  N.  Y.  S.  458,  112 
App.  Div.  652;  Co.  Litt.  38  o,  172  a; 
3  Burr.  1801;  Met.  Ccntr.  67;  Jones 
V.  Brewer,  1  Pick.  314 ;  Bavington 
V.  Clarke,  2  Pa.  115;  Prouty  v.  Ed- 
gar, 6  Clarke    (la.),  353. 


1201  ACTS    BINDING.  §    1026 

parties.^®     The  rights  of  a  minor  in  land  may  be  condemned  under 
the  power  of  eminent  domain.^' 

§  1026.  Contracts    Binding    Because   of   Statute;     Enlistment; 
Indenture. 

Enlistments  are  binding  contracts  under  appropriate  publio 
statutes.^"  Whenever  a  statute  authorizes  a  contract  which  from 
its  nature  or  objects  is  manifestly  intended  to  be  performed  by 
infants,  such  a  contract  must,  in  point  of  law,  be  deemed  for  their 
benefit  and  for  the  public  benefit;  so  that  when  bona  fide  made 
it  is  neither  void  nor  voidable,  but  is  strictly  obligatory  upon  them. 
Yet  if  there  be  fraud,  circumvention,  or  undue  advantage  taken  of 
the  infant's  age  or  situation  by  the  public  agents,  the  contract 
could  not,  in  reason  or  justice,  be  enforced.^^  And  contracts  of 
enlistment  are  not  by  our  statutes  usually  made  binding  upon  any 
infants  under  a  prescribed  age,  without,  at  all  events,  the  consent, 
cf  parent  or  guardian.^^  But  such  requirement  of  consent  imports 
no  privilege  to  the  minor ;  for  he  on  his  own  part  becomes  bound 
by  his  enlistment  contract.^' 

On  like  principles,  a  minor  may  be  bound  by  his  indentures 
of  apprenticeship,  executed  in  strict  conformity  to  statute;  these 
being  likewise  deemed  for  his  beneft.  By  the  custom  of  London, 
and  under  the  laws  of  some  States,  the  covenants  of  the  minor 
apprentice  are  obligatory  upon  him.  But  it  is  otherwise  by  the 
common  law  of  England,  and  also  under  the  statutes  of  Elizabeth, 
and  in  Xew  York,  Massachusetts,  and  other  States.  Still,  al- 
though the  infant  may  not  be  liable  for  breach  of  his  covenants, 
he  cannot  dissolve  the  indenture.^*  The  English  doctrine  is  that 
indentures  are  so  far  binding  that  the  master  may  enforce  his 
rights  under  them  ;  and  the  legal  incidents  of  service  as  apprentice 
attach  to  this  relation ;   unless  the  master  by  his  own  misconduct 

2«.   Kilcrease  v.   Shelby,  23    Miss.  Mason,    83.      And    see    Franklin    v. 

161.  Mooney,  2   Tex.  452. 

29.  Brown  v,  Rome  &  Decatur  Rail-  32.  Matter  of  Tarble,  25  Wis.  390 ; 
road  Co.,  86  Ala,  206;  Hutchinson  v.  In  re  McDonald,  1  Low.  100;  Seavey 
McLaughlin,  15  Col.  492.  v.  Seymour,  3  Cliff.  439. 

30.  Acker  v.  Bell  (Fla.),  57  S.  356,  33.  Morrissey,  Be,  137  U.  S.  157. 
39  L.  R.  A.  (N.  S.)  454;  King  v.  Here  the  infant  falsely  represented 
Rotherfield  Greys,  1  B.  &  C.  345;  Com-  himself  as  older  than  he  was. 
monwealth  v.  Gamble  11  S.  &  R.  9^ ;  34.  Met.  Contr.  66.  But  in  some 
United  States  v.  Bainbridge,  1  Mason,  States  he  can.  See  Woodruff  v.  Lo- 
83,  before  Story,  J.  gan,  1  Eng.  276;  Stokes  v.  Hatcher, 

31.  United  States  v.  Bainbridge,  1  1  So.  84;  McDowle's  Case,  8  Johns. 

76 


§  1028 


INFANCY. 


1202 


deprives  the  infant  of  the  benents  of  tlie  contract,  in  which  case 
the  law  will  release  the  latter  from  his  bargain.''  A  provision 
not  for  the  benefit  of  the  infant  under  such  an  indenture  may 
render  such  an  instrument  inoperative.^®  In  short,  the  age  at 
which  an  infant  shall  be  competent  to  perform  certain  acts,  civil 
or  military,  is  subject  to  legislative  provision. 


37 


§  1027.  Infant's    Recognizance    for    Appearance    on    Criminal 
Charge. 

Partly  out  of  respect  to  statute  requirements,  and  partly,  no 
doubt,  because  it  is  beneficial  to  one  charged  with  crime  to  be 
allowed  to  enter  into  recognizance  for  his  personal  appearance  in 
court,  instead  of  suffering  close  confinement  meantime,  it  is  held 
that  a  minor  defendant  in  criminal  proceedings  may  bind  himself 
personally  by  such  recognizance,  entered  into  after  the  usual  form 
by  himself  and  his  sureties.^* 

§  1028.  Whether  Infant's  Contract  for  Service  Binds  Him. 

Apart  from  statutes  prescribing  differently,  and  minor  appren- 
tice acts  in  particular,'®  the  executory  contract  of  a  minor,  made 
without  the  consent  of  his  parent  or  guardian,  for  employment 
for  a  certain  or  uncertain  time,  by  means  of  which  he  may  obtain 
necessaries  or  a  livelihood,  may  be  treated  perhaps  as  void  if  posi- 
tively disadvantageous  in  terms ;  *°  it  is  not  by  the  better  author- 
ities to  be  considered  as  absolutely  binding  upon  him,  however  fair 
and  advantageous  its  provisions,  to  the  extent  of  compelling  him. 
to  fulfil  stipulations,  like  an  adult;  but  so  far  as  he  himself  is 
concerned  it  is  usually  voidable.*^  If  the  contract  were  made  by 
parent  or  guardian,  or  conformed  to  apprentice  legislation,  the 
employer's  relation  as  to  such  a  party  would  of  course  be  different. 


331;  Blunt  v.  Melcher,  2  Mass.  228; 
"Rex  V.  Inhabitants  of  Wij^ton,  3  B, 
&  C.  484;  Owens  v.  Frager,  119  Ind. 
532;  Clark  v.  Goddard,  39  Ala.  164; 
infra,  Part  VI.,  ch.  1, 

35.  5  Dowl.  &  Ey.  339;  6  T.  R. 
558;  Cro.  Jac.  494;  Cro.  Car.  179; 
Met.  Contr.  66;  Eex  v.  Mountsorrel, 
3  M.  &  S.  497.  Infant's  covenant  to 
pay  a  reasonable  premium  for  being 
taught  the  business  enforced.  (1891) 
Myatt  V.  St.  Helene's  R.  R.  Co.,  2 
Q.  B.  369. 

36.  Such,  e.  g.,  as  a  provision  for 


not  paying  wages  regularly.     Meakin 
V.  Morris,  12  Q.  B.  D.  352.     §  403. 

37.  A  minor's  contract  to  support 
his  bastard  child  held  binding,  be- 
cause statute  would  have  compelled  it. 
Stowers  v.  Hollis,  83  Ky.  544. 

38.  State  v.  Weatherwax,  12  Kan. 
463;  404  n.  and  citations. 

39.  §  1026. 

40.  Regina  v.  Lord,  12  Q.  B.  755; 
supra,  §  1009. 

41.  See  Person  v.  Chase,  37  Vt.  ©47, 
and  other  cases  referred  to  in  eh  5, 
post. 


1203  ACTS    BINDING.  §    1028 

In  this  country  the  cases  are  very  common  where  a  minor  is 
said  to  be  emancipated  and  entitled  to  contract  for  and  receive 
his  own  wages.  But  the  significance  of  the  word  "  emancipation  " 
ifl  not  exact;  and,  certainly,  the  legal  obligation  of  the  infant's 
contract  for  work  as  to  others  is  by  no  means  commensurate  with 
his  right  to  the  fruits  of  his  own  toil.*^  His  legal  capacity  to  do 
acts  necessarily  binding  does  not  seem  to  be  enlarged  by  the  cir- 
cumstance that  his  father  has  given  him  his  time.*^  or  that  he 
eerves  out  with  neither  parent  nor  guardian  to  assume  liabilities 
to  others  for  him.  But  the  right  of  an  infant  nearly  of  age  and 
an  orphan  without  a  guardian,  to  recover  the  wages  due  him  under 
a  contract  for  his  services,  should  in  the  courts  be  favorably 
regarded.''* 

42.  As  to  the  more  general  effect  of  43.  Post,  ch.  5. 

a    child's    emancipation,    see    supra,  44.  Waugh  v.  Emerson,  73  Ala.  295. 

Part  3,  ch.  5. 


§  1030 


INFANCY. 


1204: 


CHAPTEE  IV. 


THE  INJURIES  AND  FRAUDS  OF  INFANTS. 

Section  1029.     Division  of  This  Chapter. 

1030.  Injuries  Committed  by  Infant;   Infant  Civilly  Responsible. 

1031.  Immunity   for   Violation   of   Contract  Distinguished. 

1031a.  Same    Subject;    Infant's    Fraudulent    Representations    as    to 
Age,  &c. 

1032.  Estoppel  by  Misrepresentation  of  Age. 

1033.  Injuries,  &c.,  Suffered  by  Infants. 

1034.  Child's  Contributory  Negligence. 

1035.  Contributory  Negligence  of  Parent,  Protector,  &c. 

1035a.  Arbitration,  Compromise  and  Settlement  of  Injuries  Committed 
or  Suffered  by  Infants. 

§  1029.  Division  of  This  Chapter. 

In  this  chapter  we  shall  treat,  first,  of  injuries  and  frauds  com- 
mitted bj  an  infant;  second,  of  injuries  and  frauds  suffered  br 
an  infant. 

§  1030.  Injuries  Committed  by  Infant;    Infant  Civilly  Respon- 
sible. 

First,  as  to  injuries  and  frauds  committed  by  an  infant.  It  is 
a  general  principle  that  infancy  shall  not  be  permitted  to  protect 
wrongful  acts.  To  use  the  forcible  expression  of  Lord  Mansfield, 
the  privilege  of  infancy  is  given  as  a  shield  and  not  a  sword.*"^ 
And  minors  are  liable,  not  only  for  their  criminal  acts,  but  for 
their  torts;  and  must  respond  in  damages  in  all  cases  arising 
ex  delicto  to  the  extent  of  their  pecuniary  means,  irrespective  of 
the  form  of  action  which  the  law  prescribes  for  redress  of  the 
wrong.*® 


45.  Zouch  V.  Parsons,  3  Burr.  1802. 

46  Watson  v.  Wrightsman,  26  Tnd. 
App.  437,  56  N.  E.  1864;  Daggy  v. 
Miller  (la.),  162  N.  W.  854. 

In  Kentucky  the  rule  is  limited  to 
cases  •where  malice  is  not  a  necessary 
element,  since  infants  are  not  pre- 
sumed to  be  capable!  of  malice.  Ste- 
phens V.  Stephens,  172  Ky.  780,  189  S. 
W.  1143;  Guidry  v.  Davis,  6  La.  Ann. 
90;  McGreevey  v.  Boston  Elevated 
Ry.  Co.  (Mass.),  122  N.  E.  278. 

An  infant  is  liable  for  a  penalty 


for  violation  of  a  militia  statute. 
Winslow  V.  Anderson,  4  Mass.  376; 
Caswell  V.  Parker,  96  Me.  39,  51  A. 
238;  Brunhoelzl  v.  Brandes,  90  N.  J. 
Law,  31,  100  A.  163;  Hewitt  v.  "War- 
ren, 10  Hun  (N.  Y.),  560;  People  t. 
Kendall,  25  Wend.  (N.  Y.)  399,  37 
Am.  D.  240;  Collins  v.  Gifford,  203 
N.  Y.  465,  96  N.  E.  721;  Saum  v. 
Coffelt,  79  Va.  510;  Briese  v.  Maech- 
tle,  146  Wis.  89,  130  N.  W.  893;  Para- 
dies  V.  Woodard,  156  Wis.  243,  145 
N.  W.    657;   Covault  v.  Nevutt,   157 


1205 


INJURIES  AND  FRAUDS. 


§  1030 


An  infant  is  then,  as  fully  liable  as  an  adult  in  an  action  for 
damages  occasioned  by  injury  to  the  person  or  property  of  another 
by  his  wrongful  act."*^  True,  as  it  has  been  observed  where  infants 
are  the  actors,  that  might  probably  be  considered  an  unavoidable 
accident,  which  would  not  be  so  where  the  actors  are  adults.*® 
But,  says  a  writer,  where  the  minor  commits  a  tort  with  force,  he 
is  liable  at  any  age;  for  in  case  of  civil  injuries  with  force,  the 
intention  is  not  regarded.*' 

It  follows  from  what  we  have  said,  that  for  an  injury  occasioned 
by  an  infant's  negligence,  he  may  be  held  civilly  answerable.  As 
where,  in  sport,  he  discharges  an  arrow  in  a  school-room  where 
there  are  a  number  of  boys  assembled,  and  thereby  disables  an- 
other ;  ^°  or  aims  a  missile  at  an  older  boy  and  accidentally  hits 
another  and  younger  one.^^  And  even  though  under  seven  years 
of  age,  a  child  has  been  held  liable  in  trespass  for  breaking  down 
the  shrubbery  and  flowers  of  a  neighbor's  garden.^"  But  not  for 
turning  horses  which  were  trespassing  on  his  father's  land  into 
the  highway,  for  this  does  not  constitute  a  tort.^^  All  the  cases 
agree  that  trespass  lies  against  an  infant.  And  minors  are  charge- 
able in  trespass  for  having  procured  others  to  commit  assault  and 
battery.^*  While,  furthermore,  an  infant,  as  we  have  seen,  can- 
not be  sued  for  mere  breach  of  promise  to  marry,  one  old  enough 
to  commit  such  an  offence  is  liable  in  civil  damages  for  seduction, 
whether  accompanied  or  not  by  such  a  promise.^^ 

But,  supposing  a  tort  to  have  been  committed  by  the  express 
command  of  the  father ;    is  the  infant  then  liable  ?     So  it  was 


Wis.  113,  146  N.  W.  115;  Met.  Contr. 
49;  1  Addis.  Torts,  731;  8  T.  E.  335; 
2  Kent,  Com.  240,  241;  School  District 
V.  Bragdon,  3  Fost.  507;  Bull,  ck  v. 
Babcock,  3  Wend.  391;  Oliver  v.  Mc- 
Clellan,  21  Ala.  675. 

47.  Conklin  v.  Thompson,  29  Barb. 
218. 

48.  Bullock  V.  Babcock,  3  Wend. 
391. 

49.  Reeve,  Dom.  Rel.  258.  See  Neal 
T.  Gillett,  23  Conn.  437. 

An  infant  is  not  liable  to  arrest 
on  civil  process.  If,  however,  the  writ 
was  valid,  on  its  face,  the  infant  has 
no  right  of  action  against  one  aiding 
the  officer  in  making  the  arrest.  Cas- 
8ier,  Ee,  139  Mass.  458,  461. 


50.  Bullock  V.  Babcock,  3  Wend. 
391. 

51.  Peterson  v,  Haffner,  59  Ind. 
130;   Conwaj  v.  Heed,  66  Mo.  346. 

52.  Huchting  v.  Engel,  17  Wis.  231 ; 
Huggett  V.  Erb,  148  N.  W.  805; 
0  'Leary  v.  Brooks  Elevator  Co.,  7  N. 
D.  554,  41  L,  E.  A.  677  (holding  that 
a  child  may  be  a  trespasser). 

53.  Humphrey  v.  Douglass,  10  Vt. 
71. 

54.  Sikes  v.  Johnson,  16  Mass.  389; 
Tifft  V.  Tifft,  4  Denio,  177;  Scott  v. 
Watson,  46  Me.  362. 

55.  Becker  v.  Mason,  93  Mich.  336; 
§  415;   Fry  v.  Leslie,  87  Va.  269. 


§    1030  INFANCY.  1206 

thought  in  a  Vermont  case,  where  the  decision  nevertheless  rested 
on  a  different  ground/*  "An  infant,  acting  under  the  command 
of  his  father,  as  a  wife  in  the  presence  of  her  husband,  might  be 
excused  from  a  prosecution  for  crime,  if  it  should  appear  that  the 
intent  was  wanting,  or  that  he  was  acting  under  constraint ;  yet 
he  is  answerable  dviliter  for  injuries  he  does  to  another."  ^^  And 
more  recently  this  question  is  plainly  decided  in  Maine,  in  the 
affirmative.^^  In  North  Carolina,  too,  it  is  held  that  the  infant 
cannot  defend  by  alleging  that  the  tort  was  committed  by  the 
direction  of  one  having  authority  over  him.^*  On  the  other  hand, 
it  would  appear  that  an  infant  cannot  be  held  responsible  for  torts 
committed  by  persons  assuming  to  act  under  his  implied  authority ; 
in  other  words,  that  his  liability  is  not  to  be  extended  in  any  case 
beyond  acts  committed  by  himself  or  under  his  immediate  and 
express  direction.^" 

An  infant  in  the  actual  occupation  of  land  is  responsible  for 
nuisances  and  injuries  to  his  neighbor,  arising  from  the  negligent 
use  and  management  of  the  property.^^  Or  for  wrongful  deten- 
tion of  premises.®^  N^or  was  he  liable  for  breaking  a  borrowed 
carriage.®^  And  ejectment  may  be  maintained  against  an  infant 
for  disseisin,  that  being  a  tort. 

He  may  be  liable  for  libel.®*  It  seems  that  he  may 
be  liable  for  negligence,  if  he  fails  to  exercise  that  degree 
of    care    which    one    of    his    age    would    ordinarily    exercise.^^ 

56.  Humphrey  v.  Douglass,  10  Vt.  White,  58  Neb.  22,  78  N.  W.  369, 
71.  76  Am.  St.  E.  64. 

57.  Per  "Williams,  C.  J.,  t6.  The  owner  of  an  automobile  loan- 

58.  Scott  V.  Watson,  46  Me.  362.  ing  it  to  an  infant  cannot  recover  for 

59.  Smith  v.  Kron,  9'6  N.  C.  392.  negligence  in  its  operation.  Brnn- 
Here  the  offence  was  trespass  upon  hoelzl  v.  Brandes,  90  N.  J.  Law,  31, 
another's  premises.  100  A.  163. 

60.  Eobbins  v.  Mount,  4  Eob.  (N.  A  minor  who  buys  an  automobile 
T.)  553;  Burnham  v.  Seavems,  101  and  later  disaffirms  is  not  liable  for 
Mass.  360.  his  unskilfulness  in  the  use  of  it,  but 

61.  1  Addis.  Torts,  731;  McCoon  v.  is  liable  for  tortious  acts  resulting  in 
Smith,  3  Hill,  147.  damage    to    the    car.      Woolridge    v. 

62.  McClure  v.  McCQure,  74  Ind.  Lavoie  (N.  H.),  104  A.  346;  Young 
108.  V.  Muhling,  63  N.  Y.  S.  181,  48  App. 

63.  Schenck  v.  Strong,  1  So.  87.  Div.  617    (holding  that  an  infant  is 

64.  Fears  v.  Eiley,  148  Mo.  49,  49  not  liable  for  negligence  where  the 
S.  W.  836.  act  was  not  wilful  and  intentional)  ; 

65.  House  v.  Fry,  30  Cal.  App.  157,  Briese  v.  Maeehtle,  184  Wis.  89,  130 
157  P.  500;  Hartnett  v.  Boston  Store  N.  W.  893. 

of  Chicago,  265  111.   331,   106   N.   E.  A   child   is   only   required   to   exer- 

837,  L.  E.  A.  1915C,  460;  Churchill  v.       cise    that   degree    of   care    which    the 


1207 


INJURIES    AND    FRAUDS. 


§1031 


An  infant  is  not,  however,   liable  for  the  torts  of  an  agent." 

§  1031.  Immunity  for  Violation  of  Contract  Distinguished. 

The  cases  on  the  subject  of  an  infant's  torts  do  not  seem  quite 
consistent,  so  far  as  decisions  upon  the  facts  are  concerned;  but 
the  principle  which  runs  through  them  all  serx'es  to  harmonize 
the  apparent  contradictions.  This  is  the  principle:  that  the 
courts  will  hold  an  infant  liable  for  what  are  substantially  his 
torts,  but  not  for  mere  violations  of  a  contract,  though  attended 
with  tortious  results,  and  though  the  party  ordinarily  has  the 
right  to  declare  in  tort  or  contract  at  his  election.  It  must  be 
remembered  that,  for  his  contracts,  the  infant  is  not  ordinarily 
liable :  for  his  torts  he  is.  And  this  distinction  is  at  the  root  of 
the  legal  difficulty.  The  plaintiff  cannot  convert  anything  that 
arises  out  of  a  contract  into  a  tort,  and  then  seek  to  enforce  the 
contract  through  an  action  of  tort.  Therefore  was  it  held  that 
where  a  boy  hired  a  horse  and  injured  it  by  immoderate  driving, 
this  was  only  a  breach  of  contract  for  which  he  was  not  liable.^^ 
And  where  in  an  exchange  of  horses  the  infant  had  falsely  and 
fraudulently  warranted  his  mare  to  be  sound,  he  was  protected 
from  the  consequences  on  the  same  principle.^® 

The  English  cases,  decided  many  years  ago,  exhibit  a  strong 
disposition  to  apply  this  rule  in  favor  of  an  infant's  exemption. 
And  the  language  of  the  court  in  Manhy  v.  Scott,  with  reference 
to  the  delivery  of  goods  to  an  infant,  and  suit  afterwards  for  trover 
and  conversion,  was  that  the  latter  shall  not  be  chargeable :  "  for 
by  that  means  all  infants  in  England  would  be  ruined."  ^'  Says 
a  judge,  deciding  a  case  on  the  same  general  principle,  "  the  judg- 
ment will  stay  forever,  else  the  whole  foundation  of  the  common 


great  mass  of  children  of  the  same 
age  ordinarily  exercise  under  the 
8am©  circumstances,  taking  into  ac- 
count the  experience,  capacity,  and 
undertsanding  of  the  child.  Briese 
V.  Maechtle,  146  Wis.  89,  130  N. 
W.  893,  But  see  Lowery  v.  Gate, 
108  Tenn.  54,  64  S.  W.  1068,  57 
L.  E.  A.  673,  91  Am.  St.  B.  744 
(holding  that  ■where  plaintiff's  grain 
was  destroyed  by  a  spark  from 
an  infant '3  threshing  machine  en- 
gine, "which  was  without  a  spark  ar- 
rester,   the    infant    was    not    liable. 


•where  it  appeared  that  the  infant  was 
threshing  the  grain  under  a  contract 
with  plaintiff,  and  that  the  negli- 
gence was  not  wilful,  since  the  act 
took  place  under  a  voidable  contract). 

66.  Covault  V.  Nevitt,  157  Wis.  113, 
146  N.  W.  1115. 

67.  Jennings  v.  Eundall,  8  T.  R. 
335. 

68.  Green  v.  Greenblank,  2  Marsh. 
485;  Hewlett  v.  Haswell,  4  Campb. 
IIS;   Morrill  v.   Aden,  19  Vt.   505. 

69.  1  Sid.  129,  quoted  with  appro- 
bation in  Jennings  v    Randall,  supra. 


§  1031 


INFANCY. 


1208 


law  will  be  shaken."  "*    But  a  more  equitable  principle  pervades 

the  later  eases.  Thus  in  an  English  case,  where  one  twenty  years 
old  hired  a  horse  for  a  ride,  and  was  told  plainly  that  it  was  not 
let  for  jumping,  and  notwithstanding  caused  the  horse  to  jump  a 
fence  and  killed  the  animal,  he  was  held  liable  for  the  wrong.'^ 
And  in  Vermont  an  infant  was  held  answerable,  not  many  years 
ago,  where  he  hired  a  horse  to  go  to  a  certain  place  and  return  the 
same  day,  then  doubled  the  distance  by  a  circuitous  route,  stopped 
at  a  house  on  the  way,  left  the  horse  all  night  without  food  or 
shelter,  and  by  such  over-driving  and  exposure  caused  the  death  of 
the  horse.'^  This  is  the  Massachusetts  doctrine  likewise,'^  and 
that  of  other  States.'^*  The  New  Hampshire  rule  is  that  the 
infant  bailee  of  a  horse  is  liable  for  positive  tortious  acts  wilfully 
committed,  whereby  the  horse  is  injured  or  killed;  though  not  for 
mere  breach  of  contract,  as  a  failure  to  drive  skilfully.'^  The 
distinction  to  be  relied  upon  is,  that  when  property  is  bailed  to  an 
infant,  his  infancy  protects  him  so  long  as  he  keeps  within  the 
terms  of  the  bailment ;  but  when  he  goes  beyond  it,  there  is  a  con- 
version of  the  property,  and  he  is  liable  just  as  much  as  though 
the  original  taking  were  tortious.'^* 

Chief  Justice  Marshall  pronounces  infancy  to  be  no  complete 
bar  to  an  action  of  trover,  although  the  goods  converted  be  in  the 
infant's  possession  in  virtue  of  a  previous  contract.  "  The  con- 
version is  still  in  its  nature  a  tort;  it  is  not  an  act  of  omission 
but  of  cormnission,  and  is  within  that  class  of  oifences  for  which 
infancy  cannot  afford  protection."  ''"'  This  doctrine  is  approved 
in  New  York  '®  and  in  Maine. '^^  So,  in  England,  detinue  will  lie 
against  an  infant  where  goods  were  delivered  for  a  special  purpose 
not  accomplished.®"  And  the  general  rule  seems  to  be  now  well 
established  that  an  infant  is  liable  for  goods  intrusted  to  his  care, 
and  unlawfully  converted  by  him;   though  as  to  what  would  con- 


70.  Johnson   v.    Pye,   1    Keb.    905. 
See  n.  to  Hewlett  v.  Haswell,  supra. 

71.  Burnard  v.  Haggis,  14  C.  B.  (N. 
S.)   45. 

72.  Towne   v.   Wiley,   23   Vt.    355. 
And  see  Ray  v.  Tubbs,  50  Vt.  688. 

73.  Homer  v.  Thwing,  3  Pick.  492. 

74.  Freeman  v.  Boland,  14  E.  I.  39. 

75.  Eaton  v.  Hill,  50  N.  H.  235. 

76.  Towne  v.  Wiley,  supra,  per  Red- 
field,    J.      The    rule   is    otherwise    in 


Pennsylvania.  Penrose  v.  Curren,  3 
Rawle,  351.  An  infant  of  apparent 
discretion  was  not  allowed  to  defraud 
upon  the  settlement  of  a  suit,  where 
his  promise  had  been  relied  on,  in 
Cadwallader  v.  McClay,  37  Neb.  359. 

77.  Vasse  v.  Smith,  6  Cranch,  226. 

78.  Campbell   v.    Stakes,   2    Wend. 
137. 

79.  Lewis  v.  Littlefield,  15  Me.  233. 

80.  Mills  V.  Graham,  4  B.  &  P.  140. 


1209 


INJURIES    AND    FRAUDS. 


§1031 


stitute  such  conversion,  the  authorities  are  not  agreed.®^  Thus  it 
is  held  that  while  a  ship-owner  cannot  sue  his  infant  supercargo 
for  breach  of  instructions  he  may  bring  trover  for  the  goods.®^ 
And  an  infant,  prevailing  on  the  plea  of  infancy  in  an  action  on  a 
promissory  note  given  by  him  for  a  chattel  which  he  had  obtained 
bv  fraud  and  refused  to  deliver  on  demand,  has  still  been  rendered 
liable  to  an  action  of  tort  for  the  conversion  of  the  chattel ;  the 
original  tort  not  having  been  superseded  by  a  completed  contract/^ 
Replevin  would  lie  for  the  goods  even  where  a  suit  for  damages 
might  fail.®*  For  stolen  money  and  stolen  goods  converted  into 
money,  an  infant  is  held  liable  in  assumpsit.®'  Yet  his  conversion 
of  specific  goods  should  be  carefully  distinguished  from  what  is  in 
substance  a  breach  of  his  contract  to  sell  and  account  for  profits.®' 

Where  an  action  for  money  had  and  received  was  brought 
against  an  infant  to  recover  money  which  he  had  embezzled,  Lord 
Kenyon  said  that  infancy  was  no  defence  to  the  action;  that 
infants  were  liable  to  actions  ex  delicto,  though  not  ex  contractu, 
and  though  the  action  was  in  form  an  action  of  the  latter  descrip- 
tion, yet  it  was  in  point  of  substance  ex  delicto.^''  For  embezzle- 
ment of  funds,  therefore,  an  infant  may  be  considered  liable.®* 
And  in  ISTew  York,  and  some  other  States,  an  infant  is  held  re- 
sponsible in  tort  for  obtaining  goods  on  credit,  intending  not  to 
pay ;  ®*  or  for  drawing  a  check  fraudulently  against  a  bank  where 
he  has  no  funds,  in  pajTuent  of  his  purchase.®**  In  "Kew  Hamp- 
shire, the  general  rule  is  stated  to  be,  that  if  false  representations 
are  made  by  an  infant  at  the  time  of  his  contract,  he  may  set  up 
infancy  in  defence ;  but  that  if  the  tort  is  subsequent  to  the  con- 
tract, and  not  a  mere  breach  of  it,  but  a  distinct,  wilful,  and  posi- 
tive wrong  of  itself,  then,  although  it  may  be  connected  with  a 
contract,  the  infant  is  liable.*^ 

The  test  is  always  whether  an  action  of  tort  can  be  made  out 


81.  See  Story,  Bailments,  §  50;  2 
Kent,  Com.  241;  Baxter  v.  Bush,  29 
Vt.  465;   Schouler,  Bailments. 

82.  Vassee  v.  Smith,  6  Cranch,  226. 

83.  Walker  v.  Davis,  1  Gray,  506. 
And  see  Fitts  v.  Hall,  9  N.  H.  441. 

84.  Badger  v.  Phinney,  15  Mass. 
359. 

85.  Shaw  V.  Coffin,  58  Me.  254;  El- 
^vell  V.  Martin,  32   Vt.  217. 

86.  See  Munger  v.  Hess,  28  Barb. 


75.     And  see  Bums  v.  Hill,   1?  Ga. 
22. 

87.  Bristow  v.  Eastman,  1  Esp.  172. 

88.  Elwell  V.  Martin,  32  Vt.  217. 

89.  Wallace  v.  Morse,  5  HiU,  391, 
and  cases  cited.  But  the  rule  ap- 
pears otherwise  in  Indiana.  Eoot  v. 
Stevenson's  Adm'r,  24  Ind.  115. 

90.  Mathews  v.  Cowan,  59  111.  341. 

91.  Fitts  V.  Hall,  9  N.  H.  441; 
Prescott  V.  Norris,  32  N.  H.  101. 


§    1031a  INFANCY.  1210 


without  regard  to  the  contract,®^  To  maintain  an  action  of  tort 
against  an  infant,  the  act  complained  of  must  be  wholly  tortious.*' 
For  example,  an  action  for  false  warranty  or  other  breach  of  con- 
tract cannot  be  made  over  into  deceit  so  as  to  hold  the  infant.** 
Conversely,  the  infant  cannot  escape  liability  for  deceit  on  the 
theory  of  a  false  warranty.®^  An  infant  is  liable  generally  for 
fraud,®®  but  mere  silence  of  a  minor  as  to  his  age  is  not  fraud  for 
which  deceit  can  be  maintained.*^ 

§  1031a.  Same  Subject;  Infant's  Fraudulent  Representations  as 
to  Age,  &c. 
The  plea  of  infancy  has  long  been  considered,  both  in  England 
and  this  country,  a  good  defence  to  an  action  for  fraudulent  repre- 
sentation and  deceit.  Thus,  the  rule  is,  that  an  infant  who  falsely 
affirms  goods  to  be  his  own,  and  that  he  had  a  right  to  sell  them, 
and  thereby  induces  the  plaintiff  to  purchase  them,  is  not  respon- 
sible.®^ For  the  plea  of  infancy,  as  it  is  sometimes  said,  will 
prevail  when  the  gravamen  of  the  fraud  consists  in  a  transaction 
which  really  originated  in  contract.®®  The  result  is  circumlocu- 
tion and  uncertainty,  oftentimes  in  trivial  matters.  And  it  is 
sometimes  held  that  such  an  action,  as  for  tort,  will  not  lie.^ 

92.  Churchill  v.  White,  58  Neb.  22,  97.  Frank  Spangler  Co.  v.  Haupt, 
78  N.  W.  369,  76  Am.  St.  E.  64;  Low-  53  Pa.  Super.  545;  Grauman,  etc.,  Co. 
ery  v.  Cate,  108  Tenn.  54,  64  S.  W.  v.  Krienitz,  142  Wis.  556,  126  N.  W. 
1068,  57  L.  E.  A.  673.  50. 

93.  (Iffll)  Collins  v.  Gifford,  203  98.  Minority  does  not  prevent  the 
N.  T.  465,  96  N.  E.  721;  Frank  adult  from  rescinding  where  the  in- 
Spangler  Co.  v.  Haupt,  53  Pa.  Super.  fant  makes  false  representations. 
Ct.  545;  Covault  v.  Nevitt,  157  Wis.  Pritchett  v.  Fife,  8  Ala.  App.  462,  62 
113,  146  N.  W.  1115;  Campbell  v.  8.  1001;  Brooks  v.  Sawyer,  191  Mass. 
Perkins,  8  N.  Y.  430;  Wilt  v.  Welsh,  151,  76  N.  E.  953;  Eaymond  v.  Gene- 
6  Watts  (Pa.)  430;  Gilson  v.  Spear,  ral,  etc.,  Co.,  230  Mass.  54,  119  N.  E. 
38  Vt.  311,  88  Am.  D.  659.  359. 

94.  Brooks  v.  Sawyer,  191  Mass.  An  infant  securing  goods  by  false 
151,  76  N.  E.  953,  114  Am.  St.  E.  594;  representations  is  not  liable  in  trover. 
Hewitt  V.  Warren,  10  Hun  (N.  Y.),  Slayton  v.  Barry,  175  Mass.  513,  56 
560;  Collins  v.  Gifford,  203  N.  Y.  465,  N.  E.  574,  49f  L.  E.  A.  560;  78  Am.  St. 
96  N.  E.  721,  38  L.  E.  A.  (N.  S.)  Eep.  510.  But  see  Shenkein  v.  Fuhrman, 
202.  141  N.  Y.  S.  909,  80  Misc.  179;  Grove 

95.  Pritchett  v.  Fife,  8  Ala.  App.  v.  Nevill,  1  Keb.  778;  1  Addis.  Torts, 
462,  62  S.  1001 ;  Patterson  v.  Kasper,  661 ;  Prescott  v.  Norris,  32  N.  H.  101 ; 
148  N.  W.  690.  Morrill  v.  Aden,  29  Vt.  465.    But  see 

96.  Guidry  v.  Davis,  6  La.  Ann.  90;  Word  v.  Vance,  1  Nott  &  MoCord, 
Saum  V.  Coffelt,  79  Va.  719;  Patter-  197. 

son  V.   Kasper    (Mich.),   148   N.   W.  99.  Gilson  v.  Spear,  38  Vt.  311. 

690,  L.  E.  A.  lO-iSA,  1221 ;  Elwell  v.  1.  Nash  v.  Jewett,  61  Vt.  501,  and 

Martin,  32  Vt.  217.  cases  cited. 


1211 


INJURIES    AND    FRAUDS. 


§  1032 


§  1032.  Estoppel  by  Misrepresentation  of  Age. 

It  has  been  held  that  for  a  false  and  fraudulent  representation 
that  he  was  of  full  age  there  is  no  remedy  against  the  infant ; 
whether  money  were  advanced  or  goods  intrusted  to  him  on  the 
strength  of  such  representation.^  The  reader  must  reconcile  the 
sense  of  these  rules  with  some  of  the  foregoing  cases  as  best  he 
may.  If  anything  be  needed  to  show  the  inadequacy  of  common- 
law  remedies  for  frauds  and  wilful  misrepresentations,  it  is  just 
such  maxims  as  these  which  have  been  perpetuated  from  the  old 
books. 

Upon  common-law  principle  it  may  well  be  said  that  while  an 
infant's  false  representation  of  full  age  or  other  material  fraud 
may  perhaps  constitute  a  separate  cause  of  action,  as  for  a  tort, 
it  will  not  render  his  contract  valid  so  as  to  estop  him  from  avoid- 
ing it,'  even  though  the  facts  relied  on  as  an  estoppel  would  sup- 
port an  action  in  tort,*  unless  he  has  attained  years  of  discretion, 
and  unless  the  act  be  intentionally  fraudulent.^  Some  courts  hold 
that  the  doctrine  of  estoppel  has  no  application  to  infants.®    Other 


2.  Johnson  v.  Pye,  1  Sid.  258 ;  Price 
-V.  Hewett,  8  Exch.  146;  s.  c.  18  E.  L. 
&  Eq.  522;  Burley  v.  Kussell,  10  N. 
H.  184;  Conroe  v.  Birdsall,  1  Johns. 
Gas.  127;  Merriam  v.  Cunningham,  11 
Gush.  40 ;  Brown  v.  McCune,  5  Sandf . 
224;  Carpenter  v.  Carpenter,  45  Ind. 
142.  As  to  an  infant's  false  repre- 
sentation of  age  when  marrying,  see 
§20. 

8.  Carpenter  v.  Carpenter,  45  Ind, 
142;  Conrad  v.  Lane,  26  Minn.  383; 
Heath  v,  Mahoney,  14  N.  T.  Supr. 
100;  StudweU  v.  Shapter,  54  N.  Y, 
249.  And  see  Whitcomb  v.  Joslyn, 
51  Vt.  79;  Hughes  v.  GaUans,  10 
Phila.  618;  Alvey  v.  Reed,  115  Ind. 
148,  17  N.  E.  265,  7  Am.  St.  R.  418; 
Lacy  V.  Pixler,  120  Mo.  383,  25  S.  W. 
206;  Ridgeway  v.  Herbert,  150  Mo. 
606,  51  S.  W.  1040,  73  Am.  St.  E. 
464 ;  Carolina  Interstate  Bldg.  &  Loan 
Ass'n  V.  Black,  119  N.  C.  323,  25  S. 
E.  975;  LaRose  v.  Nichols  (N.  J. 
Sup.),  103  A.  390;  International,  etc., 
Go.  V.  Connelly,  206  N.  Y.  188,  99  N. 
E.  722;  Johnson  v.  Clark,  51'  N.  Y. 
S.  238,  23  Miisc.  346 ;  New  York  Bldg. 


Loan  Banking  Co.  v.  Fisher,  45  N.  Y. 
S.  79'5,  20  Misc.  R.  242. 

The  absurdity  of  the  old  rule  is 
well  illustrated  by  a  recent  Massachu- 
setts decision  holding  that  where  an 
infant  leases  a  motorcycle  and  takes 
it  out  and  smashes  it  up  he  can  bring 
back  the  wreck  and  then  recover  all 
instalments  he  has  paid  thereon,  al- 
though the  contract  was  in  the  first 
place  made  in  reliance  on  his  writ- 
ton  statement  under  oath  that  he  was 
of  age.  This  decision  is  an  encourage- 
ment to  young  crooks  and  seems  in 
defiance  of  common  sense  and  com- 
mon justice.  KJnudson  v.  General 
Motorcycle  Co.,  230  Mass.  54. 

4.  New  York,  etc.,  Co.  v,  Fisher,  45 
N.  Y.  S.  795,  20  Misc.  242. 

5.  Williamson  v.  Jones,  43  "W.  Va. 
562,  27  S.  E.   411,  38  L.  R.  A.   694 
64  Am.  St.  R.  891 ;  Headley  v,  Hoop- 
cngarter,  60  W.  Va.  62«,  55  S.  E.  744, 

6.  Lyons  v.  First  Nat.  Baak,  101 
Ark.  368,  142  S.  W.  856;  Tobin  v. 
Spann,  85  Ark.  556,  109  S.  W.  534; 
Rowe  V.  Allison,  87  Ark.  206,  112  S. 
W.    395;    Beauchamp    v.    Bertig,    90 


§   1032 


INFANCY. 


1212 


courts  assert  the  doctrine  broadly  that  an  infant  maj  be  estopped 
from  disaffirming  his  contract  in  any  case  where  the  evidence 
plainly  and  convincingly  shows  the  presence  of  actual,  active  and 
wilful  fraud  and  misrepresentation  deceiving  the  other  party  to 
his  damage/ 

Chancery,  handling  its  weapons  with  more  freedom,  is  accom- 
plishing results  in  this  respect  more  widely  useful.  The  doctrino 
of  the  English  equity  courts  appears  to  have  been,  for  years,  that 
where  payment  is  made  to  one  falsely  representing  himself  as  an 
infant,  this  is  a  discharge  for  the  sum  paid ;  but  that  where  ther& 
was  no  such  misrepresentation  the  trustee  still  remains  liable ; 
the  mere  belief  that  one  was  of  age,  of  course,  affording  no  ground 
of  justification.®  An  English  bankruptcy  case  of  modem  date 
carries  the  principle  still  farther ;  far  enough  to  startle  those  who 
have  reposed  upon  the  assurance  that  the  ancient  judgments  "  will 
stay  forever."  A  young  man,  who  from  his  appearance  might 
well  have  been  taken  to  be  more  than  twenty-one  years  of  age, 
engaged  in  trade,  and  wished  to  borrow  or  to  obtain  credit,  and 
for  the  purpose  of  doing  so  represented  himself  to  the  petitioner, 
expressly  and  distinctly,  as  of  the  age  of  twenty-one.  It  was  held 
that,  whatever  the  liability  or  non-liability  of  the  infant  at  law, 
he  had  made  himself  liable  in  equity  to  pay  that  debt.®  But  in  a 
somewhat  later  case,  not  inconsistent  with  these  others,  it  was  held 


Ark.  351,  119  S.  W.  75;  Kirkham  v. 
Wheeler-Osgood  Co.,  39  Wash.  415,  81 
P.  869. 

7.  Bunel  v,  O'Day,  125  F.  303. 

Where  plaintiff  was  indebted  to 
defendants  for  goods  sold  to  him 
while  conducting  a  grocery  and  meat 
market,  and  while  indebted  to  them 
left  the  State  for  the  purpose,  as  he 
alleged,  of  buying  some  hay  to  be 
shipped  to  the  town  in  which  he  re- 
sided, and  a  third  party  sold  all  the 
property  in  the  store  to  defendants, 
they  believing  at  the  time  that  plain- 
tiff had  absconded,  and  also  believing 
that  the  third  party  was  a  partner  of 
plaintiff,  where  there  was  no  evidence 
that  plaintiff  had  induced  such  third 
party  to  make  the  representations 
that  he  had  absconded  or  abandoned 
his  property,  he  was  not  estopped  by 
the  circumstances  from  asserting  his 


minority.  Barbieri  v.  Messner,  106 
Minn.  102,  118  N.  W.  258;  Lake  v. 
Perry,  95  Miss.  550,  49  So.  569. 

Where  an  infant  19  years  of  age, 
in  consideration  of  employment  by  a 
milk  company,  contracts  not  to  solicit 
business  from  the  customers  of  the 
employer  within  three  years  after 
leaving  its  employ,  an  injunction  will 
lie  to  restrain  him  from  violating  the 
agreement.  Mutual  Milk  &  Cream 
Co.  V.  Prigge,  98  N.  T.  S.  458,  112 
App.  Div.  652. 

8.  Overton  v.  Bannister,  3  Hare, 
503;  Stikeman  v.  Dawson,  1  De  G.  & 
S.  90. 

9.  In  re  Unity  and  Banking  Asso- 
ciation, 3  De  G.  &  J.  63  (1858). 
Lords  Justices  Bruce  and  Turner  con- 
curred in  this  opinion,  both  expressing 
some  reluctance  in  giving  the  judg- 
ment. 


1213 


INJURIES  AND  FRAUDS. 


§  1032 


that  an  infant's  settlement  upon  his  wife  might  be  avoided  by  him 
on  arriving  at  majority,  notwithstanding  there  was  some  evidence 
that  he  fraudulently  misstated  his  age  to  her  solicitor ;  the  fact 
being,  however,  that  she,  a  widow  of  thirty-two,  knew  perfectly 
well  that  he  was  under  age,  and  was  not  misled  by  his 
representations.^" 

The  result  of  these  late  English  decisions  is  to  reopen  in  that 
country  the  whole  subject  of  an  infant's  liability  on  his  fraudulent 
misrepresentations ;  and  considerable  uncertainty  appears  to  per- 
vade the  latest  common-law  decisions  in  that  country,  which  inci- 
dentally bear  upon  the  subject."  Whether  the  new  or  the  old 
doctrine  is  in  the  end  to  prevail,  it  is  too  early  yet  to  say ;  but  a 
collision  has  come,  towards  which  equity  and  the  common  law  were 
fast  tending.  Much,  however,  depends  upon  the  position  in  which 
the  infant's  liabilities  are  presented  in  court.^" 

The  civil-law  doctrine  is  clearly  that  if  a  minor  represents  him- 
self of  age,  and  from  his  person  he  appears  to  be  so,  any  contract 
made  with  him  will  be  valid ;  and  the  law  protects  those  who  are 
defrauded,  not  those  who  commit  fraud. ^^  And  such  was  the 
Spanish  law  as  formerly  prevalent  in  our  Southwestern  States/* 
In  a  Maryland  case,  too,  we  find  the  suggestion  that  if  an  infant 
forms  a  partnership  with  an  adult  he  holds  himself  out  fraudu- 


10.  Nelson  v.  Stocker,  4  De  G.  &  J. 
458  (1859).  Lord  Justice  Turner, 
commenting  upon  the  case,  said: 
"There  can  be  no  doubt  that  it  is 
morally  wrong  in  an  infant  of  com- 
petent age,  as  it  is  in  any  other  per- 
son, to  make  any  false  representa- 
tion whatever;  but  the  observance  of 
obligations  or  duties  which  rest  only 
upon  moral  grounds  cannot  be  en- 
forced in  chancery.  Some  wrong  or 
injury  to  the  party  complaining  must 
be  shown. ' '  He  further  observes : 
' '  The  privilege  of  infancy  is  a  legal 
privilege.  On  the  one  hand,  it  can- 
not be  used  by  infants  for  the  pur- 
poses of  fraud.  On  the  other  hand, 
it  cannot,  I  think,  be  allowed  to  be 
infringed  upon  by  persons  who,  know- 
ing of  the  infancy,  must  be  taken  also 
to  know  of  the  legal  consequences 
which  attach  to  it."  7b.,  p.  465.  See 
Inman  v.  Inman,  L.  E.  15  Eq.  260. 


11.  See  DeEoo  v.  Foster,  12  C.  B. 
(N.  S.)  272  (1862);  Wright  v.  Leon- 
ard, 11  C.  B.   (N.  S.)   258. 

12.  Thus,  recently,  where  an  infant, 
had  obtained  a  lease  on  a  false  rep- 
resentation that  he  was  of  full  age, 
it  was  held  in  chancery  that  the  lease 
must  be  declared  void  and  possession 
given  up,  and  the  infant  enjoined 
from  parting  with  the  furniture ;  but 
that  the  infant  could  not  be  made 
liable  for  use  and  occupation.  Lem- 
priere  v.  Lange,  L.  E.  12  Ch.  D. 
675. 

13.  1  Dom.,  pt.  1,  b.  4,  tit  6,  §  2, 

14.  See  able  discussion  of  this  sub- 
ject by  Hemphill,  C.  J.,  Kilgore  v. 
Jordan,  17  Tex.  341.  There  is  not 
another  American  case  to  be  found 
where  this  subject  is  so  fully  dis- 
cussed, in  its  civil-law,  common-law, 
and  English  equity  bearings   (1870). 


§    1032  INFANCY.  1214 

lentlj  to  the  world. ^"^  In  Texas,  the  fraudulent  representations  of 
an  infant  are  binding  upon  him."  Intimations  are  sometimes 
found  in  the  courts  as  to  gross  frauds  which  might  bind  an  infant. ^^ 
And  in  Kentucky,  not  long  since,  the  court  refused  to  allow  a  deed 
made  by  a  wife  and  her  husband  to  be  avoided  on  the  ground  of 
the  wife's  infancy,  when,  to  induce  the  innocent  purchaser  to  take 
the  land,  she  and  her  husband  had  made  oath  before  a  magistrate 
that  to  the  best  of  their  knowledge  and  information  she  was  more 
than  twenty-one  years  old.  This  was  a  righteous  decision."  In 
some  other  States  an  infant  nearly  of  age  who  entraps  another  into 
a  purchase  or  mortgage  loan  by  direct  participation  in  a  fraud  as 
to  his  or  her  age,  has  been  estopped  in  chancery  from  attacking  the 
title  to  the  land  afterwards  on  that  ground,  and  thereby  perpe- 
trating a  fraud."  Beyond  this  there  seems  increased  authority 
for  asserting  that  the  American  doctrine  on  this  subject  is  unset- 
tled, and  that  it  responds  to  the  change  now  going  on  in  the  English 
courts.^"  But  an  equity  court  in  North  Carolina  refused,  not 
many  years  since,  to  compel  specific  performance  of  an  infant's 
contract  on  the  alleged  ground  of  fraudulent  misrepresentation  of 
his  father  and  himself,  that  he  was  of  full  age;  following  the  old 
common-law  rule  instead  of  opposing  it.^^     And  in  many  States 

15.  Kemp  v.  Cook,  18  Md.  130.  The  In  Lacy  v.  Pixler,  120  Mo.  383,  snch 
remark  is  quoted  as  that  of  Lord  an  issue  is  not  clearly  presented. 
Mansfield,  in  Gibbs  v.  Merrill,  3  20.  In  several  of  the  latest  Ameri- 
Taunt.  307,  but  this  must  be  an  error,  can  cases  the  disposition  is  strong  to 
as  no  such  language  appears  in  the  hold  an  infant  apparently  of  age  and 
case  referred  to,  while  the  decision  in  fact  nearly  so,  liable  for  the  conse- 
■went  upon  totally  different  ground.  quences  of  his  fraudulent  misrepresent 
As  to  a  partnership  where  the  infant  tation  on  that  point.  In  Indiana  an 
deceived  the  adult  concerning  his  age,  infant  who  by  falsely  stating  himself 
see  Bush,  etc.  v.  Linthicum,  59  Md.  to  be  of  age  obtained  property  for 
•j44.                                                                   which  he  gave  his  worthless  note  and 

16.  Kilgore  v.  Jordan,  17  Tex.  341 ;  mortgage,  is  held  liable  to  an  action 
Carpenter  v.  Pridgen,  40  Tex.  32.  for  deceit.     Eice  v.  Boyer,  108  Ind. 

17.  Stoolfos  V.  Jenkins,  12  S.  &  E.  472;  cf.  Baker  v.  Stone,  136  Mass. 
399;  2  Kent,  Com.  241.  And  see  405,  where  the  infant  did  not  mis- 
Sterling  V.  Adams,  3  Day,  411;  Da-  represent,  but  merely  knew  that  the 
vies,  J.,  in  Henry  v.  Eoot,  23  N.  Y.  adult  supposed  him  to  be  of  age.  In 
544.  New    Jersey    an    infant    ward    who 

18.  Schmitheimer  v.  Eiseman,  7  fraudulently  procured  a  settlement 
Bush,   298.  from  his  guardian  by  a  similar  false- 

19.  Ferguson  v.  Eobo,  54  Miss.  121.  hood    was   not   allowed   to    repudiate 
Here  the  fraud  appears  to  have  been  that  settlement  on  attaining  majority, 
perpetrated  without  any  positive  mis-  Hayes  v.  Parker,  41  N.  J,  i^q.  630. 
statement  as  to  age.     A  clearer  and  21.   Dibble  v.    Jones,   5  Jones  Bq» 
later  case  is  Pemhorton  Building  As-  389. 

Bociation  v.  Adams   (1895),  N.  J.  Eq. 


1215 


INJURIES    AND    FRAUDS. 


§  1032 


fiftill  an  infant  will  not  thus  be  debarred  from  disaffirming  his 
conveyance  at  majoritj.^^ 

But  our  American  statutes  sometimes  quicken  the  infant's  sense 
of  honor.  Thus,  in  Iowa,  it  is  enacted  that  one  who,  in  selling 
real  estate,  represents  himself  to  be  of  full  age,  and  induces  the 
grantee  to  buy  on  the  streng1;h  of  that  representation,  cannot  after- 
wards disaffirm  his  contract  on  the  ground  of  infancy.^^  It  would 
be  well  if  similar  statutes  were  enacted  in  every  State.  We  as- 
sume, of  course,  in  general,  that  the  infant  thus  misrepresenting 
has  reached  years  of  discretion  and  in  appearance  might  be  taken 
for  an  adult. 

It  may  now,  however,  be  said  generally  that  where  a  minor 
represents  himself  to  be  of  full  age,  the  doctrine  of  estoppel  will 
apply  under  certain  conditions,"*  but  not  where  he  falsely  repre- 
sents that  his  disability  has  been  removed  under  a  statute.^^  To 
raise  an  estoppel  the  misrepresentation  must  be  express.^'  Mere 
silence  is  not  enough,^^  even  though  the  infant  ought  to  speak.^* 
The  same  may  be  true  where  the  information  is  given  unwill- 
22,  Sims  V.  Everhardt,   102  U.  S.  25.  Wilkinson  v.  Buster,  124   Ala. 

574,  26  So.  940. 

26.  Grauman,  etc.,  Co.  v.  Krienitz, 
142  Wis.  556,  126  N.  W.  50. 

27.  Frank  Spangler  Co.  v.  Haupt, 
53  Pa.  Super.  Ct.  545;  Headley  v. 
Hoopengarner,  60  W.  Va.  626,  55  S. 
E.  744;  Grauman,  etc.,  Co.  v.  Krie- 
nitz, 142  Wis.  556,  126  N.  W.  50. 

If  a  minor  merely  fails  to  impart 
information  as  to  his  age  and  uses  no 
artifice  to  induce  the  other  party  to 
enter  into  the  contract,  the  doctrine 
of  estoppel  does  not  apply.  Grauman, 
etc.,  Co.  V.  Krienitz,  142  Wis.  556,  126 


8upr.  300. 

23.  Prouty  v.  Edgar,  6  la.  353. 

24.  Goff  V,  Murphy,  153  Ky.  634, 
156  S.  W.  95;  Turner  v.  Stewart,  149 
Ky.  15,  147  S.  W,  772 ;  Asher  v.  Ben- 
nett, 143  Ky.  361,  136  S.  W,  879; 
County  Board  of  Education  v.  Hens- 
ley,  147  Ky.  441,  144  S.  W.  63;  Edgar 
V.  Gertison  (Ky.),  112  S,  W.  831; 
Adkina  v.  Adkins  (Ky.),  210  S.  W. 
462. 

It  has  been  held  to  be  otherwise 
■where  in  a  conveyance  to  a  father  to 
enable  him  to  become  surety  the  in- 
fant recites  that  he  is  of  age,  and 
where  the  court  accepted  the  father 
as  such  surety  on  the  faith  of  the 
recital,  as  well  as  on  the  infant's  own 
testimony  in  open  court  to  the  same 
effect.  Damron  v.  Com.,  110  Ky.  268, 
61  S.  W.  459,  96  Am.  St.  R.  453 ;  Lake 
V.  Perry,  9-5  Miss.  550,  49  S.  569; 
Commander  v.  Brazil,  88  Miss.  668, 
41  S.  497;  Ostrander  v.  Quin,  84  Miss. 
230,  36  So.  257,  105  Am.  St.  R.  426; 
La  Rosa  v.  Nichols  (N.  J.),  105  A. 
201;  Grauman,  etc.,  Co.  v,  Krienitz, 
142  Wis.   556,   126  N.  W.  50. 


N.  W.   50. 

28.  Grauman,  etc.,  Co.  v.  Krienitz, 
142  Wis.  556,  126  N.  W.  50. 

The  rule  that  an  infant  may  bind 
himself  by  his  actual  fraud,  but  not 
by  mere  conduct  or  silence  when  he 
ought  to  speak,  is  an  exception  to  the 
rule  that  an  infant  cannot  bind  him- 
self by  estoppel,  and  is  confined  to 
cases  where  the  infant  is  in  fact  de- 
veloj-ed  to  the  condition  of  actual  dis- 
cretion, and  to  cases  of  actual  fraud, 
and  where  the  contract  or  transac- 
tion is  beneficial.     Grauman,  etc.,  Co. 


§  1032 


INFA^'CY. 


1216 


ingly.^®  To  raise  an  estoppel,  the  contract  must  be  fairly  made, 
and  the  consideration  adequate.^"  There  must  be  a  fraudulent 
intent  on  the  part  of  the  infant/^  and  the  misrepresentation  must 
be  relied  on  and  must  induce  the  contract.^^  The  act  relied  on  aa 
an  estoppel  must  be  that  of  the  infant  himself.^^  Where  the  other 
party  knew,  or  as  a  reasonable  and  prudent  man  should  have 
known  of  the  infant's  non-age,  the  latter's  misrepresentation  will 
not  estop  him,^*  but  he  is  allowed  to  rely  somewhat  on  the  fact  that 
the  minor  is  well  grown,  so  that  his  appearance  indicates  full  age 
to  a  person  of  ordinary  prudence.^^  Where  the  contract  is  wholly 
void,  it  cannot  be  validated  by  an  estoppel.^® 

V.  Krienitz,  142  Wis.  556,  126  N.  W.       father's  misrepresentation  of  his  age, 

if  in  his  presence  and  without  objec- 
tion by  him.  United  States  Inv.  Co. 
V.  Ulrickson,  84  Minn.  14,  86  N.  W. 
613,  87  Am.  St.  E.  326;  Wallace  v. 
Wallace  (N.  J.),  75  A.  770. 

34.  Putnal  v.  Walker,  61  Fla.  720, 
55  So.  844,  36  L.  E.  A.  (N.  S.)  33; 
Asher  v.  Bennett,  143  Ky.  361,  136 
S.  W.  879;  Lake  v.  Perry,  95  Miss. 
550,  49  So.  569. 

35.  In  Arkansas  a  different  conclu- 
sion is  drawn  from  the  appearance  of 
full  age.  Beauchamp  v.  Bertig,  90 
Ark.  351,  119  S.  W.  75. 

Where  a  married  infant  having  a 
beard  and  every  appearance  of  being 
of  age  joined  in  a  conveyance  of  his 
interest  of  trees  and  took  an  active 
part  in  the  negotiations  and  assiated 
in  counting  and  branding  the  trees 
and  received  his  part  of  the  purchase 
price,  he  was  estopped  from  relying 
on  his  infancy  to  defeat  the  grantee 's 
title  without  returning  the  considera- 
tion. Smith  V.  Cole,  148  Ky.  138,  146 
S.  W.  30;  Commander  v.  Brazil,  88 
Miss.  668,  41  So.  497 ;  Lake  v.  Perry, 
95  Miss.  550,  49  So.  569;  La  Eosa  v. 
Nichols  (N.  J.),  105  A.  201.  But 
see  Frank  Spangler  Co.  v.  Haupt,  53 
Pa.  Super  545  (holding  that  the  fact 
that  the  minor  appears  to  be  of  age 
does  not  estop  him  if  he  makes  no 
representation. 

36.  Hakes,  etc.,  Co.  v.  Lyons,  166 
Cal.  557,  137  P.  ffll. 


50. 

29.  International,  etc.,  Co.  v.  Doran, 
80  Conn.  307,  68  A.  255.  But  see 
County  Board  of  Education  v.  Hens- 
ley,  147  Ky.  447,  144  S.  W.  63  (hold- 
ing that  a  false  answer  to  a  question 
as  to  a  minor's  age  was  ground  for 
estoppel). 

30.  Edgar  v.  Gertison  (Ky.  1908), 
112  S.  W.  831;  Asher  v.  Bennett,  143 
Ky.  361,  136  S.  W.  879 ;  Goff  v.  Mur- 
phy, 153  Ky.  634,  156  S.  W.  95. 

31.  Putnal  v.  Walker,  61  Fla.  720, 
55  So.  844. 

32.  Putnal  v.  Walker,  61  Fla.  720, 
55  So.  844;  County  Board  of  Educa- 
tion V.  Hensley,  147  Ky.  441,  144  S. 
W.  63;  Commander  v.  Brazil,  88  Miss. 
668,  41  S.  497;  Lake  v.  Perry,  9'5 
Miss.  550,  49  S.  569;  Ostrander  v. 
Quinn,  84  Miss.  230,  36  S.  257,  105 
Am.  St.  E.  426;  La  Rosa  v.  Nichols 
(N.  J.),  105  A.  201;  Headley  v. 
Hoopengarter,  60  W.  Va.  626,  55  S. 
E.  744;  Grauman,  etc.,  Co.  v.  Krie- 
nitz, 142  Wis.  556,  126  N.  W.  50. 

33.  A  conveyance  by  the  heirs  of  a 
decedent  at  the  instance  of  the  widow 
will  not  estop  the  minor  children  from 
having  assigned  to  them  a  year 's  sup- 
port from  the  estate  of  their  de- 
ceased father.  Jones  v.  Cooner,  137 
Ga.  681,  74  S.  E.  51;  Goff  v.  Mur- 
phy, 153  Ky.  634,  156  S.  W.  95; 
Howard  v.  Sebastian,  143  Ky.  237, 
136  S.  W.  226. 

A    minor    may    be   barred    by    his 


1217 


INJUEIES    AND    FRAUDS. 


§  1034 


§  1033.  Injuries,  &c.,  SufiFered  by  Infants. 

Second.  As  to  injuries  and  frauds  suffered  by  infants.  Infants 
Have  a  right  to  sue,  by  guardian  or  next  friend,  to  recover  damages 
for  injuries  done  to  person  or  property  by  the  tortious  acts  of 
another ;  and  the  ordinary  principles  of  law,  in  this  respect,  as  to 
contributory  n^ligence,  apply  to  them  as  to  adults.'^  But  by 
reason  of  their  tender  years,  their  rights  and  remedies  receive  a 
somewhat  peculiar  treatment  in  the  courts,  as  we  proceed  to  show. 
In  actions  for  negligence  he  must  show  due  care.^* 

§  1034.  Child's  Contributory  Negligence. 

Thus  it  is  held  that  a  child  eight  years  old  may  sue  one  who 
sells  and  delivers  to  him  a  dangerously  explosive  substance,  such 
as  gunpowder,  though  upon  his  own  request.*®  Such  actions  are 
grounded  upon  the  ignorance  of  the  child  and  the  negligence  of 
those  who  fail  to  regard  it. 

The  principle  involved  is  precisely  that  of  the  case  where  a  man 
delivers  a  cup  of  poison  to  an  idiot  or  puts  a  razor  into  the  hand 
of  an  infant.  The  child  uses  that  ordinary  care  of  which  he  is 
presumed  capable  at  his  age ;  and  though  this  may  amount,  logi- 
cally, to  actual  carelessness  as  applied  among  adults  to  the  ordinary 
transactions  of  life,  his  right  of  action  is  not  thereby  forfeited." 


37,  Wilmot  V.  McPadden,  78  Conn. 
276,  61  A,  1069 ;  Allaire  v.  St.  Luke 's 
Hospital,  184  111.  359,  56  N.  E.  638, 
48  L.  E.  A.  225,  75  Am.  St.  R.  176; 
McGreevey  v.  Boston  Elevated  Ey. 
Co.  (Mass.),  122  N.  E.  278. 

An  infant  injured  by  negligence 
while  en  ventre  sa  mere  cannot  recover 
if  at  the  time  of  the  accident  she  was 
a  foetus  too  young  to  have  been  bom 
vivable.  Lipps  v.  Milwaukee  Electric 
Ey.  &  Light  Co.,  164  Wis.  272,  159 
N.  W.  916.  To  the  same  effect  see 
Nugent  V.  Brooklyn  Heights  E.  Co., 
139  N.  Y.  S.  367,  154  App.  Div.  667; 
1  Addis.  Torts,  712. 

The  youth  of  a  person  injured  does 
not  extend  the  liability  of  the  person 
causing  the  injury,  for  the  tortious 
acts  of  his  servants.  Sherman  v.  Han- 
nibal E.,  72  Mo.  62.  And  see  post, 
Part  "VT,  ch.  4,  As  to  prosecuting 
such  suits  by  next  friend,  &c.,  see  § 
450. 

77 


As  to  action  for  malpractice  in 
treating  an  infant,  see  Force  v.  Greg- 
ory, 63  Conn.  167.  The  fact  that  the 
plaintiff  is  a  minor  and  incapable  of 
contracting  for  the  service,  or  that 
the  father  called  the  physician,  con- 
stitutes no  defence.  76.;  Harris  v. 
MeNamara,  97  Ala.  181.  Injury  to 
a  young  child  by  leaving  team  un- 
hitched. Westerfield  v.  Levi  Bros., 
43  La.  Ann.  63.  Instigating  a  young 
child  to  do  an  injurious  thing.  Eosen- 
berg  V.  Durfee,  87  Cal.  545. 

Where  a  suit  is  prosecuted  on  an 
infant's  behalf  to  recover  for  fraud 
practised  upon  him,  it  is  no  defence 
that  he  has  not  rescinded  the  contract 
or  returned  the  property  received. 
Shuford  v.  Alexander,  74  Ga.  293. 

38.  Campany  v.  Brayton,  171  App. 
D.  63,  156  N.  y.  S.  1010. 

39.  Carter  v.  Towne,  98  Mass.  567. 

40.  Byrne  v.  New  York  Central  B., 
83  N.  Y.  620. 


§   1034 


INFANCY. 


1218 


A  child  between  seven  and  fourteen  years  of  age  is  presumed 
incapable  of  contributory  negligence,  and  those  seeking  to  apply 
the  doctrine  to  him  have  the  burden  of  showing  his  maturity  and 
capacity.'*^  Whoever,  then,  would  avoid  a  suit  like  this  must 
regulate  his  own  discretion  to  suit  the  party  with  whom  he  deals, 
and  act  at  all  times  with  befitting  prudence.  Due  average  care, 
according  to  age,  sex,  and  capacity,  is  all  that  the  law  exacts  of 
any  child  of  tender  years,  and  not  the  average  standard  for  adults, 
in  judging  of  the  child's  contributory  negligence;  and  wherever 
there  is  danger  to  which  the  infant  exposes  himself,  it  is  material 
to  consider  whether  his  judgment  and  reflection  were  sufficiently 
matured  to  make  that  danger  obvious.*^  Children  under  four  can 
^ardly  be  capable  of  prudence  or  rashness  at  all  as  to  themselves. 

But  there  are  cases  where  the  child  himself  may  have  no  right 
of  action  for  injuries  received, —  as  if  he  be  technically  a  tres- 
passer, and  meddling  with  property  which  does  not  belong  to  him. 
Of  this  rule  an  English  case  affords  an  example,  where  a  boy,  four 
years  old,  coming  from  school,  saw  a  machine  exposed  for  sale  in 
a  public  place,  and  by  direction  of  his  brother,  seven  years  old, 
placed  his  fingers  within  the  machine  whilst  another  turned  the 
crank  and  thereby  crushed  his  fingers;*^  th-e  court  held  that  no 
action  would  lie.  But  if  the  trespass  of  the  infant  does  not  sub- 
stantially contribute  to  produce  the  injury,  it  would  appear  that 
no  defence  can  be  legally  interposed  on  this  ground.**  Thus  the 
mere  fact  that  a  youth  gets  upon  a  railroad  car  intending  to  ride 
without  paying  fare  is  held  not  to  bring  the  ca-se  within  the  rule  of 
trespass  or  contributory  negligence.*^  And  late  American  cases 
go  so  far  as  to  assert  that  a  young  child,  even  though  a  technical 
trespasser,  may  recover  for  injuries  where  an  adult  might  not; 


41.  Richmond  Traeticn  Co.  v.  Wil- 
kinson,  101  Va.  394,  43  S.  E.  622. 

42.  Railroad  Co.  v.  Young,  83  Ga. 
12;   120  N.  Y.  526;   Illinois  Central 

R.  V.  Slater,  129  HI.  91;  Greenway  v, 
Conroy,  160  Pa.  St.  185;  Reed  v.  City 
of  Madison,  83  Wis,  171;  Brazil  Bl. 
Coal  Co.  V.  Gaffney,  113  Ind.  455; 
G.  C,  &  S.  F.  Ry.  Co.  v.  McWhister, 
77  Tex.  356;  De  Cordova  v.  Powter, 
123  N.  Y.  645  In  setting  a  child  to 
perform  a  dangerous  service  the  above 
principle  applies,  and  due  warning  is 
at  least  incumbent  upon  the  employer 


in  such  case.  Brazil  Bl.  Coal  Co.  v. 
Gaffney,  119  Ind.  455;  Rhodes  v. 
Railroad  Company,  84  Ga.  320;  Emma 
Cotton  Seed  Oil  Co.  v.  Hale,  56  Ark. 
232;  Texas  &  Pacific  Ry.  Co.  v.  Brick, 
83  Tex.  598. 

43.  Mangan  v.  Atterton,  L.  R.  1  Ex, 
239.  And  see  Hughes  v.  McFie,  2  H. 
&  C.  744;  33  L.  J.   (Ex.)   177. 

44.  See  Daley  v.  Norwich  &  Worces- 
ter R.  R.  Co.,  26  Conn.  591. 

45.  Kline  v.  Central  Pacific  R.  B. 
Co.,  37  Cal.  400.  See  Townley  v.  Chi- 
cago E.,  53  Wia,  626. 


1219 


INJUEIES    AND    FEAUDS. 


§    103'5 


and  this  upon  the  gi'ound  that  the  defendant  had  placed  something 
dangerous  or  in  a  dangerous  condition  to  which  children  were 
readily  attracted. 


4a 


§  1035.  Contributory  Negligence  of  Parent,  Protector,  &c. 

Another  and  the  more  common  class  of  exceptions  consists  of 
cases  where  the  parentis  or  other  persons  having  charge  of  the  child 
have  been  guilty  of  negligence.  The  rule  of  l^ew  York,  Massa- 
chusetts, Illinois,  and  some  other  States,  is  that  a  child  too  young 
to  have  discretion  for  himself  cannot  recover  if  his  protector  fails 
to  exercise  ordinary  care,  but  that  he  may  if  he  uses  such  care  as 
is  usual  with  children  of  the  same  age,  and  the  protector  exercises 
ordinary  care  besides.*^  The  English  rule,  as  formerly  understood, 
does  not  take  into  consideration  the  circumstance  of  the  protector's 
negligence  at  all.**  And  in  various  American  States  the  child's 
exercise  of  ordinary  care  appears  alone  to  be  regarded.*^  The 
latest  English  cases,  however,  lean  toward  the  doctrine  first  above 
stated.  Thus,  when  the  child,  at  the  time  of  injury,  was  in  the 
care  of  his  grandmother,  at  a  railroad  station,  where  she  had  pur- 
chased tickets  for  both,  it  was  held  that  the  plaintiff  was  so  identi- 
fied with  his  grandmother  that,  by  reason  of  her  negligence,  no 
suit  was  maintainable  against  the  company. 


60 


46.  Haesley  v.  Winona  R.,  46  Minn. 
233;  City  of  Pekin  v.  McMahon 
(1894)  111.;  Penso  v.  McCormiek,  125 
Ind.  116.  See  rule  stated  in  McCar- 
ragher  v.  Eogers,  120  N.  Y.  526.  But 
cf.  cases  where  the  child  was  debarred 
as  a  trespasser.  Rogers  v.  Lees,  140 
Pa.  St.  475;  McGuiness  v,  Butler,  159 
Mass.  233,  and  cases  cited;  Mc- 
Eachern  v.  Boston  &  Maine  Co.,  150 
Mass.  515.  It  is  sometimes  hard  to 
draw  the  line  between  a  child 's  wrong- 
doing and  contributory  negligence  in 
such  cases;  but  the  rule  of  trespass 
should  avail  as  a  defence,  within  fair 
limits,  for  unintentional  injury.  These 
tort  suits  are  constantly  on  the  in- 
crease. Presumptions  under  the  prin- 
ciple of  a  growing  discretion  during 
infancy  have  been  already  considered. 
§  392.  Yet  these  are  presumptions 
only;  and  in  these  civil  actions  the 
law  fixes  no  arbitrary  rule.  See  Stone 
V.  Dry  Dock  R.  R.  Co.,  115  N.  Y.  104. 


47.  Wright  v.  Maiden  &  Melrose  B. 
Co.,  4  Allen,  283;  Hartfield  v.  Roper, 
21  Wend.  617;  Downs  v.  New  York 
Central  R.  R.  Co.,  47  N.  Y.  83 ;  Kerl 
V.  Forgue,  54  111.  482 ;  Schmidt  v.  Mil- 
waukie,  etc.,  R.  R.  Co.,  23  Wis.  186; 
O 'Flaherty  v.  Union  R.  R.  Co.,  45  Mo. 
70;  Baltimore,  etc.,  R.  R.  Co.  v.  State, 
30  Md.  47;  Munn  v.  Reed,  4  Allen, 
431;  Lehman  v.  Brooklyn,  29  Barb. 
236;  City  of  Chicago  v.  Starr,  42  IlL 
174. 

48.  Lynch  v.  Nurdin,  1  Q.  B.  29. 
Doubted,  however,  in  Lygo  v.  New- 
bold,  9  Exch.  302. 

49.  Robinson  v.  Cone,  22  Vt.  213; 
North  Pa.  R.  R.  Co.  v.  Mahoney,  57 
Pa.  St.  187 ;  Bellefontaine,  etc.,  R.  R. 
Co.  V.  Snyder,  13  Ohio  St.  399;  Daley 
V.  Norwich  &  Worcester  R.  R.  Co.,  26 
Conn.  591.  But  see  Bronson  v.  South- 
bury,  37  Conn.  199. 

50.  Waite  v.  North -Eastern  E.  R. 
Co.,  5  Jur.   (N.  S.)   936. 


§  1035 


INPANCY. 


1220 


Where  carelessness  of  a  mother  or  other  protector  is  alleged,  in. 
authorizing  an  exposure  of  the  child,  it  may  sometimes  be  said 
that  the  father  or  proper  parent  or  guardian  had  conferred  no 
authoritj.°*  To  take  common  illustrations  of  this  doctrinee: 
Allowing  a  child  seventeen  months  or  even  two  or  three  years  old 
to  be  in  the  public  street  of  a  city  without  a  suitable  attendant  i» 
held  to  be  a  want  of  ordinary  care  on  the  parents'  part,  and  if  the 
child  be  run  over  there  is  no  remedy.^"  But  there  are  circum- 
stances under  which  it  would  be  found  that  the  parent  or  protector 
of  such  a  child  was  exercising  ordinary  care ;  while  the  child  him- 
self would  be  treated,  doubtless,  as  incapable  of  personal  negli- 
gence at  so  early  an  age,  so  as  to  defeat  his  right  of  action.^^  Suf- 
fering a  boy  eight  or  ten  years  old  to  play  on  the  street  after  dark 
is  not  necessarily  negligence  on  the  protector's  part.°*  And  even 
as  to  children  four  years  of  age  or  thereabouts,  or  perhaps  younger, 
it  is  not  expected  that  parents  who  have  to  labor  for  themselves 
and  cannot  hire  nurses  are  to  be  without  remedy  for  themselves 
or  their  children  every  time  the  child  steps  into  the  street  unat- 
tended. What  would  be  expected  of  the  custodians  of  these  tender 
beings  is  a  degree  of  care  or  diligence  suitable  to  the  capacity  of 
the  child ;  in  other  words,  ordinary  care  and  prudence  in  watching 
and  controlling  the  child's  movements.^^  This  care  and  prudence 
should  be  proportionate  to  known  dangers  or  to  dangers  which 
ordinary  diligence  might  have  made  known  to  the  custodian/' 
As  to  a  child  some  twelve  years  of  age  traveling  with  his  mother, 
and  injured  in  stepping  between  cars,  the  right  to  sue  is  not  neces- 
sarily defeated  for  the  reason  that  she  permitted  him  to  go  into 
another  car  from  that  where  she  was  sitting,  and  he  did  so.^^  In 
fact,  the  circumstances  of  each  case  are  fairly  to  be  weighed  by 


51.  Pierce  v.  Millay,  62  III.  133. 

52.  Kreig  v.  Wells,  1  E,  D.  Smith, 
74;  Casey  v.  Smith,  152.  Mass.  294; 
Johnson  v.  Kailway,  160  Pa.  St.  647. 
Otherwise  as  to  leaving  a  child  three 
years  of  age  to  play  inside  the  gate, 
•when,  unkno-mi  to  the  parent,  a  large 
hole  had  been  dug  just  outside  into 
which  the  child  foil.  Creed  v.  Ken- 
dall, 156  Mass.  291. 

53.  See  Mangam  v.  Brooklyn  R.  E. 
Co.,  38  N.  T.  455;  Schmidt  v.  Mil- 
waukie,  etc.,  R.  R.  Co.,  23  Wis.  186. 


54.  Lovett  V.  Salem,  etc.,  R.  R.  Co., 

9  Allen,  557. 

55.  City  of  Chicago  v.  Major,  18 
111.  360;  O 'Flaherty  v.  Union  E.  R. 
Co.,  45  Mo.  70;  Baltimore,  etc.,  R.  R. 
Co.  V.  State,  30  Md.  47;  I.  C.  R.  R. 
Co.  V.  Slater,  129  111.  91. 

56.  Louisville  R.  v.  Shanks,  132  Ind. 
395.  As  to  the  unforeseen  use  of  a 
toy  air-gun  bought  by  the  parent,  see 
Harris  v.  Cameron,  81  Wis.  239; 
Chaddoek  v.  Plummcr,  88  Mich.  225. 

57.  Downs  v.  N.  Y.  Central  R.  Co., 
47  N.  Y.  83. 


1221 


INJUKIES  AND  FEAUDS. 


§  1035 


the  jury.  No  child  capable  of  running  about  can  be  kept  tied  up 
in  the  house  and  subjected  to  constant  watch.  The  rule  is  to  be 
reasonably  and  beneficially  applied;  and  the  circumstances  are 
in  general  for  the  jury.°® 

And  wherever  the  child  himself  exercised  due  care  and 
prudence  in  fact,  the  care  and  diligence  of  a  protector  might  well 
become  immaterial  in  a  suit  for  the  child's  own.  injury." 

Causa  proxima  non  remota  spectatur  is  the  maxim  usually  ap- 
plied in  cases  of  torts,  whether  the  plaintiff  be  infant  or  adult. 
But  where  the  tort  is  occasioned  by  the  negligence  of  one  person, 


68.  The  principle  may  be  further  il- 
lustrated by  an  Illinois  case.  A 
heavy  counter,  some  eighteen  feet 
long  and  three  feet  high,  which  had 
been  placed  across  the  sidewalk  in 
one  of  the  principal  thoroughfares  of 
Chicago,  remained  so  for  two  or  three 
weeks,  when  some  children  were  climb- 
ing upon  it  and  thereby  caused  it  to 
fall  over.  One  of  the  children,  six 
years  old,  was  injured  and  died,  and 
the  parents  sued  the  city,  under  stat- 
ute, for  damages.  The  court  held, 
upon  the  state  of  facts  before  them, 
that  the  action  would  not  lie  because 
there  was  negligence  sho\\Ti  on  both 
eides, —  on  the  part  of  the  city  in  al- 
lowing the  counter  to  remain  in  that 
situation,  and  on  the  part  of  the 
parents  in  permitting  the  child,  at  his 
age,  to  roam  the  crowded  thorough- 
fares of  the  city  at  a  great  distance 
from  his  home.  The  negligence  on  the 
part  of  the  city  was  less  than  that 
attributable  to  the  child's  parents, 
and  therefore  there  could  be  no  re- 
covery. City  of  Chicago  v.  Starr,  42 
111.  174.  In  this  case  it  was  further 
suggested  that  the  degree  of  careless- 
ness is  not  to  be  judged  from  a  single 
fatal  accident;  but  that  the  question 
is  rather  what  would  have  been  the 
course  of  a  prudent  person  prior  to 
the  accident.  And  the  habitual  care- 
lessness of  the  parents  in  allowing  the 
child  to  go  about  unattended  was  con- 
sidered material.  But  see  Kerr  v. 
Forgue,  54  HI.  482,  limiting  the  rule. 


Perhaps  the  course  most  consistent 
with  the  latest  authorities  is  to  leave 
the  question  of  negligence,  so  far  as 
possible,  with  the  jury,  upon  the  state 
of  facts  presented.  See  further, 
Weeks  v.  Pacific  E.,  56  Cal.  513; 
Murley  v.  Eoche,  130  Mass.  330; 
Wynne  v.  Conklin,  86  Ga.  40;  §  428; 
MeCarragher  v.  Eogers,  120  N.  T. 
526;  Sprague  v.  Atlee,  81  la.  1;  Hig- 
gins  v.  Deeney,  78  Cal.  578. 

59.  Chicago  E.  v.  Eobinson,  127  111. 
9.  A  statute  suit  by  the  administra- 
tor of  a  child  who  was  killed  is  not 
debarred  by  the  consideration  that  a 
negligent  parent  will  inherit.  Wy- 
more  v.  Mahasha  County,  78  la. 
396.  In  Newman  v.  Phillipsburg  E., 
52  N.  J.  L.  446,  the  above  doctrine  of 
imputing  the  misfeasance  of  a  child's 
custodian  to  the  child  itself  so  as  to 
defeat  the  latter 's  right  of  action  is 
deemed  to  be  an  interpolation  into 
the  law;  with  chief  pertinence,  per- 
haps, where  the  child  himself  was  ac- 
tually careful.  See  also  Chicago 
City  Ey.  Co.  v.  Eobinson,  127  111.  9; 
Westbrook  v.  M.  &  O.  E.  E.  Co.,  66 
Miss.  560;  Eailway  Co.  v.  Harsch,  6? 
Miss.  126.  Such  parental  misfeasance 
ought  to  bar  the  parent 's  own  suit,  at 
all  events;  even  though  it  should  not 
that  of  the  child.  Chicago  City  Ey. 
Co.  v.  Wilcox,  138  111.  370.  The 
doctrine  of  imputed  negligence  has 
been  repudiated  in  various  States. 
Trumbo  's  Adm  'r  v.  City  St.  Car  Com- 
pany, 89  Va.  780:  cases  supra. 


§  1035 


INFANCY. 


1222 


the  infant  is  not  debarred  of  his  right  to  sue  the  other  party  who 
shared  in  it.  As  where  a  child  too  young  to  take  care  of  himself  — 
there  being,  we  shall  suppose,  no  negligence  on  the  part  of  the 
parent  —  is  in  danger  of  being  run  over  by  a  steam-engine,  and 
some  stranger  catches  him  up,  meaning  to  save  his  life,  and  im- 
prudently rushes  over  the  track  and  falls  with  the  child.  An 
accident  so  occasioned  might,  under  some  such  circumstances,  give 
a  right  of  action  against  either  the  stranger  or  the  railroad  com- 
pany, or  against  them  jointly.®" 

But  for  damage  to  the  person  involving  a  permanent  injury 
reaching  beyond  one's  minority,  the  minor  is  entitled  in  his  own 
right  to  recompense  for  such  prospective  loss.®^  He  may  also 
recover  for  physical  suffering  as  the  result  of  injury.®"  A  double 
recovery  for  loss  of  the  child's  services  during  minority  is  not 
permitted.®^ 


60.  See  North  Pa.  K.  R.  v.  Ma- 
honey,  57  Pa.  187,  The  views  ex- 
pressed in  this  case  may  not  meet,  in 
all  respects,  the  concurrence  of  other 
courts;  but  the  principle  extracted  in 
the  text  seems  to  the  writer  a  correct 
one.  See  further,  as  to  slander  of  an 
infant,  Hopkins  v.  Virgin,  11  Bush, 
677.  As  to  injury  done  to  a  minor 
servant,  sse  De  Graff  v.  N.  Y.  Central 
E.,  76  N.  T.  125;  Cooper  v.  State,  8 
Baxt.  324;  post,  Part  VI. 

A  parent  who  knovdngly  allows  his 
young  child  to  remain  in  a  dangerous 
employment  without  objection  debars 
himself  of  suit  by  his  own  negligence. 
Kilgove  V.  Smith,  122  Pa.  St.  57. 
But  where  on  employs  a  minor  know- 
ingly in  a  dangerous  business  with- 
out his  father's  consent  or  knowledge, 
he  becomes  liable  to  the  father's  suit 
in  case  of  injury.  Texas  R.  v.  Brick, 
83  Tex.  526.  Concerning  the  child's 
knowledge  of  danger  as  affectmg  his 
own  suit  for  damages,  see  §  428. 

The  act  of  the  parent  entitled  to 
his  services  in  bringing  an  action  for 
him  as  his  next  friend  and  in  her  pe- 
tition asking  recovery  for  him  for  loss 
of  time,  has  been  held  such  a  waiver 
of  the  right  of  his  services  as  to  enable 


him  to  recover  for  them.     Abeles  v. 
Bransfield,  19  Kan.   16. 

The  infant  may  recover  for  loss  of 
time  where  he  has  no  legal  or  natural 
guardian.  Lynchburg  Cotton  Mills  v. 
Stanley,  102  Va.  590,  46  S.  E.  908; 
Manufacturers,  etc.,  Co.,  228  111.  187, 
81  N.  E.  841. 

61.  Camp  V.  Hall,  39  Fla.  535,  22 
So.  792 ;  Central  R.  R.  v.  Brimsoi\,  64 
Ga.  475,  and  cases  cited;  Manufac- 
turer's, etc.,  Co.  V.  White,  228  HI.  187, 
81  N.  E.  841;  Helm  v.  Phelps,  157 
Ky.  795,  164  S.  W.  92 ;  Cincinnati,  N. 
O.  &  T.  P.  Ry.  Co.  V.  Troxell,  143  Ky. 
765,  137  S.  W.  543;  Lamkin  &  Fos- 
ter V.  Ledoux,  101  Me.  581,  64  A. 
1048;  Cameron  Mill  &  Elevator  Go. 
V.  Anderson,  98  Tex.  156,  81  S.  W. 
282,  78  S.  W.  8 ;  Cameron  Mill  &  Ele- 
vator Co.  V.  Anderson,  34  Tex.  Civ. 
App.  105,  1  L.  R.  A.  198;  Dublin  Cot- 
ton Oil  Co.  V.  Jarrard,  91  Tex.  289,  43 
S.  W.  959,  40  S.  W.  531;  Kruck  v. 
Wilbur,  etc.,  Co.,  148  Wis.  76,  133  N. 
W.  1117;  Sharon  v.  Winnebago  Furni- 
ture Mfg.  Co.,  141  Wis.  185, 124  N.  W. 
299  ;  Part  III,  ch.  4,  supra. 

62  Cincinatti,  etc.,  R.  Co.  v.  Troxell, 
143  Ky.  765,  137  S.  W,  543. 

63.  Baker  v.  Railroad  Co.,  91  Mich. 
298.     See  Judd  v.  Ballard  (1894),  Vt. 


1223 


INJTJEIES    AND    FRAUDS. 


§  1035a 


§  1035a.  Arbitration,   Compromise   and   Settlement   of  Injuries 
Committed  or  Suffered  by  Infants. 

While  an  infant  is  liable  for  torts,  it  does  not  follow  that  bis 
contracts  in  compensation  for  torts  are  binding.  In  fact,  his  sub- 
mission to  an  award,  and  notes  given  or  money  paid  in  pursuance 
thereof,  would  follow  the  principle  of  void  and  voidable  and  bind- 
ing contracts ;  ®*  and,  as  we  may  presume,  a  note  or  otner  security 
given  to  settle  damages  may  not  be  sued  upon  without  inquiry  into 
its  consideration,  but  it  shall  be  good  to  the  same  extent  as  the 
tort  which  constituted  its  basis.®^  And  on  the  other  hand,  where 
be  releases  or  compromises  for  any  injury  bimself  has  susiained, 
the  same  rule  applies.®®  The  parent  cannot  sue,  as  such,  for  the 
child's  injuries;  neither  can  he  make  a  binding  compromise  or 
release,  except  as  to  his  own  demand  upon  the  defendant.®^ 

Emancipation  will  enable  the  minor  to  recover  for  loss  of  tir: 
or  wages  during  minority.®* 


64.  Millsaps  v.  Estes,  137  N.  C. 
535,  50  S.  E.  227,  70  L.  E.  A.  170, 
107  Am.  St.  E.  496;  Baker  v.  Lovett, 
6  Mass.  78,  4  Am.  Dec.  88  (holding 
that  at  common-law  such  a  submission 
voidable)  ;  Halks  v.  Deal,  3  MeCord, 
257;  Pitcher  v.  Turin  Plank  Eoad 
Co.,  10  Barb.  436;  Ware  y.  Cart- 
ledge,  24  Ala.  622. 

65.  See  Eay  v.  Tubbs,  50  Vt.  688; 
xupra,  §  1019.  The  withdrawal  of  a 
suit  against  a  minor  child,  without 
further  costs,  is  sufficient  considera- 
tion for  the  father's  note  in  settle- 
ment. Mascolo  V.  Montesanto,  61 
Conn.  50. 

66.  Baker  v.  Lovett,  6  Mass.  78. 
Cf.  Cadwallader  v.  McClay,  37  Neb. 
359,  as  to  attempting  fraud  in  set- 
tling a  suit.      Infant's  right  to  sue 


for  wrong  is  barred  by  limitations. 
Ela  V.  Ela,  158  Mass.  54. 

67.  See  Loomis  v.  Cline,  4  Barb. 
453;  Passenger  E.  E.  Co.  v.  Stutler, 
54  Pa.  St.  375 ;  82  Tex.  623.  But  see 
Merritt  v.  Williams,  1  Harp.  Ch.  306. 
Such  is  the  general  rule  as  to  next 
friend.  §  1055;  Tripp  v.  Gifford,  155 
Mass.  108;  O'Donnell  v.  Broad,  149 
Pa.  St.  24.  There  should  be  judicial 
sanction  to  such  compromise. 

68.  Farrar  v.  Wheeler,  145  F.  482; 
Harris  v.  Crawley,  17  Det.  Leg.  N. 
303,  126  N.  W.  421;  Nemorofskie  v. 
Interurban  St.  Ey.  Co.,  87  N.  Y.  S. 
463;  Lieberman  v.  Third  Ave.  E.  Co., 

54  N.  Y.  S.  574,  25  Misc.  29-6   (mod., 

55  N.  Y.  S.  677,  25  Misc.  704)  ;  Har- 
ris Irby  Cotton  Co.  v.  Duncan  (Okla.), 
157  P.  746. 


§    1036  INFANCY.  1224 


CHAPTER  V. 

RATIFICATION  AND  AVOIDANCE  OF  INFANT's  ACTS  AND  CONTKAOTS. 

8»CT10N  1036,     Nature  of  Defence  of  Infancy. 

1037.  Eule    Affected    by    Statute;    Lord    Tenterden's    Act;    Other 

Statutes. 

1038.  Rule  Independent  of  Statute;  American  Doctrine. 

1039.  What  Constitutes  Disafl&rmance. 

1040.  Time,  Nature  and  Effect  of  Ratification  and  Disaffirmance. 

1041.  Instances. 

1042.  Conflicting  Dicta. 

1043.  Summary  of  Doctrine. 

1044.  Rule  as  to  Conveyance  of  Infant's  Lands,  Lease,  Mortgage, &«. 

1045.  Infant's  Conveyance,  Lapse  of  Time,  &c. 

1046.  Ratification,  as  to  an  Infant's  Purchase,  &c. 

1047.  Executory    Contracts,    &c.,    Voidable    During    Infancy;    How 

Affirmed  or  Disaffirmed. 

1048.  Rule  Applied  to  Infant's  Contract  of  Service. 

1049.  Parents,    Guardians,    &c..    Cannot    Render    Transaction    Obli- 

gatory upon  the  Infant,  &c. 

1050.  Miscellaneous  Points;    as  to  New   Promise;    Whether  Infant 

Affirming  Must  Know  His  Legal  Rights. 

1051.  Wliether  Infant  Who  Disaffirms  Must  Restore  Consideration. 
1052      Avoidance  Through  Agents,  &c. 

1053.  Ratification,  &c.,  as  to  Infant  Married  Spouse. 

1054.  Rules;   How  Far  Chancery  May  Elect  for  the  Infant. 

§  1036.  Nature  of  Defence  of  Infancy. 

That  indulgence  which  the  law  allows  infants,  to  secure  them 
from  the  fraud  and  imposition  of  others,  can  only  be  intended  for 
their  benefit,  and  therefore  persons  of  riper  years  cannot  take 
advantage  of  such  transactions.  The  infant  may  rescind  or  dis- 
affirm his  own  deed  or  contract ;  but  the  adult  with  whom  he  deals 
is  held  bound  meantime,  unless  the  transaction  be  void,  and  not 
voidable,®'*  or  one  of  those  contracts  which  bind  an  infant  from  the 
outset.'^"  And  since,  as  we  have  observed,  his  conveyance  is  not 
to  be  decisively  repudiated  or  ratified  till  his  minority  ends,  while 
his  personal  property  transactions  or  personal  transactions  may  be 
avoided  any  tiime  though  not  ratified,''^  the  act  of  ratifying  or 
affirming  bears  differently  in  its  application. 

69.  Smith  v.  Bowen,  1  Mod.  25;  2       10  S.  &  R.  114;  supra,  ch.  2;  Dentler 
Kent,  Com.   236;   Warwick  v.  Bruce,        v.  O'Brien,  56  Ark.  49. 
2  M.  &  S.   205;   Brown  v.  Caldwell,  70.  Supra,  ch.  3. 

71.  Supra,  §  1015. 


1225 


RATIFICATION    AND    AVOIDANCE. 


§    1036 


But  the  infant  may  confirm  his  voidable  contract  on  arriving 
at  full  age ;  and  if  he  does  so  bj  such  -writings,  words,  or  acts  as 
amount  to  a  legal  ratification  or  afiirmance,  he  will  become  liable 
then  and  thereafter.'^"  Infancy  is  an  affirmative  defence,''^  the 
presumption  being  that  the  parties  are  of  full  age.^*  It  cannot  be 
availed  of  by  objection  to  the  complaint/^  It  must  be  specially 
pleaded/®  The  rule  is  the  same  whether  set  up  in  direct  defence 
or  interposed  collaterally."^ 

Infancy  may  be  specially  pleaded  in  bar.'^  The  plaintiflF  re- 
plies either  that  the  defendant  was  of  age,  or  that  the  goods  were 
necessaries,  or  that  he  confirmed  the  contract  when  he  came  of 
age.^^  If  there  be  several  defendants,  the  party  who  is  a  minor 
should  plead  his  infancy  separately.  Infancy  is  an  issuable  plea ; 
and  it  may  be  pleaded  with  other  pleas  without  leave  of  court. ^^ 
Where  there  are  several  issues,  one  of  which  is  upon  the  plea  of 
infancy,  that  being  found  for  the  infant,  the  whole  case  is  disposed 
of.®^  The  burden  is  on  the  infant  to  show  the  fact  of  infancy 
affirmatively,^^  and,  according  to  some  courts,  by  clear  and  con- 


72.  Winchester  v.  Thayer,  129  Mass. 
129. 

73.  Friorson  v.  Irwin,  5  La.  Ann. 
525;  Garbarisky  v.  Simkin,  36  Misc. 
195,  73  N.  T.  S.  IQ'Q;  Eeynolds  v. 
Alderman,  103  N.  Y.  S.  863,  54  Misc. 
73. 

74.  Moore  v.  Sawyer,  167  F.  826; 
Pitcher  v.  Laycock,  7  Ind.  398, 

75.  Eej-nolds  v.  Alderman,  54  Misc. 
73,  103  N.  Y.  S.  863. 

76.  Sanders  v.  Williams,  163  Ala. 
451,  50  So.  893;  Board  of  Trus- 
tees of  La  Grange  Collegiate  In- 
stitute V.  Anderson,  63  Ind.  367, 
30  Am.  Rep.  224;  Pitcher  v.  Lay- 
cock,  7  Ind.  398;  Daugherty  v.  Re- 
veal, 54  Ind.  App.  71,  102  N.  E.  381 ; 
Mullins  V.  Watkins,  146  Ky.  773,  143 
S.  W.  370;  Chicago  Bldg.  &  Mfg.  Co. 
V.  Higginbotham  (Miss.),  29  So.  7?; 
Bill  V.  Wolinsky,  123  N.  Y.  S.  290. 
But  see  Thrall  v.  Wright,  38  Vt.  494 
(holding  that  evidence  of  infancy  is 
competent  under  the  general  issue). 

77.  Board  of  Trustees  v.  Anderson, 
63  Ind.  367,  30  Am.  R.  224. 

78.  Daugherty    v.    Reveal,    54    Ind. 


App.  71,  102  N.  E.  381;  Clemson  v. 
Bush,  2  Binn.  413  Hillegass  v.  Hille- 
gass,  5  Barr,  97. 

79.  See  as  to  proof,  Freeman  v. 
Nichols,  138  Mass.  313. 

80.  15  &  16  Vict.,  ch.  76,  §  84.  See 
Delafield  v.  Tanner,  5  Taunt.  856; 
Dublin  &  Wicklow  R.  R.  Co.  v.  Black, 
8  Exch.  181. 

81.  Rohrer  v.  Morningstar,  18  Ohio, 
579.  In  New  York  infancy  may  be 
given  in  evidence  under  the  general 
issue.     Wailing  v.  Toll,  9  Johns.  141. 

82.  Moore  v.  Sawyer,  167  F,  826; 
Barker  v.  Fuestal,  103  Ark.  312,  147 
S.  W.  45;  Pitcher  v.  Laycock,  7  Ind. 
398;  Stringer  v.  Northwestern,  etc., 
Ins.  Co.,  82  Ind.  100;  County  Board 
of  Education  v.  Hensley,  147  Ky.  441, 
144  S.  W.  63;  Edgar  v.  Gertison 
(Ky.),  112  S.  W.  831;  Friorson  v. 
Irwin,  5  La.  Ann.  525;  Schweitzer  v. 
Bird  (Mich.),  170  N.  W.  57;  Gar- 
barisky V.  Simkin,  36  Misc.  195,  73 
N.  Y.  S.  199;  Bill  V.  Wolinsky,  123 
N.  Y.  S.  290;  Rice  v.  Ruble,  39  Okla. 
51,  134  P.  49;  Sharshontay  v.  Hicks 
(Okla.),  166  P.  881;  Gillam  v.  Richart 


§  1037 


INFANCY. 


1226 


vincing  evidence,^^  which  must  relate  to  the  time  of  the  transaction 
to  be  avoided.**  The  question  of  the  defendant's  age,  in  such  case, 
is  for  the  jurj. 


85 


§  1037.  Rule  Affected  by  Statute;  Lord  Tenterden's  Act;  Other 

Statutes. 

Much  of  the  discussion  on  this  point  is  now  dispensed  with,  or 
rather  diverted,  in  England,  by  a  short  statute  to  the  effect  that 
"  no  action  shall  be  maintained  whereby  to  charge  any  person  upon 
any  promise  made  after  full  age  to  pay  any  debt  contracted  during 
infancy,  or  upon  any  ratification,  after  full  age,  of  any  promise  or 
simple  contract  made  during  infancy,  unless  such  promise  or  rati- 
fication shall  be  made  by  some  writing,  signed  by  the  party  to  be 
charged  therewith."  *^  This  statute  is  known  as  Lord  Tenterden's 
Act.  Here  is  a  clear,  precise,  and  definite  rule;  and  any  ap- 
parent want  of  equity  is  compensated  by  the  certainty  with  which , 
a  very  troublesome  subject  is  managed,  one  which  has  so  constantly 
led  to  unprofitable  litigation.  The  same  or  similar  provisions  are 
to  be  found  in  the  laws  of  some  of  our  States.*^ 

But  even  statutes  will  raise  legal  difficulties.  And  the  difficulty 
which  arises  under  this  particular  act  is  to  distinguish  ratification 
from  a  new  promise.  What  is  meant  by  a  "  ratification  "  in  the 
words  of  this  statute  ?  The  Court  of  Exchequer,  some  years  since, 
admitting,  in  the  course  of  argument,  that  the  statute  made  a  dis- 
tinction between  ratification  and  new  promises,  gave  it  as  their 
opinion  that  any  act  or  declaration  which  recognizes  the  existence 


(Okla.),  150  P.  1037;  Jordan  v.  Jor- 
dan (Okla.),  162  P.  758;  McKeever 
V.  Carter  (Okla.),  157  P.  56;  Mc- 
Gauley  v.  Grimm,  115  Va.  610,  79 
S.  E.  1041;  Lambrecht  v.  Holsaple, 
164  Wis.  465,  160  N.  W.  168. 

83.  Moore  v.  Sawyer,  167  F.  826; 
McCauIey  v.  Grim,  115  Va.  610,  7? 
S.  E.  1041. 

84.  Stringer  v.  Northwestern,  etc., 
Ins.  Co.,  82  Ind.  100 ;  Board  of  Edu- 
cation V.  Hensley,  147  Ky.  441,  144 
S.  W.  63;  Moore  v.  Moore,  74  N.  J. 
Eq.  733,  70  A.  684. 

85.  Where,  under  a  plea  of  infancy, 
there  is  no  independent  evidence  of 
the  fact,  the  jury  may  consider  the 
physical  appearance  of  the  defendant, 
in    order    to    determine    whether    the 


defence  is  made  out.  Garbarisky  v. 
Simkin,  36  Misc.  195,  73  N.  T.  8. 
199;  Waterman  v.  Waterman,  42 
Misc.  85,  N.  Y.  S.  377. 

In  an  action  where  the  defendant 
pleaded  infancy  at  the  time  of  the 
transaction,  evidence  that  at  such  time 
he  had  a  beard  of  several  weeks' 
growth  on  his  face  and  appeared  to 
be  a  man  of  22  or  23  years  of  age, 
was  held  sufficient  to  warrant  the 
jury  in  finding  that  he  was  then  of 
age.  Johnson  v.  Brown  (Tex.  Civ.), 
65  S.  W.  485;  Lambrecht  v.  Holsaple, 
164  Wis.  465,  160  N.  W.  168. 

86.  Stat.  9  Geo.  IV.,  ch.  14,  §  5 
(1828). 

87.  See  Thurlow  v.  Gilmore,  40  Me. 
378. 


1227  KATIFICATION    AND    AVOIDANCE.  §    1037 

of  a  promise  as  binding  is  a  ratification  of  it ;  and  that  the  statute 
"  ratification  "  goes  so  far  as  to  comprehend  such  a  ratification  as 
would  make  a  person  liable  as  principal  for  an  act  done  bj  another 
in  his  name.®*  And  hence  certain  letters  written  by  the  defendant 
in  reference  to  payment  of  his  debt  out  of  his  money  in  the  hands 
of  a  third  party  were  held  binding.  More  lately  this  definition  of 
ratification  was  reconsidered  by  the  same  court  in  another  case, 
where  the  correspondence  was  over  a  dishonored  bill  of  exchange, 
and  another  person,  not  the  infant,  was  to  be  primarily  liable; 
and  the  judges  were  divided  in  opinion.  But  the  disposition 
seemed  to  be  to  define  ratification  anew,  as  a  willing  admission 
that  the  party  is  liable  and  bound  to  pay  the  debt  arising  from  a 
contract  which  he  made  when  an  infant.*®  Still  later  a  man,  being 
of  age,  signed  the  following  statement  at  the  foot  of  an  account 
of  the  items  and  prices  of  goods  furnished  to  him  while  an  infant 
by  the  plaintiff:  ^'  Particulars  of  account  to  the  end  of  1867, 
amounting  to  £162  lis.  Qd.  I  certify  to  be  correct  and  satisfac- 
tory." It  was  held  that  this  was  not  a  sufficient  ratification  under 
the  statute,  because  these  words  did  not  really  admit  the  debt  to 
be  a  debt  existing  and  binding  upon  the  defendant.®" 

Some  statutes  regard  the  allowance  of  only  a  reasonable  time 
after  attaining  majority  for  disaffirmance  of  a  contract  or  con- 
veyance made  in  infancy,  requiring  the  infant  both  to  disaffirm 
and  to  make  restitution.®^  Others  seek  to  prevent  sales  of  the 
minor's  property  for  some  time  after  he  reaches  majority.®^ 

88.  Harris   v.    Wall,    1    Exch,    122.  marry,  see  Ditcham  v.  Worrall,  5  C. 

89.  Mawson  v.  Blane,  10  Exch.  206;  P.  D.  410;  Northcote  v.  Doughty,  L. 
26  E,  L.  &  Eq.  500.  See,  further,  E.  4  C.  P.  D.  385.  As  to  ratifying 
Smith,  Contr.  287.  Lord  Ellenborough  as  "a  debt  of  honor,"  see  Maecord 
considered  it  more  correct  to  say,  in  v.  Osborne,  1  C.  P.  D.  569.  And  see 
general,  that  the  infant  makes  a  new  In  re  Onslow,  L.  E.  10  Ch.  373.  The 
promise  after  he  comes  of  age.  Cohen  inclination  of  these  late  cases  is  to 
V.  Armstrong,  1  M.  &  S.  724.  As  to  insist  upon  something  like  a  fresh 
.7ht   is   a   sufficient    compliance   with  promise  in  order  to  bind. 

the  statute,  see  Hartley  v.  Wharton,  90.  Eowe  v.  Hopwood,  L.  E.  4  Q. 

11  Ad.  &  El.  934;   Hyde  v.  Johnson,  B.  1. 

2  Bing.  N.  C.  778;  Hunt  v.  Massey,  91.  Wright  v.  Germain,  21  la.  585; 

5  B.  &  Ad.  902.  Jones  v.  Jones,  46  la.  466;  Hawes  v. 

See    also    Infants'    Eelief    Act    of  Burlington  Ey,  Co.,  64  la.  315.     Dia- 

1874   (37  &  38  Vict.,  ch.  62);  Smith  afBrmance  under  the   code   should   be 

V.  King  (189'2),  2  Q.  B.  543.     As  to  Avithin   a  reasonable  time.     Childs   v. 

what  constitutes  ratification  or  a  fresh  Dobbins,  55  la.  205;   Green  v.  Wild- 

pj^mise  upon  majority,  under  English  ing,  59  la.  679. 

statutes,   of   an    infant's   promise    to  92.  Soullier  v.  Kern,  69  Pa.  St.  16. 


§    1038  INFANCY.  1228 

§  1038.  Rule  Independent  of  Statute;   American  Doctrine. 

Independently  of  all  statutes,  however,  the  question  lias  been 
asked  again  and  again,  what  language  and  what  conduct  on  the 
part  of  the  infant  attaining  to  majority  will  suffice  to  give  binding 
force  to  his  acts  originally  voidable  The  American  cases  on  this 
point  are  very  numerous.  And  it  must  be  confessed  that  the  more 
this  subject  has  been  discussed,  the  less  it  appears  to  be  under- 
stood. Two  principles  are  evidently  in  conflict:  the  one,  that  an 
infant  should  be  protected  against  his  own  imprudence  while 
under  a  disability ;  the  other,  that  bona  fide  creditors  ought  not  to 
be  cheated  Some  cases  have  given  more  prominence  to  the  first 
principle,  others  to  the  second. 

There  cannot  be  much  doubt  that  at  the  time  Lord  Tenterden's 
Act  was  passed,  the  English  rule  was,  that  an  infant  might,  by 
his  general  conduct,  independently  of  a  precise  promise  or  new 
contract,  on  his  part,  render  himself  liable  for  his  contracts  made 
while  an  infant.®^  The  statute  was  passed  to  change  this  rule. 
On  that  point  we  need  not  dwell.  This  does  not  bind  American 
courts,  it  is  true,  for  they  had  adopted,  in  many  instances,  another 
rule  of  the  common  law,  to  which  they  were  at  liberty  to  adhere, 
in  spite  of  the  later  English  decisions ;  since  it  was  the  rule  our 
ancestors  brought  over  with  them. 

!N'ow,  what  is  the  American  doctrine  ?  We  take  a  case  decided 
some  years  ago  in  Massachusetts,  where  an  infant  had  made  a 
promissory  note,  and  after  majority  admitted  several  times  that 
he  owed  the  debt,  and  said  he  would  pay  it  when  he  could.  Says 
the  court :  "  It  has  long  been  settled  that  a  direct  promise,  when 
of  age,  is  necessary  to  establish  a  contract  made  during  minority, 
and  that  a  mere  acknowledgment  will  not  have  that  effect."**  We 
take  still  another,  decided  in  Xew  York  only  a  little  later.  Says  a 
judge  of  the  Court  of  Appeals,  after  a  most  exhaustive  review  of 
the  cases :  "  I  think  that  the  course  of  decision  in  this  State 
authorizes  us  to  assume  that  the  narrow  and  stringent  rule,  for- 
merly euTinciated,  that  to  establish  the  contract,  when  made  in 
infancy,  there  must  be  a  precise  and  positive  promise  to  pay  the 
particular  debt,  after  attaining  majority,  is  not  sustained  or  the 
more  modem  decisions."  *^     Courts  taking  this  view  hold  that  an 

93.  See  Goode  v.  Harrison,  5  B.  &  95.  Per  Davies,  J.,  Henry  v.  Root, 

Aid.  147;  Smith,  Contr.  2S3,  284.  3  N.  Y.  545  (1865). 

94.  Proctor   v.    Sears,   4    Allen,   95 
(1862),   per  Metcalf,   J, 


1229 


RATIFICATION    AND    AVOIDANCE. 


§    1038 


act  from  which  a  ratification  is  sought  to  be  inferred  must  be 
positive/®  and  inconsistent  with  any  other  intention.*^  An  express 
adoption  made  after  majority  is  sufficient,®*  even  though  no  words 
of  express  promise  are  used.^^  Time  has  not  with  us  lessened  the 
force  of  Chancellor  Kent's  observation,  many  years  ago,  that  "  the 
books  appear  to  leave  the  question  in  some  obscurity,  when  and  to 
what  extent  a  positive  act  on  the  part  of  the  infant  is  requisite."  ^ 

It  may  be  remarked  that  a  great  change  was  gradually  developed 
in  the  law  of  infancy,  by  making  various  contracts  and  transactions 
voidable  which  before  were  deemed  void.^  This  might  reasonably 
be  thoue-ht  to  have  introduced  a  new  element  into  the  consideration 
of  such  cases;  the  result  tending  towards  freedom  in  the  courts, 
and  enabling  them  to  repudiate  artificial  refinements  and  do  sub- 
stantial justice.  It  certainly  throws  upon  the  modem  courts  a 
greater  responsibility  than  formerly  in  ruling  between  complete 
and  incomplete  ratification ;  or  (if  legal  precision  requires  another 
expression)    in  determining  whether  a  new  promise  has  passed 


96.  Coe  V.  Moon,  260  111,  76,  102 
N.  E,  1074.  Payments  after  majority 
on  a  voidable  contract  have  been  held 
evidence  of  an  intention  to  ratify. 
Rubin  V.  Strandberg  (111.),  122  N.  E. 
808;  Healy  v.  Kellogg,  145  N.  Y.  S. 
943;  Syck  v.  Hellier,  140  Ky.  388, 
131  S.  W.  30;  International,  etc.,  Co. 
V.  Connelly,  206  N.  Y.  188,  99  N.  E. 
722. 

Payments  made  to  a  person  out  of 
the  payor 's  bounty  after  she  has  at- 
tained majority  have  been  held  not 
a  ratification,  though  according  to 
the  terms  of  a  voidable  contract,  have 
been  held  not  a  ratification.  Parsons 
V.  Teller,  188  N,  Y.  218,  80  N.  E.  930. 
See  also  International  Text-Book  Co.  v. 
Connelly,  206  N.  Y.  188,  99  N.  E.  722, 
42  L.  R.  A.  (N.  S.)  1115  (holding 
that  payment  after  majority  of  a  sum 
stipulated  in  a  contract  made  dur- 
ing infancy  is  not  necessarily  a,  rati- 
fication). 

97.  An  infant  does  not  ratify  merely 
by  releasing  from  attachment  goods 
purchased  while  a  minor.  Lamkin  & 
Foster  v.  Ledoux,  101  Me.  581,  64 
A.  1048  Lacy  v.  Pixler,  120  Mo.  383, 
35  S.  W.  206. 


Where  an  infant  executed  a  writ- 
ten contract  of  guaranty,  and  after 
he  became  of  age  wrote  asking  that 
an  itemized  bill  be  sent  to  him,  there 
was  no  such  ' '  ratification "  as  to 
make  him  liable  upon  the  guaranty. 
H.  C.  Miner  Lithographing  Co.  v. 
Santley,  150  N.  Y.  S.  71;  Hobbs  v. 
Hinton,  etc.,  Co.,  74  W.  Va.  443,  82 
S.  E.  267. 

98.  Walker  v.  Arkansas  Nat.  Bank 
of  Hot  Springs,  256  F.  1;  Bell  v. 
Swainsboro,  etc.,  Co.,  12  Ga.  App. 
81,  76  S.  E.  756;  Whitney  v.  Dutch, 
14  Mass.  457,  7  Am.  Dee.  229 ;  Lynch 
V.  Johnson,  109  Mich.  640,  67  N.  W. 
908;  McCune  v.  Goodwillie,  204  Mo. 
306,  102  S.  W.  997;  Pedro  v.  Pedro, 
127  N.  Y.  S.  997,  71  Misc.  296;  In  re 
Kane's  Estate  (Wis.),  168  N.  W. 
402. 

99.  Thompson  v.  Lay,  21  Mass.  48, 
16  Am.  Dec.  325;  Thompson  v.  Lay,  4 
Pick  (Mass.)  48,  16  Am.  D.  325 
(where  the  words  relied  on  were,  "I 
do  ratify  and  confirm  the  debt"). 

1.  2  Kent,  Com.  237. 

2.  See  ch.  2,  supra. 


§  1039  la^AHcY.  1230 

from  the  person  after  attaining  full  age.  But  this  change  has  not 
always  been  kept  in  view.  In  ISTew  York  the  modem  doctrine  is 
that  ratification  or  confirmation  of  the  contract  made  in  infancy 
Avill  bind  the  party  if  it  take  place  after  his  coming  of  age;  that 
a  new  promise,  positive  and  precise,  equivalent  to  a  new  contract, 
is  not  now  essential;  but  that  a  ratification  or  confirmation  of 
what  was  done  during  the  minority  is  sufficient  to  make  the  con- 
tract obligatory.^  And  it  is  well  observed  that  the  words  "  ratify 
and  confirm "  necessarily  import  that  there  was  something  in 
existence  to  which  the  ratification  or  confirmation  could  attach, 
entirely  ignoring  therefore  the  notion  that  an  infant's  obligations 
or  contracts  were  nullified  by  the  state  of  infancy.*  But  it  must 
be  borne  in  mind  that  in  some  other  States  the  rule  is  quite  dif- 
ferent. So  that  we  have  nothing  which  may  safely  be  pronounced 
the  American  doctrine  upon  this  subject. 

§  1039.  What  Constitutes  Disaffirmance. 

No  particular  form  of  disaffirmance  is  required  by  the  cases.^ 
There  must  be  an  intention  to  repudiate  the  contract,^  but  notice 
of  such  intention  is  not  usually  required,'  but  if  required,  should 
be  given  to  the  person  contracting  with  the  infant,  and  not  to  an 
assignee  of  the  contract.*  The  act  of  disaffirmance  must  be  un- 
equivocally and  unmistakably  such.®  It  may  be  said  generally 
that  any  act  showing  unequivocally  a  renunciation  of,  or  a  dis- 
position not  to  abide  by,  a  voidable  contract,  is  sufficient  to  dis- 
affirm it.'° 

A  conveyance,  in  due  season  after  majority,  to  a  third  person 
has  been  taken  to  be  sufficient  disaffirmance  of  the  minor's  deed, 
especially  when  coupled  with  express  notice  of  disaffirmance,  and 
followed  by  the  grantee's  entry.^^     And  another  means  of  disaffirm- 

3.  Henry  v.  Boot,  33  N.  T.  526.  104  P.  320 ;  Putnal  v.  Walker,  61  Fla. 

4.  Ih.  720,  53  So.  844;  Shroyer  v.  Pittenger, 

5.  Stanhope  v.  Shambow,  54  Mont.  31  Ind.  App.  158,  67  N.  E.  475. 
360,  170   P.   752;    Groesbeck  v.  Bell,  10.   Strain   v.   Hinds,   277   111.   598, 
1  Utah,  338.  115  N.  E.  563.   The  refusal  of  a  minor 

6.  Smoot  V.  Eyan  (Ala.),  65  S.  828;  to  sign  a  note  and  mortgage  a  second 
Strain  V.  Hinds,  277  111.  598, 115  N.E.  time  has  been  held  not  a  disaffirm- 
563.  ance.     Brown  v.  Staab    (Kan.),  176 

7.  Highland  v.  Tollisen,  75  Ore.  P.  113;  Stanhope  v.  Shambow,  54 
578,  147  P.  558.  Mont.   360,  170  P.  752;   Casement  v. 

8  Spencer  v.  Collins,  156  Cal.  298,  Calaghan    (N.   D.),    159   N.   W.    77; 

104  P.  320.  Grissom  v.  Beidleman,  35  Okla.  343, 

9.  Smoot    V.   Ryan    (Ala.),    65   So.  129  P.  853,  44  L.  R.  A.   (N.  S.)   411. 

828;  Spencer  v.  Collins,  156  Cal.  298,  11.  Blake     v.     Holandsworth     (W. 


1231  RATIFICATION    AND    AVOIDANCE.  §     1039 

ing  the  conveyance  of  one's  lands  during  infancy  consists  in  bring- 
ing an  ejectment  suit.^^ 

Whether  it  is  necessary  that  an  entry  upon  the  land  to  regain 
seisin  be  made  to  perfect  the  title  of  the  person  intending  to  dis- 
affirm his  conveyance  as  infant,  does  not  clearly  appear  from  the 
authorities.  The  old  rule  was  that  in  order  to  avoid  a  feoffment 
this  was  necessary.  But  conveyance  by  feoffment  bas  been  super- 
seded by  other  methods  of  transferring  real  property  in  England, 
and  it  is  not  in  use  here.  In  some  of  the  earlier  ISTew  York  cases, 
where  an  infant  had  sold  wild  lands  to  other  persons,  and  had, 
after  coming  of  age,  conveyed  by  similar  deed  the  same  lands  to 
another,  it  was  held  that  the  first  conveyance  had  been  legally 
avoided,  and  the  last  purchaser  was  entitled  to  the  property.^*  A 
case  before  the  Supreme  Court  in  the  United  States  is  supposed  to 
sustain  the  same  view;  only  arguendo,  however,  for  in  point  of 
fact  the  person  making  the  second  conveyance  remained  in  posses- 
sion all  the  time ;  and,  as  the  court  observed,  "  could  not  enter 
upon  himself."  "  Following  the  indication  of  these  three  im- 
portant cases,  several  of  the  State  courts  bave  since  held  that  a 
conveyance  by  an  infant  of  the  same  land  to  another  person,  after 
he  comes  of  age,  effectually  avoids  a  deed  of  bargain  and  sale  made 
in  infancy;  and  this  without  entry  on  his  part.^^  But  the  New 
York  courts  have  latterly  been  disposed  to  retrace  their  steps ; 
reluctance  to  do  injury  to  others,  doubtless,  contributing  to  in- 
crease the  strictness  of  requirements  on  the  infant's  part.  Their 
present  rule  appears  to  be  that,  unless  the  lands  were  wholly  vacant, 
or  the  infant  remained  in  possession,  he  must  make  an  entry  or  do 
some  other  act  of  equal  notoriety  before  he  can  pass  title  by  a 

Va.),  76  S.  E,  814,  43  L.  E.  A.   (N.  12.  Craig  v.  Van  Bebber,  100  Mo. 

8.)  714.    See  Prout  v.  Wiley,  28  Mich.  584. 

164;    Riggs    V.    Fisk,    64    Md.    100;  13.  Jackson  v.  Carpenter,  11  Johns. 

Haynes  V.  Bennett,  53  Mich,  15 ;  Daw-  639;    Jackson  v.  Burchin,   14   Johns. 

son   V.   Helmes,   30   Minn.    107.      If,  124.     See  Met.  Contr.  44,  45,  where 

after  coming  of  age,  an  infant  quit-  this  subject  is  discussed. 

claims  land  conveyed  by  him  during  14.  Tucker  v.  Moreland,  10  Pet.  58, 

his  minority  to  another,  he  effectually  per  Story,  J. 

disaffirms.       Bagley    v.    Fletcher,    44  15.  Hoyle  v.  Stowe,  2  Dev.  &  Bat. 

Ark.  153   (one  judge  dis.).     But  as  320;  Pitcher  v.  Laycock,  7  Ind.  39S; 

to  a  mortgage  see  Buchanan  v.  Griggs,  ^NIcGan  v.  Marshall,  7  Humph.   121 ; 

18  Neb.  121.    Wherever  the  later  deed  Ilughes    v.    Watson,    10    Ohio,    127; 

may  be  reconciled  with  that  made  in  Peterson  v.  Laik,  24  Mo.  541 ;  Haynes 

infancy,  so  that  the  two  may  stand  v.  Bennett,  53  Mich.  15. 

together,  disaffirmance  should  not  be 

predicated  of  the  transaction. 


§    1039  INFANCY.  1232 

second  oonvejance/'  There  is  no  authority  in  the  New  England 
States  to  oppose  this  later  doctrine;  nor  do  we  find  any  in  the 
Middle  States/'  But  doubt  is  removed  hj  statutes,  in  Maine, 
Massachusetts,  and  some  other  States,  which  permit  parties  to 
recover  land  by  writ  of  entry  without  making  actual  entry.  And 
it  is  held  in  Maine  that  such  a  writ  dispenses  with  entry  and 
amounts  to  disaffirmance.^^ 

To  render  a  subsequent  conveyance  an  act  of  dissent  to  the  prior 
conveyance  of  an  infant,  it  must  be  inconsistent  therewith,  so  that 
the  two  cannot  stand  together.^®  There  may  be  other  acts  of  the 
late  infant  equivalent  to  dissent;  such  as  giving  notice  of  dis- 
affirmance, followed  by  a  suit,  if  need  be,  for  repossession  or 
restitution  of  rights.^" 

Express  acts  of  disaffirmance  or  repudiation  leave  no  doubt  of 
intention  on  this  point;  and  they,  of  course,  suffice  to  avoid  the 
contract  made  during  infancy.  As  in  a  sale  of  his  land,  where  one 
gives  notice  that  he  considers  the  bargain  void,  and  offers  to  return 
the  consideration.^^  And  so  generally  where  the  transaction  is 
such  that  the  late  infant  must  take  the  initiative  or  else  forfeit  his 
right,  being  out  of  possession.  There  are  many  other  ways  in 
which  one  may  clearly  disavow  his  intention  of  carrying  into  effect 

16.  Dominick  v.  Michael,  4  Sandf.  forcing  a  lien  on  real  estate  for  work 
421;  Bool  V.  Mix,  17  Wend.  133;  and  materials  furnished  during  in- 
Voorhies  v.   Voorhies,  24  Barb.   150.  fancy,  see  McCarty  v.  Carter,  49  111. 

17.  See  Roberts  v.  Wiggin,  1  N.  H.  53.  But  acquiescing  in  the  settlement 
75;  Worcester  v.  Eaton,  13  Mass.  of  boundaries  after  coming  of  age 
375.  See  also  Harrison  v.  Adcock,  binds  the  infant.  George  v.  Thomas, 
8    Ga.    68;    Moore    v.    Abemethy,    7  16  Tex.  74, 

Blaekf.  442.  19.  Leitensdorfer  v.  Hempstead,  18 

18.  Chadbourne  v.  Rackliff,  30  Me.  Mo.  26?;  McGan  v.  Marshall,  7 
354.      And  see  Cole   v.   Pennoyer,   14        Humph.  121.     And  see  §  438. 

111.   158.     Judge  Metcalf  appears  to  20.  Eichardson  v.  Bote,  93  Ind.  423. 

doubt  the  correctness  of  the  rule  in  A  minor  remainder-man  will  not  be 

Jackson  v.  Carpenter,  even  as  to  cases  excused    from    disaffirming    his    deed 

of  wild  lands.    See  Met.  Contr.  45,  46,  within  a  reasonable   time   after   ma- 

and   cases  cited.      A   bill  to   enforce  jarity,   merely    because    his   right   to 

specific   performance    of    an   infant's  bring  ejectment  for  the  land  has  not 

contract  to  sell  real  estate  should  not  accrued.      Nathans  v.  Arkwright,  66 

be  brought  before  a  reasonable  time  Ga.  179. 

has  elapsed,  after  the  infant  attains  21.  See  Willis  v.  Twombly,  13  Mass. 

majority,   for   him   to    affirm   or    dis-  204 ;    Aldrich    v.    Grimes,    10    N.    H. 

affirm.     Walker  v.  Ellis,  12  111.  470;  194;  Williams  v.  Norris,  2  Litt.  157; 

Petty  V.  Roberts,  7  Bush,  410;  Griffis  Hill   v.    Anderson,    5    S.    &   M.    216; 

V,  Younger,  6   Ired.  Eq.  520;   Carrel  McGill    v.    Woodward,    3    Erev.    401; 

V.  Potter,  23  Mich.  377.  As  to  the  Scranton  v.  Stewart,  52  Ind.  69,  92. 
ratification  necessary  to  allow  of  en- 


1233  EATIFICATION    AND    AVOIDANCE.  §     1039 

the  contract  made  during  infancy ;  and  if  the  transaction  appears 
to  have  been  made  shortly  before  reaching  majority,  and  not  to  be 
disadviantageous  to  the  infant,  his  disavowal  ought  not  to  be 
infeiTcd  from  his  silence.^^ 

But  an  infant  who  leases  or  hires  premises  may  leave  them  at 
any  time  during  infancy  and  free  himself  from  all  further  lia/bility 
for  rent.^^  But  an  act  of  the  late  infant,  clearly  showing  his 
intention  not  to  be  bound  by  his  mortgage,  is  a  sufficient  avoidance 
of  it.^*  A  prompt  declaration  of  his  intention  to  disaffirm,  and 
a  conveyance  to  another,  will  answer.^^  The  execution  of  a  war- 
ranty deed  to  another  without  reservation  of  the  mortgage  incum- 
brance imports  a  disaffirmance  of  the  mortgage;^®  but  the 
execution  of  a  quitclaim  deed  does  not." 

Ag  to  the  infant's  mortgage,  it  may  be  further  remarked  that  a 
minor  cannot  avoid  a  mortgage  given  to  secure  either  real  or 
personal  property  purchased  by  him  without  avoiding  the  sale 
also.^*  In  short,  there  is,  according  to  the  best  authorities,  a  well- 
recognized  distinction  between  the  nature  of  those  acts  which  are 
necessal-y  to  avoid  an  infant's  deed,  and  those  which  are  sufficient 
to  confirm  it.  The  deed  cannot  be  avoided  except  by  some  solemn 
act,  or,  as  some  assert,  an  act  equally  solemn  with  the  deed  itself; 

22.  Davis  v.  Dudley,  70  Me.  266.  of  ownership  or  such  as  indicate  a 
Non-assertion  of  rights  in  a  court  of  claim  of  title  adverse  to  the  transac- 
justice,  where  the  courts  are  closed  tion  of  infancy.  Tunison  v.  Chambly, 
during  war,  cannot  be  construed  into  88  111.  378.  Suing  to  set  aside  the 
confirmation.  Thompson  v.  Strickland,  transaction  is  a  disaffirmance.  Gil- 
52  Miss.  574.  Nor  can  statements  of  lespie  v.  Bailey,  12  W.  Va.  70.  And 
record  evidently  referring  to  personal  see  §§  1046,  1047,  post;  Baker  v.  Ken- 
property  be  taken  as  confirmation  of  nett,  54  Mo.  82. 

a  conveyance  of  real  estate.     Illinoia  23.  Gregory  v.  Lee    (1895,  Conn.). 

Land  Co.  v.  Bonner,  75  111.  315.    Equiv-  24.  State  v.  Plaisted,  43  N.  H.  413. 

ocal  acts  very  shortly  after  attaining  25.  White  v.  Flora,  2  Overton,  426; 

majority     should     not    be     construed  Hoyle  v.   Stowe,  2   Dev.  &  Bat.   320. 

readily  into  a  binding  ratification  or  26.  Dixon  v.  Merritt,  21  Minn.  1&6 ; 

election  not  to  avoid.    Tobey  v.  Wood,  Allen  v.  Poole,  54  Miss.  323. 

123  Mass.  88.    Nor  a  transaction  only  27.   Singer  Man.   Co.  v.  Lamb,   81 

remotely  connected  with  the  transac-  Mo.  221.      The  warranty   deed  of  a 

tion  to  which  he  was  a  party  in  in-  minor  does  not  disaffirm  his  mortgage 

fancy.    Todd  v.  Clapp,  118  Mass.  495.  because  he  cannot  disaffirm  while  an 

Notice     of     disaffirmance,     given     in  infant.    76. 

writing,  will  suffice.   Scranton  v.  Stew-  28.   Heath   v.   West,   8    Fost.    101 ; 

art,  52  Ind.  69,  92.    Especially  if  this  Dana  v.  Coombs,  6  Greenl.  89'.     And 

be   consistenly    followed   up    by    acts  see  §  1046. 

78 


§  1039 


INFANCY 


1234 


but  acts  of  a  character  wliich  would  be  insufficient,  to  avoid  such 
a  deed  may  amount  to  an  affirmance  of  it.^° 

Such  acts  as  notice  of  disaffirmance,   and  then  bringing  an 
appropriate  suit,  amount  fairly  to  avoidance  of  an  infant's  con- 


tract, m  various  mstances. 


30 


Bringing  an  action  to  recover  back  what  the  infant  has  parted 
with  is  usually  a  sufficient  disaffirmance.^^  In  some  cases,  how- 
ever, a  preliminary  act  of  disaffirmance  is  required  before 
bringing  suit.^^  The  disaffirmance  may  be  made  by  defending 
an  action  on  the  contract  sought  to  be  disaffirmed,^^  and,  in 
some    cases,    by    replication.^^      Denial    of    the    execution    of    a 


29.  Wise  V.  Loeb,  15  Pa.  Super.  Ct. 
601;  Irvine  v.  Irvine,  9  Wall.  617. 
Here  taking  a  lease  of  part  of  the 
premises  from  the  person  to  whom  he 
had  conveyed  ■when  an  infant  was 
held  proper  evidence  of  affirmance. 
And  see  Phillips  v.  Green,  5  Monr. 
344;  Scott  V.  Buchanan,  11  Humph. 
468;  AUen  v.  Poole,  54  Miss.  323; 
Johnston  v.  Furnier,  69  Pa.  St.  449; 
He  Wood,  71  Mo.  623;  Houser  v. 
Reynolds,  1  Hayw.  143. 

30.  The  bringing  of  an  action  ia  a 
disaffirmance  by  the  infant  of  his  re- 
lease of  a  claim  for  personal  inju- 
ries. St.  Louis  B.  V.  Higgins,  44  Ark. 
293;  §  1015.  And  see  Burdett  v.  Wil- 
liams, 30  Fed.  R.  697;  §  1044,  as  to 
ejectment  to  recover  his  land. 

On  an  issue  whether  an  infant's 
contract  has  been  ratified,  it  may  be 
shown  that  the  consideration  was 
used  with  his  knowledge  for  his  ad- 
vantage. Owens  V.  Phelps,  95  N.  C. 
286. 

31.  Smoot  V.  Eyan  (Ala.),  65  So. 
828;  Arizona  Eastern  R.  Co.  v.  Caril- 
lo,  17  Ariz,  115,  149  P.  313;  Carmody 
V.  Patchell,  42  App.  D.  C.  426; 
O'Donohue  v.  Smith,  130  App.  D.  215, 
114  N.  Y.  S.  536. 

Where  a  proceeding  was  brought 
in  favor  of  an  infant  during  his 
minority  to  avoid  his  contract,  it  was 
held  that  he  effectively  disaffirmed 
after  majority  by  obtaining  leave  to 
prosecute  the  action  in  his  own  name. 
Carmody  v.  Patchell,  42  App.  D.  C. 


426;  Conn  v.  Boutwell,  101  Miss.  353, 
58  So.  105.  The  infant  need  not  go 
into  equity  to  obtain  possession  of 
property  conveyed  during  infancy. 
Conn  V.  Boutwell,  101  Mass.  353,  58 
So.  105;  Parrish  v.  Treadway,  267 
Mo.  91,  183  S.  W.  580;  Craig  v.  Van 
Bebber,  100  Mo.  584,  13  S.  W.  606,  73 
Am.  St.  R.  464.  He  may  maintain 
ejectment.  Conn  v.  Boutwell,  101 
Miss.  353,  58  So.  105;  Smith  v.  Ryan, 
191  N.  Y.  452,  84  N.  E.  402;  Lan- 
ning  V.  Brown,  95  N.  E.  921,  84  Ohio 
St.  385.  Where,  after  conveying 
away  his  undivided  interest  in  prop- 
erty during  minority,  a  bill  for  par- 
tition is  a  good  disaffirmance.  Lan- 
ning  V.  Brown,  84  Ohio,  385,  95  N.  E. 
921.  An  action  by  a  minor  to  recover 
for  his  wages  on  a  quantum  meruit 
is  a  good  disaffirmance  of  a  contract 
under  which  the  services  were  ren- 
dered. Fisher  v.  Kissinger,  27  Ohio 
Cir.  Ct.  R.  13.  To  the  same  effect 
see  Dearden  v.  Adams,  19  R.  I.  217, 
36  A.  3;  Ryan  v.  Morrison,  40  Okla. 
49,  135  P.  1049;  Bedinger  v.  Wharton, 
27  Grat.   (Va.)   857. 

32.  McClanahan  v.  Williams,  136 
Ind.  30,  35  N.  E.  897;  Tomczek  v. 
Wieser,  108  N.  Y.  S.  784,  58  Misc. 
46  (holding  that  an  infant  must  dis- 
affirm before  bringing  ejectment). 

33.  First,  etc.,  Bank  v.  Casey,  158 
la.  349,  138  N.  W,  897;  Wallace  v. 
Leroy,  57  W.  Va.  263,  50  S.  E.  343, 
110  Am.  St.  E.  777. 

34.  Alabama,  etc.,  E.  Co.  v.  Bonner 


1235 


RATIFICATION    AWD    AVOIDANCE. 


§     1040 


deed  ^^  and  a  conveyance  of  land  to  a  person  other  than  the 
grantee  in  a  deed  made  during  minority  have  both  been  held  good 
disaffirmances.^®  Sometimes  mere  notice  to  the  other  party  of 
intention  to  disaffirm  is  enough.^^ 

§  1040.  Time,  Nature  and  Effect  of  Ratification  and  Disaffirm- 
ance. 
The  general  rule  is  that  contracts  cannot  be  avoided  till  major- 
ity,** or  within  a  reasonable  time  thereafter.^"     But  some  cases 


(Ala.),  39  S.  619  (where,  in  an  ac- 
tion by  a  minor  servant  for  personal 
injuries,  the  employer  pleaded  a  con- 
tract whereby  the  infant,  at  the  time 
of  employment,  agreed  to  abide  by 
certain  rules,  and  where  the  infant 
was  allowed  to  set  up  his  infancy  by 
replication). 

Where  in  an  action  defendant 
pleaded  accord  and  satisfaction,  a 
reply  setting  up  the  infancy  of  plain- 
tiff, with  the  fact  of  bringing  the 
action,  was  an  effective  disaffirmance. 
Indiana  Union  Traction  Co.  v.  Maher, 
176  Ind.  289,  95  N.  E.  1012. 

35.  Eicks  V.  Wilson,  154  N.  C.  282, 
70  S.  E.  476. 

36.  Losey  v.  Bond,  94  Ind.  1; 
Pitcher  v.  Laycock,  7  Ind.  398;  laon 
V.  Comett,  116  Ky.  92,  75  S.  W.  204, 
25  Ky.  366. 

A  mortgage  made  after  majority 
to  a  person  other  than  the  one  to 
whom  the  property  has  been  conveyed 
during  infancy  has  been  held  a  suf- 
ficient disaffirmance.  Phillips  v.  H03- 
kins,  128  Ky.  371,  108  S.  W.  283,  33 
Ky.  Law  Eep.  378 ;  Kidgeway  v.  Her- 
bert, 150  Mo.  606,  51  S.  W.  1040,  73 
Am.  St.  E.  464 ;  Craig  v.  Van  Bebber, 
150  Mo.  606,  51  S.  W.  1040, 18  Am.  St. 
E.  569.  The  question  whether  a  second 
conveyance  is  a  disaffirmance  or  not 
is  one  of  law.  Peterson  v.  Laik,  24 
Mo.  541,  69  Am.  Dec.  441;  Hetterick 
V.  Porter,  20  Ohio  Cir.  Ct.  E.  110, 
11  O.  C.  D.  145;  Mustard  v.  Wohl- 
ford's  Heirs,  15  Grat.  (Va.)  329,  76 
Am.  Dec.  209;  Blake  v.  Hollands- 
worth  (W.  Ya.),  76  S.  E.  814,  43 
L.  E.  A.  (N.  S.)   814. 


37.  Benson  v.  Tucker,  212  Mass. 
60,  98  N.  E.  589;  Danziger  v.  Iron 
Clad  Eealty  &  Trading  Co.,  141  N.  T. 
S.  593,  80  Misc.  510. 

38.  Carmen  v.  Fox  Film  Corpora- 
tion, 258  F.  703;  Sims  v.  Gunter 
(Ala.),  78  So.  62;  Bell  v.  Burkhalter, 
176  Ala.  62,  57  So.  460. 

The  object  of  the  general  rule  de- 
ferring the  act  of  avoidance  by  an 
infant  of  a  contract  made  by  him 
until  his  coming  of  age  is  his  pro- 
tection ;  and,  when  it  is  apparent  to 
the  court  that  delay  will  work  in- 
jury to  the  infant,  the  power  of  re- 
pudiation may  be  exercised  by  the 
court  immediately.  Adriaans  v.  Dill, 
37  App.  D.  C.  59;  Wright  v.  Bu- 
chanan (111.),  123  N.  E.  53;  McCul- 
lough  v.  Finley,  69  Kan.  705,  77  P. 
696;  Barr  v.  Packard,  etc.,  Co.,  172 
Mich.  299,  137  N.  W.  697;  Eeynolds 
V.  Garber-Buick  Co.  (Mich.),  149  N. 
W.  985,  L.  E.  A.  1915C,  362;  Pedro 
V.  Pedro,  127  N.  Y.  S.  997,  71  Misc. 
296;  Allen  v.  Euddell,  51  S.  C.  366, 
29  S.  E,  198;  Clary  v.  Spain,  119  Va. 
58,  89  S.  E.  130;  Hobbs  v.  Hinton, 
etc.,  Co.,  74  W.  Va.  443,  82  S.  E. 
267;  In  re  Kane's  Estate  (Wis.),  168 
X.  W.  402. 

39.  Bentley  v.  Greer,  100  Ga.  35, 
27  S.  E.  974;  Law  v.  Long,  41  Ind. 
586;  Wiley  v.  Wilson,  77  Ind.  596. 
In  Indiana  it  is  held  that  disaffirm- 
ance must  be  made  within  a  reason- 
able time  after  majority  even  though 
the  statute  of  limitations  has  not 
run  against  the  right  of  rescission. 
Wiley  V.  Wilson,  77  Ind.  596.  In 
Iowa  this  rule  is  established  by  stat- 


§   1040 


INFANCY. 


123« 


hold  that  contracts  may  be  disaffirmed  either  before  or  after  major- 
ity/" Obviously  an  infant  cannot  ratify  till  he  attains  full  age.** 
A  new  consideration  is  not  essential  to  a  valid  ratification/^  Hi» 
election,  after  majority,  to  ratify  is  final,  and  he  cannot  thereafter 
disaffirm.*^     But  a  contract  may  be  ratified  even  after  an  mi- 


ute.  Seeley  v.  Seeley-Howe-Le  Van 
Co.,  128  la.  294,  103  N.  W.  ffBl.  In 
Kansas  the  infant  must  act  within 
two  years  after  attaining  majority. 
Crapster  v.  Taylor,  74  Kan.  771,  87 
P.  1138;  Justice  v.  Justice,  170  Ky. 
423,  186  S.  W.  148;  Eobinson  v.  Al- 
lison, 192  Mo.  366,  91  S.  W.  115; 
Robinson  v.  Allison,  192  Mo.  366,  91 
S.  W.  115;  Krbel  v.  Krbel,  84  Neb. 
160,  120  N.  W,  935;  Chandler  v. 
Jones,  172  N.  C.  569,  9t)  S.  E.  580; 
Hogan  V.  Utter,  175  N.  C.  332,  95 
S.  E.  565.  In  North  Carolina  it  is 
held  that  three  years  is  a  reasonable 
time.  Hogan  v.  Utter,  175  N.  C.  332, 
95  S.  E.  565;  Chandler  v.  Jones,  172 
N.  C.  569,  90  S.  E.  580;  Baggett  v. 
Jackson,  160  N.  C.  26,  76  S.  E.  86; 
Weeks  v.  Wilkins,  134  N.  C.  516,  47 
S.  E.  24;  Woolridge  v.  Lavoie  (N. 
H.),  104  A.  346.  It  depends  largely 
on  the  facts  of  each  case.  Darlington 
V.  Hamilton  Bank,  63  Misc.  289,  116 
N.  Y.  S.  678;  O'Donohue  v.  Smith, 
114  N.  Y.  S.  536,  130  App.  Div.  214; 
Kelly  V.  Same,  Id.  What  is  a  reason- 
able time  is  a  question  of  fact.  Clem- 
mer  v.  Price  (Tex.  Civ.  19-10),  125 
S.  W.  604.  A  "reasonable  time," 
within  the  meaning  of  the  rule,  is  such 
a  time  as  a  person  of  ordinary  dili- 
gence would  require  under  the  cir- 
cumstances. Havard  v.  Carter-Kelley, 
etc.,  Co.  (Tex.  Civ.),  181  S.  W.  756. 
In  determining  it,  the  jury  may  con- 
sider the  nature  of  the  contract  and 
the  situation  of  the  parties.  Groea- 
beck  V.  Bell,  1  Utah,  338;  Johnston 
V.  Gerry,  34  Wash,  524,  76  P.  258, 
77  P.  503. 

40.  In  re  Huntenberg,  153  F.  768; 
Ex  parte  McFerren,  184  Ala.  223,  63 
So.  159;  Ex  parte  McFarren   (Ala.), 


63  So.  159,  47  L.  E.  A.  (N.  S.)  543. 
A  disaffirmance  before  majority, 
coupled  with  a  return  eight  months 
after  majority,  but  be'fore  actiom 
brought,  of  certain  books  loaned  to 
the  infant  as  part  of  the  contract, 
has  been  sustained  as  a  good  disaf- 
firmance. International,  etc.,  Co.  v. 
Doran,  80  Conn.  307,  68  A.  255; 
Steger  &  Sons  Piano  Mfg.  Co.  (Ga.), 
95  S.  E.  734 ;  Rice  v.  Boyer,  108  Ind. 
472,  9  N.  E.  420,  58  Am.  R.  53; 
Shipley  v.  Smith,  162  Ind.  526,  70  N. 
E.  803;  Vanatter  v.  Marquardt,  134 
Mich.  99,  95  N.  W.  977,  10  Det.  Leg. 
N.  349 ;  Darlington  v.  Hamilton  Bank 
of  New  York  City,  116  N.  Y.  8.  678, 
63  Misc.  289;  Covault  v.  Nevitt,  157 
Wis.  113,  146  N.  W.  1115. 

41.  Sanger  v.  Hibbard,  43  C.  C. 
A.  635,  104  F.  455;  Sims  v.  Gunter 
(Ala.),  78  So.  62;  Ex  parte  McFer- 
ren, 184  Ala.  223,  63  So.  159;  Lee 
V.  Hibernia  Savings  &  Loan  Soe. 
(Cal.),  171  P.  677;  Bates  v.  Burden 
(Ga.),  96  S.  E.  178;  Perkins  v.  Mid- 
dleton  (Okla.),  166  P.  1104;  Tolar 
V.  Marion,  etc.,  Co.,  93  S.  C.  274, 
75  S.  E.  545;  North  American,  etc., 
Co.  V.  O'Neal  (W.  Va.),  95  8.  B. 
822. 

42.  Bell  V.  Swansboro,  etc.,  Co.,  12 
Ga.  App.  81,  76  S.  E.  756;  Sima  v. 
Gunter  (Ala.),  78  So,  62;  Bell  v. 
Burkhalter,  176  Ala.  62,  57  So.  460; 
Calhoun  v.  Anderson,  78  Kan.  749,  98 
P.  275. 

43.  A  voluntary  cancellation  of  an 
insurance  policy  by  the  infant  during 
minority  puts  an  end  to  the  eontraet 
so  that  it  cannot  be  ratified  by  his 
administrator.  Pippen  v.  Mutual  Ben. 
Life  Ins.  Co.,  130  N.  C.  23,  40  B.  a 
822,  57  L.  R.  A.  505 ;  Luce  v.  Jestrab, 


1237 


KATIFICATION    AND    AVOLDANCB. 


§     1040 


44 


effectual  attempt  has  been  mad'e,  after  majority,  to  disaffirm 
The  burden  of  proving  a  ratification  is  on  the  person  relying  upon 
it*°  If  the  contract  was  void  in  its  inception,  no  ratification  can 
validate  it." 

Both  ratification  and  disaffirmance  relate  back  to  the  time  of 
making  the  contract  and  either  validate  *^  or  avoid  it  **  ab  initio. 
Therefore,  since  an  infant's  deed  is  not  void,  it  passes  a  good  title 
to  the  grantee,  subject  to  disaffirmance,*®  upon  which  title  revests 
in  the  grantor.^"  The  right  to  disaffirm  exists  independently  of 
the  infant's  motive,^^  or  of  the  good  faith  of  the  person  contracting 
12  N.  D.  548,  97  N.  W.  848;  North       of  a  third  person,  where  they  are  at- 


American  Coal  &  Coke  Co.  v.  O'Neal 
(W.  Va.),  95  S.  E.  822, 

44.  Hilton  v.  Shepherd,  92  Me,  160, 
42  A.  387;  Minock  v.  Shortridge,  21 
Mich.  304  (holding  that  a  ratifica- 
tion cannot  be  inferred  from  circum- 
stances where  the  minor  has  made 
an  explicit  declaration  of  intention  to 
disaffirm). 

45.  Southern,  etc.,  Co.  v.  Dukes, 
121  Ga.  787,  49  S,  E.  788;  Tyler  v. 
Gallop,  68  Mich.  185,  35  N.  W.  902, 
13  Am.  St.  R.  336;  Kane  v.  Kane,  13 
App.  D.  544,  43  N,  Y.  S.  662;  Healy 
V.  Kellogg,  145  N.  Y.  S,  943;  Barnes 
V.  American,  etc.,  Co.,  32  Okla.  81, 
121  P.  250;  Carroll  v.  Durant,  etc., 
Bank,  38  Okla.  267,  133  P,  179, 

46.  Maier  v.  Harbor  Center  Land 
Co.  (Cal.),  182  P.  345  (where  the 
contract  was  void  under  a  statute). 

47.  Minock  v.  Shortridge,  21  Mich. 
304;  In  re  Farley,  213  N.  Y.  15,  106 
N.  E.  756. 

48.  Eice  v.  Boyer,  108  Ind.  472,  9 
N.  E.  420,  58  Am.  Rep.  53;  Shrock 
V.  Crowl,  83  Ind.  243;  Pippen  v. 
Mutual  Ben.  Life  Ins.  Co.,  130  N.  C. 
23,  40  S.  E.  822,  57  L.  R,  A.  505; 
Yancey  v.  Boyce,  28  N.  D.  187,  148 
N.  W.  539 ;  Oneida  County  Savings 
Bank  of  Rome  v.  Saunders,  166  N.  Y. 
S.  280,  179  App.  Div.  282;  Plummer 
V.  Northern  Pac.  Ry.  Co.,  98  Wash. 
67,  167  P.  73. 

Thus,  where  an  infant  has  pur- 
chased goods  and  sold  them  and  has 
r'lced    their   proceeds    in    the    hands 


tached  in  an  action  to  recover  the 
price,  a  plea  of  infancy  annuls  the 
contract,  defeats  the  action,  dissolves 
the  attachment  and  releases  the 
funds.  Wallace  v.  Leroy,  57  W.  Va. 
263,  50  S.  E.  243,  110  Am.  St.  Rep. 
777;  Hobbs  v.  Hinton  Foundry,  Ma- 
chine &  Plumbing  Co.,  74  W.  Va. 
443,  82  S.  E.  267  (the  disaffirm- 
ance after  full  age  of  a  contract 
made  while  an  infant,  and  the 
offer  to  return,  or  return,  of  the 
property  purchased,  will  discharge  a 
trust  lien  securing  payment  of  the 
consideration  and  acquit  both  princi- 
pal and  surety  therefrom). 

49.  Beauchamp  v.  Bertig,  9'0  Ark. 
351,  119  S.  W.  75;  Parker  v.  Fuestal, 
103  Ark.  312,  147  S.  W.  45;  Putnal 
V.  Walker,  61  Fla.  720,  55  So.  844. 
The  release  of  dower  of  a  minor  wife 
makes  a  good  title  subject  to  her  dis- 
affirmance at  full  age.  Law  v.  Long, 
41  Ind.  586;  Robinson  v.  Allison,  192 
Mo.  366,  91  S.  W.  115;  Parrish  v. 
Treadway,  267  Mo.  91,  183  S.  W. 
580;  Shaffer  v.  Detie,  191  Mo.  377, 
90  S.  W.  131;  Bohwer  v.  District 
Court  of  First  Judicial  Dist,,  41  Utah, 
279-,  125  P.  671. 

50.  Mustard  v.  Wohlford's  Heirs, 
15  Grat.  329,  76  Am.  Dec.  209;  Seed 
V.  Jennings  (Ore.),  83  Pac.  872, 

51.  An  infant  need  not  show  fraud 
in  order  to  disaffirm  release.  Arizona, 
etc.,  R.  Co.  V.  Carillo,  17  Ariz.  115, 
149  P.  313;  Forsee  v.  Forsee,  144  Ky. 
169,  137  S,  W.  863. 


§  1041 


INFANCY. 


1238 


witB  him,''*  or  of  wlietlier  there  was  a  consideration  or  not,*'  or 
whether  the  contract  price  was  fair,°*  or  whether  the  contract  was 
reasonable  and  pnident,°^  or  by  the  fact  that  the  property  has  been 
conveyed  by  the  infant's  grantee  to  one  without  notice  of  the 
original  grantor's  infancy.^®  The  right  to  disaffirm  exists  inde- 
pendently of  fraud,°^  or  that  the  grantee  has  made  improvements,'** 
or  that  during  minority  proceedings  were  had  respecting  the  trans- 
action, wherein  a  decree  was  rendered  after  majority/®  It  does 
depend,  however,  on  the  lex  rei  sitce. 


60 


§  1041.  Instances. 

It  seems  settled  that  silence  for  an  unreasonable  time,  taken  in 
connection  with  other  facts,  such  as  using  the  property  purchased, 
retaining  possession  of  it,  selling  or  mortgaging  it,  or  in  any  way 
converting  it  to  the  infant  purchaser's  own  use,  would  be  sufficient 
ratification  to  bind  the  infant  after  reaching  manhood.^^  And 
hence  the  ready  disposition  in  so  many  modem  cases  to  treat  the 
transaction  of  minority  as  affirmed,  wherever  one,  after  attaining 
majority,  retains  deliberately  and  enjoys  the  fruits  of  the  trans- 
action or  disposes  of  the  consideration.®^  As  where  a  minor 
bought  a  yoke  of  oxen,  for  which  he  gave  his  note,  and  after  arriv- 


52.  Lake  v.  Perry,  95  Miss.  550,  49 
So.  569. 

53.  Bilskie  v.  Bilskie  (Ind.  App.), 
122  N.  E.  436. 

54.  Braucht  v.  Graves-May  Co.,  92 
Minn.  116,  99  N.  W.  417. 

55.  Simpson  v.  Prudential  Ins.  Co., 
184  Mass.  348,  68  N.  E.  673,  63  L.  E. 
A.  741,  100  Am.  St.  E.  560;  Klaus 
V.  A.  C.  Thomson  Auto  &  Buggy  Co., 
131  Minn.  10,  154  N.  W.  508  (hold- 
ing that  evidence  that  the  contract 
was  reasonable  and  prudent  in  view 
of  the  infant's  situation  was  mate- 
rial). 

56.  Miles  v.  Lingerman,  24  Ind. 
385;  Cole  v.  Boutwell,  101  Miss.  353, 
58  So.  105;  Jackson  v.  Beard,  162 
N.  C.  105,  78  8.  E.  6;  Oneida  County, 
etc.,  Bank  v.  Saunders,  179  App. 
Div.  282,  166  N.  Y.  8.  280;  Allen  v. 
Anderson    (Tex.  Civ.),  96  S.  W.   54. 

57.  Arizona,  etc.,  E.  Co.  v.  Carillo, 
17  Ariz.  115,  149  P.  313. 

58.  Buchanan  ▼.  Hubbard,  96  Ind. 


1;   Eagan  v.  Scully,  173  N.  Y.   581, 
65  N.  E.  1116. 

59.  Tharn  v.  Eandal,  126  Ind.  272, 
26  N.  E.  46.  The  right  to  disaffirm 
has  been  held  not  affected  by  the  fact 
that  in  a  suit  commenced  against  him 
in  his  minority  to  reform  his  deed  a 
decree  was  rendered  after  majority. 
Thain  v.  Eandal,  126  Ind.  272,  26 
N.  E.  46. 

60.  Beauchamp  v.  Baty,  90  Ark. 
351,  119  S.  W.  75. 

61.  See  note  Am.  editor  in  16  E. 
L.  &  Eq.  558;  aLwson  v.  Jove  joy,  8 
Me.  405;  Boyden  v.  Boyden,  9  Met. 
519;  Cheshire  v.  Barrett,  4  McCord, 
241;  Boody  v.  McKenney,  23  Me. 
517;  Eobinson  v.  Hoskins,  14  Bush, 
393.  Against  third  i)arties  averment 
of  possession  may  be  sufficient  aver- 
ment of  ratification.  Duvic  v.  J.  B. 
Henry,  33  La.  Ann.  102, 

62.  Brantley  v.  Wolf,  60  Miss.  420 ; 
§§  436,  437. 


1239 


liATlFICATlON    AND    AVOIDANCE. 


§     1041 


ing  at  full  age  converted  the  oxen  to  his  own  use  and  received  the 
avails.^"  Mere  lapse  of  time,  it  is  true,  will  not  usually  amount 
to  confirmation,  unless  the  complete  bar  of  limitations  is  fulfilled."* 

Likewise  w*here,  after  attaining  full  age,  a  minor  permits  an 
unreasonable  time  to  elapse  without  disaffirmance,  he  may  be  held 
to  have  ratified,  if  knowledge  of  invalidity  appears.*^  But  a  brief 
lapse  of  time,  in  connection  with  other  circumstances  making  the 
infant's  position  inequitable  if  he  means  later  to  disaffirm,  may 
amount  to  confirmation.^®  It  may  be  generally  said  that  mere 
silence  without  disaffirmance  for  less  tban  the  statutory  period  will 
not  of  itself  work  a  ratification,  unless  there  is  a  duty  to  speak."' 
And  cases  are  not  wanting  to  establish  the  position  that  ratifi- 
cation will  be  inferred  from  tacit  assent  and  delay  under  circum- 
stances where  silence  is  not  excusable,  where  there  was  full 
knowledge  and  opportunity  to  assert  one's  rights,  and  the  party 
whose  title  might  have  been  disputed  was  permitted  to  go  on 
incurring  expense  on  the  faith  of  it."® 

Yet  that  the  cases  are  somewhat  conflicting  and  difficult  in 
this  respect  to  be  reconciled  will  appear  from  the  citation  of  "a  few. 


63.  Lawson  v.  Lovejoy,  8  Me.  405. 
And  see  Alexander  v.  Heriot,  1  Bail. 
Ch.  223;  Deason  v.  Boyd,  1  Dana, 
45;  Vandevort's  Appeal,  43  Pa.  St. 
462;  Stern  v.  Freeman,  4  Met.  (Ky.) 
309;  Belton  v.  Briggs,  4  Desaus. 
465. 

64.  Walace  v.  Latham,  52  Miss.  291 ; 
Prout  V.  Wiley,  28  Mich.  164;  cases 
cited  in   31   Minn.   468, 

65.  Walker  v.  Arkansas,  etc.,  Bank, 

256  F.  1;  Walker  v.  Pope,  101  Ga. 
665,  29  S.  E.  8;  Bentley  v.  Greer, 
100  Ga.  35,  27  S.  E,  974;  Miles  v. 
Lingerman,  24  Ind.  385;  Brown  v. 
Btaab  (Kan.),  176  P.  113;  Justice 
V.  Justice,  170  Ky.  423,  186  S,  W. 
148;  King  v.  Merritt,  67  Mich,  194, 
34  N    W.  689;  Parrish  v.  Treadway, 

257  Mo,  91,  183  S,  W,  580;  Criswell 
V-  Criswell  (Neb.J,  163  N.  W.  302, 
Acquiescence  for  fourteen  months  has 
been  held  to  be  a  ratification  under 
fipecial  facts.  O'Rourke  v.  Hall,  56 
N.  Y.  S,  471,  38  App,  Div.  534 ;  Wise 
V,  Loeb,  15  Pa.  Super,  601.  The  rule 
has  been   limited   to  contracts  which 


are  beneficial  to  the  infant.  Groes- 
beck  V,  Bell,  1  Utah,  338.  What  is  a 
reasonable  time,  within  the  meaning 
of  the  rule,  is  a  question  of  fact. 
Hobbs  V,  Hinton  Foundry,  Machine 
&  Plumbing  Co.,  74  W.  Va.  443,  82  S, 
E,  267, 

66,  Cresinger  v,  Welch,  15  Ohio, 
156;  Strong,  J.,  in  Irvine  v.  Irvine, 
9  Wall,  617;  Goodnow  v.  Empire 
Lumber  Co.,  31  Minn,  468. 

67,  Syck  V,  Hellier,  140  Ky.  388, 
131  S.  W,  30;  Britt  v,  Caldwell-Nor- 
ton Lumber  Co.,  126  La.  155,  52  So, 
251.  See  Becker  v.  Stone,  136  Mass, 
405;  Lynch  v.  Johnson,  109  Mich. 
640,  109  N,  W.  640;  Shipp  v.  McKee, 
SO  Miss.  741,  32  So.  281,  92  Am.  St. 
R.  616;  Watson  v.  Peebles,  102  Miss. 
725,  59  So.  8S1;  Lacy  v,  Pixler,  120 
Mo.  383,  25  S.  W,  206;  Gapp  Mayer 
V,  Wilkenson  (Utah),  177  P.  763; 
Birch  V.  Linton,  78  Va,  584,  49  Am. 
R.  381;  Wilson  v.  Branch,  77  Va.  65, 
46  Am.  R.  709. 

68,  See  post,  1044;  Allen  v.  Poole, 
r,i  Miss,  323, 


§    1041  INFANCY.  1240 

In  Alabama,  an  infant,  ten  days  before  majority,  purchased  a  note 
and  drew  an  order  upon  a  third  person  in  pajTuent,  and  received 
notice  of  non-payment.  It  was  held,  in  a  suit  several  years  after, 
that  his  failure  to  renew  the  note  and  disaffirm  warranted  the 
conclusion  that  he  intended  to  abide  by  it.®®  Still  more  rigidly 
was  the  same  doctrine  enforced  in  an  earlier  New  York  case.'^' 
Part-payment,  or  even  promise  of  part-payment,  may  operate  as 
confiiTnation.'^  So  may  authority  given  to  an  agent  to  pay,  though 
the  agent  does  nothing. '^^  But  declarations  of  affirmance  by  one 
purporting  to  act  as  the  attorney  or  solicitor  of  the  late  infant  do 
not  amount  to  ratification  if  his  authority  be  not  proved.'^*  Sub- 
mitting the  question  of  liability,  after  coming  of  age,  to  arbitration 
or  offering  to  compromise  does  not  amount  to  ratification.^*  But 
letters  indicating  intent  to  abide  by  a  former  award  may;  as  well 
as  the  enjoyment  of  its  benefits.'^^  So  may  permitting  an  action 
growing  out  of  the  transaction  to  go  by  default,  or  a  bill  in  equity 
to  be  taken  as  confessed,''®  as  well  as  bringing  an  action  after 
majority  to  enforce  a  voidable  contract  either  individually  ^^  or 
jointly  with  others.''^"''^  A  promise  to  settle  by  note  against  a  third 
party  is  held  sufficient.*"  So  is  a  promise  to  settle  by  work.  Nor 
do  the  recent  cases  seem  to  require  that  a  promise  to  settle  should 
be  very  precisely  expressed.  The  mere  retention  of  consideration- 
money  received  during  infancy  appears  to  amount  to  ratification  in 
California ;  *^    thoug'h  this  is  not  the  general  rule  elsewhere,*^  but 

69.  Thomasson  v.  Boyd,  13  Ala.  80.  Taft  v.  Sergeant,  18  Barb.  320. 
419.  81.  Hastings  v.  Dollarhide,  24  CaL 

70.  Delano  v.  Blake,  11  Wend.  85.  195. 

71.  Little  V.  Duncan,  9  Eich,  Law,  82.  It  has  been  held  that  there  was 
55;  Stokes  V.  Brown,  4  Chan d.  (Wis.)  no  ratification  of  the  illegal  sale  of 
39.  an    infant's    land    by    an    executor 

72.  Orvis  V.  Kimball,  3  N.  H.  314.  where  the  infant  accepted  a  pair  of 

73.  Carrell  v.  Potter,  23  Mich.  377.  shoes  from  the  executor  after  major- 

74.  Benham  v.  Bishop,  9  Conn.  330 ;  ity,  even  though  he  expended  part  of 
Bennett  v.  Collins,  52  Conn.  1.  the  proceeds  of  the  sale  for  her  board 

75.  Barnaby  v.  Barnaby,  1  Pick.  and  clothing  during  her  infancy. 
221;  Jones  v.  Phoenix  Bank,  4  Seld.  Hamilton  v,  Rathbone,  175  U.  S.  414, 
228.  20  S.  Ct.  155,  44  L.  ed.  219;  Hobbs  v. 

76.  Terry  v.  McClintock,  41  Mich.  Nashville  C.  &  St.  L.  R.  A.  Co.,  122 
492.  Ala.  602,  26  So.  139,  82  Am.  St.  Rep. 

77.  Carrell  v.  Potter,  23  Mich.  377 ;  103  ;  White  v.  Sikes,  129  Ga.  508, 
Pecararo  v.  Pecararo,  84  N.  Y.  S.  59  S.  E.  228.  A  wife  cannot  be  held 
581 ;  Wise  v.  Loeb,  15  Pa.  Super.  Ct.  to  have  ratified  where  her  husband  re- 
601.  ceives  and  retains  the  consideration. 

78-79.  Ward  v.  The  Little  Red,  8  Buchanan  v.  Hubard,  96  Ind.  1; 
Mo.  358.  *  Richardson  v.  Pate,  93   Ind.  423,  47 


1241 


RATIFICATION    AND    AVOIDANCE. 


§    1041 


it  may  have  that  effect,  especially  where  the  consideration  is  re- 
ceived after  majority.*^  Keeping  and  using  an  article  purchased 
during  infancy,  with  equivocal  exp^ressions  of  intention,  may  bind 
the  infant  so  that  he  cannot  return  it  afterwards  to  the  vendor. 
So  may  a  sale  of  the  article  with  full  knowledge  of  the  fact  of 


Am.  R.  374  (where  an  infant  joined 
vith  her  husband  in  the  sale  of  hia 
lands,  with  the  proceeds  of  which 
other  lands  were  bought,  of  which  she 
at  his  death,  received  one-third  as 
dower)  ;  Syck  v.  Hellier,  140  Ky.  388, 
131  S.  W.  30;  Baker  v.  Stone,  136 
Mass.  405. 

An  infant  does  not  ratify  merely 
by  retaining,  after  majority,  a  note 
which  he  had  accepted  during  minor- 
ity from  an  executor  in  settlement 
of  a  legacy.  Durfee  v.  Abbott,  50 
Mich.  479,  15  N.  W.  559;  Carrell  v. 
Potter,  23  Mich.  377;  Orchard  v. 
Wright-Dalton-Bell-Anchor  Store  Co. 
(Mo.),  197  S.  W.  42;  Pedro  v.  Pedro, 
127  N.  Y.  S.  97,  71  Misc.  296. 

83.  Goin  v.  Cincinnati  K«alty  Co., 
118  C.  C.  A.  438,  200  F.  252;  Hobbs 
V.  Nashville  C.  &  St.  L.  Ey.  Co.,  122 
Ala.  602,  26  So.  139,  82  Am.  St.  E. 
103 ;  La  Cotts  v.  Quertermous,  84 
Ark.  610,  107  S.  W.  167.  In  Georgia 
by  statute  the  retention  of  the  bene- 
fits a  voidable  contract  after  major- 
ity operates  as  a  ratification.  Wick- 
ham  V.  Torley,  136  Ga.  594,  71  S.  E. 
881 ;  Bell  v.  Swainsboro  Fertilizer  Co., 
12  Ga.  App.  81,  76  S.  E.  756.  It 
has  been  held  that  where  after  ma- 
jority a  minor  demands  tha  consider- 
ation of  a  valuable  contract  he  rati- 
fies it.  Barlow  v.  Eobinson,  171  111. 
317,  51  N.  E.  1045. 

One  indorsing  a  note,  given  as  a 
part  consideration  for  a  conveyance 
made  by  him  while  an  infant,  thereby 
ratifies  the  conveyance.  Turner  v 
Stewart,  149  Ky.  15,  147  S.  W.  772. 
Where,  after  an  infant  became  of 
age,  he  collected  his  part  of  the  pur- 
chase money  arising  from  a  void  sale 
by  order  of  court  of  his  interest  in 


land,  and  allowed  a  deed  to  be  made 
therefor,  and  the  grantee  to  hold  it 
for  many  years  without  asserting 
claim  thereto  till  it  had  passed  into 
the  hands  of  an  innocent  purchaser, 
he  was  estopped  thereby  to  claim  an 
interest  in  the  land.  Williamson  v. 
Mann,  134  Ky.  63,  119  S.  W.  232; 
Damron  v.  Eatliff,  123  Ky.  758,  97 
S.  W.  401,  30  Ky.  Law  Eep.  67; 
Clark  V.  Kidd,  148  Ky.  479,  146  S. 
W.  1097, 

Continuing  after  majority  to  re- 
ceive wages  under  a  voidable  contract 
of  service  has  been  held  a  good  rati- 
fication. Spicer  v.  Earl,  41  Mich. 
191,  1  N.  W.  923,  32  Am.  Eep.  152; 
McDonald  v.  Sargent,  171  Mass.  492, 
51  N.  E.  17;  Ferguson  v.  Bell's 
Adm'r,  17  Mo.  347. 

Where  an  infant  after  majority 
takes  title  to  property,  knowing  that 
his  funds  have  wrongfully  been  used 
to  purchase  it,  he  was  held  to  have 
ratified  the  transaction.  Comey  v. 
Harris,  118  N.  Y.  S.  244,  133  App. 
Div.  686  (affd.,  200  N.  Y.  534,  93 
N.  E.  1118). 

Where  a  woman  during  infancy  ac- 
cepted an  annuity  in  settlement  of  a 
claim  for  services,  her  continuance  to 
accept  the  payments  after  majority 
was  held  a  ratification.  Parsons  v. 
Teller,  97  N.  Y.  S.  808,  111  App.  Div. 
637;  Kinard  v.  Proctor,  68  S.  C.  279, 
47  S.  E.  390;  Dudley  v.  Browning, 
79  W.  Va.  331,  90  S.  E.  878.  To 
the  same  effect  see  Burkhard  v. 
Crouch,  169  N.  Y.  399,  62  N.  E.  431 
(where  the  amount  received  had  been 
invested  for  the  infant  during  minor- 
ity, and  where,  after  majority,  she 
applied  for  and  received  it,  acquiesc- 
ing in  the  transaction  for  nine  years). 


§    1041  INFANCY.  1242 

purchase.®*  So  may  tte  reception  and  substantial  enjoyment  of 
the  benefits  of  the  transaction  after  reaching  majority,  such  aa 
collecting  dividends  or  interest/^  asserting  ownership  and  control 
after  majority  of  land  or  other  property  acquired  under  a  voidable 
contract,^*  or  receiving  the  principal,  or  other  act  totally  incon- 
sistent with  an  honest  intention  to  disaffirm.  A  verbal  promise 
is  sufficient  to  bind ;  *^  while  a  contract  to  work  is  ratified  by 
continuance  in  the  employer's  service  for  a  month  after  attaining 
full  age.®*  Plea  of  the  execution  of  a  note,  in  defence  of  a  suit  in 
assumpsit,  is  held  to  be  confirmation  of  the  note  itself.*'  Slight 
words,  importing  recognition  and  confirmation  of  the  promise, 
have  been  treated  as  sufficient;  or,  at  least,  as  sufficient  for  a  jury 
to  consider.'"  And,  according  to  a  recent  decision  of  the  Supreme 
Court  of  the  United  States,  it  is  a  question  for  the  jury  and  not  for 
the  court  to  decide,  whether  the  evidence  submitted  in  any  case 
shows  an  affirmance  or  not,  if  there  be  any  evidence  tending  to 
show  it.'^ 

On  the  other  hand  are  numerous  decisions  which  seem  to  bear 
against  the  creditor.  Says  a  Massachusetts  judge  in  an  early 
case :  "  By  the  authorities  a  mere  acknowledgment  of  the  debt, 
such  as  would  take  a  case  out  of  the  statute  of  limitations,  is  not  a 
ratification  of  a  contract  made  during  minority."  '^  Yet  the 
much-quoted  distinction  there  taken  between  "  acknowledgment " 

that  a  debt  is  due,  and  verbal  "  ratification  and  confirmation  "  is 

84.  Shropshire  v.  Burns,  46  Ala.  63  N.  E.  887;  Kincaid  v.  Kineaid, 
108.  157    N.   Y.   715,    53    N.   E.    1126,   33 

85.  Huth  V.  Carondolet  E.,  56  Mo.  N.  Y.  S.  476,  85  Hun,  141.  To  the 
202 ;  Price  v.  Winter,  15  Fla.  66 ;  same  effect  see  Perkins  v.  Middleton 
Corwin  v.  Shoup,  76  111.  246.  (Okla.),    166    P.    1104     (mortgaging 

86.  Gannon  v.  Manning,  42  App.  D.  land  acquired  under  voidable  con- 
C.  206 ;  Buchanan  v.  Hubbard,  119  tract) ;  Mission  Eidge  Land  Co.  V; 
Ind.  187,  21  N.  E.  538.  Selling  after  Nixon  (Tenn.),  48  S.  W.  405. 
majority  personal  property  purchased  87.  West  v.  Penny,  16  Ala.  186; 
while  an  infant,  has  been  held  a  good  Martin  v.  Mayo,  10  Mass.  137. 
ratification.  Eobinson  v.  Hoskins,  77  88.  Forsyth  v.  Hastings,  27  Vt. 
Ky.  393;  Hilton  v.  Shepherd,  92  Me.  646. 

160,  42  A.  387;   Gulf,  etc.,  E.  Co.  v.  89.  Best  v.  Givens,  3  B.  Monr.  72. 

Lemons   (Tex.),  206  S.  W.  75.  90.  Hoit  v.  IJnderhill,  9  N.  H.  436; 

Where  a  minor  purchases  land,  giv-  Bay  v.  Gunn,   1  Den.   108;   Whitney 

ing  a  mortgage  to  one  who  pays  the  v.  Dutch,  14  Mass.  457. 

price,  the  two  acts  being  one  transac-  91.   Irvine  v.  Irvine,  9  Wall.  617, 

tion,  he  affirms  the  mortgage  where,  628. 

after  majority,  he  conveys  the  land,  92.  Whitney  v.  Dutch,  14  Mass.  460, 

which    had    been    conveyed    to    him.  per  Parker,  C.  J. 
Eeady    v.    Pinkham,    181    Mass.    351, 


1243 


BATIFICATION    AND    AVOIDANCB. 


§   1042 


eitlier  exceedingly  subtile,  or  at  tlie  pre&ent  day  frequently  mis- 
applied. The  distinction  further  developed  leads,  as  we  find,  to 
the  conclusion  that  where  one  says  he  owes  the  debt  and  has  not 
the  means  of  payment,  but  will  pay  as  soon  as  able,  or  words  to 
this  effect,  this  is  only  an  acknowledgment,  and  not  binding.®' 
Such  decisions  do  not  always  support  the  explanation  sometimes 
given,  that  the  American  cases  proceed  upon  the  ground  of  inten- 
tion to  ratify;  though  there  are  doubtless  cases  which  support  so 
reasonable  a  view.®*  In  a  well-considered  Connecticut  case  the 
distinction  is  thus  drawn :  that  the  infant's  contract  to  pay  money 
not  for  necessaries,  cannot  as  a  rule  be  ratified  by  any  mere 
acknowledgment  of  indebtedness  after  he  becomes  of  age,  since 
there  should  be  an  express  promise  to  pay ;  but  that  an  exception 
arises  where  the  infant  received  the  consideration  for  which  his 
promise  was  given,  and  after  he  becomes  of  age  still  has  it  in  his 
possession  or  under  his  control ;  and  in  such  a  case  it  will  be 
inferred  from  his  mere  acknowledgment  of  indebtedness  that  he 
meant  to  make  himself  liable.®^ 

Where  the  statute  provides  a  period  within  which  the  infant 
may  disaffirm,  the  expiration  of  the  statutory  period  without  such 
action  operates  as  a  ratification.®® 

§  1042.  Conflicting  Dicta. 

What  is  it  that  suffices  to  take  a  case  out  of  the  statute  of  limita- 
tions? "Either  an  express  promise  to  pay,  or  an  unqualified 
acknowledgment  of  present  indebtedness ;  in  which  latter  case  the 
law  will  imply  a  promise  to  pay."  ®^     What  is  ratification  of  a  con- 


93.  See  Proctor  v.  Sears,  4  Allen, 
95;  Thompson  v.  Lay,  4  Pick.  48; 
Ford  V.  Phillips,  1  Pick.  203 ;  Hall  v. 
Gerrish,  8  N.  H.  374;  Goodsell  v. 
Myers,  3  Wend.  479 ;  "Wilcox  v.  Eoath, 
12  Conn.  550;  Chandler  v.  Glover,  32 
Pa.  St.  509. 

94.  See  Thing  v.  Dibbey,  16  Me. 
55;  Dana  v.  Stearns,  3  Cush.  372; 
Smith  V.  Kelly,  13  Met.  309.  And  see 
note  to  16  E.  L.  &  Eq.  558.  The  mere 
indorsement  on  a  minor's  note  of  a 
receipt  of  money  of  date  after  the 
maker  had  attained  majority,  is  not 
a  sufficient  ratification.  Catlin  v.  Had- 
dox,  49  Conn.  49^.  In  a  suit  on  such 
note,  brought  after  the  maker's  ma- 


jority, it  will  not  be  presumed  that 
the  note  was  given  for  necessaries, 
nor  that  the  consideration  remains 
under  the  maker's  control;  this  must 
be  proved  by  the  party  who  seeks  to 
enforce  it.     Ih. 

95.  Catlin  v.  Haddox,  49  Conn.  492. 
This  statement  assumes  that  the  con- 
sideration which  the  infant  retains  is 
a  hona  fide  and  ample  one,  making 
it  inequitable  to  delay  his  decision  to 
affirm  or  disaffirm  while  he  holds  the 
benefits. 

96.  Luce  V.  Jestrab,  12  N.  D.  548, 
97  X.  W.  848, 

97.  See  Gailey  t.  Crane,  21  Pick. 
523 ;    Wakeman   t.   Sherman,    5   Seld. 


§1043  INFANCY.  1244 

tract  ?  So  far  as  a  definition  may  be  hazarded,  it  is  a  voluntary 
admission  that  one  is  liable  and  bound  by  the  terms  of  an  existing 
though  inchoate  or  imperfect  contract.  A  debt  is,  of  course, 
created  by  contract,  express  or  implied.  But  some  say  that  there 
must  always  be  a  new  contract  made  by  the  minor  on  reaching 
majority.  To  hold  that  a  new  contract  for  payment  is  essential, 
differs  certainly  from  ruling  that  ratification  and  confirmation  of 
an  existing  contract  binds  one  who  was  lately  an  infant.  But 
once  again  such  contracts  of  an  infant  are  called  voidable.  Does 
not  the  term  "  voidable  "  imply  something  still  different,  something 
which  binds  until  expressly  repudiated?  And  if  so,  how  doubly 
inconsistent  to  exact  a  specific  promise  to  pay,  over  and  above  an 
admission  of  present  indebtedness.  In  truth,  the  law  is  here  over- 
burdened with  its  own  definition;  judicial  terms,  inconsistent  and 
varied,  bewilder  the  judicial  mind;  and  thankless,  indeed,  must 
be  the  task  of  refining  upon  distinctions  which  rest  upon  no  rational 
basis  of  difference.^^ 

§  1043.  Summary  of  Doctrine. 

This  writer  makes  no  attempt  to  reconcile  the  numerous  dicta 
of  the  courts  on  this  important  subject.  They  are  irreconcilable. 
If  American  decisions  themselves  may  be  regarded  as  pointing  out 
a  general  rule,  it  seems  to  be  this :  that  the  mere  acknowledgment 
that  a  certain  transaction  constitutes  a  debt  is  insufficient  to  bind 
him  lately  an  infant;  but  that  an  acknowledgment  to  the  extent 
that  he  justly  owes  that  debt,  with  equivocal  expressions  as  to  some 
future  payment,  may  or  may  not  be  considered  sufficient,  though 
the  better  opinion  is  in  favor  of  their  sufficiency;  that  acts  or 
omissions  on  his  part,  which  are  prejudicial  to  the  adult  party's 
interests,  or  evince  his  own  intention  to  retain  the  consideration 
and  advantages  of  a  contract  made  during  infancy,  may  be,  espe- 
cially when  reasonable  time  has  elapsed,  construed  into  a  ratifica- 
tion, without  an  express  promise,  the  presumption  of  honorable 
motives  being  fair  and  reasonable  under  such  circumstances ;  and 
finally,  that  a  distinct,  unequivocal  promise,  verbal  or  written, 
made  after  attaining  majority,  is  always  sufficient,  this  apparently 

91;    Marshall,   C.   J.,  in   Clemenstine  under  the  statute  of  limitations.     He 

V.  Williamson,   8   CJraneh.   72;    Story,  says:     "In  the  case  of  an  infant,  I 

J.,  in  Bell  v.  Morrison,  1  Pet.   351.  shall  hold  an  acknowledgment  not  t» 

98.  Lord  Kenyon  seems  responsible  be  sufficient,  and  require  proof  of  an 

for  the  doctrine  that  the  case  of  in-  express  promise  to  pay,  made  by  the 

fancy    differs   in    essence    from    that  infant,  after  he  had  attained  that  age 


1245 


EATIFICATION    AND    AVOIDANCE. 


§    1043 


auperseding  tte  former  promise  altogether."*  In  cases  of  doubt, 
moreover,  it  would  seem  to  be  better  to  treat  tbe  evidence  presented 
as  constituting  facts  for  tbe  consideration  of  the  jury,  rather  than 
a  question  of  law  for  the  court  to  pass  upon. 

Some  cases  go  even  farther,  and  require  an  express  repudiation 
on  the  infant's  part.  But  this  is  appropriate  only  to  certain  trans- 
actions, and  we  are  not  justified  in  deducing  therefrom  a  general 
principle  that  express  repudiation  is  necessary  in  all  voidable  con- 
tracts of  an  infant ;  for  the  decisions  certainly  do  not  go  to  this 
length,  whatever  the  dicta.^ 

A  conditional  promise,  when  of  age,  to  perform  a  contract  made 
during  minority  will  not  sustain  an  action  thereon  without  proof 
that  the  condition  has  been  fulfilled.^  And  any  conditional  ratifi- 
cation is  subject  accordingly.^ 

Reasonable  time  for  an  infant,  on  coming  of  age,  to  elect  to 
confirm  or  avoid  the  acts  'and  contracts  of  his  minority,  must 
depend  in  each  case  upon  the  particular  circumstances;  and  in 
all  cases  the  mental  operation  of  election  at  majority,  whether 
outwardly  manifested  more  or  less  plainly,  and  whether  actually 
proved  or  to  be  conclusively  assumed  from  long  lapse  of  time  and 
silence,  is  the  fact  to  be  legally  established  or  inferred.*  And  such 
election  once  made  is  irrevocable.^     An  obligation  may  be  silently 


when  the  law  presumes  that  he  has 
discretion. ' '  Trupp  v.  Fielder,  2  Esp. 
628. 

99.  See  American  cases  collected  in 
Am.  editor's  note  to  16  E.  L.  &  Eq. 
558;  Bobo  v.  Hansell,  2  Bail.  114; 
Ackerman  v.  Bunyon,  1  Hilt.  (N.  Y.) 
58;  Vaughan  v.  Parr,  20  Ark.  600; 
Richardson  v.  Boright,  9  Vt.  368; 
Hodges  V.  Hunt,  22  Barb.  150;  State 
V.  Plaisted,  43  N.  H.  413;  Wright  v. 
Steele,  2  N.  H.  51;  Conklin  v.  Og- 
born,  7  Ind.  553;  Merriam  v.  Wilkins, 
6  N.  H.  413;  Jones  v.  Butler,  30 
Barb.  641 ;  Curtin  v.  Patton,  11  S.  & 
E.  305 ;  Norris  v.  Vance,  3  Eich.  164 ; 
Oswald  V.  Broderick,  1  Clarke  (la.), 
380. 

1.  See  Holmes  v.  Blogg,  8  Taunt. 
39;  Eichardscn  v.  Boright,  9  Vt.  368; 
Kline  v.  Beebe,  6  Conn.  494;  Hoit  v. 
TTnderhill,  9  N.  H.   439. 

2.  Bresee  v.  Stanly,  119  N.  C.  278, 


25  S.  E.  870;  Proctor  v.  Sears,  4  Al- 
len, 95;  Everson  v.  Carpenter,  17 
Wend,  419;  Chandler  v.  Glover,  32 
Pa.  St.  509;  Huth  v.  Carondolet  E., 
56  Mo.  202. 

3.  It.;  State  v.  Binder  (1895), 
N.J. 

4.  Stringer  v.  Life  Ins.  Co.,  82 
Ind.  100.  Parke,  B.,  says  in  Wil- 
liams V.  Moor,  11  M.  &  W.  256,  265, 
that  the  principle  on  which  the  law 
allows  a  party  who  has  reached  twen- 
ty-one to  give  validity  to  contracts 
entered  into  during  his  infancy,  is, 
that  he  is  supposed  to  have  acquired 
the  power  of  deciding  for  himself 
whether  the  transaction  in  question  is 
of  a  meritorious  character  by  which 
in  good  conscience  he  ought  to  be 
bound. 

5.  If  evidence  of  express  disaffirm- 
ance is  shown,  acts  tending  to  prove 
a  prior  full  affirmance  may  be  shown 


§   1044 


INFANCY. 


1246 


outstanding  or  maturing  wlien  the  infant  reaches  full  age  or  it 
may  by  that  time  reach  the  stage  of  performance  or  enforcement ; 
and  lapse  of  time  before  disaflfirmance  ought  to  bind  the  late  infant 
more  readily  in  the  latter  case  than  the  former  because  active 
regard  on  his  part  is  called  for  in  such  connection.®  In  other 
words,  reasonable  time  should  be  determined  by  the  facts  and 
circumstances  in  each  case. 

§  1044.  Rule  as  to  Conveyance  of  Infant's  Lands,  Lease,  Mort- 
gage, &c. 
Let  us  apply  the  rule  of  ratification  or  avoidance  to  the  infants 
lands,  where,  as  we  have  stated,  affirmance  or  disaffirmance  is  post- 
poned to  his  majority.'^  If  an  infant  makes  a  lease  of  his  land 
(which  is  voidable  if  for  his  benefit,  but  not  otherwise),  and 
accepts  rent  after  attaining  full  age,  and  by  other  slight  acts 
affirms  the  transaction,  this  is  a  ratification  of  the  lease  and  he 
cannot  afterwards  disaffirm.*     And  where  a  minor  mortgaged  his 


likewise.    Seranton  v.  Stewart,  52  Ind- 
69,  9^. 

6.  Where  an  infant  went  surety  for 
anolher,  a  year  and  a  half  has  been 
considered  not  unreasonably  long  af- 
ter his  majority  to  disaffirm.  John- 
son V.  Storie,  32  Neb.  610. 

7.  Smoot  V.  Eyan  (Ala.),  65  S. 
828;  Webb  v.  Reagin,  160  Ala.  537, 
49  So.  580;  Tobin  v.  Spann,  85  Ark. 
556,  109  S.  W.  534;  Watson  v.  Euder- 
man,  79  Conn.  687,  66  A.  515.  One 
seeking  to  foreclose  an  infant's  mort- 
gage must  show  that  it  is  not  sub- 
ject to  disaffirmance.  Watson  v. 
Euderman,  79  Conn.  687,  66  A.  515; 
Slater  v.  Eudderforth,  25  App.  D.  C. 
.97;  White  v.  Sikes,  129  Ga:  508,  59 
S.  E.  228;  McEernolds  v.  Stoats 
(111.),  122  N.  E.  860;  Losey  v.  Bond, 
94  Ind.  1 ;  Pitcher  v.  Laycock,  7  Ind. 
398;  Law  v.  Long,  41  Ind.  586;  For- 
see  V.  Forsee,  144  Ky.  169,  137  S.  W. 
836;  Syek  v.  Hellier,  140  Ky.  388, 
131  S.  W.  30;  Damron  v.  Eatliff,  123 
Ky.  758,  97  S.  W.  401,  30  Ky.  Law 
Eep.  67;  Ward  v.  Ward,  143  Ky.  91, 
136  S.  W.  137;  Lansing  v.  Michigan, 
etc.,  E.  Co.,  126  Mich.  663,  86  N.  W. 
147,  88  Am.  St.  E.  567,  8  Det.  Leg. 
N.    183  •,    Weeks   v.    Wilkins,    139   N. 


C.  215,  51  S.  E.  909:  Jackson  v. 
Beard,  162  N.  C.  105,  78  8.  E.  6; 
Evants  t.  Taylor,  IS  N.  M.  371,  137 
P.  583;  Smith  v.  Eyan,  191  N.  Y.  452, 
84  N.  E.  402;  Foy  v.  Salzano,  136 
N,  T.  S.  699,  152  App.  Div.  47; 
Union,  etc.,  Ins.  Co.  v.  Hilliard,  63 
Ohio  St.  478,  59  N;  E.  230,  53  L.  E. 
A.  462,  81  Am.  St.  E.  644;  Hetterick 
V.  Porter,  20  Ohio  Cir.  Ct.  E.  110, 
11  O.  C.  D.  145;  Seed  v.  Jennings 
(Ore.),  83  P.  872;  Birch  v.  Linton, 
78  Va.  584,  49  Am.  E.  381;  Gillespie 
V.  Bailey,  12  W.  Va.  70,  29  Am.  E. 
445. 

While  a  minor's  affirmance  or  dis- 
affirmance by  election  is  postponed 
untU  his  majority,  he  may,  during  his 
minority,  enter  upon  premises  which 
he  has  conveyed  to  another,  and  re- 
ceive rents  and  profits  until  arriving 
at  full  age;  or  he  may  by  his  guar- 
dian or  next  friend  procure  the  ap- 
pointment of  a  receiver  for  coUeeting 
rents  and  profits.  Hutchinson  v.  Me- 
Laughlia,   15  Colo.   492. 

But  an  infant  cannot,  during  mi- 
nority, disaffirm  his  conveyance  nor  re- 
cover possession.  Shipley  v.  Bunn 
(1894),  125  Mo.  445;  §  409. 

8.   Ashfield  v.   Ashfield,  W.   Jones, 


1247  RATIFICATION    AND    AVOIDANCE.  §    1044 

land,  and  on  coming  of  age  conveys  it  to  another  person  in  fee, 
subject  to  the  mortgage,  which  he  recognizes  in  the  second  deed, 
it  is  held  to  be  a  ratification  of  the  mortgage;  ^  -and  making  a  new 
mortgage  after  majority  has  naturally  the  effect  of  creating  a 
junior  incumbrance/" 

A  deed  given  after  majority  to  carry  out  or  confirm  a  previous 
voidable  transiaction  is  a  good  ratification.^^  Such  a  deed  must  be 
regular  in  form.^^  So  slight  acts  of  assent  on  the  infant's  part  are 
held  sufficient  to  confirm  leases  made  by  a  guardian  beyond  the 
term  of  his  authority.^^  The  subsequent  ratification  of  a  mort- 
gage, as  of  other  deeds,  relates  back  to  the  first  delivery,  so  as  to 
affect  all  intermediate  persons,  except  purchasers  for  a  valuable 
consideration.^*  And  where  a  loan  of  money  was  made  to  an 
infant  for  which  he  executed  a  bond  and  mortgage,  and  in  a  will 
made  after  he  became  of  age  directed  the  payment  of  "  all  his  just 
debts  "  and  died,  it  was  hield  that  the  will  sufficiently  confirmed 
the  mortgage.^'  Even  notes  given  for  the  purchase-money  of  land, 
not  secured  by  mortgage,  have  been  equitably  enforced;  and  the 
court  has  refused  to  permit  the  notes  to  be  disaffirmed  and  the  land 
reclaimed.^*  And  yet  the  retention,  after  reaching  majority,  of 
the  proceeds  of  land  purchased  and  afterwards  sold  by  the  person 
while  an  infant,  is  not  of  itself  sufficient  to  render  him  liable  upon 
his  covenant  to  pay  an  outstanding  mortgage  upon  the  land  which 
he  had  assumed  as  part  of  the  consideration  of  his  purchase. ^^ 
But  allowing  the  mortgage  to  be  foreclosed  after  majority,  and  a 
bill  of  foreclosure  to  be  taken  as  confessed,  may  defeat  the  infant's 
equity.^^     A   mortgage   given   by   the    infant   is    affirmed    if  he 

157 ;  Wimberley  v.  Jones,  1  Ga.  Dec.  has  been  held  a  sufficient  ratification. 

91.  Henson  v.  Gulp,  157  Ky.  442,  163  S. 

9.  Boston  Bank  v.  Chamberlin,   15  "W.  455;  Haldeman  v.  Weeks  (Ore.), 
Mass.  220;  Story  v.  Johnson,  2  You.  &  175  P.  445. 

Coll.  Exch.  607 ;   Phillips  v.  Green,  5  12.  Gaskins  v.  Allen,  137  N.  C.  426, 

Monr.  355;   Lynde  v.  Budd,  2  Paige,  49   S.   E.   919    (where  the   deed  of  a 

IQ'l ;   Losey  v.  Bond,  94  Ind.  67.  married  woman  lacked  proper  probate 

10.  McGan  v.  Marshall,  7  Humph.  and    privy    examination    before    ae- 
121.  knowledgment). 

11.  Hill  V.  Weil  (Ala.),  80  S.  526;  13.  See  Smith  v.  Low,  1  Atk.  489. 
Green   v.   Holzer    (Ark.),    177   S.   W.  14.  Palmer  v.  Miller,  25  Barb.  39<). 
903;   Wall  v.  Mines,   130  Cal.  27,  62  15.    Merchants'    Fire    Ins.    Co.    v. 
P.  386 ;  Calhoun  v.  Anderson,  78  Kan.  Grant,  2  Edw.  Ch.  544. 

749,  98  P.  275.  16.  Weed  v.  Beebe,  21  Vt.  495. 

A  promise  to  make  a  confirmatory  17.  Walsh  v.  Powers,  43  N.  Y.  23. 

deed,     and     acquiescence     for     many  18.  Terry  v.  McClintock,  41  Mich, 

years  thereafter  in  the  grantee's  title  492. 


§   1045 


INFANCY. 


1248 


pays  interest  on  the  mortgage  note  after  attaining  majority." 

§  1045.  Infant's  Conveyance,  Lapse  of  Time,  &c. 

It  would  seem  that  the  infant  is  not  precluded  from  disaflBrming 
his  conveyance  of  real  estate  by  the  mere  lapse  of  time,  provided 
there  has  been  no  word  or  act  on  his  part  indicating  affirmance. 
Laches  is  not  imputable  to  an  infant  during  the  continuance  of 
minority.^"  Where  land  has  been  sold  by  an  infant,  it  was  said  in 
a  (Connecticut  case,  years  ago,  the  period  of  acquiescence  being 
thirty-five  years,  that  the  infant  ought  to  declare  his  disaffirmance 
within  a  reasonable  time ;  and  similar  dicta  may  be  found  in  other 
courts;  but  there  seems  to  be  no  doubt  upon  the  decided  cases, 
that  mere  acquiescence  is  no  confirmation  of  a  sale  of  lands  unless 
it  has  been  prolonged  for  the  statutory  period  of  limitation;  and 
that  an  avoidance  may  be  made  any  time  before  the  statute  has 
barred  an  entry.^^  But  disaffirmance  is  here  required;  and  any 
solemn  revocation,  or  a  conveyance  to  someone  else  of  that  land, 
repudiates  the  infant's  conveyance ;  while  any  new  conveyance  by 
way  of  affirmance  makes  the  infant's  deed  wholly  valid.^* 

Whatever  might  be  the  effect  of  an  infant's  own  fraud,  as  against 
himself,  it  would  appear  that  a  subsequent  purchaser  or  mort- 
gagee in  good  faith  and  for  a  valuable  consideration  will  hold  his 
title  as  against  a  deed  made  by  the  ovener  during  his  minority,  of 
which  he  has  received  neither  actual  nor  constructive  notice ;   and 


19.  American  Mortgage  Co.  v. 
Wright  (1894),  101  Ala.  658. 

20.  Conditions  in  Virginia  during 
the  Civil  "War  have  been  held  to  save 
an  infant  from  being  barred  by  laches. 
Bedinger  v,  Wharton,  27  Gratt.  (Va.) 
857;  Smith  v.  Sackett,  5  Gilm.  534; 
Hill  V,  Nelms,  86  Ala.  442.  But  time 
which  has  commenced  running  against 
the  ancestor  continues  to  run  against 
the  infant  heir.  Gibson  v.  Herriott,  55 
Ark.  85;  Hayes  v.  Nourse,  114  N. 
Y.  595.  But  see  Nobles  v.  Poe  (Ark.), 
182  S.  W.  270  (delay  of  43  years  in 
bringing  suit). 

21.  1  Am.  Lead,  Cas.,  4th  ed.,  256; 
Met.  Contr.  60,  61,  and  cases  cited; 
Tucker  v,  Moreland,  10  Pet.  58 ;  Boody 
V.  McKenney,  23  Me.  517;  Drake  v. 
Ramsay,     5    Ohio,    251    Jackson    v. 


Burchin,  14  Johns.  124 ;  Urban,  t. 
Grimes,  2  Grant,  96;  Vaughan  v.  Parr, 
20  Ark.  600 ;  Voorhies  v,  Voorhies,  24 
Barb.  150;  Ware  v.  Brush,  1  McLean, 
533 ;  Moore  v.  Abemethy,  7  Blackf. 
442;  Cole  v.  Pennoyer,  14  HI.  158; 
Gillespie  v.  Bailey,  12  W,  Va.  70  (the 
case  of  an  infant  tenant  in  common)  ; 
Wallace  v,  Latham,  52  Wis.  291; 
Prout  v.  Wiley,  28  Mich,  164;  Wells 
V.  Seixas,  24  Fed.  E.  82;  Lacy  v.  Pix- 
lar,  120  Mo,  383. 

22,  Mette  v,  Feltgen,  148  HI.  357; 
Moore  v.  Baker,  92  Ky,  518;  Cox  v. 
McGowan  (1895),  N,  C,  Where  the 
infant,  with  knowledge  of  the  facts, 
accepts  upon  majority  the  residue  of 
the  purchase  price  of  the  land,  he  rati- 
fies the  transaction.  Smith  v.  Gray 
(1895),  N.  C, 


1249  KATIFICATION    AND    AVOIDANCE.  §    1045 

this,  too,  notwithstanding  ratification  or  fraud  of  the  minor  might 
have  rendered  that  deed  valid.'^ 

Yet  lapse  of  time,  together  with  slight  circumstances,  have  in 
many  instances  sufficed  to  sustain  an  infant's  deed.  A  Missouri 
case,  indeed,  holds  that  mere  declarations  or  a  promise  upon  con- 
tingency will  not  ratify  and  confirm.'*  But  the  authorities 
generally  manifest  extreme  repugnance  at  setting  aside  a  solemn 
conveyance  of  land  and  reopening  beneficial  transactions,  merely 
to  suit  the  caprice  or  dishonorable  intent  of  infants.^^  This  may 
explain  another  dictum  to  the  effect  that  an  infant's  deed  will  be 
confirmed  by  any  deliberate  act  after  he  becomes  of  age,  by  which 
h©  takes  benefit  under  it  or  recognizes  its  validity;  ^®  which  is  not 
without  precedents  for  support.  Thus  in  some  instances  where 
the  infant,  after  coming  of  age,  saw  the  purchaser  make  valuable 
improvements  and  incur  considerable  expense,  and  said  nothing 
for  years,  he  was  held  bound.^^  So,  too,  it  would  seem,  where 
one,  knowing  his  title,  permits  another  to  purchase  without  giving 
notice  of  his  claim. ^*  Or  omits  a  fair  opportunity  for  asserting 
his  privilege.^"  While  mere  lapse  of  time  less  than  the  statute 
period  will  not  suffice,  yet  the  lapse  of  a  less  period  in  connection 
with  such  circumstances  may.  A  tribunal  of  justice  can  properly 
decline  to  become  the  instrument  of  a  knave ;  and  the  late  infant's 
dishonorable  intention  to  take  advantage  bears  against  him.  So, 
in  Illinois,  and  some  other  States,  the  statute  makes  conveyances 
of  a  minor  binding,  unless  disaffirmed  and  repudiated  within  a 
certain  reasonable  period,  say  three  years  after  reaching  majority,^** 
which  is  just  legislation.     Where  the  infant  was  nearly  of  age 

23.  Black  v.  Hills,  36  HI.  376;  In-  And  cf.  Brantley  v.  Wolf,  60  Miss. 
man  v.  Inman,  L.  E.  Eq.  260 ;  Weaver       420. 

V,  Carpenter,  42  la.  343.  If  there  is  doubt  wliether  the  deed 

24.  Glamorgan  v.  Lane,  9  Mo.  446.  was  made  during  infancy  or  not,  the 
And  see  Davidson  v.  Toung,  38  111.  burden  of  proof  is  on  the  disaffirming 
145.  party.     Amey  v.  Cockey  &  Bargar,  73 

25.  See    cases    cited   in    preceding       Md.  297. 

paragraph.  28.  Hall  v.  Simmons,  2   Eich.  Eq. 

26.  McCormic  v.  Leggett,  8  Jones,  120;  Alsivorth  v.  Cordtz,  31  Miss.  32; 
425.  Belton  v.  Briggs,  4  Dcsaus.  465;  Cre- 

27.  Wheaton  v.  East,  5  Terg.  41;  singer  v.  Welch,  15  Ohio,  156;  Em- 
Wallace  V.  Lewis,  4  Harring.  75;  mons  v.  Murray,  16  N.  H.  385.  But 
Jones  V.  Phenix  Bank,  4  Seld.  235 ;  see  Brantley  v.  Wolf,  60  Miss.  420. 
Davis  V.  Dudley,  70  Me.  236.  AUter  29.  Dolph  v.  Hand,  156  Pa.  St.  91. 
where  improvements  are  made  while  30.  The  infant  may  have  the  full 
the  late  infant  is  absent  and  silent.  benefit  of  the  statute  though  he  com- 
BiTch  V.  Linton  and  Wife,  78  Va.  584.  mences  an  action  in  infancy  and  dis- 

79 


§  1046 


l^iFAXCY. 


1250 


Tvlien  he  conveyed,  and  had  made  a  fair  sale,  receiving  the  piir- 
chase-monej,  delay  on  his  part  to  disaffirm  is  not  favored.^'-  And 
there  ought  to  he  no  disaffirmance  favored  which  comes  unreason- 
ably late  after  the  legal  disability  is  removed.^' 

The  purchaser  of  an  infant's  lands  succeeds  to  all  the  infant's 
rights  in  relation  to  it,  although  those  rights  grow  out  of  the 
latter's  infancy.^^  And  a  party  in  possession  under  the  infant's 
deed  cannot  be  regarded  as  a  trespasser  before  the  deed  is  avoided.^* 

And  it  is  held  that  where  land  was  conveyed  by  a  person  under 
age  in  exchange  for  other  lands,  and  he,  after  coming  of  age,  sells 
and  conveys  the  lands  so  received,  the  last  deed  amounts  to  a 
confirmation  of  the  first.^^ 

§  1046.  Ratification,  as  to  an  Infant's  Purchase,  &c. 

The  same  reasoning  which  applies  to  property  transferred  by 
the  infant  applies  to  his  purchases.  If  an  infant,  for  instance, 
takes  a  conveyance  of  land  during  minority  and  retains  possession 


continued  it.  Snare  &  Triest  Co.  v. 
Friedman,  169  Fed.  1,  34  C.  C.  A. 
369,  40  L.  E.  A,  (N.  S.)  367;  Putnal 
T,  Walker,  61  Fla.  720,  55  So.  844; 
Watson  V.  Peebles,  102  Miss.  725,  59 
So.  881;  O'Donohue  t.  Smith,  130 
App.  D.  214,  114  N.  Y.  S.  536;  Birch 
V.  Linton,  78  Va.  584,  49  Am.  E. 
3S1;  Wilson  v.  Branch,  77  Va.  65,  46 
Am.  E.  709;  Blake  v.  Hollandsworth, 
71  W.  Va.  3S7,  76  S.  E.  814. 

Where  in  the  case  of  a  female  the 
disabilities  of  infancy  and  coverature 
concur,  the  right  to  disaffirm  continues 
till  both  disabilities  are  removed  and 
frr  the  statutory  period  thereafter, 
vdthout  regard  to  the  interval  between 
the  conveyance  and  the  avoidance. 
Blake  v.  Hollandsworth  (W.  Va.),  76 
S.  E.  814,  43  L.  E.  A.  (X.  S.)  714; 
Elankenship  v.  Stout,  25  111.  132; 
Wright  V.  Germain,  21  la.  585;  supra, 
%  433.  And  see  Ferguson  v.  Bell,  17 
Mo.  347;  Bostwick  v.  Atkins,  3  Comst. 
53;  Pursley  v.  Hays,  17  Ta.  311;  Shel- 
don V.  Newton,  3  Ohio  (N.  S.),  494; 
Eainsford  v.  Eainsford,  Spears  Ch. 
385.  Forgetfulness  of  the  deed  made 
in  infancy  is  no  sufficient  excuse  for 
delay  to  dicafSrm.     Tunison  v.  Cham- 


blin,  88  HI,  378.    See  Amey  v.  Cockey 
&  Bargar,  73  Md.  297. 

Infant  remaindermen  assenting  to 
a  sale  of  land  must  disaffirm  within  a 
reasonable  time  after  majority  or  they 
will  be  barred  as  against  the  pur- 
chaser. Criswell  v.  C^is^^•ell  (Neb.), 
163  N.  W.  302,  L.  E.  A.  1917E,  1103. 
But  see  Steele  v.  Poe,  79  S.  C.  407,  60 
S.  E.  951  (holding  that  infant  con- 
tingent remaindermen  who  have  con- 
veyed their  estate  need  not  disaffirm 
till  the  termination  of  the  life  estate. 
To  the  same  effect  see  McCauley  v. 
Grimm,  115  Va.  610,  79  S.  E.  1041. 

31.  Ferguson  v.  H.  E.  &  W.  T.  By. 
Co.,  73  Tex.  344. 

32.  Where  there  was  an  arrange- 
ment during  minority  that  the  grantee 
would  reconvey  upon  the  grantor's 
majority,  such  a  transaction  will  be 
favorably  regarded  for  enforcement. 
Butler  V.  Hyland,  89  Cal.  575. 

33.  Thompson  v.  Gaillard,  3  Eich. 
418,  See  Jackson  v.  Todd,  6  Johns. 
257;   Hall  v.  Jones,  21  Md.  439. 

34.  Wallace  v.  Lewis,  4  Harring. 
75. 

35.  Williams  v.  Mabee,  3  Halst.  Ch. 
500. 


1251 


KATinCATlON    AJS'D    AVOIDA^'CE. 


§    1046 


after  coming  to  majority,  circumstances  mav  make  that  a  binding 
transaction.  So,  if  an  infant  lessee  remains  in  possession  of  the 
house  or  land  demised,  and  pays  rent  after  majority,  he  cannot 
repudiate  the  lease  afterrv^ards.^®  Ratification  of  a  purchase  of 
land  involves  ratification  of  a  mortgage  back  to  secure  the  purchase- 
money;  one  cannot  repudiate  the  former  and  not  the  latter,  for 
this  would  be  inequitable.^^  An  infant  may  duly  avoid  or  ratify 
his  purchase  of  personal  property  also,  either  during  minority  or 
within  a  reasonable  time  after  reaching  majority.^* 

When  an  infant  purchases  property,  and  continues  to  enjoy  the 
use  of  the  same,  and  then  sells  it  or  any  part  of  it,  and  receives  the 
money  for  it,  he  must  be  considered  as  having  elected  to  affirai  the 
contract,  and  he  cannot  afterwards  avoid  payment  of  the  consider- 
ation.^^ Some  authorities  would  confine  the  affirmation  of  a  pur- 
chase of  land  to  an  actual  subsequent  sale,  but  this  is  quite 
unreasonable,  and  contrary  to  the  general  doctrine ;  for  there  may 
be  many  other  acts  which  constitute  just  as  full  and  undoubted 
evidence  of  a  design  on  the  infant's  part  to  affirm  such  contract  as 
an  actual  sale  of  the  land.  Thus  continuous  occupation  of  prem- 
ises, improvements,  and  offers  to  sell,  have  sometimes  been  deemed 
sufficient.*"  And  Chief  Justice  Shaw  observes  that  if  an.  infant, 
after  coming  of  age,  retains  landed  property  purchased  by  him 
during  minority  for  his  own  use,  or  sells  or  otherwise  disposes  of 
it,  such  acts  being  only  conscientiously  done  with  intent  to  ratify 
or  affirm,  affirmation  or  ratification  may  be  inferred.*^  The  same 
principle  has  been  declared  in  other  cases,  even  to  the  extent  of 
holding  that  mere  continuance  in  possession  is  an  affirmance ;  the 
more  so,  if  the  late  infant  has  put  it  out  of  his  power  to  restore 
the  title. *^     It  will  be  observed  that  such  latter  conduct  involves 


36.  Holmes  v.  Blogg,  8  Taunt.  35; 
Pmith,  Contr.  284;  Bac.  Abr.,  tit.  In- 
fnnt,  K.  612;  Baxter  v.  Bush,  29  Vt. 
465;  Armfield  v.  Tate,  7  Ired.  258; 
Beickler  v.  Guenther,  121  la.  419,  96 
X.  W.   895. 

37.  §  1044;  Langdon  v.  Clayson,  75 
Mich.  204;  Kennedy  v.  Baker,  159 
Pa.  St.  146;  Peers  v.  McLaugh- 
lin, 88  Cal.  294.  Provision  in 
an  absolute  conveyance  to  an  infant 
cnnfering  upon  him  the  power  to  sell, 
implies  only  the  power  to  sell  when  the 


disability  of  infancy  is  removed.   Sew- 
ell  V.  Sewell,  92  Ky.  500. 

38.  §  1015. 

39.  Boody  v.  McKenney,  10  Shep. 
517;  Hubbard  v.  Cummings,  1  Me.  11; 
Boyden  v.  Boyden,  9^  Met,  519;  Bob- 
bins V.  Eaton,  10  N.  H.  561. 

40.  See  Bobbins  v.  Eaton,  10  N.  H. 
561. 

41.  See  Boyden  v.  Boyden,  9  Met. 
519. 

42.  Dana  v.  Coombs,  6  Greenl.  89; 
Cheshire  v.  Barrett,   4   McCord,   241; 


§  1047 


II^FANCY. 


1252 


4S 


two  elements :  lapse  of  time  and  the  exercise  of  acts  of  ownership. 
But  the  infant  on  coming  of  age  has  of  course  the  right  to  dis- 
affirm as  well  as  to  affirm  the  purchase  by  appropriate  acts.** 

Where  a  deed  made  to  an  infant  is  beneficial  to  him^  equity  will 
infer  an  acceptance  on  his  part,  whether  he  knew  of  the  conveyance 
or  not;  but  he  may  reject  the  grant  upon  reaching  majority  if  he 
so  elects.*^ 

§  1047.  Executory    Contracts,    &c..   Voidable    During   Infancy; 
How  Affirmed  or  Disaffirmed. 

As  to  deeds  passing  a  voidable  title  to  land  out  of  the  infant 
we  have  seen  that  he  cannot  elect  to  disaffirm  or  ratify  until  he 
attains  majority.  But  with  regard  to  an  infant's  executory  con- 
tracts, or  transactions  importing  on  his  part  the  fulfilment  of 
duties,  during  the  period  of  infancy,  which  might  be  prejudicial 
or  irksome,  he  is  allowed  to  disaffirm  and  avoid  during  infancy 
wherever  the  contract  was  not  of  that  beneficial  or  positive  kind 
which  the  law  pronounces  binding.  This  is  strictly  in  accordance 
with  the  general  doctrine  that  one  shall  not  be  prejudiced  by  his 
own  acts  committed  while  an  infant.  Thus,  if  the  infant  promises 
during  infancy  to  marry,  he  need  not  fulfil  that  promise;  if  he 
make  a  stock  contract,  he  can  repudiate  it  at  any  time  and  thereby 
avoid  the  onerous  responsibility  of  continuing  to  pay  assess- 
ments ;  *®  if  he  has  become  a  partner,  he  may  rid  himself,  before 
majority,  of  the  injudicious  compact:  *^  if  he  has  taken  a  lease, 
he  may  put  an  end  to  it;  **    if  he  executes  a  promissory  note,  he 


Lynde  v.  Budd,  2  Paige,  191 ;  Middle- 
ton  V.  Hoge,  5  Bush,  478. 

43.  This  rule  was  applied  in  a  recent 
■well-considered  New  York  case,  upon 
a  full  examination  of  the  authorities. 
An  infant  had  given  his  note  for  cer- 
tain real  estate;  and,  very  foolishly, 
or  very  dishonorably,  endeavored  to 
avoid  payment  upon  majority,  while 
holding  to  the  benefits  of  his  pur- 
chase. It  was  held  that  by  his  acts  he 
had  ratified  the  contract  of  purchase. 
Henry  v.  Root,  33  N.  Y.  526. 

44  Williams  v.  Williams,  85  N.  C. 
313  In  Houlton  v.  Manteuffel,  51 
Minn.  185,  an  arrangement  on  ma- 
jority to  keep  the  purchase  was  held 


an  affirmance  though  the  arrangement 
itself  failed. 

45.  Owings  v.  Tucker,  90  Ky.  297; 
Sneathen  v.  Sneathen,  104  Mo.  201. 
Land  conveyed  to  an  infant  upon  his 
trust  to  reeonvey  cannot  be  retained 
by  him.  Xordholt  v.  Nordholt,  87 
Cal.  552;  §  416. 

46.  Wuller  v.  Chuse,  etc.,  Co.,  241 
111.  398,  89-  N.  E.  796;  Cain  v.  Gamer, 
169  Ky.  633,  185  S.  W.  122;  Dublin 
&  Wicklow  R.  V.  Black,  3  Ex.  181; 
Indianapolis  Chair  Co.  v.  Wilcox,  59 
Tnd.  429;  Robinson  v.  Weeks,  56  Me. 
102. 

47.  Goode  v.  Harrison,  5  B.  &  Aid. 
147;   Dunton  v.  Brown,  31  Mich.   82. 

48.  Gregory  v.  Lee    (1895),  Conn. 


1253  EATIFICATION    AND    AVOIDANCE.  §    1048 

need  not  pay  when  it  falls  due/®  A  disaffirmance  during  infancy, 
where  thus  permitted,  may  require  something  different  from  dis- 
affirmance at  majority,  something  more  explicit  perhaps,  and 
nearer  to  an  express  repudiation ;  though  each  case,  as  in  the  case 
of  election  at  majority,  should  be  governed  by  its  own  circum- 
stances. The  executory  contract  of  an  infant  to  convey  or  transfer 
his  real  or  personal  property  cannot  be  specifically  enforced  against 
him,  nor  made  the  basis  of  an  action  of  damages ;  '*"  nor,  on  the 
other  hand,  can  his  executory  contract  to  buy  real  or  personal 
property,  or  to  mortgage  or  give  security,  be  compelled ;  ^^  but  in 
either  case  the  right  of  affirmance  or  disaffirmance  is  left  open. 
To  bind  him  he  must  confirm  such  a  contract  after  attaining 
majority. 

§  1048.  Rule  Applied  to  Infant's  Contract  of  Service. 

Thus,  too,  although  it  may  be  said  that  one's  fully  executed 
contract  for  service  cannot  be  re-opened,  if  beneficial  to  him,  to 
the  adult  party's  detriment,  the  general  rule,  independently  of  the 
apprentice  acts,  is  that  an  infant  who  contracts  to  perform  labor 
for  a  fixed  time  at  a  definite  rate  may  put  an  end  to  it  whenever 
he  chooses  during  minority,  and  claim  compensation  pro  rata,  for 
his  services.^"     It  has  also  been  applied  to  a  contract  relating  to 

49.  Cummings  v.  Everett,  82  Me.  Mich.  191,  1  N.  W.  923,  32  Am.  Eep. 
260.  152. 

50.  Walker  v.  Ellis,  12  111.  470 ;  If  the  contract  disaffirmed  be  entire 
Petty  V.  Roberts,  7  Bush,  410;  Griffis  and  partially  performed  by  the  infant 
V.  Younger,  6  Ired.  Eq.  520.  And  see  -when  disaffirmed,  he  cannot  recover  on 
Mustard  v.  Wohlford,  15   Gratt.  329.  a  qu-antum  meruit  for  the  services  ac- 

51.  See  Eiley  v.  Mallory,  33  Conn.  tually  performed.  Yancey  v.  Boyee, 
201;  MeCarty  v.  Woodstock  Co.,  92  28  N.  D.  187,  148  N.  W.  539;  Eams- 
Ala.  463.  An  infant  who  bids  dell  v.  Coombs,  etc.,  Co.,  161  N.  Y.  S. 
for  property  at  an  auction  is  not  ob-  360;  Aborn  v.  Janis,  113  N.  Y.  S. 
liged  to  execute  the  purchase.  Shurt-  309,  62  Misc.  95  (order  affd.,  106  N. 
leff  V.  Millard,  12  E.  I.  272.  Y.  S.  1115);  Dearden  v.  Adams,  19  R. 

52.  The    infant    may    enforce    the       I.  217,  36  A.  3. 

contract  and  recover  -wages  upon  it,  A  contract  by  a  minor  to  work  for 

where  it  does  not  appear  that  he  has  his  board  and  clothes  has  been  upheld 

a  parent,  guardian  or  master  entitled  on   the  ground  that  the   latter  were 

to    his    services.      The    Melissa    Fed.  necessaries.    Starke  v.  Storm,  115  Va. 

Cas.  No.   9,400    (U.  S.  D.  C,  Mich.  651.     To  the  same  effect  see  Stone  v. 

1874),  1  Brown  Adm.  476;  Belyea  v.  Dennison,  13  Pick.  (Mass.)  1,  23  Am. 

Cook,  162  F.  180;  The  Cubadist,  252  Dec.    654;    Person   v.   Chase,   37    Vt. 

F.  658  (affd.,  256  F.  203)  ;  Ping  Min  647;  Van  Pelt  v.  Corwine,  6  Ind.  363; 

&  Mill  Co.  V.  Grant,  68  Kan.  732,  75  Eay  v.  Haines,  52  111.  485;  Davies  v. 

P.  1044;  Cain  v.  Garner,  169  Ky.  633,  Turton,  13  Wis.  185;  Moses  v.  Stevens, 

185   S.   W.    122 ;    Spicer  v.   Earl,   41  2  Pick.  332 ;  Mason  v.  Wright,  13  Met. 


§   1048 


Us^FAXCY. 


1254 


damages  which  might  be  suffered  in  the  course  of  the  employ- 
ment.^^ Infants,  acting  upon  bad  advice,  have  sometimes  the 
effronterj,  however,  after  rescinding  a  contract  of  service  beneficial 
to  themselves,  to  demand  wages  from  their  employers,  without  the 
allowance  of  reasonable  offsets;  but  the  courts  are  not  so  foolish 
as  to  indulge  them  often  in  this  respect;  hence,  in  numerous  in- 
stances, it  is  decided  that  where  an  infant  puts  an  end  to  his 
contract  of  service,  his  demand  for  proportional  wages  is  subject 
to  the  reasonable  deduction  of  his  employer  for  part-payments, 
board,  and  necessaries  furnished  him  during  the  same  period,  even 
to  the  entire  extinction  of  his  own  claim.^*  And  the  injury  sus- 
tained by  his  employer  will  not  be  unfrequently  taken  into  ac- 
count.^^  But  the  infant  cannot  be  sued  for  breach  of  his  agreement 
of  service.^®  Of  course,  he  may  set  off  his  own  labor  against  the 
employer's  demand  for  necessaries,  and  recover  any  balance  ac- 
cordingly.®^ The  mutual  understanding  of  the  parties  as  to 
whether  the  infant's  services  should  be  paid  for,  or  counterbalanced 
completely  by  his  board  and  education,  should  be  regarded  in  every 
case,  upon  examination  of  the  circumstances.®*     And  if  the  infant 


306;  Gaffney  v.  Hayden,  110  Mass. 
137;  Spicer  v.  Earl,  41  Mich.  191; 
Lufkin  V.  Mayall,  5  Fost.  82 ;  Francis 
V.  Felmet,  4  Dev,  &  Bat.  498;  Jud- 
kins  V.  Walker,  17  Me.  38 ;  Nashville, 
etc.,  E.  Co.  V.  Elliott,  1  Cold.  611. 
But  see  "Weeks  v.  Leighton,  5  N.  H. 
343;  Harney  v.  Owen,  4  Blackf.  336; 
Wilhelm  v.  Hardman,  13  Md.  140; 
McCoy  V.  Huffman,  8  Cow.  84;  Med- 
bury  V.  Watrous,  7  Hill,  110.  As  to 
the  more  general  effect  of  emancipa- 
tion, see  supra,  Part  III,  ch.  XII. 

Two  cases  hold  that  an  executed 
contract  for  services  cannot  be  dis- 
affirmed, in  the  absence  of  evidence  of 
fraud  or  undue  advantage  taken  of  the 
infant.  Eobinson  v.  Van  Vleet,  91 
Ark.  262,  121  S.  W.  288;  Spicer  v. 
Earl,  41  Mich.  19,  1  N.  W.  923,  32 
Am.  E.  152. 

53.  Southern  Cotton  Oil  Co.  v. 
Dukes,  121  Ga.  787,  49  S.  E.  788. 

54.  Thomas  v.  Dike,  11  Vt.  273; 
Hoxie  V.  Lincoln,  25  Vt.  206;  Lowe  v. 
Sinklear,  27  Mo.  308 ;  Stone  v.  Denni- 
son,  13  Pick.  1;   Squier  v.  Hydliff,  9 


Mich.  274;  Wilhelm  v.  Hardman,  13 
Md.  140;  Eoundy  v.  Thatcher,  4?  N. 
H.  526. 

55.  Thomas  v.  Dike,  11  Vt.  273; 
Hoxie  v.  Lincoln,  25  Vt.  206;  Lowe  v. 
Sinklear,  27  Mo.  308;  Moses  v.  Stev- 
ens, 2  Pick.  336.  Contra,  Meeker  v. 
Hurd,  31  Vt.  639;  Derocher  v.  Con- 
tinental Mills,  58  Me.  217. 

56.  Frazier  v.  Eowan,  2  Erev.  47. 

57.  Francis  v.  Felmet,  4  Dev.  & 
Bat.  598;  Lockwood  v.  Bobbins,  125 
Ind.  398. 

58.  Mountain  v.  Fisher,  22  Wis.  93 ; 
Garner  v.  Board,  27  lud.  323.  A  case 
occurred  in  Massachusetts  some  years 
ago,  where  an  infant,  in  consideration 
of  an  outfit  to  enable  him  to  go  to 
California,  agreed,  with  his  father 'g 
assent,  to  give  the  party  furnishing 
the  outfit  one  third  of  all  the  avails 
of  his  labor  during  his  absence,  which 
he  afterwards  sent  accordingly.  The 
jury  having  found  that  the  agree- 
ment was  fairly  made,  and  for  a  rea- 
sonable consideration,  and  beneficial 
to   the   infant,   it  was  held   that  he 


1255 


EATIFICATION    AXD    AVOIDANCE. 


§    10i9 


continues  in  service  after  he  becomes  of  age,  without  demanding 
increase  of  wages  or  other  modification  of  the  contract,  this  is  good 
evidence  of  his  affirmance  of  the  contract.^®  As  matter  of  law  one 
is  not  precluded  from  avoiding  at  majority  a  contract  of  service  if 
something  be  due  him,  although  it  has  been  fully  executed.^*' 

It  is  a  well-kno\^Ti  principle  that  when  a  contract  is  dissolved 
by  mutual  consent,  pro  rata  wages  may  be  recovered  without  ex- 
press agreement.  This  applies  to  infants  as  well  as  adults.  But 
a  father  is  so  far  bound  by  his  son's  contract  that  his  own  claim 
for  compensation  depends  upon  his  son's  proper  performance.®^ 
The  employer,  on  the  other  hand,  cannot  make  a  new  contract  with 
the  minor,  so  as  to  supersede  the  first  one,  without  the  assent  of 
the  father,  or  other  person  with  whom  the  original  contract  was 
made.®"  But  it  is  held  that  a  contract  of  hiring  between  an  infant 
and  a  third  person  is  not  rendered  inoperative  on  the  infant's  part 
merely  for  want  of  the  parent's  previous  consent;  the  infant  not 
having  avoided  the  contract,  and  the  parent  making  no  effort  to 
assert  his  paramount  rights.®^ 

§  1049.  Parents,  Guardians,  &c..  Cannot  Render  Transaction 
Obligatory  upon  the  Infant,  &c. 
A  contract  made  by  a  parent,  or  gaiardian,  or  a  stranger,  in  an 
infant's  name,  acquires  no  obligatory  force  against  the  infant 
himself,  apart  from  the  latter's  knowledge  or  consent ;  and  if  it 
be  the  infant's  own  contract,  then  the  usual  right  of  ratification  or 


could  not  rescind  the  agreement  and 
recover  the  amount  sent,  deducting 
the  cost  of  the  outfit  and  any  other 
money  expended  for  him  under  the 
agreement.  Breed  v.  Judd,  1  Gray, 
455.  This  offer,  the  court  o'bserved, 
would  not  place  the  parties  in  statu 
quo,  for  the  defendants  took  the  risk 
of  the  life,  health,  and  good  fortune 
of  the  plaintiff.  Under  all  the  cir- 
cumstances of  the  case,  the  sum  ad- 
vanced was  held  to  be  a  reasonable 
consideration  for  a  third  part  of  the 
proceeds  of  the  plaintiff's  labor. 

59.  Spicer  v.  Earl,  411  Mich.  91. 
Says  Cooley,  J.,  of  repudiation  in  such 
cases:  "Where  onlj  the  infant's  ser- 
vices are  ift  question,  the  rule  should 
not  be  extended  beyond  what  is  abso- 


lutely necessary  to  proper  protection ; 
it  should  not  be  allowed  to  become  a 
trap  for  others,  by  means  of  which 
the  infant  may  perpetrate  frauds." 
See  also  Forsyth  v.  Hastings,  27  Vt. 
646,  where  ratification  was  inferred 
from  remaining  in  the  employer 's  ser- 
vice a  month  after  attaining  majority. 

60.  Dube  V.  Beaudry,  150  Mass.  448. 

61.  Eogers  v.  Steele,  24  Vt.  513. 
See  Thomas  v.  Williams,  1  Ad.  &  E. 
685;  Eoundy  v.  Thatcher,  49  N.  H. 
526. 

62.  McDonald  v.  Montague,  30  Vt. 
357.  And  see  Gates  v.  Davenport,  29' 
Barb.  160.  See  also  Parent  and  Cliild, 
supra. 

G3.  Nashville,  etc.,  E.  E.  Co.  v.  El- 
liott, 1  Cold.  64. 


§   1050 


INFANCY. 


1256 


avoidance  remains  open  to  him.®*  One  who  assumes  for  an  infant 
a  mortgage  debt,  or  a  deficiency  upon  foreclosure  of  the  infant's 
land,  or  makes  any  undertaking  for  the  infant  upon  a  voidable 
obligation,  cannot  render  the  infant  personally  liable.®^  A  father, 
though  acting  as  guardian,  cannot  estop  the  child  from  denying  an 
invalid  sale  of  land.®**  Nor  can  a  father  sue  on  his  child's  voidable 
contract  as  the  child's  substitute.®'' 

On  the  other  hand,  a  third  person  not  in  privity  with  the  infant 
has  no  right  to  say  that  the  infant  shall  not  on  majority  make  or 
assume  any  contract  he  pleases.®^  Minors  whose  property  has 
been  sold  without  legal  authority  by  parents,  guardian,  or  anyone 
else,  can  recover  it  again  upon  the  principles  already  discussed; 
and  thus  may  be  avoided  an  illegal  sale  of  land,  without  first 
tendering  the  price  to  the  purchaser,  leaving  him,  however,  to 
recover  such  consideration  as  may  remain.®*  So,  too,  will  pur- 
chasers or  mortgagees  from  the  infant  be  protected  against  acts  of 
the  parents  which  disregard  the  child's  rights.'' 


70 


§  1050.  Miscellaneous  Points;    as  to  New  Promise;    Whether 
Infant  AfBrming  Must  Know  His  Legal  Rights. 

Where  a  new  promise  is  requisite  on  reaching  majority,  it  must 
be  made  to  the  party  with  whom  the  infant  contracted,  or  to  his 
agent  or  attorney ;  not  to  a  stranger.''^  But  a  promise  to  an  agent 
authorized  to  present  the  claim  and  receive  payment  and  give 
discharge  binds  him  lately  an  infant.''^  And  where  a  writing  ad- 
dressed to  another  than  the  plaintiff  is  relied  on,  not  as  constituting 
a  ratification  or  containing  a  promise,  but  as  evidence  of  a  ratifica- 


64.  Armitage  v.  Widoe,  36  Mich. 
124. 

65.  Bicknell  v.  Bicknell,  111  Mass. 
265;  Wood  v.  Truax,  39  Mich.  628. 

66.  Harmon  v.  Smith,  38  Fed.  482. 

67.  Osbum  v.  Farr,  42  Mich.  134. 
Infant  may  redeem  his  land  from  a 
tax  sale,  Carroll  v.  Johnson,  41  Ark. 
59. 

68.  Douglas  v.  Watson,  34  E.  L.  & 
Eq.  447. 

69.  Graves  v.  Hickman,  59'  Tex. 
381,  401;  Self  v.  Taylor,  33  La. 
Ann.  769 ;  Part  IV,  ch.  7.  Equity  will 
charge  purchase-money  applied  for  the 
benefit  of  infants  by  way  of  equitable 
subrogation  in  the  purchaser's  favor. 


Hill  V.  Clark,  4  Lea,  405.  Where 
minors  on  arriving  at  age  are  induced 
by  their  trustee  to  execute  a  deed  of 
confirmation  without  their  rights 
being  explained  to  them,  equity  will 
relieve  them  from  the  consequences  of 
their  mistake.  Wilson  v.  Life  Ins. 
Co.,  60  Md.  150.  Delay  in  disaffirm- 
ing may  bar  relief,  if  unreasonable. 
Williams  v.  Williams,  94  N.  C.  732. 
And  equitable  considerations  are  not 
lost  sight  of.  Peers  v.  McLaughlin, 
88  Cal.  294. 

70.  Hooper  v.  Payne,  94  Ala.  223. 

71.  Bigelow  V.  Grannis,  2  Hill,  120 ; 
Goodsell  V.  Myers,  3  Wend.  479. 

72.  Mayer  v.  McLure,  36  Miss.  389, 


125Y 


RATIFICATION    AND    AVOIDANCE. 


§     1051 


tion  previously  made  bj  the  defendant,  it  is  held  admissible  in  the 
plaintiff's  favor.'^^  Nor  is  it  necessary  that  the  agent  should  have 
disclosed  his  authority  before  the  defendant  made  his  admission/* 
It  is  not  essential  to  a  valid  ratification  that  the  person  lately 
an  infant  should  know  that  he  was  not  legally  liable  on  his  contract 
made  during  infancy.'^  Ignorance  of  the  law  excuses  no  one. 
But  there  is  a  dictum  of  Lord  Alvanley  to  the  contrary,  which  has 
been  frequently  repeated  in  American  courts,  and  once  constituted 
the  basis  of  a  decision  in  Pennsylvania. '^^  Nearly  all  the  later 
cases  hold  that  the  intention  must  be  to  ratify  a  contract  known 
to  be  invalid  but  for  the  ratification.^^  Some  American  statutes 
require  a  new  promise  in  writing.''^ 

§  1051.  Whether  Infant  Who  Disaffirms  Must  Restore  Consider- 
ation. 

It  is  a  rule  tliat  money  voluntarily  paid  by  a  minor  under  a 
contract  from  which  he  has  derived  no  benefit  may  be  recovered 


73.  Stern  v.  Freeman,  4  Met.  (Ky.) 
309. 

74.  Hoit  V.  Underbill,  10  N.  H.  220. 
And  see  Tate  v.  Tate,  1  Dev.  &  Bat. 
23. 

75.  Bestor  v.  Hickey,  71  Conn.  181, 
41  A.  555;  Robin  v.  Shandberry  (HI.), 
122  N.  E.  808 ;  Healy  v.  Kellogg,  145 
N.  T.  S.  943;  Hobbs  v.  Hinton,  etc., 
Co.,  74  W.  Va.  443,  82  S.  E.  267; 
Morse  v.  Wheeler,  4  Allen,  570;  Met. 
Contr.  59;  Ring  v.  Jamison,  66  Mo. 
124;  Anderson  v.  Soward,  40  Ohio  St. 
325;  Clark  v.  Van  Court,  100  Ind. 
113. 

76.  Harmer  v.  Killing,  5  Esp.  103; 
Hinely  v.  Margaritz,  3  Barr,  428.  See 
Curtin  v.  Fatten,  11  S.  &  R.  305; 
Reed  v.  Boshears,  4  Sneed,  118;  Norris 
V.  Vance,  3  Rich.  164. 

77.  Manning  v.  Gannon,  44  App.  D. 
C.    98. 

Ratification  by  an  adult  of  a  con- 
tract made  by  him  when  a  minor  is  a 
question  of  intention,  and  the  act,  to 
have  such  effect,  must  have  been  per- 
formed with  full  knowledge  of  its 
consequences  and  express  intention  to 
ratify  what  is  knov.-n  to  be  voidable. 
Ooe  V.  Moon,  260  HI.  76,  102  N.  E. 


1074;  George  v.  Delaney,  111  La.  760, 
35  So.  894;  Durfee  v.  Abbott,  61 
Mich.  471,  28  N.  W.  521;  Ridgeway 
V.  Herbert,  150  Mo.  606,  51  S.  W. 
1040,  73  Am.  St.  R.  464;  Interna- 
tional Text-Book  Co.  v.  Connelly,  206 
N.  Y.  188,  99  N.  E.  722;  Grolier  Soc. 
of  London  v.  Forshay,  157  N.  Y.  S. 
776. 

The  fact  of  knowledge  of  his  right 
to  disaffirm  may  be  shown  by  circum- 
stantial evidence.  Fletcher  v.  A.  W. 
Koch  Co.   (Tex.  Civ.),  189  S.  W.  501. 

78.  Syck  V.  Hellier,  140  Ky.  388, 
131  S.  W.  30;  Hilton  v.  Shepherd,  92 
Me.  160,  42  A.  387;  Lamkin  &  Foster 
V.  Ledoux,  101  Me.  581,  64  A.  1048; 
Pedro  V.  Pedro,  71  Misc.  296,  127  N. 
Y.  S.  997;  Grolier  Soc.  v.  Foshay,  157 
N.  Y.  S.  776;  Carroll  v.  Durant  Nat. 
Bank,  38  Okla.  267,  133  P.  179; 
Barnes  v.  American  Soda  Fountain 
Co.,  32  Okla,  81,  121  P.  250;  Steele 
V.  Po'e,  79  S.  C.  407,  60  S.  E.  951; 
Same  v.  Friedham,  79  S.  C.  398,  60 
S.  E.  953;  Ward  v.  Scherer,  96  Va. 
318,  31  S.  E.  518. 

The  new  promise  in  writing  re- 
quired by  the  Virginia  Code  must  rec- 
ognize the  debt  as  binding,  and,  either 


§  1051 


INFANCY. 


1258 


back  upon  His  disaffirmance  of  the  contract,"  but  nearly  all  tlie 
late  cases  permit  a  recovery  Avithout  regard  to  the  benefit  of  the 
contract  to  the  infant,  especially  if  not  of  a  sort  to  be  returned.^" 


in  terms  or  by  a  fair  construstion,  re- 
fer to  the  contract  to  be  ratified  and 
treat  it  as  a  subsisting  contract. 
Ward  V.  Sclierer,  96  Va.  318,  31  S. 
E.  518. 

79.  By  defending  against  an  action 
on  the  ground  of  infancy  and  making 
counterclaim  to  recover  ■what  he  has 
paid  on  a  contract  for  a  correspond- 
ence course  an  infant  must  show  that 
he  has  not  received  equal  value  for 
what  he  has  paid.  International,  etc., 
Co.  V.  Doran,  80  Conn.  307,  68  A.  255. 

"Where  an  infant  and  an  adult  as 

partners  pay  money   and  give   notes 

for   stock,   neither   can   recover   back 

i    the  money  paid.    Latrobe  v.  Dietrich, 

114  Md.  8,  78  A.  9-83. 

It  has  been  held  that  where  plain- 
tiff sued  to  recover  several  life  insur- 
ance premiums  paid  by  him  when  an 
infant,  and  the  contract  was  fair  and 
free  from  fraud,  and  the  infant  had 
enjoyed  the  benefits  thereof  in  part 
and  they  were  of  such  a  nature  that 
he  could  not  restore  them,  he  could 
not  recover  the  premiums  paid.  Link 
v.  New  York  Life  Ins.  Co.,  107  Minn. 
33,  119  N.  W,  488  ;  Berglund  v.  Ameri- 
can Multigraph  Sales  Co.  (Minn.),  160 
N.  "W.  191;  Thornton  v.  Holland 
(Miss.),  40  So.  19. 

"Where  an  infant  disaffirms  his  con- 
tract  he   cannot    recover    the    unpaid 
contract  price.     Craig  v.  "Van  Bebber 
100  Mo.   584,   13  S.  W.  906,  18  Am 
St.  R.   569. 

It  has  been  held  that  a  minor  buy 
ing  an  automobile  and  afterwards  dis 
affirming  may  be  charged  with  the 
benefits  of  its  use,  including  the  pleas 
ure  experienced.  "Wooldridge  v.  La 
voie   (N.  H.),  104  A.  346. 

An  infant  may  not  be  entitled  to 
recover  back  the  sum  paid  under  a 
chattel  mortgage  to  secure  the  price 
of  a  piano,  where  the  reasonable  value 
of  the  use  of  the  piano  during  the 


time  she  used  it  exceeded  the  amount 
paid.  "Wanisch  v.  "Wuertz,  140  X.  T. 
S.  573,  79  Misc.  610;  Lown  v.  Spoon, 
143  N.  Y.  S.  275,  158  App.  Div.  900; 
Rice  V.  Butler,  49  N.  Y.  S.  494,  25 
App.  Div.  388;  Pierce  v.  Lee,  74  N. 
Y.  S.  926,  56  Misc.  870. 

Shurtleff  v.  Millard,  12  E.  I.  272, 
applies  this  doctrine  (and  without  re- 
striction as  to  auctioneer's  loss)  to 
the  deposit-money  paid  by  an  infant 
at  an  auction  purchase,  where  he  re- 
pudiated before  completing  the  pur- 
chase. 

80.  Ex  parte  McFerren,  184  Ala. 
223,  63  So.  159;  Evelyn  v.  Chiches- 
ter, 3  Burr.  1719 ;  Ex  parte  McFerren 
(Ala.),  63  So.  159,  47  L.  E.  A.  (N. 
S.)  543;  Carmody  v.  Fairchild,  42 
App.  D.  C.  426;  "Wuller  v.  Chuse,  etc., 
Co.,  241  111.  398,  89  N.  E.  796;  "Wul- 
ler v.  Chuse,  etc.,  Co.,  147  111.  App. 
224  (aff.,  241  111.  398,  89  N.  E.  796; 
"Wallin  T.  Highland,  etc.,  Co.,  127  la. 
131,  102  X.  "W.  839;  Nielson  v.  Inter- 
national, etc.,  Co.,  106  Me.  104,  75  A. 
330;  Caswell  v.  Parker,  96  Me.  39,  51 
A.  238;  "White  v.  New  Bedford,  ele., 
Corp.,  178  Mass.  20,  59  N.  E.  643; 
Gillis  V.  Goodwin,  180  Mass.  140,  61 
N.  E.  813,  91  Am.  St.  E.  265. 

The  rule  seems  to  cut  both  ways,  so 
that  it  has  been  held  that  where  an 
infant  buys  from  another  infant  and 
pays  a  price,  the  vendor  may,  on  dis- 
affirmance by  the  vendee,  in  turn  dis- 
affirm the  implied  contract  to  repay 
the  price.  Drude  v.  Curtis,  183  Mass. 
317,  67  N.  E.  317,  62  L.  E.  A.  755. 

On  the  disaffirmance  of  an  insurance 
policy  and  action  for  the  recovery  of 
the  premium,  the  insurer  cannot  re- 
tain the  cost  of  keeping  the  policy  in 
force  before  disaffirmance.  Simpson 
V.  Prudential  Ins.  Co.,  184  Mass.  348, 
68  N.  E.  673,  63  L.  E.  A.  741,  100 
Am.  St.  R.  560;  Yanatter  v.  Mar- 
quardt,  134  Mich.  99,  95  N.  "W.  977, 


1259 


KATIEICATION    AiSTD    AVOIDANCE. 


§    1051 


If  an  infant  purchaser  of  goods  claims  the  right  to  rescind  and 
restores  the  property,  he  can  of  course  recover  back  the  purchase- 
money  he  paid.®'^  An  infant  upon  reaching  majority,  who  chooses 
to  disaffirm  a  sale  of  his  real  estate  not  made  in  accordance  with 
law,  may  do  so  eifectually  without  first  refunding,  or  offering  to 
refund,  the  purchase-money.*^  Purchase-money  in  such  cases 
might  come  fairly  into  an  account  for  adjusting  rents  and  profits. 
But  the  principle  is  firmly  established  by  the  courts  that  he  cannot 
on  attaining  full  age  hold  to  an  exchange  or  purchase,  made  by 
bim  in  infancy,  with  its  advantages,  and  thus  afiirm  the  transac- 
tion, while  pleading  his  infancy  to  avoid  the  payment  of  the 
purchase-money.**  There  is  some  conflict  in  this  class  of  cases, 
however,  at  the  present  day ;  the  effort  being  on  the  one  hand  to 
held  the  infant  to  common  honesty,  and  on  the  other  not  to  deprive 
iiini  of  the  legal  right  of  election  which  the  policy  of  the  law 
accords  to  all  who  have  been  under  a  legal  disability,  because  of 
possible  improvidence  on  his  part  while  irresponsible.  According 
to  the  better  opinion  now  current,  it  is  only  when  an  infant,  on 
disaffirming  his  contract  at  majority,  still  has  the  consideration, 
that  he  can  be  compelled  to  return  it  as  the  condition  of  disaffirm- 
ance;   restitution  in  full  not  being  a  prerequisite,  but  restitution 


10  Det.  Leg.  N.  349;  Reynolds  v. 
Garber-Buick  Co,  (Mich.),  149  N.  W. 
985,  L.  R.  A.  1915C,  382;  Braucht  v. 
Graves-May  Co.,  92  Minn.  116,  99  N. 
W.  417;  Thornton  v.  Holland,  87  Miss. 
470,   40   So.   19. 

Where  an  action  is  brought  to  re- 
cover property  sold  to  an  infant  in 
infancy,  and  partial  payment  is 
pleaded,  the  right  to  recover  the  prop- 
erty and  the  right  of  the  infant  to  be 
repaid  money  paid  on  the  price  may 
both  be  tried  in  the  same  action.  Ross 
P.  Curtice  Co.  v.  Kent,  89  Neb.  496, 
131  N.  W.  944,  52  L.  R.  A.  (N.  S.) 
723;  Rice  v.  Butler,  160  N.  Y.  578, 
55  jST.  E.  275,  47  L.  R.  A.  303,  73 
Am.  St.  R.  703;  Healy  v.  Kellogg, 
145  N.  Y.'3.  943;  Danziger  v.  Iron 
Clad,  etc.,  Co.,  80  Misc.  510,  141  N. 
Y.  S.  593;  Lipschitz  v.  Korndahl,  136 
N.  Y.  S.  2 ;  Prudential  Life  Ins.  Co. 
of  America  v.  Fuller,  29  Ohio  Cir.  Ct. 
E.  415. 


81.  Cooper  v.  Bowe,  10  Daly,  352; 
St.  Louis,  etc.,  Ry.  v.  Higgins,  44  Ark. 
293. 

82.  Pitcher  v.  Laycock,  7  Ind.  398 ; 
Cresinger    v.    Welch,    15    Ohio,    156 
Miles    V.    Lingerman,    24    Ind.    385 
Bedinger  v.  Wharton,  27  Gratt.  857 
Green  v.  Green,  69  N.  Y.  553 ;  Moore 
v.  Baker,  92  Ky.  518.    But  cf.  Stuart 
V.   Baker,    17    Tex.   417;    Bingham   v. 
Barley,  55  Tex.  281. 

83.  Kline  v.  Beall,  6  Conn.  494; 
Bailey  v.  Bamberger,  11  B.  Monr. 
113;  Strain  v.  Wright,  7  Ga.  568-, 
Hillyer  v.  Bennett,  3  Edw.  Ch.  222; 
Lowry  v.  Drake,  1  Dana,  46;  Kitchen 
V.  Lee,  11  Paige,  107;  Tipton  v.  Tip- 
ton, 3  Jones,  552;  Womack  v.  Wom- 
ack,  8  Tex.  397;  Smith  v.  Evans,  5 
Humph.  70;  Manning  v.  Johnson,  26 
Ala.  446;  Wilie  v.  Brooks,  45  Miss. 
542 ;  Kerr  v.  Bell,  44  Mo.  120. 


§  1051 


INFANCY. 


1260 


of  the  advantages  as  tliey  still  remain  to  him  and  capable  of  being 
restored.**  In  other  words,  if  the  infant  has  wasted  or  squandered 
the  consideration  he  may  repudiate  without  any  tender  of  restitu- 
tion.*^    Where  an  infant  has  the  privilege  of  repudiating  during 


84.  In  re  Huntenberg,  153  F.  768; 
Sanger  v.  Hibbard,  104  F.  455,  43  C. 
C.  A.  455;  Barker  v.  Fuestal,  103  Ark. 
312,   147   S.  W.   45. 

A  commission  paid  to  a  broker  for 
negotiating  a  sale  of  land  to  a  minor 
need  not  be  returned  on  disaffirmance. 
Maier  v.  Harbor,  etc.,  Co.  (Cal.),  182 
P.  345 ;  Clyde  v.  Steger  &  Sons  Piano 
Mfg.  Co.   (Ga.  App.),  95  S.  E.  734 
Wuller   V.   Chuse,    etc.,   Co.,    241    111, 
a^S,  89  N.  E.  796;   Wright  v.  Buch 
anan   (lU.),  123  N,  E.  53;   Sanger  v 
Hibbard,  2  Ind  T.  547,  53  S.  W.  330 
Wilson  V.   Unselt  's  Adm  'r,   12   Bush 
(Ky.),  215;  Ison  v.  Cornett,  116  Ky 
92,  75   S.  W.  204,  25   Ky.  Law  Eep 
366;    Succession    of   Sallier,    115    La, 
97,  38  So.  929 ;  United  States  Inv.  Co 
V.  Ulrickson,  84  Minn.  14,  86  N.  W 
613,  87  Am.  St.  E.  326;  Lacy  v.  Pix 
ler,  120  Mo.  383,  25  S.  W.  206;   Or 
chard    v.    Wright-Dalton-Bell-Anchor 
Store  Co.  (Mo.),  197  S.  W.  42;  Price 
V.   Blankenship,    144   Mo.    203,   45   S. 
W.  1123;   Craig  v.  Van  Bebber,   100 
Mo.  584,  13  S.  W.  906,  18  Am.  St.  K. 
569;   Starr  v.  Watkins,  78  Neb.  610, 
111  N.  W.   363. 

It  has  been  held  that  an  engagement 
ring  cannot  be  recovered  from  an  in- 
fant female  on  her  breach  of  the  en- 
gagement. Stromberg  v.  Eubenstein, 
19  Misc.  647,  44  N.  Y.  S.  405;  Mc- 
Carthy V.  Bowling  Green  Storage  & 
Van  Co.,  169  N.  Y.  S.  463,  182  App. 
Div.  18;  Lane  v,  Dayton  Coal  &  Iron 
Co.,  101  Tenn.  581,  48  S.  W.  1094; 
Abernathy  v.  Phillips,  82  Va.  769,  1 
S.  E.  113. 

The  claim  for  return  of  the  con- 
sideration on  disaffirmance  is  personal 
and  against  the  infant,  so  that  it  can- 
not be  enforced  against  those  to  whom 
he  has  granted  the  property  sold. 
Mustard  v.  Wohlford,  15  Grat.  (Va.), 
329,  76  Am.  Dec.  209. 


Where  a  party  seeks  to  prevent  an 
infant  from  avoiding  his  release,  by 
setting  up  that  the  infant  has  not  re- 
turned the  consideration,  the  burden 
is  on  him  to  prove  that  the  considera- 
tion remains  in  the  infant's  hands 
unspent.  Britton  v.  South  Penn  Oil 
Co.,  73  W.  Va.  792,  81  S.  E.  525; 
Wallace  v.  Leroy,  57  W.  Va.  263,  50  S. 
E.  243,  110  Am.  St.  E.  777;  Jones  v. 
Valentine 's  School  of  Telegraphy,  122 
Wis.  318,  99  N.  W.  1043;  Grauman, 
Marx  &  Cline  Co.  v.  Krienitz,  142 
Wis.  556,  126  N.  Vt.  50. 

The  rule  does  not  apply  where  the 
only  thing  received  is  a  paper,  called 
a  "scholarship,"  entitling  the  infant 
to  a  course  of  study  in  the  other 
party's  school.  Jones  v.  Valentine's 
School  of  Telegraphy,  122  Wis.  318, 
99  N.  W.  1043. 

If  the  property  has  been  sold  and 
reinvested  in  other  property,  that 
property  must  be  surrendered.  Eob- 
erts  V.  Eoberts,  61  Ohio  St.  96,  55  N. 
E.  411;  Millsops  v.  Estes,  137  N.  C. 
535,  50  S.  E.  227,  107  Am.  St.  E.  496, 
70  L.  E.  A.  170;  Chandler  v.  Sim- 
mons, 97  Mass.  508;  Green  v.  Green, 
69  N.  Y.  553,  and  cases  cited;  Dill  v. 
Bowen,  54  Ind.  204;  Shurtleff  v.  Mil- 
lard, 12  E.  I.  272.  Cf.  Badger  v. 
Phinney,  15  Mass.  359;  Bartholemew 
V.  Finnemore,  17  Barb.  428. 

85.  Alfrey  v.  Colbert,  168  F.  231; 
Colbert  v.  Alfrey,  Id.;  Bell  v.  Burk- 
halter,  176  Ala.  62,  57  S.  460;  Bickle 
V.  Turner  (Ark.),  202  S.  W.  703; 
Beauchamp  v.  Bertig,  90  Ark.  351,  119 
S.  W.  75;  Lee  v.  Hibernia  Sav.  & 
Loan  Soc.  (Cal.),  171  P.  677;  Putnal 
V.  Walker,  61  Fla.  720,  55  So.  844,  36 
L.  E.  A.  (N.  S.)  33:  White  v.  Sikes, 
129  Ga.  508,  59  S.  E.  228;  Southern 
Cotton  Oil  Co.  V.  Dukes,  121  Ga.  787, 
49  S.  E.  788;  Mustard  v.  Wohlford, 
15  Grat.  329,  76  Am.  Dec.  209;  Ship- 


1261 


RATIFICATION    AND    AVOIDANCE. 


§    1051 


infancy,  a  similar  rule  applies  as 

that  is  usually  asserted  is  that  the 

to  place  the  adult  in  statu  quo  as 

ley  V.  Smith,  162  Ind.  526,  70  N.  E. 
803;  Story  &  Clark  Piano  Co.  v, 
T)&vj  (Ind.  App.),  119  N.  E.  177; 
First  Nat.  Bank  v.  Casey,  158  la. 
349,  138  N.  W,  897;  Burgett  v.  Bar- 
riek,  25  Kan.  526;  Gray  v.  Grimm,  157 
Ky.  603,  163  S.  W.  762;  White  v. 
New  Bedford  Cotton-Waste  Corp.,  178 
Mass.  20,  59  N.  E.  642 ;  Barr  v.  Pack- 
ard Motor  Car  Co.,  172  Mich.  299,  137 
N,  W.  697;  Lake  v.  Perry,  95  Miss. 
550,  49  So.  569;  Ridgeway  v.  Her- 
bert, 150  Mo.  606,  51  S.  W.  1040,  73 
Am.  St.  R.  464;  Rowe  v.  Griffiths,  57 
Neb.  488  78  N.  W.  20;  Evants  v. 
Taylor  (N.  M.),  137  Pac.  583,  50  L. 
R.  A.  (N.  S.)  1113;  Oneonta  Grocery 
Co.  V.  Preston,  167  N.  Y.  S.  641; 
Kane  v.  Kane,  43  N.  T.  S.  662,  13 
App.  Div.  544;  Coody  v,  Coody,  39 
Okla.  719,  136  P.  754,  L.  R.  A.  1915E, 
465 ;  F.  B.  Collins  Inv.  Co.  of  Clinton 
V.  Beard,  148  P.  846;  Worthy  v. 
JonesviUe  Oil  Mill,  77  S.  C.  69,  57  S. 
E.  634;  Turney  v.  Mobile  &  O.  R.  Co., 
1^7  Tenn,  673,  156  S.  W.  1085, 

An  infant's  wife,  joining  with  her 
husband  in  a  mortgage  on  their  home- 
stead, of  which  he  receives  the  pro- 
ceeds, need  not  refund  in  order  to 
disaffirm.  Bradshaw  v.  Van  Valken- 
burg,  97  Tenn.  316,  37  S.  W.  88; 
McBroom  v.  Whitefield,  108  Tenn. 
422,  67  S.  W,  794;  Bullock  v. 
Sprowles,  93  Tex.  188,  54  S.  W.  657, 
47  L.  R.  A.  326,  77  Am,  St,  R,  849; 
MacGreal  v.  Taylor,  167  U.  S.  688,  17 
S.  Ct.  961,  42  L.  Ed.  326;  Blake  v. 
Harding  (Utah),  180  P.  172;  Bed- 
inger  v,  Wharton,  27  Grat.  (Va.) 
857;  Britton  v.  South  Penn  Oil  Co., 
73  W,  Va.  792,  81  S.  E.  525. 

Where  infants  borrow  money,  and 
give  a  mortgage  to  secure  the  loan, 
for  the  purpose  of  discharging  a  prior 
mortgage  on  their  land,  thep  cannot 
disaffirm  the  contract  and  mortgage 
without  returning  the  money  so  ac- 
quired.   Berry  v.  Stigall,  253  Mo.  690, 


to  restoring  consideration.®*    AH 

repudiating  infant  shold  be  made 

far  as  possible.®^ 

162  S.  W,  126,  See,  to  the  same  ef- 
fect, MacGreal  v.  Taylor,  167  U.  S. 
688,  17  S,  Ct.  961,  42  L,  Ed.  326. 
But  see  New  York,  etc.,  Co.  v.  Taylor, 
23  App.  D.  363,  48  N.  Y,  S,  152 
(seemingly  holding  the  contrary)  ; 
Morse  v,  Ely,  154  Mass,  458;  Craig 
V,  Van  Bebber,  100  Mo,  584;  Smith 
V.  Equitable  Co-operative  Bank,  219 
Mass,  382,  106  N.  E.  1020. 

86,  Corey  v.  Burton,  32  Mich.  30, 
the  case  of  a  chattel  mortgage;  where 
the  infant  was  allowed  to  replevy  the 
chattels  without  restoring  the  con- 
sideration. But  an  infant  purchasing 
chattels  and  giving  a  purchase-money 
mortgage  for  the  price  cannot  dis- 
affirm the  mortgage  and  at  the  same 
time  keep  the  chattels  as  if  by  clear 
title,  Curtiss  v.  McDougal,  26  Ohio 
St,  66 ;  Knaggs  v.  Green,  48  Wis.  601 ; 
Carpenter  v.  Carpenter,  45  Ind.  142; 
White  V.  Branch,  51  Ind.  210, —  seem 
to  absolve  an  infant  from  restoring 
property  received  in  exchange.  But, 
semble,  if  he  still  holds  the  exchanged 
property  he  ought,  on  correct  prin- 
ciple, to  restore  or  offer  to  restore  it, 
when  disaffirming  the  transaction.  In 
many  eases  to  maintain  an  action 
based  upon  his  avoidance  of  his  con- 
tract, an  infant  should  first  give  notice 
of  his  election  to  avoid  or  make  a  de- 
mand. Betts  V.  Carroll,  6  App.  518. 
See  Stout  v,  Merrill,  35  la,  47;  Henry 
V,  Root,  33  N,  Y.  526.  See,  further, 
Dawson  v.  Holmes,  30  Minn.  107; 
Brantley  v.  Wolf,  60  Miss.  420 ;  Bran- 
don V.  Brown,  106  HI.  519.  A  pur- 
chaser from  the  infant,  after  majority, 
on  a  bill  to  have  the  deed  cancelled 
which  was  made  in  minority,  need  not 
tender  back  the  purchase-money  re- 
ceived by  the  infant,  which  the  latter 
has  squandered.  Eureka  Co.  v.  Ed- 
wards, 71   Ala.  24S, 

87.  Marx  v,  Clisby,  130  Ala.  502, 
30  S.  517. 

Where  an  infant  disaffirmed  a  re- 


§   1051 


INFANCY. 


1202 


Hence  an  infant  cannot  damage  property  lie  has  received,  and 
then  demand  the  full  price  on  offering  to  restore  it.**  Nor  re- 
cover partnership  property  after  rescinding  the  partnership  agree- 
ment, so  as  to  prejudice  liabilities  of  the  firm  which  are  outstand- 
ing;*^ nor  rescind  the  partnership  agreement  and  then  demand 
benefits  inconsistent  with  it.^°  If  the  former  vendee  be  sued  for 
use  and  occupation  of  land,  it  is  held  that  he  may  recoup  for 
valuable  improvements;  and  equity  favors  a  fair  adjustment  of 
rents,  damages  and  improvements.^^  It  is  held  also  in  some  in- 
stances, that  where  the  infant  disaffirms  his  conveyance  of  land,  he 
ought  to  be  prepared  to  account  for  the  purchase-money  with  in- 
terest.®" But  again  it  is  said  that  the  infant  on  disaffirming  may 
not  recover  unpaid  purchase-money.®^  The  plea  of  false  warranty 
may  sometimes  be  set  up  against  the  infant's  attempt  by  affirmance 
to  enforce  a  hard  bargain.®*  To  multiply  these  illustrations  is 
unnecessary;  the  cardinal  principle  which  runs  through  them  all 
is  that,  with  due  reservation  of  the  infant's  privilege,  substantial 
justice  should  be  done,  if  possible,  between  the  two  parties  to  a 


lease  and  brought  suit  to  recover 
damages  on  the  right  of  action  re- 
leased, the  jury  -was  properly  in- 
structed to  deduct  from  the  damages 
recovered  the  amount  paid  by  the  de- 
fendant to  secure  the  release.  Ari- 
zona, etc.,  R.  Co.  V.  Carillo,  17  Ariz. 
115,  149  P.  313, 

In  an  action  by  an  infant  after 
disaffirming  a  contract  to  recover  the 
price  paid  for  a  theatre,  the  amount 
recovered  cannot  be  reduced  by  an 
allowance  for  rental  during  the  in- 
fant's occupancy.  Gannon  v.  Mann- 
ing, 42  App.  D.  C.  206 ;  Coe  v.  Moon, 
260  111.  76,  103  N.  E,  1074;  Shirk  v. 
Shultz,  113  Ind.  571,  15  N.  E.  12; 
Bowen  v.  Marston,  134  La.  2ff8,  64  So. 
118;  Nielson  v.  International  Text- 
Book  Co.,  106  Me.  104,  75  A.  330;  In- 
ternational Text-Book  Co.  v.  McKone, 
133  Wis.  200,  113  N.  W.  438. 

The  courts  •will  aid  the  adult  to 
get  his  property  restored,  where  they 
can,  aside  from  {he  infant's  assent. 
Evans  v.  Morgan,  69  Miss.  328 ; 
Whyte  v.  Eosenerantz,  123  Cal.  634, 
56  P.  436,  69r  Am.  St.  R.  90. 


88.  Carr  v.  Clough,  6  Post.  280; 
Bartholemew  v.  Pinnemore,  17  Barb. 
428. 

89.  Purlong  v.  Bartlett,  21  Pick, 
401;  Sadler  v.  Robincon,  2  Stew.  520; 
Kinnen  v.  Maxwell,  66  N.  C.  45. 

90.  Page  V.  Morse,  128  Mass.  99; 
§  408;  Dunton  v.  Brown,  31  Mich,  82, 
So,  too,  as  to  his  contract  to  perform 
service,  supra,  §  443. 

91.  Weaver  v,  Jones,  24  Ala.  420; 
Petty  v.  Roberts,  7  Bush,  410.  If  one 
receives  rents  when  an  infant,  he  can- 
not demand  them  over  again  on  at- 
taining majority.  Parker  v.  Elder,  11 
Humph.  546.  Where  the  grantee  has 
made  valuable  improvements  they 
may  be  set  off  against  the  rental  value 
of  the  land,  but  the  grantor  is  not 
liable  for  any  excess.  Sewell  v.  Sewell, 
92  Ky,  500. 

92.  Sewell  v.  Sewell,  92  Ky.  500. 

93.  Craig  v.  Van  Eebber,  100  Mo. 
584. 

94.  Morrill  v.  Aden,  19  Vt.  506. 
And  see  Heath  v.  West,  8  Post.  101; 
Shipman  v,  Horton,  17  Conn.  481; 
Edgarton  v.  Wolf,  6  Gray,  453. 


1263 


EATIFICATION    AND    AVOIDANCE. 


§     1052 


contract,  and  things  placed  in  statu  quo  when  the  contract  is 
rescinded;  for  courts  are  very  reluctant  to  allow  the  infant  to  use 
his  privilege  as  a  means  of  defrauding  others,  at  the  same  time 
that  thej  resent  all  efforts  of  adults  to  impose  fraudulently  upon 
him.®^  The  rule  is  based  on  the  principle  that  the  infant  is  pos- 
sessed of  property  which,  in  equity  and  good  conscience,  he  may 
not  retain  after  he  disaffirms.''^  He  must  do  equity  if  he  seeks 
equitable  relief.^^  It  follows  that  a  grantor  of  real  estate  cannot 
defeat  the  right  of  the  infant  to  disaffirm  the  transaction  by  refus- 
ing to  accept  a  reconveyance.^^  Xo  action  can  usually  be  main- 
tained against  him  if  after  majority  he  sells  goods  which  he  bough 
while  a  minor  but  does  not  pay  for,''^  but  a  creditor  may  replevin 
the  goods  sold  under  a  disaffirmed  contract.^ 
§  1052.  Avoidance  Through  Agents,  &c. 

It  has  been  said  that  all  acts  done  by  an  infant  through  an 
agent's  intervention  are  void ;  but  they  are  (in  many  instances  at 

95.  Whether  a  minor  who  deals  with  96.  Gannon  v.  Manning,  42  App.  D. 

an    adult    whom    he    fraudulently    in-       C.  206. 
duces    to    think    him    of    full    age    is  97i  Gruba  v.  Chapman  (S.  D.),  153 


estopped  from  avoiding  the  transac- 
tion for  infancy,  see  Baker  v.  Stone, 
136  Mass.  405;  §  1032.  If  an  infant 
retains  the  property,  the  adult  cannot 
recoup  its  use  during  minority  against 
the  price  demanded.  McCarthy  v. 
Henderson,  138  Mass.  310,  Some 
of  the  latest  cases  lay  much  stress 
npon  the  inherent  fairness  or  unfair- 
ness of  a  transaction,  where  one  party 
or  the  other  tries  to  recover  his  con- 
sideration. See  Johnson  v.  Mutual" 
Life  Co.  (ISM),  Minn.  If  an  infant 
advanced  money  on  his  voidable  con- 
tract, it  is  lost  to  him  when  he  re- 
scinds, unless  fraudulently  obtained 
from  him.  Chicago  Life  Association 
V.  Hunt,  127  111.  259.  He  cannot  at 
all  events  rescind  without  returning 
what  he  received,  so  far  as  it  remains. 
B'.oomer  v.  Nolan,  36  Neb.  51;  Nanny 
V.  Allen,  77  Tex.  240,  301 ;  Harvey  v. 
Briggs,  68  Miss.  60;  Evans  v.  Mor- 
gan, 69  Miss.  328.  But  if  the 
property  was  injured  while  in  his 
keeping,  he  is  not  liable  by  the  adult 
standard  of  bailment.  Stack  v.  Cava- 
naugh  (1894),  N.  H. 


N.  W.  929. 

98.  Evants  v.  Taylor,  18  N.  M.  371, 
137  P.  583,  50  L.  E.  A.  (N.  S.)  1113. 

99.  Where  an  infant  vendee  of  per- 
sonal property  has  sold  to  a  third 
person,  the  vendor,  who  retains  pos- 
session against  such  vendee,  cannot 
defend  an  action  of  trover  brought 
by  such  second  vendee  on  the  ground 
of  the  original  grantee's  infancy.  El- 
der V.  Woodruff,  etc.,  Co.,  9  Ga.  App. 
484,  71  S.  E.  806;  Lamkin  &  Foster 
V.  Ledoux,  101  Me.  581,  64  A.  1048. 

The  infant  is  not  liable  for  conver- 
sion where  he  spends  the  amount  re- 
ceived and  after\/ards  disaffirms. 
Drude  v.  Curtis,  183  Mass.  317,  67  N. 
E.  317,  62  L.  E.  A.  755.  See  also,  to 
the  same  effect,  Stone  v.  Kabiuowitz, 
45  Misc.  405,  90  N.  Y.  S.  301. 

1.  Robinson  v.  Berry,  93  Me.  320,  45 
A.  34. 

But  he  cannot  bring  replevin  and 
recover  a  money  verdict  where  the  in- 
fant no  longer  has  the  goods.  Kay  v. 
Haupt,  63  Pa.  Super.  Ct.  16. 


§    1053  INFANCY.  1264 

least)  rather  to  be  regarded  as  voidable.^  The  rescission  of  a 
minor's  contract  as  to  personal  property  or  his  person,  then,  by 
means  of  an  agent  whom  he  employs,  should  not  be  pronounced 
void,  if  not  plainly  to  the  infant's  prejudice,  nor  set  up  in  de- 
fence by  the  adult  with  whom  he  contracted.  And  where  an  in- 
fant, with  his  father's  assent,  sent  an  attorney  at  law  to  repudiate 
his  purchase  for  him,  instead  of  repudiating  personally,  the  adult, 
in  a  recent  case,  was  not  permitted  to  dispute  this  disaffirmance  as 
illegally  made.*  His  voidable  act  may  be  also  disaffirmed  for 
him  by  his  guardian  in  some  cases.* 

§  1053.  Ratification,  &c.,  as  to  Infant  Married  Spouse. 

Since  a  married  woman  conveys  her  lands  by  force  of  statute 
provisions,  perplexing  questions  may  arise  as  to  the  effect  of  a 
conveyance  executed  in  conformity  with  late  acts,  yet  ineffectual 
because  of  her  infancy.^  It  would  appear  from  some  late  American 
cases,  that  the  wife  still  continuing  covert  after  becoming  of  age, 
acts  which  might  constitute  ratification  in  ordinary  cases  may  not 
always  be  set  up  against  her.*  That  her  husband  prevented  her 
from  disaffirming  upon  her  majority  is  a  good  excuse  for  her  delay 
while  he  lived.^  On  the  other  hand  it  has  been  held  that  when  a 
deed  is  disaffirmed  because  of  the  wife's  minority  it  is  avoided  as 

2.  Supra,  §  1012.  See  Sawyer  v.  But  a  reasonable  time  after  diseover- 
Northan,  112  N.  C.  261.  tare   is    allowed    an    infant    wife,    as 

3.  Towle  V.  Dresser,  73  Me.  252.  eases  now  decide  the  point,  though 
Especially,  as  the  authority  of  the  length  of  time  may  have  intervened, 
agent  was  not  especially  objected  to  See  Schouler,  Hus.  &  Wife,  §  178; 
when  the  notice  was  given  and  the  de-  Sims  v.  Everhardt,  102  U.  S.  300; 
mand  made  upon  the  adult.     IT).  Wilson  v.  Branch,  77  Va.  65;  Eyman 

4.  Benson  v.  Tucker,  212  Mass.  60,  v,  Crawford,  86  Ind.  263,  577;  Eich- 
98  N.  E.  589,  41  L.  E.  A.  (N.  S.)  ardson  v.  Pate,  93  Ind.  423;  Stull  v. 
1219.  Harris,  51  Ark.  294;  supra,  Part  11, 

5.  Harbman  v.  Kendall,  4  Ind.  403.  ch.  XI.    Infant  husband's  conveyance 

6.  Matherson  v.  Davis,  2  Cold.  443 ;  voidable.  Barker  v.  Wilson,  4  Heisk. 
Miles  V.  Lingerman,  24  Ind.  385.    The  268. 

equity  doctrine,  to  argue  from  the  case  Where  one  is  under  two  disabilities 

of   marriage   settlements,   appears   to  —  infancy    and    coverture  —  when    a 

be   that  the   wife   may  by  acts  give  cause  of  action  accrues,  the  statute  of 

validity  to  such   deeds,   after  attain-  limitations  will  not  begin  to  run  until 

ing  full  age  and  notwithstanding  her  both  are  removed.     North  v.  James, 

coverture.     See   supra,   §    1001.      Dis-  61   Miss.   761.     But  see  contra,  as  to 

affirmance   soon    after   attaining   ma-  suspending  the  running  of  the  stat- 

jority     is     permitted.       Scranton     v.  ute.  Parish  v.  Cook,  78  Mo.  212;  Orti» 

Stewart,     52     Ind.     69,     92;      Thor-  v.  De  Senavides,  61  Tex.  60. 

machlen    v.    Koeppel,    86    Wis.    378.  7.  Sims  v.  Bardoner,  86  Ind.  87. 


1265 


KATIFICATION    AND    AVOIDANCE. 


§    1054 


to  the  husband  who  joined  her  in  making  it.®  But  a  married 
woman  is  sometimes  estopped  by  her  own  acts ;  as  in  a  case  where 
her  equitable  interest  in  land  was  sold  while  she  was  a  minor,  to- 
gether with  the  interests  of  adult  parties,  and  she  received  her 
share  of  the  proceeds  some  years  after  attaining  majority.*  It 
would  appear  that  any  affirmance  which  a  wife  in  a  just  trans- 
action may  make  with  her  husband's  acquiescence  and  her  own  free 
consent  after  reaching  majority,  will  bind  her.^°  And  her  dis- 
affirmance is  subject  to  the  usual  qualifications  applicable  to  in- 
fants in  general.  Coverture  is  fast  becoming  unpopular  in  these 
days,  and  the  disabilities  of  infancy  and  coverture  are  at  any  rate 
separate  and  independent ;  and  the  mere  fact  that  both  occur  in 
connection  with  the  same  act  does  not  give  to  either  dis'ability 
greater  force  than  it  would  have  had  separately.^^  Modem  legis- 
lation may  in  a  sense  remove  the  disability  of  coverture;  but  this 
does  not  remove  the  disability  of  infancy,  with  its  incidental 
protection. 


12 


§  1054.  Rules;   How  Far  Chancery  May  Elect  for  the  Infant. 

By  a  well-known  rule  of  equity,  the  proeceds  of  lands  sold 
during  minority  retain  the  character  of  real  estate,  and  where 
the  personal  estate  becomes  land  its  original  character  is  like- 
wise retained.  And  such  property  remains  real  or  personal  still, 
even  after  the  infant  attains  majority,  so  long  as  there  is  no  act  or 
intent  on  his  part  to  change  its  character  ;^^  but  the  character  ceases 
when  he  attains  majority,  and  obtains  possession  of  the  proceeds.^* 

A  court  of  chancery,  however,  as  the  protector  of  the  young 


8.  Craig  v.  Van  Bebber,  100  Mo. 
584, 

9.  Anderson  v.  Mather,  44  N.  T. 
249.  And  see  Schmitheimer  v.  Eise- 
man,  7  Bush,  298. 

10.  Sims  V.  Smith.  99  Ind.  469.  And 
866  Ellis  V.  Alf  ord,  64  Miss.  8 ;  Logan 
V.  Gardner,  136  Pa,  St.  588. 

11.  Logan  V.  Gardner,  136  Pa.  St. 
588.  Hence,  when  a  woman  becomes 
both  discovert  and  of  full  age,  she 
may  be  estopped  like  any  other  person, 
sui  juris.  Logan  v.  Gardner,  136  Pa. 
St.  588.  Clear  disaffirmance  of  a  deed 
executed  during  minority  should  be 
Bea3onably  made  by  her,  or  she  may 
be  estopped  by  her  own  conduct  and 
laches.    Logan  y.  Gardner,  136  Pa.  St. 

80 


588.  Nor  should  she  retain  benefits 
and  yet  claim  the  right  to  avoid.  Bull 
V.  Sevier,  88  Ky.  515.  Still  less 
should  she,  after  reaching  age,  use  the 
consideration  in  a  manner  which  in- 
dicates affirmance  and  then  seek  to 
disaffirm.  Buchanan  v.  Hubbard,  119 
Ind.  187, 

12.  See  Cummings  v.  Everett,  82  Me, 
260. 

13.  Foreman  v.  Foreman,  7  Barb. 
215. 

14.  Forman  v.  Marsh,  1  Kem,  544. 
Upon  the  death  of  the  infant  after 
such  conversion  the  inheritance  or  dis- 
tribution is  according  to  the  original 
character  of  the  property.  See  Paul 
V.  York,  1  Tenn.  Ch.  547. 


1054 


IlfFAXCY. 


1266 


has  an  extensive  jurisdiction  of  matters  affecting  an  infant's  prop- 
erty rights,  and  may,  npon  a  full  hearing,  the  infant  himself  being 
duly  summoned  and  his  rights  duly  represented,  enter  a  decree 
■which,  if  procured  without  fraud  or  undue  injury,  will  he  binding. 
Of  this  jurisdiction  we  have  already  treated,^^  as  also  of  statutes 
authorizing  sales  of  an  infant's  real  estate/^  Infants  must  be 
parties  to  bills  in  equity,  as,  for  instance,  in  affecting  their  title  to 
real  estate;  and  making  their  guardians  parties  is  not  sufficient, 
as  it  is  generally  ruled,  without  service  of  process  upon  the  infant 
himself  as  the  usual  publication  of  notice. ■^'^ 

But  the  practical  result  must  be,  wherever  chancery  jurisdiction 
is  broadly  upheld,  that  the  court  in  many  instances,  the  infant 
being  duly  a  party  to  the  proceedings,  elects  for  him.^®  The  in- 
fant's own  affirmance  of  the  decree  in  chancery  or  under  statute, 
as  by  accepting  and  retaining  the  benefits,  delaying  procedure  to 
reopen  the  matter  for  alleged  fraud  or  other  infirmity,  is  of  course 
a  double  confirmation/* 


15.  Part  IV,,  ehs.  6,  7.  But  as  to 
"allowing  the  infant  his  day"  on 
reaching  majority,  see  next  chapter. 
Jurisdiction  of  the  court  over  an  in- 
fant ward  is  not  taken  away  because 
the  infant  is  insane.  In  re  Edwards, 
L.  E.  10  Ch.  D.  605. 

16.  lb.;  Chappell  v.  Doe,  49  Ala. 
153. 

17.  Tucker  v.  Bean,  65  Me.  352; 
Rowland  v.  Jones,  62  Ala.  322;  Cook 
V.  Rogers,  64  Ala.  406;  Bonnell  v. 
Holt,  89  111.  71;  Carver  v.  Carver, 
64  Ind.  ID'S.  But  see  Burrus  v.  Bur- 
rus,  56  Miss.  92;  Scott  v.  Porter,  2 
Lea,  224.  And  as  to  cancelling  a 
purely  personal  contract  this  rule  is 
all  the  more  imperative.  Insurance 
Co.  V.  Bangs,  103  U.  S.  Supr.  435. 
Concerning  joinder  of  guardian,  see 
next  chapter. 

18.  Abney  v.  Abney,  182  Ala.  213, 
62  So.  64. 

Chancery  may  authorize  leases  for 
the  enhancement  of  the  real  estate  of 
infants  if  manifestly  for  their  inter- 


ests. Talbot  V.  Provine,  7  Baxt.  502, 
As  to  partition  sale  held  binding,  see 
Cocks  V.  Simmons,  57  Miss.  183 ;  Scott 
V.  Porter,  2  Lea,  224.  As  to  decree 
enforcing  a  vendor's  lien,  see  Cocks 
V.  Simmons,  57  Miss.  183.  As  to 
sale  for  maintenance  or  better  in- 
vestment, see  Sharp  v.  Findley,  59  Ga. 
722;  supra,  Part  IV,  ehs.  6,  7.  Chan- 
cery may  compromise  a  claim  in  which 
infants  are  interested,  even  against 
next  friend  or  guardian  ad  litem.  In 
re  Birchall,  16  Ch.  D.  41.  Or  exercise 
discretion  as  to  selling  either  realty 
or  personalty,  or  both.  Jones  v. 
Sharp,  9  Heisk.  660.  And  see  Knotts 
V,  Stearns,  91  U.  S.  638;  Carr  v. 
Branch,  85  Va.  597.  Decree  sustained, 
notwithstanding  the  birth  of  a  post- 
humous child  not  considered  when  the 
sale  was  ordered.  lb.  See  also  Good- 
man V.  Winter,  64  Ala,  410, 

19,  Walker  v,  Mulvean,  76  111,  18; 
Corwin  v,  Shoup,  76  111,  246.  See 
further,  as  to  the  binding  effect  of 
decrees  and  judgments,  next  chapter. 


1267  ACTIONS.  §  1055 


CHAPTER  VI. 

ACTIONS  BY  AND  AGAINST  INFANTS. 

Section  1055.     Actions  at  Law  by  Infants;  Suit  or  Defence  by  Next  Friend 
or  Guardian. 

1056.  General  Eules  as  to  Actions  by  Next  Friend. 

1057.  Powers,  Qualifications  and  Duties  of  Next  Friend. 

1058.  Action  at  Law  Against  Infant;  the  Guardian  Ad  Litem. 

1059.  Chancery  Proceedings  by  or  Against  Infants;  Corresponding 

Eule. 

§  1055.  Actions  at  Law  by  Infants;  Suit  or  Defence  by  Next 
Friend  or  Guardian. 

It  is  a  fundamental  principle  that  the  rights  of  property  shall 
vest  in  infants,  notwithstanding  their  tender  years ;  and  inci- 
dentally thereto  they  have  the  right  of  action.  Yet  it  is  clear  that 
if  the  infant  be  unfit  to  make  a  contract  he  is  unfit  to  sue  on  his 
ovm.  behalf.  Hence  is  the  rule  that  while  process  is  sued  out  in 
the  infant's  own  name,  it  is  in  his  name  by  another ;  that  is  to  say, 
some  person  of  full  age  must  conduct  the  suit  for  him.  The  same 
principle  applies  to  all  civil  actions,  whether  founded  on  a  contract 
or  not. 

At  common  law,  infants  could  neither  sue  nor  defend,  except 
by  guardian.  They  were  authorized,  by  Stat.  Westm.  1,  to  sue 
by  prochein  ami  (or  next  friend)  against  the  guardian  in  chivalry 
who  had  aliened  any  portion  of  the  infant's  inheritance.^"  Stat. 
Westm.  2,  ch.  15,  extended  this  privilege  to  all  other  cases  where 
they  could  not  sue  formerly.  Lord  Coke  lays  down  that,  since 
these  statutes,  the  infant  shall  sue  by  procliein  ami  and  defend  by 
guardian."  And  Fitzherbert  is  to  the  same  effect.^"  But  Mr. 
Hargrave  thinks  it  probable  that  Fitzherbert  and  Lord  Coke  did 
not  mean  to  exclude  the  election  of  suing  either  by  procheim  ami 
or  by  guardian.*^  And  whether  they  did  or  not,  guardianship  at 
the  present  day,  so  unlike  guardianship  as  they  understood  it, 
justifies  the  modem  practice;  which  is  to  appoint  a  special  person 
as  prochein  ami  only  in  case  of  necessity,  where  an  infant  is  to  sue 
his  guardian,  or  the  guardian  will  not  sue  for  him,  or  it  is  im- 

20.  Macphers.  Inf.  13,  352.  22.  F.  X.  B.  (27)  H. 

21.  2  Inst.  261,  390;  Co.  Litt.  135b;  23.  Harg.  n.  Co.  Litt.  135b. 
3  Robinson's  Pract.  229. 


§   1055 


INFANCY. 


1268 


proper  that  the  guardian  should 
cases,  the  rule  is  to  sue  by  guard 

24.  Sandeen  v.  Tschider,  205  F.  252, 
123  C.  C,  A.  456.  Though  not  tech- 
nically a  party,  the  next  friend  is 
really  such  in  the  view  of  the  statutes 
and  in  practice.  Swoope  v.  Swoope, 
173  Ala.  157,  55  So.  418.  But  see 
Slafter  v.  Savage  (Vt.),  95  A.  790; 
Truman  Cooperage  Co.  v.  Shelton 
(Ark.)  207  S.  W.  42;  Nashville,  etc., 
Co.  V.  Barefield,  93  Ark.  353,  24 
S.  W.  758;  Parker  v.  Wilson,  98  Ark. 
553,  136  S.  W.  981  (stay  of  judgment 
granted,  9^  Ark.  344,  137  8.  W.  926)  ; 
Watts  V.  Hicks,  178  S.  W,  924 ;  Buk- 
ley  V.  Collins,  177  S.  W.  920;  Toomer 
V.  Fourth  Nat.  Bank  of  Jacksonville, 
67  So.  225;  Linder  v.  Brown,  137  Ga. 
352,  73  S.  E.  734;  Hurst  v.  Goodwin, 
114  Ga.  585,  40  S.  E.  764,  88  Am.  St. 
R.  43;  Perkins  v.  Wright,  37  Ind.  27; 
Winer  v.  Mast,  146  Ind.  177,  45  N.  E. 
66;  Teeple  v.  State,  171  Ind.  268,  86 
N.  E.  49. 

Where,  after  the  removal  of  a 
minor's  next  friend,  she  could  not 
obtain  another  to  act  as  such,  she 
was  permitted  to  prosecute  without  a 
next  friend,  as  a  poor  person.  Wright 
V.  McLarinan,  92  Ind.  103, 

A  statute  providing  for  the  bring- 
ing of  an  action  within  a  certain  time 
after  the  removal  of  disabilities  does 
not  prevent  bringing  action  by  next 
friend  before  that  time.  Edwards  v. 
Beall,  75  Ind.  401;  Harrison  v.  Mil- 
ler, 87  Kan.  48,  123  P.  854;  Guy  v. 
Hansow,  86  Kan.  933,  122  P.  879; 
Wilson  V.  Unselt,  12  Bush  (Ky.),  215; 
Hopkins  v.  Virgin,  11  Bush  (Ky.), 
677;  Eaton  v.  Eaton,  112  Me.  106, 
90  A.  977,  52  L.  E.  A.   (N.  S.)   799. 

A  statute  providing  that  no  action 
shall  be  maintained  on  a  minor's 
contract  unless  ratified  after  major- 
ity does  not  prevent  an  action  during 
minority  to  recover  back  the  consid- 
eration of  a  disaffirmed  contract. 
Hilton  V.  Shepherd,  92  Me.  160,  42 
A.  367;  Sick  v.  Michigan  Aid  Ass'n, 
49  Mich.   50,  12  N.  W.  905. 


be  the  prockein  ami.     In  other 
ian  or  prochein  ami,^*  or,  under 

One  reason  given  for  the  rule  is 
that  the  appointment  is  necessary  so 
that  the  defendant  may  look  to  some 
one  who  is  responsible  for  costs. 
Sick  V.  Michigan,  etc.,  Ass'n,  40  Mich. 
50,  12  N.  W.  905;  Memphis,  etc.,  Co. 
V.  Archer  (Miss.),  82  So.  315;  Scott 
V.  Royston,  223  Mo.  568,  123  S.  W. 
454;  Jones  v.  Kansas  City,  Ft.  S.  & 
M.  R.  Co.,  178  Mo.  528,  77  S.  W. 
890,  101  Am.  St.  R.  434;  Melzner  v. 
Northern  Pac.  Ry.  Co.,  46  Mont.  162, 
127  P.  146 ;  Clasen  v.  Pruhs,  69  Feb. 
278,  95  N.  W.  640;  Settle  v.  Settle, 
141  N.  C.  553,  54  S.  E.  445;  Willard 
V.  Mohn,  24  N,  D.  390,  139  N.  W. 
979;  Gillette  v.  Delaware,  L.  &  W. 
R.  Co.  (N.  J.),  102  A.  673;  Heatk 
V.  Madock,  81  N.  J.  Eq.  469,  86  A. 
945;  Fox  v.  Interurban  St.  Ry.  Co., 
86  N.  Y.  S.  64,  42  Misc.  538;  Gruner 
V.  Ruffner,  110  N.  Y.  S.  873,  59 
Misc.  266;  Gruner  v.  Ruffner,  119  N. 
Y.  S.  942,  134  App.  Div.  837  (reh. 
den.,  121  N.  Y.  S.  1133,  136  App.  Div. 
945) ;  In  re  Rousos,  119  N,  Y.  S.  34; 
First  State  Bank  of  Vinita  v.  Fay 
(Okla.),  159  P.  505;  Hill  v.  Reed, 
23  Okla.  616,  103  P.  855;  Everart  v. 
Fischer,  75  Ore.  316,  147  P.  189; 
Everart  v.  Fischer,  145  P.  33  (judg. 
rev.  or  reh.,  75  Ore.  316,  147  P.  189)  ; 
Ferencz  v.  Greek  Catholic  Union,  54 
Pa.   Super.   Ct.   642. 

In  Rhode  Island  he  may  recover 
during  infancy  without  a  guardian  or 
next  friend.  Vaughn  v.  Carr  (R.  I.), 
95  A.  569. 

Where,  after  a  proceeding  in  which 
a  guardian  ad  litem,  acted  for  an  in- 
fant defendant,  a  question  arose  as 
to  the  guaridan's  fees,  it  was  held 
that  another  guardian  should  be  ap- 
pointed to  act  for  the  infant  in  that 
particular  matter.  Loftis  v.  Butler 
(Tenn.),  58  S.  W.  886;  Race  v.  Decker 
(Tex.  Civ.  App.),  214  S.  W.  709; 
Owen  V.  Appalachian  Power  Co.,  78 
W.  Va.  596,  89  S.  E.  262  (holding 
that    except    in    a    justice's    court    a 


1269 


ACTIONS. 


§  1056 


the  civil  law,  by  a  tutor  ad  hoc  ^^  as  provided  under  that  law. 
An  infant  cannot  prosecute  an  action  either  in  person  or  by 
attorney.  This  is  well  settled.^'  But  an  infant  may  sue  by  his 
next  friend  though  he  have  a  guardian,  if  the  guardian  does  not 
dissent.^^  And  in  some  States  the  choice  allowed  the  infant  is 
still  more  liberal.^*  Where  the  disability  has  been  removed  under 
a  statute,  he  may  sue  as  though  of  age.'^  The  rule  applies  even 
though  the  plaintiff  is  a  married  woman,  if  a  minor.^^  An  infant 
may  contest  a  will  by  next  friend.^^  Statutes  have  sometimes  pro- 
vided for  the  appointment  of  guardians  ad  litem  for  infant  plain- 
tiffs."' 

§  1056.  General  Rules  as  to  Actions  by  Next  Friend. 

If  the  action  is  commenced  without  a  next  friend,  one  may  be 
admitted  to  prosecute  on  behalf  of  the  infant."^  Not  unfrequently, 
too,  the  next  friend  who  brought  the  suit  is  removed  and  another 


next  friend  need  not  be  appointed  to 
prosecute  an  action  for  an  infant) ; 
Claridge  v.  Crawford,  1  Dowl.  &  Ey. 
13;  3  Robinson's  Pract.  230;  Younge 
V.  Younge,  Cro.  Car.  86;  Goodwin  v. 
Moore,  Cro.  Car.  161 ;  Apthorp  v. 
Backus,  Kirby,  407;  McGiffin  v. 
Stout,  Coxe,  92 ;  Blackman  v.  Davis, 
42  Ala.  184 ;  Succession  of  Becnel,  117 
La.  744,  42  So.  256;  Becnel  v.  Stew- 
art, Id. 

25.  Lamkin  v.  Succession  of  Filhiol, 
123  La.  181,  48  So.  881.  But  see 
Lamkin  v.  Succession  of  Filhiol,  123 
La.  181,  48  So.  88. 

26.  Cro.  Eliz.  424;  Cro.  Jac.  5;  1 
Co.  Litt.  135  6,  Harg.  n.,  220;  Miles  v. 
Boyden,  3  Pick.  213 ;  Clark  v.  Turner, 
1  Root,  200 ;  Mockey  v.  Gray,  2  Johns. 
192;  Timmons  v.  Timmons,  6  Ind.  8; 
Nicholson  v.  Wilborn,  13  Ga.  467. 

27.  Thomas  v.  Dike,  11  Vt.  273; 
Robson  V.  Osbom,  13  Tex.  298. 

28.  Hooks  V.  Smith,  18  Ala.  338. 

29.  Merriman  v.  Sarlo,  63  Ark.  151, 
37  S.  W.  879. 

30.  Hays  v.  Bowden,  159  Ala.  600, 
49  So.  122. 

81.  Schnee  v.  Schnee,  61  Kan.  643, 
60  P.  738;  Campbell  v.  Fichter,  168 
Ind.  645,  81  N.  E.  661;  Dixon  v. 
Co.',ine,   118   N.   Y.   S.    1103    (holding 


that  this  cannot  be   done  under   the 
New  York  statute). 

32.  The  omission  to  comply  with  the 
Arizona  statute  requiring  that  the 
guardian  consent  to  the  appointment 
in  writing  is  not  reversible  error  where 
the  guardian  brought  and  prosecuted 
the  action.  Arizona  Eastern  R.  Co. 
V.  Carillo,  17  Ariz.  115,  149  P.  313; 
Johnston  v.  Southern  Pac.  Co.,  150 
Cal.  535,  89  P.  348;  Grosovsky  v. 
Goldenberg,  86  Minn.  378,  90  N.  W. 
782;  Flaherty  v.  Butte  Electric  Ry. 
Co.,  40  Mont.  454,  107  P.  416;  Muller 
V.  Manhattan  Ry.  Co.,  108  N.  Y.  S. 
852,  124  App.  Div.  295;  Hill  v.  Reed, 
23  Okla.  616,  103  P.  855;  Mitchell  v. 
Cleveland,  76  S.  C.  432,  57  S.  E.  33; 
Hiers  v.  Atlantic  Coast  Line  R.  Co., 
75  S.  C.  311,  55  S.  E.  457;  Schuyler 
V.  Southern  Pac.  Co.,  109  P.  458  (reh. 
den.  [1910],  37  Utah,  612,  109  P. 
1025). 

In  West  Virginia  the  statute  re- 
quires the  appointment  of  a  guardian 
ad  litem  before  bringing  suit,  who 
must  accept  the  appointment  and 
agree  to  be  responsible  for  costs. 
Blair  v.  Henderson,  49  W.  Va.  282,  38 
S.  E.  552 ;  Green  v.  Appleton  Woolen 
Mills,  155  N.  W.  958. 

33.  A  father  who  sues  in  his  own 


§  1056 


INFANCY. 


1270 


appointed,  on  the  ground  that  it  is  for  the  infant's  benefit.^*  If 
the  infant  attains  majority  pending  the  action,  the  authority  of  the 
next  friend  ceases  ipso  facto,  but  the  action  does  not  abate,  and 
the  infant  may  thereafter  prosecute  it  as  an  adult.^^  Where  an 
infant  has,  after  bringing  suit  (not  by  guardian  or  next  friend), 
become  of  age,  no  amendment,  nor  appearance  of  a  guardian  or 
next  friend  is  necessary.^®  No  infant  plaintiff  is  concluded  by  a 
settlement  of  the  case  which  his  next  friend  makes  out  of  court 
without  a  formal  judicial  sanction.^^  Nor  will  a  settlement  in 
court  on  a  judgment  by  agreement  be  permitted  to  stand  which 


name  for  his  child's  injury  cannot  be 
substituted  on  motion  as  next  friend, 
because  that  Tvould  be  a  new  action. 
Orby  V.  Dowdy  (Ark.),  213  S.  W. 
739;  Howell  v.  American  Bridge  Co. 
(Del.),  53  A.  53. 

The  want  of  a  next  friend  is  cured 
by  verdict.  Vale  Royal  Mfg.  Co. 
V.  Bradley,  8  Ga.  App.  483,  70  S. 
E.  36;  Eoyal  v.  Grant,  5  Ga.  App. 
643,  63  S.  E.  708;  Blood  v.  Har- 
rington, 8  Pick.  (Mass.)  552;  Smith 
T.  Carney,  127  Mass.  179;  Haines 
V.  Oatman,  2  Doug.  (Mich.)  430; 
Eubanks  v.  McLeod  (Miss.),  69  So. 
289';  Raming  v.  Metropolitan  St. 
Ry.  Co.  (Mo.),  50  S.  W.  791;  Chris- 
man  V.  Divinia,  141  Mo.  122,  41  S.  W. 
920;  Power  v.  Lenoir,  22  Mont.  169, 
56  P.  106;  Manfull  v.  Graham,  55 
N€b.  645,  76  N.  W.  19,  70  Am.  St.  R. 
412;  Moore  v.  Moore,  74  N.  J.  Eq. 
733,  70  A.  684  (holding  that  a  motion 
to  dismiss  was  not  available)  ;  Con- 
roy  V.  Bigg,  109  N.  Y.  S.  914 ;  Good- 
friend  V.  Robins,  92  N.  Y,  S.  240; 
Rook  V.  Dickinson,  78  N.  Y.  S.  287, 
38  Misc.  690,  11  N.  Y.  Ann.  Cas.  454; 
Robertson  v.  Blair,  56  S.  C.  96,  34  S. 
E.  11,  76  Am.  St.  R.  543. 

34.  Barwick  v.  Rackley,  45  Ala.  215 ; 
Martin  v.  Weyman,  26  Tex.  460 ;  Mills 
V.  Humes,  22  Md.  346.  As  where  the 
lext  friend  refuses  to  appeal.  Dupuy 
V.  Welsford,  28  W.  R.  762. 

35.  Therefore  an  infant  may  satisfy 
a  judgment  recovered  after  majority 
in  an  action  originally  by  next  friend. 
City,    etc.,   Co.    (Cal.),    183    P.    267; 


Missouri  Pac.  Ry.  Co.  v.  Leib,  23  Colo. 
App.  364,  129  P.  569;  Flint  v.  Flint, 
3  Boyce  (Del.),  155,  82  A.  538;  Ohio 
Valley  Tie  Co.  v.  Hayes,  180  Ky.  469, 
203  S.  W.  193;  Bernard  v.  Pittsburg 
Coal  Co.,  137  Mich.  279,  100  N.  W. 
396,  11  Det.  Leg.  N,  246;  Corbett  v. 
Metropolitan  Life  Ins.  Co.,  55  N.  Y, 
S.  775,  37  App.  Div.  152;  McGarity  v. 
New  York  City  Ry.  Co.,  101  N.  Y.  8. 
191,  51  Misc.  666;  Webb  v,  Harris,  32 
Okla.  491,  121  P.  1082;  Johnson  v. 
Alexander   (Okla.),  167  P.  989. 

Where  the  trial  is  after  attainment 
of  majority,  the  want  of  a  next  friend 
when  the  action  was  commenced,  is 
not  ground  for  a  new  trial.  Webb  v. 
Harris,  32  Okla.  491,  121  P.  1082; 
Mahoney  v.  Park  Steel  Co.,  217  Pa. 
20,  66  A.  90 ;  Seigler  v.  Southern  Ry. 
Co.,  85  S.  C.  345,  67  S.  E.  296;  Connor 
V.  Ashley,  57  S.  C.  305,  35  S.  E.  546; 
Spell  V.  William  Cameron  &  Co.  (Tex. 
Civ.),  131  S.  W.  637;  Slafter  v.  Sav- 
age   (Vt.),  95  A.  790. 

36.  Bell  V.  Burkhalter,  183  Ala. 
527,  62  So.  786;  Moore  v.  Moore,  74 
N.  J.  Eq.  733,  70  A.  684;  Bills  v. 
Birkenhalter,  183  Ala.  527,  62  S.  786; 
Woodman  v.  Rowe,  59  N.  H.  453. 
See  Bryant  v.  Hilton,  66  Ga.  477,  as 
to  amendment  of  husband's  action  as 
next  friend  after  his  infant  wife  be- 
comes of  age. 

37.  Tripp  V.  Gifford,  155  Mass.  108; 
O'Donnel  v.  Broad,  149  Pa.  St.  24. 
Though  the  next  friend  be  the  child's 
father,  it  is  the  same.    lb.;  §  1035A. 


1271. 


ACTIONS. 


§  1053 


appears  collusive  to  the  child's  prejudice.^*  The  next  friend  usu- 
ally has  power  to  receive  payment  of  and  satisfy  the  judgment.^* 
But  not  to  compromise  it/°  or  to  submit  it  to  arbitration.*^  The 
infant  cannot  bind  himself  by  a  satisfaction,  compromise  or  re- 
lease.*" But  advantage  must  be  taken  by  plea  in  abatement  of  the 
infant's  suing  by  attorney,  or  by  application  to  a  judge,  or  the 
court,  for  it  is  not  error  after  judgment  either  on  verdict  or  by 
default.*^  The  same  rules  are  frequently  applied  to  a  parent  who 
38.  Merchants'  Despatch  Trans.  Co.      44,  68  N.  E.  449;  McGillvray  v.  Em- 


V.  Furthmann,  14?  111.  73;  Tennessee 
Coal  &  Iron  K.  E.  Co.  v.  Hayes,  97  Ala. 
201. 

39.  Where  a  statute  authorizes  only 
the  general  guardian  to  receive  the 
property  of  an  infant,  the  next  friend 
cannot  effectively  satisfy  the  judg- 
ment. Paskewie  v.  East  St.  Louis  & 
Suburban  E.  Co.,  281  111.  385,  117  N. 
E.  1035,  L.  E.  A.  1918C,  52. 

The  minor  Tvill  not  be  bound  by  the 
settlement  where  the  judgment  is  by 
consent  and  where  the  merits  of  the 
claim  was  not  considered  and  no  evi- 
dence heard.  Leslie  v.  Proctor,  etc., 
Co.,  102  Kan.  159,  169  P.  193,  L.  E. 
A.   1918C,  55. 

It  is  otherwise  where  the  settlement 
was  made  under  the  direction  of  the 
court  under  a  statute  authorizing  a 
next  friend  to  settle  such  claims. 
Clark  V.  Southern  Can  Co.,  116  Md. 
85,  81  A.  271,  36  L.  E.  A.  (N.  S.) 
980 ;  Baker  v.  Pere  Marquette  E.  Co., 
142  Mich.  497,  105  N.  W.  1116,  12 
Det.  Leg.  N.  780. 

The  next  friend  is  sometimes  re- 
quired to  give  bond  before  receiving 
payment  of  the  judgment.  Parriss 
V.  Jewell,  57  Tex.  Civ.  App.  199,  122 
S.  W.  399;  State  v.  Ballinger,  41 
Wash.  23,  82  P.  1018.  But  see  Collins 
T.  Gillespey,  148  Ala.  558,  41  So.  930 
(holding  that  only  the  general  guar- 
dian has  such  authority). 

40.  A  court  of  chancery  has  power 
to  authorize  the  settlement  of  a  pro- 
ceeding by  a  minor  to  contest  a  will, 
upon  terms  which,  in  the  opinion  of 
the  court,  are  advantageous  to  the 
minor.    Williams  v.  Williams,  204  111. 


ployers'  Liability  Assurance  Co.,  214 
Mass.  484,  102  N.  E.  77,  46  L.  E.  A. 
(N.  S.)  110;  Beliveau  v.  Amoskeag 
Mfg.  Co.,  68  N.  H.  225,  40  A.  734, 
44  L.  E.  A.  167,  73  Am.  St.  E.  577; 
State  V.  Ballinger,  41  Wash.  23,  82 
p.  1018. 

41.  Millsaps  V.  Estes,  134  N.  C.  486, 
46  S.  E.  988, 

42.  Arizona  Eastern  E.  Co.  v.  Car- 
illo,  17  Ariz.  115,  149  P.  313;  Pitts- 
burg C.  C.  &  St.  L.  Ey.  Co.  v.  Healey, 
170  111.  610,  48  N.  E.  920;  Interstate 
Coal  Co.  v.  Trivett,  155  Ky.  825,  160 
S.  W.  728;  Interstate  Coal  Co.  v. 
Love,  153  Ky.  323,  155  S.  W.  746. 

But  where  it  appears  that  the  sum 
received  is  adequate,  he  may  only  re- 
cover nominal  damages  on  an  action 
to  disaffirm  the  settlement.  Baker  v. 
Lovett,  6  Mass.  78,  4  Am.  Dec.  88. 

In  Michigan  it  is  held  that  where 
the  infant  makes  such  a  settlement  it 
is  voidable  only,  and  that  he  cannot 
disaffirm  it  during  minority  and  sue 
for  his  injuries.  Lansing  v.  Michigan 
Cent.  E.  Co.,  126  Mich.  663,  86  N.  W. 
147,  8  Det.  Leg,  N.  183,  86  Am.  St. 
E.  567;  Theriualt  v.  Breton,  114  Me. 
137,  95  A.  699;  Hollinger  v.  York 
Eys,  Co.,  225  Pa.  419,  74  A.  344; 
Tumey  v.  Mobile  &  O.  E.  Co.,  127 
Tenn.  673,  156  S.  W.  1085. 

43.  2  Saund.  Pleading,  207 ;  Bird  v. 
Pegg,  5  B.  &  Aid.  418;  Finley  v 
Jowle,  13  East,  6;  Apthorp  v.  Backus, 
Kirby,  407.  But  as  to  the  infant 
himself,  see  Bird  v.  Pegg;  Jones  v. 
Steele,  36  Mo.  324.  He  may  repudi- 
ate the  judgment  if  entered  against 
him.    Hicks  v.  Beam,  112  N.  C.  642. 


§    1057  INFANCY.  1272 

sues  on  behalf  of  minor  children,  hut  not  as  guardian  or  next 
friend.  Where  infancy  of  the  plaintiff  is  pleaded  in  abatement 
to  a  suit  brought  by  a  minor  in  his  own  name  without  any  guar- 
dian or  next  friend,  the  court  may  allow  the  infant  to  amend  bj 
inserting  in  his  writ  that  he  sues  by  A,,  his  next  friend.**  Nor 
does  this  rule  deprive  the  infant  of  the  professional  services  of 
an  attorney ;  it  relates  to  the  parties  to  the  suit.*^  The  judgment 
becomes  upon  him  if  entered  after  his  majority.*^  If  the  action 
is  properly  brought  and  prosecuted  the  infant  is  bound  by  the 
judgment  as  an  adult  would  be,*^  but  he  is  not  bound  by  an  adverse 
judgment  in  an  action  commenced  without  a  guardian  or  next 
friend.*' 

§  1057.  Powers,  Qualifications  and  Duties  of  Next  Friend. 

Generally  speaking,  when  an  action  is  brought  by  an  infant,  he 
sues  in  his  own.  name  by  a  certain  person  as  next  friend.  A 
prochein  ami,  commencing  his  authority  with  the  vrrit  and  dec- 
laration, can  only  maintain  the  suit  for  such  causes  of  action  as 
may  be  prosecuted  without  special  demand;  as  for  personal  in- 
juries done  to  the  infant,  or  for  sums  of  money  where  the  writ 
itself  is  considered  as  the  demand.*®  In  England,  it  was  con- 
sidered that  the  special  admission  of  a  guardian  for  an  infant  to 
appear  in  one  case  would  serve  for  others.^"  But  the  modem  rule 
is  that  the  special  admission  of  prochein  ami  or  guardian,  to  pros^ 
cute  or  defend  for  an  infant,  shall  not  be  deemed  an  authority 
to  prosecute  or  defend  in  any  but  the  particular  action  specified.'^ 
Sometimes  there  will  be  an  advantage  in  suing  by  guardian  if  this 
can  legally  be  done.^^  In  any  event,  the  interests  of  the  person 
who  sues  as  guardian  or  next  friend  must  not  be  hostile  to  that 
of  the  infant.^^ 

The  guardian,  like  the  prochein  ami/ is,  in  English  practice,  ap- 
pointed by  the  court  before  the  plaintiff  can  proceed  in  the  action, 
and  no  legal  right  of  parentage  or  of  guardianship  will  enable  any 
one  to  act  for  the  infant  without  such  appointment.^*     But  where 

44.  Blood   V,    Harrington,    8    Pick.  49,  Miles  v.  Boyden,  3  Pick.  219. 
552.  50.  Archer  v.  Frowde,  1  Stra.  304. 

45.  People  v.  New  York,  11  Wend.  51,  2  Saund.  Plead.  207;  Macphera. 
164.  Inf.  353. 

46.  Hicks  V,  Bean,  112  N.  C.  642.  52.  3  Robinson's  Pract.  229. 

47.  McCreary  v.  Creighton,  76  Neb.  53.  George  v.  High,  85  N.  C.  113; 
179,  107  N.  W.  240.  Patterson  v,  Pullman,  104  111.  80, 

48.  Di  Meglio  v,  Baltimore  &  O,  R,  54.  Macphers.  Inf.  353. 
Co.  (Del.),  74  A.  558. 


1273 


ACTIONS. 


§  1057 


the  infant's  father,  being  a  necessary  witness,  could  not  properlj 
be  prochein  ami  in  a  certain  suit,  the  court,  on  motion,  appointed 
a  friend  of  the  family  with  the  father's  concurrence/^  And  the 
father's  natural  right  to  represent  his  child  as  next  friend  is  to  be 
respected,^®  though  he  does  not  describe  himself  as  next-  friend." 
No  authority  from  the  infant  to  the  guardian  or  prochein  ami 
to  sue  is  necessary,  though  the  infant  be  on  the  very  eve  of  ma- 
jority; iDUt  it  is  intimated  that  the  court  might  interfere  if  fraud 
were  shown.^*  An  action  to  recover  money  or  personal  property 
belonging  to  an  infant  may  be  brought  in  the  infant's  name  by  his 
next  friend,  though  he  has  a  general  guardian.^'  As  the  prochein 
ami  is  an  officer  of  the  court,  if  the  infant  wishes  him  removed 
he  must  apply  to  the  court  for  that  purpose,  and  an  entry  of  the 
change  should  be  made  of  record.®"  But  on  the  plaintiff  coming 
of  age,  he  may,  it  seems,  remove  the  prochein  ami  of  his  own  au- 
thority, and  appear  thereafter  by  his  own  attorney.^^ 

While,  in  theory,  however,  the  prochein  ami  is  still  legally 
appointed  by  the  court,  such  formalities  are  now,  in  practice, 
very  generally  waived.     In  Connecticut,  Rhode  Island,  Massachu- 


55.  Claridge  v.  Crawford,  1  Dowl. 
&  Ry.  13. 

56.  Woolf  V.  Pemberton,  6  Ch.  D.  19. 
See  Strong  v.  Marcy,  33  Kan.  109, 

57.  In  re  Brackey's  Estate,  147  N. 
W.  188. 

By  statute  in  Louisana  a  father 
may  sue  on  behalf  of  his  infant  child 
without  joining  the  mother.  Scar- 
borough V.  Louisana  Sy.  &  Nav  Co. 
(La.),  82  So.  286;  Williams  v.  Pope 
Mfg.  Co.,  52  La.  Ann.  1417,  27  So. 
851,  50  L.  E.  A.  816. 

The  same  has  been  permitted  where 
the  person  acting  for  the  infant  styles 
himself  guardian  ad  litem,  if  it  ap- 
pears that  he  is  really  acting  as  next 
friend.  .Stna  Indemnity  Co.  v.  State 
(Miss.),  57  So,  980;  Donald  v.  City  of 
Ballard,  34  "Wash.  576,  76  P.  80  (hold- 
ing that  the  father  of  an  infant  might 
sue  as  guardian  ad  litem). 

58.  Morgan  v.  Thorne,  9  Dowl.  228. 
And  see  Barwick  v.  Rackley,  45  Ala. 
S15. 

59.  Segelken  v,  Meyer,  94  N.  C. 
473, 


60.  Davies  v.  Locket,  4  Taunt.  765 ; 
Morgan  v.  Thorne,  supra. 

61.  See  Bac.   Abr.,  Infant,  K.   2; 
Patton  V.  Furthmier,  16  Kan.  29. 

Dismissal  of  action  by  next  friend 
for  infant,  because  not  for  the  in- 
fant's interest.  Bull  v.  Miller,  59  la. 
634  (code).  And  see  dismissal  of  suit 
brought  without  leave  of  court  where 
the  next  friend 's  interest  is  adverse  to 
the  infant.  Patterson  v.  Pullman, 
104  m.  80.  Local  codes  furnish 
their  respective  rules  of  practice; 
and  statute  formalities  should  be  care- 
fully observed.  But  special  aver- 
ments of  infancy,  etc.,  are  not  com- 
monly required.  Dodd  v.  Moore,  91 
Ind.  522.  And  see  as  to  form  G.  C. 
&  S.  F.  Ey.  Co.  V.  Styron,  66  Tex.  421. 

Whether  an  infant  or  his  next 
friend  can  sue  in  forma  pauperis,  see 
Cargle  v.  Railroad  Co.,  7  Lea,  717; 
Wright  V.  McLarinan,  92  Ind.  103;  13 
Abb.  (N.  Y.)  N.  Cas.  182.  A  bond 
under  some  codes  is  required  of  the 
next  friend.  Pace  v.  Pace,  19  Fla. 
438.     As   to   actions   brought    in   the 


§  1057 


I^'FA^'CY. 


1274 


setts,  Virginia,  and  other  States,  no  entrj  of  record  is  required 
admitting  a  person  to  sue  as  guardian  or  next  friend,  the  recital  in 
the  writ  and  count  being  deemed  sufficient  evidence  of  admission 
unless  seasonably  challenged  bj  the  opposite  party,  when  the 
order  may  be  supplied,  or  the  court  on  its  discretion  may  remove 
the  party.^"  In  Xew  York,  on  the  other  hand,  a  prochein  ami 
must  be  appointed  for  the  infant  plaintiff  before  process  is  sued 
out;  and  such  is  the  practice  in  some  other  parts  of  this  country.®' 
In  some  States  it  is  deemed  proper  to  prove  infancy  in  advance, 
and  hence  the  right  to  sue  by  next  friend.®* 

So,  too,  in  this  country,  more  deference  seems  to  be  shown  to 
the  infant's  wishes  than  in  England.  Thus,  in  Massachusetts, 
the  court,  on  the  personal  petition  of  a  minor  twenty  years  of 
age,  withdrew  the  authority  of  the  prochein  ami,  and  ordered  all 
further  proceedings  in  the  suit  postponed  until  the  minor  should 
attain  full  years.®^  In  the  choice  of  a  guardian  and  prochein  ami, 
a  minor  above  fourteen  has  much  latitude  of  discretion ;  and  when 
he  attains  full  age  he  may  enter  the  fact  upon  record,  and  with- 
out further  formality  proceed  to  conduct  the  suit  for  himself.®' 


name  of  the  State,  see  Albert  v.  State, 
66  Md.  325. 

62.  Gillespie  v.  Collier,  224  F.  29S, 
139  C.  C.  A.  534, 

A  recital  in.  the  judgment  for  an 
infant  plaintiff  that  the  action  of  the 
nest  friend  in  suing  -was  ratified  cures 
the  omission  of  an  order  appointing 
the  next  friend.  Gillespie  v.  Collier, 
224  F.  298,  139  C.  C.  A.  534;  Swoope 
V.  Swoope,  173  Ala.  157,  S.  W.  418. 

In  Arkansas  by  statute  the  next 
friend  is  under  the  control  of  the 
court,  which  may  dismiss  him  and 
substitute  another.  Nashville,  etc., 
Co.  V.  Barefield,  93  Ark.  353,  124  S. 
W.  758.  The  same  rules  obtains  in 
Alabama.  Swoope  v.  Swoope,  173  Ala. 
157,  55  S.  418. 

It  is  otherwise  where  a  foreign 
guardian,  not  qualified  to  sue  in  the 
forum,  brings  a  suit  for  the  minor, 
when  an  amendment  appointing  a  next 
friend  may  be  allowed  by  the  court. 
St.  Louis  I.  M.  &  S.  Ey.  Co.  v.  Haist, 
71  Ark.  258,  72  S.  W.  893,  100  Am. 
St.  E.  65 ;  Butler  v.  Winchester  Home 


for  Aged  Women,  216  Mass.  567,  104 
X.  E.  45.  And  seemingly  it  may  be 
necessary  where  the  infants  appoint 
none  of  their  own.  Sick  v.  Michigan, 
etc.,  Ass'n,  49  Mich.  50,  12  N.  W. 
905.  See  Guild  v.  Cranston,  8  Cush. 
506:  Boynton  v.  Clay,  58  Me.  236; 
Burwell  t.  Corbin,  1  Eand.  151;  3 
Eobinson  's  Pract.  230 ;  Trask  v.  Stone, 
7  Mass.  241;  Judson  v.  Blanchard,  3 
Conn.  579;  Klaus  v.  State,  54  Miss. 
644.  And  see  Stumps  v.  Kelley,  22 
111.  140;  Gray  v.  Parke,  155  Mass. 
443;  Murray  v.  Barber,  16  E.  I.  512. 
The  authority  of  next  friend  con- 
tinues, though  without  appointment, 
until  the  court  removes  him.  Common- 
wealth V.  Vieth,  155  Mass.  443. 

63.  "Wilder  v.  Ember,  12  Wend.  191 ; 
Haines  v.  Oatman,  2  Doug.  430; 
Grantman  v.  Thrall,  44  Barb.  173. 

64.  Byers  v.  Des  Moines,  etc.,  R.  E. 
Co.,  21  la.  54. 

65.  Guild  V.  Cranston,  8  Cush.  506. 

66.  Clark  v.  Watson,  2  Ind.  399; 
Shuttlesworth  v.  Hughey,  6  Eich.  329. 


1275 


ACTIONS. 


§  1058 


Where  an  infant  lias  brought  an  action  by  bis  next  friend,  and 
has  recovered  damages  whith  have  been  received  by  the  attorney, 
the  money  is  the  money  of  the  infant,  and  he  may  sue  the  attorney 
for  it.*^  The  codes  of  some  States  require  payment  of  the  amount 
recovered  into  court,  until  a  guardian  is  appointed  to  hold  the 
fund.  Upon  a  writ  of  error  the  court  may  in  its  discretion  select 
another  next  friend  for  the  minor.®* 

A  prochein  ami  is  liable  for  costs,  and  the  remedy  is  against 
his  for  attachment,  which  should  be  absolute  in  the  first  instance." 
This  is  the  English  practice.  It  would  appear  that  execution  can- 
not issue  against  the  infant  himself;  and  this  from  the  very  cir- 
cumstance that  the  next  friend  is,  in  theory,  one  who  comes  for- 
ward to  assume  all  such  liabilities.'^"  But  in  conformity  with 
statutes  in  Massachusetts,  it  is  held  that  a  prochein  ami,  as  such, 
is  not  liable  for  costs  f^  nor  does  he  seem  to  be  always  stirctly  con- 
sidered in  our  courts  a  party  to  the  suit;'"  and  the  infant  plaintiff 
is  made  liable  for  his  own  costs.''* 


§  1058.  Action  at  Law  Against  Infant;  the  Guardian  ad  Litem. 

An  infant  can  appear  and  defend  in  civil  suits  by  guardian 
only,  and  not  by  attorney,  or  in  person.'^*  An  appearance  by  at- 
torney merely  does  not  bind  him.''     He  cannot  answer  by  next 


67.  Collins  v.  Brook,  4  Hurl.  &  Nor. 
276.  And  see  Smith  v.  Redus,  9  Ala. 
99. 

68.  Ames  v.  Ames,  148  111.  321. 

69.  Newton  v.  London,  Brighton, 
etc.,  R.  R.  Co.,  7  Dow.  &  L.  328 
(1849);  Dow  v.  Clark,  2  Dowl.  302. 
See  Price  v.  Duggan,  4  Man.  &  Gr. 
225. 

70.  76.;  Stephenson  v.  Stephenson, 
3  Hey.  123;  Ferryman  v.  Burgster,  6 
Port.  (Ala.),  199^;  Sproule  v.  Botts,  5 
J.  J.  Marsh.  162.  But  see  Proudfoot 
V.  Poile,  3  Dow.  &  L.  524;  Macphers. 
Inf.  356,  357,  and  cases  cited.  As  to 
practice  under  New  York  Code,  see 
Linner  v.  Crouse,  61  Barb.  289.  As  to 
the  infant's  own  testimony  of  age  in 
such  suits,  see  Hill  v.  Eldridge,  126 
Mass.  234. 

71.  Crandall  v.  Slaid,  11  Met.  288. 

72.  Brown  v.  Hull,  16  Vt.  673. 

73.  Howett    V.    Alexander,    1    Dev. 


431;  Smith  v.  Floyd,  1  Pick.  275.  Cf. 
statutes  of  other  States.  Kleffel  v. 
Bullock,  8  Neb.  336. 

74.  Edwards  v.  Edwards,  142  Ala. 
267,  39  S.  82;  Williamson  v.  Grider, 
97  Ark.  588,  135  S.  W.  361;  Dudley 
V.  Dudley,  126  Ark.  182,  189  S.  W. 
838;  Nunn  v.  Robertson,  80  Ark.  350, 
97  S.  W.  293;  Blanton  v.  Davis,  107 
Ark.  1,  154  S.  W.  947;  Wheelock  v. 
Lake,  117  Mich.  11,  75  N.  W.  140, 
5  Det.  Leg.  N.  119;  Mitchell  v. 
Spaulding,  206  Pa.  220,  55  A.  968; 
Manning  v.  Baylinson,  68  Pa.  Super. 
Ct.  512;  Co.  Litt.  88  h,  n.  16,  135  b;  2 
Stra.  784;  Macphers.  Inf.  358;  Alder- 
man V.  Tirrell,  8  Johns.  418;  Knapp 
V.  Crosby,  1  Mass.  479 ;  Miles  v.  Boy- 
den,  3  Pick.  213;  Bedell  v.  Lewis,  4 
J.  J.  Marsh.  562;  Starbird  v.  Moore, 
21  Yt.  529. 

75.  Tubbs  V.  Tubbs,  250  111.  540, 
95  N.  E.  479;  Thurston  v.  Tubbs,  250 


§  1058 


INPANCT. 


1276 


friend/*  The  process  is  the  same  against  an  infant  as  in  ordinary 
cases;  but  he  needs  some  one  to  conduct  his  defence,  and  hence 
every  court,  wherein  an  infant  is  sued,  has  power  to  appoint  a 
guardian  ad  litem  for  the  special  purposes  of  the  suit,  since  other- 
wise he  might  be  without  assistance.""     Under  the  civil  law,  the 


111.  540,  95  N.  E.  479;  Spahr  v.  Dick- 
Bon,  67  Ind.  394;  Copeland  v.  Yoak- 
um's Adm'r,  38  Mo.  349. 

Under  a  Missouri  statute  providing 
that  no  judgment  shall  be  impaired 
by  reason  of  the  appearance  of  any 
party  by  attorney,  if  the  judgment 
•was  for  him,  it  was  held  that  an. 
original  appearance  of  minors  by  at- 
torney was  cured  after  judgment  for 
them.  Chrisman  v.  Divinia,  141  Mo. 
122,  41  S.  W,  920;  (1909)  Hope  v. 
Seaman,  119  N.  Y.  S.  713  (judg.  mod.. 
Same  v.  SheviU  [1910],  122  N.  Y.  S. 
127,  137  App.  Div.  86).  But  see 
Gamache  v.  Provost,  71  Mo.  84. 

76.  Bush  V.  Linthicum,  59  Md.  344. 

77.  Shehane  v.  Caraway,  154  Ala. 
391,  45  So.  469 ;  Sibeck  v.  McTiernan, 

94  Ark.  1,  135  S.  W.  136;  In  re  Snow- 
ball's Estate,  156  Cal.  235,  104  P. 
446;  Bancroft  v.  Bancroft  (Del.),  85 
A.  561;  Parrish  v.  Haas  (Fla.),  67 
So.  868;  Burnett  v.  Summerlin,  110 
Ga.  349,  35  S.  E.  655;  Douglas  v. 
Johnson,  130  Ga.  472,  60  S.  E.  1041; 
(1911)  Thomas  v.  Thomas,  250  111, 
354,  95  N.  E.  345  (reversing  judg., 
155  111.  App.  619)  ;  Flynn  v.  Flynn, 
283  111.  206,  119  N.  E.  304;  White  v. 
Kilmartin,  205  111.  525,  68  N.  E. 
1086;  Thurston  v.  Tubbs,  250  111.  540, 

95  N.  E.  479;  Mechling  v.  Meyers 
(111.),  120  N.  E.  542;  Phillips  v.  Phil- 
lips, 185  111.  629,  57  N.  E.  796;  Simp- 
eon  V.  Simpson,  273  111.  90,  112  N.  E. 
276;  Gibbs  v.  Potter,  166  Ind.  471, 
77  N.  E.  942;  Eice  v.  Bolton,  126 
la.  654,  100  N.  W.  634,  102  N.  W. 
509;  Wise  v.  Schloesser,  111  la.  16, 
82  N.  W.  439;  Earl  v.  Cotton,  78 
Kan.  405,  96  P.  348;  Tichenor  v. 
Yankee,  89  Ky.  508,  12  S.  W.  947, 
11  Ky.  Law  Rep.  712;  Adams  v.  Do 
Dominguez,   129   Ky.   599,   112   S.  W. 


663;    Whalen  v.  Hopper's  Guardian, 
152  Ky.  727,  154  S.  W.  40. 

In  the  absence  of  express  legislative 
requirement,  it  is  not  necessary  to 
have  a  guardian  ad  litem  appointed 
for  infants  interested  in  a  trust  es- 
tate prior  to  the  determination  of  an 
application  by  the  trustees  to  borrow 
money  on  mortgage  of  the  trust  prop- 
erty for  the  benefit  of  the  estate,  as 
authorized  by  Rev.  Laws  1902,  ch. 
147,  §  18.  Warren  v.  Pazolt,  203 
Mass.  328,  89  N.  E.  381;  Easton  v. 
Eaton,  112  Me.  106,  90  A.  977,  52  L. 
R.  A.    (N.  S.)    799. 

The  rule  has  been  applied  to  a  bas- 
tardy proceeding  against  an  infant. 
Easton  v.  Eaton,  112  Me.  106,  90  A. 
977,  52  L.  R.  A.  (N.  S.)  799;  Chap- 
man V.  Barnes,  1  Bland.  (Md.)  552; 
Haines  v.  Oatman,  2  Doug.  (Mich.) 
430;  Calhoun  v,  Cracknell  (Mich.), 
168  N.  W.  547. 

Who  shall  represent  a  minor  in  an 
action  is  a  matter  wholly  of  procedure, 
and  the  laws  of  the  place  of  action, 
not  the  laws  of  domicile  of  the  minor 
or  his  parent,  control.  Brunette  t. 
Minneapolis,  St.  P.  &  S.  S.  M.  Ey. 
Co.,  118  Minn.  444,  137  N.  W.  172; 
Northern  Scruggs  (Miss.),  79  So.  227; 
Carraway  v.  Lassiter,  139  N.  C.  145, 
51  S.  E.  968;  Bunting  v.  Bunting, 
87  N.  J.  Eq.  20,  99  A.  840;  In  re 
Cooper's  Estate,  2  How.  Prae,  (N. 
Y.)  38;  Kindgen  v.  Craig,  147  N.  Y. 
S.  571,  162  App.  Div.  508;  Fishbein 
V.  Fishbein,  165  N".  Y.  S.  936;  (1909) 
Hope  V.  Seaman,  119  N.  Y.  S.  713 
(judg.  mod.,  Same  v.  Shevill  [1910], 
122  N.  Y.  S.  127,  137  App,  Div.  86)  , 
In  re  Eousos,  119  N.  Y.  S.  34. 

Where  no  such  guardian  is  ap- 
pointed, the  infant  cannot  be  in  con- 
tempt for  failure   to  obey   an   order. 


1277 


ACTIONS. 


§  1058 


court  appoints  a  tutor  ad  hocJ^  The  court  should  do  this  ex  mero 
motu  wherever  necessary."  The  appointment  should  be  by  formal 
order.*"  The  infant  cannot  nominate  an  attorney,  nor  by  ac- 
cepting service  make  himself  a  party  to  the  action.^^  It  is  not 
sufficient  for  a  proper  defence  and  a  binding  judgment  against 
the  infant  that  his  parents  in  fact  represented  him  and  employed 
Gounsel.®^  A  guardian  ad  litem  is  one  appointed  for  the  infant  to 
defend  in  the  particular  action  brought  against  him,  and  is  there- 
fore to  be  distinguished  from  guardians  of  the  person  and  estate.®' 
If  there  be  a  general  chancery,  probate,  or  testamentary  guardian 

An  infant  wife,  being  emancipated 
from  the  disability  of  infancy  by  mar- 
riage, does  not  need  a  tutor  to  de- 
fend a  proceeding  for  annubnent  of 


Gross  V.  Gross,  112  N.  Y.  S.  7^0,  128 
App.  Div.  429. 

A  guardian  ad  litem  is  an  arm  of 
the  court  extended  to  protect  the 
minor  who  is  incapacitated  to  look 
after  his  own  interests.  American 
Inv.  Co.  V.  Brewer  (Okla.),  181  P. 
294;  Mitchell  v.  Spaulding,  206  Pa. 
220,  55  A,  968;  Chapman  v.  Turber- 
ville,  4  Hen.  &  M,  (Va.)  482;  Turner 
V.  Earraud,  102  Va.  324,  46  S.  E.  318; 
Sears  v.  Duling,  77  Vt.  496,  61  A. 
518;  Burke  v.  Northern  Pac.  Ey.  Co., 
86  Wash.  37,  14?  P.  335;  Stewart  v. 
Parr,  74  W.  Va.  327,  82  S.  E.  259; 
Alexander  v.  Davis,  42  W.  Va.  465, 
26  S.  E.  291. 

The  infant  and  not  the  guardian 
is  the  defendant.  Stewart  v.  Parr, 
74  W.  Va.  327,  82  S.  E.  259. 

The  rule  stated  in  the  text  has  been 
applied  even  where  the  infant  had  a 
general  guardian  who  was  a  party  to 
the  action.  Ponti  v.  Hoffman,  87 
Wash.  137,  151  P.  249;  (1908)  In  re 
McNaughton's  Will,  118  N.  W.  997; 
Frame  v.  Plumb,  Id.  (affd.  reh.,  138 
Wis.  179,  120  N.  W.  288;  Grauman, 
Marx  &  Cline  Co.  v.  Krienitz,  142 
Wis.  556,  126  N.  W.  50;  Hubbard  v. 
Chicago,  etc.,  E.  Co.,  104  Wis.  160, 
80  N.  W.  454,  76  Am.  St.  E.  855; 
Bac.  Abr.,  Guardian,  B.  4 

78.  Gates  v.  Bank  of  Patterson,  116 
La.  539,  40  So.  891;  In  re  Interstate 
Land  Co.,  118  La.  587,  43  So.  173; 
Interstate  Land  Co.  v.  Doyle,  Id.  : 
Gilbert  v.  Mazeratt,  121  La.  35,  46  S. 
47;  In  re  Bank  of  Patterson,  Id. 


the  marriage  where  the  ground  of  dis- 
solution is  relative  and  not  absolute. 
Delpit  v.  Young,  51  La.  Ann.  923,  25 
So.  547. 

79.  Mason  v.  Truitt,  257  HI.  18, 
100  N.  E.  202;  Sheahan  v.  Wayne 
Circuit  Judge,  42  Mich.  69,  3  N.  W. 
259;  Jones  v.  Hudson  (Neb.),  141 
N.  W.  141,  44  L.  E.  A.  (N.  S.)  1182, 
93  Neb.  561;  Bunting  v.  Bunting,  87 
N.  J.  Eq.  20,  99r  A.  840. 

The  duty  extends  to  cases  where 
a  guardian  ad  litem  is  appointed, 
but  fails  to  perform  his  duty.  Boiling 
V.  Campbell,  36  Okla.  671,  128  P. 
1091;   Same  v.  Gibson,  Id.  1093. 

80.  Where  a  guardian  ad  litem  had 
been  formally  appointed  for  certain 
infant  contestants  of  an  allowance  to 
trustee^,  the  action  of  the  court  in 
recognizing  him  as  guardian  ad  litem 
for  other  contestants  was  held  a  suffi- 
cient appointment  for  that  matter. 
Johnston  v.  Moeller  (Conn.),  107  A. 
566. 

The  absence  of  an  order  is  not  fatal, 
where  the  fact  is  otherwise  shown  by 
the  record.  Crane  v.  Stafford,  217 
m.  21,  75  N.  E.  424;  Alexander  v. 
Davis,  42  W.  Va.  465,  26  S.  E.  291. 

81.  Finley  v.  Eobertson,  17  S.  C. 
435 ;  McClosky  v.  Sweeney,  66  Cal.  53. 

82.  Johnson  v.  Waterhouse,  152 
:Mas3.   585. 

83.  Larkin  v.  Mann,  2  Paige,  27; 


§  1058 


INFAJS'CY. 


1278 


already  appointed,  it  is  his  place,  generally  speaking,  to  defend 
the  infant  from  all  suits,  so  long  as  his  authority  over  the  infant's 
property  continues  and  his  interest  is  not  adverse  in  the  suit; 
this  being,  however,  a  matter  usually  regulated  in  this  country  by 
statute.^*  This  guardian  ought  to  be  a  person  with  no  interests 
to  regard  except  those  of  the  infant  defendant  f^  he  should  have  no 
interest  adverse  to  the  party  he  appears  for. 

TVhat  has  been  observed  of  the  appointment  of  procliein  ami 
may  be  said,  in  general,  of  that  of  the  guardian  ad  litem.  The 
two  correspond,  and  the  principles  of  law  applicable  to  the  one 
are  in  general  to  be  applied  to  the  other.*®  In  a  criminal  case 
.10  guardian  ad  litem  is  appointed.  But  in  a  civil  case  proceed- 
ings against  an  infant  are  liable  to  be  reversed  and  set  aside  for 
irregularity,  where  no  guardian  ad  litem  has  been  appointed  for 
him,  unless,  perhaps,  his  regular  guardian  having  no  adverse  in- 
terest has  appeared  in  his  defence ;  and  process  must,  besides, 
have  been  first  regularly  served  upon  the  infant ;  though  in  this 
latter  respect  the  rule  of  the  several  States  is  not  uniform.*'  Ir- 
Koberts    v.    Stanton,    2    Munf.    129;       infant),   is  indispensable   to   his   ap- 


Bac.    Abr.,    Guardian,    supra,    cases 
cited  by  Bouvier. 

84.  See  Hughes  v.  Seller,  34  Ind. 
337;  Emeric  v.  Alvarado,  64  Cal.  529; 
Manx  V.  Eowlands,  59  Wis.  110.  See 
McMakin  v.  Stratton,  82  Ky.  226. 
Under  various  practice  codes,  infants 
should  be  specially  defended  by  a 
guardian  ad  litem,  and  not  by  the  gen- 
eral guardian.  Bearinger  v.  Pelton, 
78  Mid.  109;  Vaughan  t,  Lewellyn, 
94  N.  C.  473. 

85.  Hence  the  plaintiff's  husband 
fhould  not  be  appointed.  Bicknell  v. 
Bicknell,  72  N.  C.  127. 

86.  See  Macphers.  Inf.  358. 

87.  See  Abdil  v.  Abdil,  26  Ind.  287; 
Jarman  v.  Lucas,  15  C.  B.  (X.  S.) 
474;  Frierson  v.  Travis,  39  Ala.  150; 
Larkins  v.  Bullard,  88  N.  C.  35.  In 
some  States  it  is  required  by  statute 
that  process  shall  be  served  upon  the 
infant  defendant  personally,  also  upon 
his  father,  mother,  or  guardian.  In- 
gcrsoU  V.  Ingersoll,  42  Miss.  155; 
Irwin  V.  Irwin,  57  Ala.  614;  Helms 
V.  Chadbourne,  45  Wis.  60.  Service  on 
the  guardian  ad  litem  (as  well  as  the 


pearance  in  New  York  practice.  In- 
gersoll V.  Mangam,  84  N.  Y.  622.  See 
also  Johnston  v.  S.  F.  Sav.  Union,  63 
Cal.  554 ;  Gibbons  v.  McDermott,  10 
Fla.  852;  Bro-svn  v.  Do-ivning,  137  Pa. 
St.  569'.  Only  personal  service  gives 
jurisdiction  of  a  suit  against  an  in- 
fant; and  acceptance  of  service  is  no 
equivalent.  Genobles  v.  West,  23  S.  C. 
154,  187;  Young  v.  Young,  91  N.  C. 
359.  A  judgment  rendered  against  a 
minor  without  the  appointment  of  a 
guardian  ad  litem  is  not  void,  but 
rather  voidable.  Walkenhorst  v. 
Lewis,  24  Kan.  420;  Charley  v. 
Kelley,  120  Mo.  135;  Eisenmenger  v. 
Murphy,  42  Minn.  84;  Clark  v.  Hillis, 
134  Ind.  421.  Some  local  statutes 
provide  for  the  infant's  modification 
of  a  judgment  against  him  within  a 
year  after  arriving  at  age.  Eichards 
V.  Richards,  10  Bush,  617.  But  the 
judgment  is  prima  facie  correct,  and 
errors  must  be  prejudicial  to  the  in- 
fant's interest  in  order  to  be  thus 
availed  of.  Eichards  v.  Eichards,  10 
Bush,  617.  An  infant  may  appeal 
from  a  judgment  against  him,  or  have 


127a 


ACTIONS. 


1058 


regularities  of  procedure  or  delay  in  the  appointment  are  often 
cured  by  the  judgment ;  and  even  though,  the  judgment  he  voidable, 
lapse  of  time  and  laches  on  the  part  of  an  infant  after  reaching 
majority  may  leave  him  altogether  without  an  oppor-tunity  to  set 
the  judgment  aside,  especially  if  no  prejudice  has  resulted,  as  in 
the  usual  case  of  his  voidable  transactions.®*  Some  courts  hold 
that  the  appointnient  of  a  guardian  ad  litem  for  an  infant  defend- 
ant is  a  jurisdictional  fact,  the  want  of  which  will  render  the 
judgment  void  and  open  to  collateral  attack,*^  but  the  weight  of 
authority  favors  the  view  that  the  omission  is  mere  reversible 

error,  not  rendering  the  judgment  void.®"  In  this  view  of  the 
is  reversed  for  error,  at  any  time  dur-       Churchman's  Ex'x,  111  Ky.  51,  63  S. 


ing  minority  without  waiting  for  his 
majority.  Moss  v.  Hall,  79  Ky.  40. 
Judgments  at  law  are  voidable,  not 
void.  §  1015 ;  England  v.  Garner,  90 
N.  C.  197.  Even  where  it  does  not 
appear  that  a  guardian  ad  litem  ap- 
peared. Emerie  v.  Alvarado,  64  Cal. 
529.  Some  courts  pronounce  judg- 
ments void,  under  local  practice,  where 
clearly  prejudicial  to  the  infant,  if  the 
formalities  of  service  and  defence  by 
guardian  are  omitted.  See  Brown  v. 
Downing,  137  Pa.  St.  569.  But  the 
mere  omission  to  appoint  before 
bringing  suit  is  not  a  jurisdictional 
defect,  but  an  irregularity  merely. 
Eima  v.  E.  I.  Works,  120  N.  Y.  433. 

The  court's  jurisdiction  to  appoint 
is  not  impaired  by  the  guardian 's  er- 
roneous acts  after  appointment.  Ma- 
loney  v.  Dewey,  127  111.  395.  And  see 
Batchelder  v.  Baker,  79  Cal.  266. 
The  guardian  may  appeal  on  the  in- 
fant's behalf.  Thomas  v.  Levering, 
73  Md.  451. 

Statutes  sometimes  provide  that 
proceedings  against  non-resident  de- 
fendants (infants  included)  may  be 
by  publication.  Bryan  v.  Kennett, 
113  U.  S.  179. 

88.  See  Townsend  v.  Cox,  45  Mo. 
401;  Barnard  v.  Heydrick,  49  Barb. 
62 ;  McMurray  v.  McMurray,  60  Barb. 
117;  "Wickersham  v.  Timmons,  49  la. 
267;  Maples  v.  Maples,  3  Iloust.  458. 

89.  Burnett  v.  Summerlin,  110  Ga. 
349,    35    S,    E.    655;     Hulsewede    v. 


W.  1,  23  Ky.  Law  Eep.  487;  M.  M. 
Sanders  &  Son  v.  Schilling,  123  La. 
1009,  49  So.  689;  Prince  v.  Clark,  81 
Mich.  167,  45  X.  W.  663;  Wells  v. 
Wells,  144  Mo.  198,  45  S.  W.  1095; 
Weaver  v.  Glenn,  104  Va.  443,  51  S. 
E  835;  Horton  v.  Barto,  57  Wash. 
477,  107  P.  191;  Hays  v.  Camden's 
Heirs,  38  W.  Va.  109,  18  S.  E.  461; 
O'Dell  V.  Rogers,  44  Wis.  136;  Hub- 
bard v.  Chicago  &  N.  W.  Ey.  Co., 
104  Wis.  160,  80  X.  W.  454,  76  Am. 
St.  E.  855. 

90.  Conway  v.  Clark,  177  Ala.  99, 
58  So.  441 ;  Edwards  v.  Edwards,  142 
Ala.  267,  39  So.  82;  Dudley  v.  Dud- 
ley, 126  Ark.  182,  189  S.  W.  838; 
Foley  V.  California  Horseshoe  Co.,  115 
Cal.  184,  47  P.  42,  56  Am,  St.  E.  87; 
Blake  v.  Douglass,  27  Ind.  416;  Cook 
V.  Edson  Keith  &  Co.,  5  Ind.  T.  595,  82 
S.  W.  918;  Nels  v.  Eider  (la.),  171 
N,  W.  150;  Eeints  v.  Engle,  130  la. 
726,  107  X.  W.  947;  Fudge  v.  Fudge, 
23  Kan.  416;  Holloway  v.  Mcintosh, 
7  Kan.  App.  34,  51  P.  963;  Carney  v. 
Yocum's  Heirs,  176  Ky.  173,  195  S. 
W.  482;  Eeynolds  v.  Steel,  170  Ky. 
163,  185  S.  W.  820;  Harrod  v.  Har- 
rod,  167  Ky.  308,  180  S.  W.  797; 
Schimpf  V.  Eohnert,  129  Mich.  103, 
88  X.  W.  384,  8  Det.  Leg.  X.  886. 

The  guardian  may  be  appointed 
during  the  trial.  Muenkel  v.  iMuenkel 
(Minn.),  173  X.  W.  184;  Eubanks  v. 
McLeod,  105  Miss.  826,  63  So.  226; 
Eeineman  v.  Larkin,  222  Mo.  156,  121 


§  1058 


INFANCY. 


1280 


matter  the  want" of  an  appointment  of  a  guardian  hd  litem  is  not 
jurisdictional,®'  so  that  the  judgment  will  not  be  open  to  collateral 
attack,®^  but  it  seems  agreed  that  it  is  reasonable  error,  if  season- 
ably objected  to'*  and  that  the  trial  court  maj  set  it  aside  on 
motion.'* 

The  writ  and  declaration  in  actions  at  law  against  infants  are 
to  be  made  out  as  in  ordinary  cases.  In  English  practice,  where 
the  defandant  neglects  to  appear,  or  appears  otherwise  than  by 
guardian,  the  plaintiff  may  apply  for  and  obtain  a  summons,  call- 
ing on  him  to  appear  by  guardian  within  a  given  time;  otherwise 
the  plaintiff  may  be  at  liberty  to  proceed  as  in  other  cases,  having 


S.  W.  307;  In  re  Cooper's  Estate,  2 
now,  Prac.  (N.  Y.)  38;  In  re  Jones' 
Estate,  105  N.  Y.  S.  932,  54  Misc. 
202;  In  re  Weed's  Estate,  177  N.  Y. 
S  93;  "Winterroth  v.  Cox,  75  Misc. 
467,  133  N.  Y.  S.  445;  Anderson  v. 
Anderson,  150  N.  Y.  S.  359,  164  App. 
Div.  812;  Fox  v.  Fee,  49  N.  Y.  S. 
292,  24  App.  Div.  314;  Manning  v. 
Baylinson,  68  Pa.  Super.  Ct.  512; 
Murchison  Nat  Bank  v.  Reynolds  (S. 
C),  96  S.  E.  521;  Wallis  v.  Stuart, 
92  Tex.  568,  50  S.  W.  567;  Catron  v. 
Bostic  (Va.),  96  S.  E.  845;  Kongs- 
hach  V.  Casey,  66  "Wash.  643,  120  P. 
108;  Alexander  v.  Davis,  42  W.  Va. 
465,  26  S.  E.  291 ;  Linn  v.  Collins,  87 
S.  E.  934;  Curtis  v.  Deepwater  Ry. 
Co.,  68  W,  Va.  762,  70  S.  E.  776; 
Grauman  v.  Marx,  etc.,  Co.,  142  Wis. 
556,  126  N.  W.   50. 

91.  Conway  v.  Clark,  177  Ala.  99, 
58  S.  441;  Trask  v.  Boise  King  Pla- 
cers Co.,  26  Ida.  290,  142  P.  1073; 
Eubanks  v.  McLeod,  105  Miss.  826, 
63  S.  226;  Winterroth  v.  Cox,  75 
Misc.  467,  133  N.  Y.  S.  445;  In  re 
Jones'  Estate,  54  Misc.  202,  105  N.  Y. 
R.  ?32. 

92.  Conway  v.  Clark,  177  Ala.  99, 
58  S.  441;  Harrod  v.  Harrod,  167  Ky. 
308,  180  S.  W.  797;  Eubanks  v.  Mc- 
Leod, 105  Miss.  826,  63  S.  226;  Reine- 
man  v.  Larkin,  222  Mo.  156,  121  S. 
W.  307;  Grauman,  etc.,  Co.  v.  Krie- 
nitz,  142  Wis.  556,  126  N.  W.  50. 


93.  Edwards  v.  Edwards,  142  Ala. 
267,  39  S.  82;  Conway  v.  Clark,  177 
Ala.  99,  58  So.  441 ;  Cowling  v.  Hill, 

69  Ark.  350,  63  S.  W.  800,  86  Am. 
St.  R.  200;  Linebaugh  v.  Atwater, 
173  111.  613,  50  N.  E.  1004;  White  v. 
Kilmartin,  205  111.  525,  68  N.  B. 
1086;  Wise  v.  Schlosser,  111  la.  1«, 
82  N.  W.  439;  Daggy  v.  Miller  (la.), 
162  N.  W.  854;  State  v.  Stark  (la., 
1911),  129  N.  W.  331;  Eaton  v.  Eaton, 
112  Me.  106,  9^0  A.  977,  52  L.  R.  A.)  N 
S.)  799;  Conto  v.  Silvia,  170  Mass. 
152,  49  N.  E.  86;  Winteroth  v.  Cox, 
133  N.  Y.  S.  445,  75  Misc.  467; 
Co  wen  v.  Ganung,  110  N.  Y.  S.  470, 
58  Misc.  141;  Wallis  v.  Stewart,  93 
Tex.  568,  50  S.  W.  567;  Curtis  v. 
Deepwater   Ry.  Co.,   68  W.  Va.  762, 

70  S.  E.  776;  Grauman,  etc.,  Co.  v. 
Krienitz,  142  Wis.  556,  126  N.  W.  50; 
Shelby  v.  St.  James'  Orphan  Asylum, 
66  Neb.  40,  92  N.  W.  155. 

94.  Maryland  Casualty  Co.  v.  Lan- 
ham,  124  Ga.  859,  53  S.  E.  395;  In  re 
Finck's  Estate,  171  N.  Y.  S.  988; 
Byrnes  v.  Byrnes,  96  N.  Y.  S.  306, 
109  App.  Div.  535. 

In  New  York  by  statute  the  time 
for  making  such  a  motion  is  limited 
to  two  years.  Byrnes  v.  Byrnes,  10? 
App.  Div.  535,  96  N.  Y.  S.  306;  Cur- 
tis V.  Deepwater  Ry.  Co.,  68  W.  Va. 
762,  70  S.  E.  776;  Grauman,  etc., 
Co.  V.  Krienitz,  142  Wis.  556,  126  N. 
W.  50. 


1281 


ACTIONS. 


§   1059 


had  a  nominal  guardian  assigned  to  the  infant.®^  A  like  rule 
prevails  in  Xew  York  and  other  States.®"  Courts  will  go  so  far 
for  protecting  an  infant  as  to  see  that  process  is  properly  served, 
a  guardian  ad  litem  appointed  for  him,  and  the  formal  answer 
filed."  An  infant  defendant  is  liable  to  costs  in  the  same  manner 
as  any  other  defendant,  notwithstanding  he  has  a  guardian.'* 

If  an  infant  comes  of  age  pending  the  suit,  he  can  assert  his 
rights  at  once  for  himself;  and  unless  he  does  so  he  cannot  gener- 
ally complain  of  the  acts  of  his  guardian  ad  litem.  Where  a 
person  is  of  age  and  sui  juris,  it  is  error  to  appoint  a  guardian 
ad  liiem.^* 

§  1059.  Chancery  Proceedings  by  or  against  Infants;  Corre- 
sponding Rule. 

The  same  leading  principles  noticeable  in  suits  at  law  are  to  be 
recognized  in  equity  proceedings  by  or  against  infants;  and  the 
doctrines  of  next  friend  and  guardian  ad  litem,  receive  ample  dis- 
cussion in  the  chancery  courts.^ 

Among  the  miscellaneous  matters  of  chancery  practice  relating 
to  infants  may  be  mentioned  proceedings  in  partition,  orders  for 
maintenance  and  education,  the  management  of  trust  funds  ^  by 


95.  The  defence  of  statute  of  frauds 
ExUst  be  regarded  as  having  been 
pleaded  with  reference  to  infant  de- 
fendants as  to  whom  it  might  be 
available,  though  not  in  fact  pleaded. 
Willis  V.  Zorger,  258  111.  574,  101  N. 
E.  963.     See  Macphers.  Inf.  359. 

96.  Van  Deusen  v.  Brower,  6  Cow. 
50;  Judson  v.  Storer,  2  South.  544; 
Clarke  v.  Gilmanton,  12  N.  H.  515. 

97.  Alexander  v.  Frary,  9  Ind.  481. 

98.  Anderson  v.  Warde,  Dyer,  104; 
Gardiner  v.  Holt,  Stra.  1217.  Mac- 
pherson  says  that  the  guardian  of  an 
infant  defendant  is  subject  to  the 
same  liability  for  costs  as  the  pro- 
chein  ami,  or  the  guardian  of  an  in- 
fant plaintiff.  Macphers.  Inf.  361. 
No  authority  is  given  for  this  state- 
ment, and  it  seems  that  the  guardian 
of  an  infant  defendant  is  not  liable. 
See  Ferryman  v.  Burgster,  6  Fort. 
(Ala.)  199.  Such  guardian  should  at 
all  events  be  reimbursed  all  reason- 
able   charges    incurred    in    the    case. 

81 


Smith  v.  Smith,  69  III.  308.  A  guar- 
dian ad  litem  cannot  absolutely  bind 
those  whom  he  represents  by  a  con- 
tract with  an  attorney  in  the  suit  fix- 
ing his  compensation.  Cole  v.  Su- 
perior Court,  63  Cal.  86.  See  §  344. 
99.  Mitchell  v.  Berry,  1  Met.  (Ky.) 
602.  And  see  Marshall  v.  Wing,  50 
Me.  62 ;  Stupp  v.  Holmes,  48  Mo.  89 ; 
Bursen  v.  Goodspeed,  60  111.  277 ;  Pat- 
ton  V.  Furthmier,  16  Kan.  29. 

1.  See  1  Daniell,  Ch.  Fl.,  3d  Am. 
ed.,  65  et  seq.;  Tb.  150  et  seq.,  where 
the  English  and  American  authorities 
are  very  fully  cited.  As  to  an  allow- 
ance to  a  guardian  ad  litem  for  fees 
and  services,  see  Mason  v.  Fomeroy, 
151  Mass.  164 ;  Wilbur  v.  Wilbur,  138 
ni.  446. 

2.  Infant  owners  of  land,  whether 
by  legal  or  equitable  title,  may  sue  in 
chancery  to  charge  as  trustee  one  who 
has  received  the  rents  or  profits  of 
their  land.  Johns  v.  Williams,  66 
Miss.  350. 


§  1059 


INFANCY. 


1282 


guardians  and  other  trustees,  and  the  award  of  custody.  These 
subjects  have  already  been  incidentally  considered  in  the  course 
of  this  treatise.  And  we  need  only  add  that,  in  the  appointment 
of  guardians  ad  litem,  courts  of  chancery  will  exercise  a  liberal  dis- 
cretion; that  in  all  proceedings  of  this  character  the  appoint- 
ment of  a  guardian  ad  litem  to  appear  in  behalf  of  infants  in- 
terested in  the  proceedings  is  regarded  as  proper  and  even  neces- 
sary, when  they  have  no  general  guardian  or  the  general  guardian 
has  an  adverse  interest;  that  personal  service  upon  the  infants, 
besides,  is  usually  requisite ;  and  that  a  decree  rendered  without 
observance  of  such  formalities  may  be  reserved  for  error.^  It  is 
he  rule  in  many  States,  as  it  was  the  old  practice  in  chancery,  to 
^llow  an  infant  his  day,  after  he  attains  majority,  to  set  aside  a 
decree  against  him ;  thus,  in  effect,  rendering  such  decrees  in 
chancery  voidable  rather  than  binding,  so  far  as  he  is  concerned, 
and  treating  him  more  than  ever  upon  the  footing  of  a  privileged 
person  ;*  for  it  is  not  too  much  to  say  that  at  all  times  and  under 
all  circumstances  infants  are  especial  favorites  of  our  law. 


A  guardian  with  hostile  interest 
should  not  represent  the  ward  in  such 
cases. 

3.  1  Daniel],  65,  150;  Ehett  v.  Mar- 
tin, 43  Ala.  86;  Girty  v.  Logan,  6 
Bush,  8;  Ehoads  v.  Rhoads,  43  111. 
233;  Swain  v.  Fidelity  Ins.  Co.,  54 
Pa.  St.  455 ;  Ivey  v.  Ingram,  4  Cold. 
129;  39  Ark.  61,  235.  Personal  ser- 
vice on  the  infant  dispensed  with  in 
Greorgia.  Harvey  v.  Cubbedge,  75  Ga. 
792. 

4.  Simpson  v.  Alexander,  6  Cold. 
619;  Kuchenbeiser  v.  Beckert,  41  111. 
173;  1  Danicll,  Ch.  PI.,  3d  Am.  ed., 
71,  167.  Rule  now  abrogated  in  some 
States.  Phillips  v.  Dusenberry,  15 
N.  Y.  Supr.  348.  It  does  not  apply  to 
an  infant  trustee.  Walsh  v.  Walsh, 
116  Mass.  377.  And  see  O'Rorke  v. 
Bolinbroke,  2  App.  Cas.  814. 

Concerning  the  appointment,  the 
court's  discretion  is  favored  as  in 
other  interlocutory  proceedings. 
Walker  v.  Hull,  35  Mich.  488.  Giving 
security  for  costs  will  not  obviate  the 
nece63ity  of  suing  in  the  name  of 
next  friend  or  guardian.  Sutton  v. 
Nichols,  20  Kan.  43.    A  fund  in  chan- 


cery should  not  be  given  up  without 
securing  the  legal  costs,  &c.,  of  the 
guardian  ad  litem  or  his  solicitor. 
Sheahan  v.  Circuit  Judge,  42  Mich. 
69.  As  to  infant  married  woman's 
guardian  ad  litem  or  next  friend, 
see  Ex  parte  Post,  47  Ind.  142.  Gene- 
ral guardians  do  not  represent  their 
wards  in  foreclosure  proceedings,  but 
a  guardian  ad  litem  is  proper.  Shea- 
han v.  Circuit  .Tudge,  42  Mich.  69. 
Where  the  infant's  probate  guardian 
has  an  adverse  interest  in  the  suit, 
there  should  be  a  guardian  ad  litem, 
appointed.  Stinson  v.  Pickering,  70 
Me.  273,  Though  service  on  the  in- 
fant is  the  regular  rule  (supra,  § 
448),  it  is  held  in  some  States  that  a 
regular  guardian  may  defend,  and 
may  waive  the  service  of  process,  even, 
where  the  minor 's  realty  is  involved. 
Scott  V.  Porter,  2  Lea,  224;  Walker 
V.  Veno,  6  Rich.  459.  As  to  infant's 
acceptance  of  service,  see  Wheeler  v. 
Ahenbeak,  54  Tex.  535. 

A  guardian  ad  litem  cannot  admit 
away  the  substantial  rights  of  in- 
fants; his  passiveness  will  not  be 
construed  into  a  waiver;    nor   will  a 


1283 


ACTIONS. 


§  1059 


An  infant  defendant  is  as  mucli  bound  by  a  decree  in  equity, 
rendered  upon  due  jurisdiction  and  fairly, —  as  a  person  of  full 
age;  therefore,  if  there  be  an  absolute  decree  made  against  a 
defendant  who  is  under  age,  and  who  has  regularly  appeared  by 
a  guardian  ad  litem  and  has  been  served  with  process,  he  will 
not  be  permitted  to  dispute  it  unless  upon  the  same  gTounds  as 
an  adult  might  have  disputed  it;  such  as  fraud,  collusion,  or 
fundamental  error.^  As  to  the  binding  force  of  judgment  at  law, 
the  rule  does  not  seem  to  be  equally  strong,^  But  the  rule  may  be 
stated  that  in  the  main  an  infant  plaintiff  suing  by  guardian  or 
next  friend  is  as  much  bound  by  a  judgment  or  decree  as  a  per- 
son of  full  age/  But  where  a  defendant  in  a  suit  is  a  minor  at 
the  time  of  service  of  summons,  and  the  record  shows  that  he  be- 
comes of  full  age  before  the  judgment  is  taken,  a  court  is  dis- 


bill  in  equity  be  taken  as  confessed 
against   an   infant.      Lane    v.    Hard- 
wicke,  9  Beav.  148;   Tucker  v.  Bean, 
65  Me.  352;  Mills  v.  Dennis,  3  Johns 
Ch.   367;    Turner  v.  Jenkins,  79  111 
228;    Jones   v.   Jones,    56    Ala.    612 
Ashford    v.    Patton,    70    Ala.     479 
Daily's  Adm'r  v.  Eeid,  74  Ala.  415 
Of   course   no    general    guardian    has 
such  a  right.     Bearinger  v.  Pelton,  78 
Mich.  109. 

An  infant  may  by  original  bill  im- 
peach a  decree  in  favor  of  his  guar- 
dian and  prejudicial  to  his  own  in- 
terests; nor,  on  general  chancery 
rules,  need  he  wait  until  attaining 
full  age.  Sledge  v.  Boone,  57  Miss. 
222.  A  decree  not  appealed  from  is 
held  binding  upon  an  infant  in  the 
absence  of  fraud,  whoever  may  have 
been  his  guardian  ad  litem,  process 
having  been  duly  served  on  the  infant. 
McCrosky  v.  Parks,  13  S.  C.  90;  Cuy- 
ler  V.  Wayne,  64  Ga.  78.  What  has 
been  decreed  will  bo  presumed  rightly 
done.  Whether  guardian  ad  litem  or 
prochein  ami  can  submit  an  infant's 
interests  to  arbitration,  see  Tucker  v. 
Dabbs,  12  Heisk.  18.  It  seems  he 
carnot,  except  upon  the  court's  sanc- 
tion. §  1055;  Savage  v.  McCorklo,  17 
Ore.  42. 

5.  1  Dan.  Ch.  Practice,  205 ;  Rivers 


V.  Durr,  46  Ala.  418;  Ralston  v.  Lahee, 
8  Clarke  (la.),  17;  Watkins  v.  Law- 
ton,  69  Ga.  671 ;  Iii  re  Livingston,  34 
N.  Y.  555;  supra,  §  1054.  And  see,  as 
to  allowing  the  infant  his  day,  §  542. 
But  see  Tibbs  v.  Allen,  27  111.  119; 
Driver  v.  Driver,  6  Ind.  286;  Ashton 
V.  Ashton,  35  Md.  496. 

As  to  the  method  of  impeaching  a 
decree  for  reasons  stated  in  text,  see 
Haines  v.  Hewitt,  129  111.  347;  Stunz 
V.  Stunz,  131  111.  309;  Kingsbury 
V.  Buckner,  134  V.  S.  650.  The 
infant  need  not  proceed  by  bill  of 
review,  but  may,  while  a  minor,  file 
his  original  bill  to  impeach  the  de- 
cree. 76.  He  has  longer  time  than 
an  adult  by  reason  of  disability  to  in- 
stitute suits  for  relief.  Hurt  v.  Long, 
90  Tenn.  445.  But  the  decree  cannot 
be  set  aside  as  against  an  intervening 
bona  fide  purchaser  without  notice. 
Allison  v.  Drake,  145  111.  500, 

An  infant,  duly  represented  by 
guardian,  is  concluded  by  a  probate 
decree.  Simmons  v.  Goodell,  63  N. 
H.  458.  And  see  Sites  v.  Eldrcdge, 
45  N.  J.  Eq.  632.  But  not  if  the 
probate  court  undertook  to  sell  or 
partition  land  without  jurisdiction. 
Cole  V.  Railway  Co.,  81  Mich.  167. 

6.  Supra,  §§  1015,  1055,  1058. 

7.  Woodall  V.  Moore,  55  Ark.  22. 


§    1059  INFANCY.  1284 

posed  to  uphold  the  judgment  unless  it  can  be  impeached  for 
fraud.*  In  some  States,  doubtless  both  judgments  at  law  and 
decrees  of  equity  now  stand  on  the  same  conclusive  footing,  and 
the  infant  has  not  his  opportunity  to  show  cause  as  to  either  class 
on  reaching  majority,  except  on  the  grounds  above  stated.^  Where- 
ever  the  substantial  interests  of  infants  are  involved,  nothing  can 
be  established  by  admissions  or  stipulations ;  but  proof  is  neces- 
sary." But  while  a  next  friend  or  guardian  ad  litem  cannot  thus 
surrender  substantial  rights  of  the  infant,  he  may  bind  the  latter 
by  arrangements  which  simply  facilitate  the  trial  and  the  pur- 
suit of  justice.^^  All  this  may  be  likewise  said  of  counsel;  for 
the  authority  of  counsel  cannot  be  greater  than  that  of  the  next 
friend  or  guardian  employing  him.^^ 

8.  Stupp  V.  Holmes,  48  Mo.  89.  And  Bryant  v,  Livermore,  20  Minn.  313, 
see  Blake  v.  Douglass,  27  Ind.  416;       342,  and  cases  cited. 

Hicks  V.  Beam,  112  N.  C.  642.  10.    Claxton    v.    Claxton,    56    Mich. 

9.  Phillips  V.  Dusenberrj,  15  N.  Y.  557;  Crotty  v.  Eagle,  35  W.  Va.  143; 
Supr.  348;  Bickel  v.  Erskine,  43  la.  Jeffera  v.  Jeffers,  139  lU,  368;  Hale 
213.     As  to  either  guardian  ad  litem  v.  Hale,  146  111,  227. 

or  prochein  ami,  he  is  not  a  party  to  11.  Kingsbury  v.  Buckner,  134  U. 

an  action  in  such  sense  that  his  re-  S.  650. 

lationship    to    the    judge    disqualifies  12.   Eidam  v.   Finnegan,   48   Minn, 

the   latter  from   sitting   in   the   case.  53;  Crotty  v.  Eagle's  Adm'r,  35  W. 

Sinclair  v.  Sinclair,  13  M.  &  W.  646;  Va.  143. 


PART  VI. 

SEPARATION  AND  DIVOECK 

CHAPTER  I. 

SEPAEATION  AND  DIVORCE. 

SscnoN  1060.  Deed  of  Separation ;  General  Doctrine. 

1061.  English  Rule. 

1062.  American  Rule. 

1063.  "What  Covenants  Are  Upheld. 

1064.  Abandonment ;  Rights  of  Deserted  Wife. 

1065.  Divorce  Legislation  in  General. 

1066.  Legislation    upon    Divorce;    Divorce    from    Bed    and   Board; 

Divorce  from  Bond  of  Matrimony,  &c. 

1067.  Causes  of  Divorce:      Adultery;    Cruelty;    Desertion;    Miscella- 

neous Causes. 

1068.  Defences. 

1063.     Effect  of  Absolute  Divorce  upon  Property  Rights. 

1070,  Effect  of  Partial  Divorce  upon  Property  Rights. 

1071.  Validity  of  Foreign  Divorces. 

§  1060.  Deed  of  Separation;  General  Doctrine. 

Separation  is  that  anomalous  condition  of  a  married  pair  which 
involves  a  cessation  of  domestic  intercourse,  while  the  impedi- 
ments of  marriage  continue.  Either  from  choice  or  necessity,  as 
the  case  may  he,  they  throw  aside  the  strong  safeguards  of  a  home 
and  mutual  companionship ;  they  forfeit  their  most  solemn  obliga- 
tions to  protect,  love,  and  cherish  through  life ;  they  continue  united 
in  form  and  divided  in  fact.  The  spirit  of  the  contract,  all  that 
dignifies  and  ennobles  it,  is  gone;  but  the  letter  remains.  Both 
parties  submit,  in  some  degree,  at  least,  to  the  degradation  of  pub- 
lic scandal ;  they  are  cast  loose  upon  the  world  without  the  right 
to  love  and  be  loved  again;  the  thought  of  kindling  fresb  flames 
at  the  altar  of  domestic  happiness  is  criminal ;  and  deprived  of 
the  comfort  and  support  of  one  another,  finding  in  society  at  best 
but  timid  sympathy  and  consolation,  the  moral  character  must  be 
strong,  and  doubly  so  must  be  that  of  the  wife,  that  each  may 
buffet  with  success  the  tide  which  bears  onward  to  destructiou. 
Such  a  state  of  things  no  public  policy  can  safely  favor ;  but  the 
law  sometimes  permits  it,  if  for  no  other  reason  than  that  an 
adequate  remedy  is  wanting  to  check  or  to  prevent  the  evil ;  and 

1285 


§    1061  SEPAKATIOX    AXD    DIVORCE.  1286 

hence  it  may  be  thouglit  more  expedient  for  the  courts  to  enforce 
such  mutual  contracts  of  the  unhappy  pair  as  mitigate  their 
troubles,  than  to  dabble  in  a  domestic  quarrel  and  try  to  compel 
unwilling  companionships.^^ 

This  we  conceive  to  be  the  rightful  position  of  the  English  and 
American  equity  courts  whenever  they  see  fit  to  enforce  separation 
agreements.  Some,  to  be  sure,  are  disposed  to  carry  the  argument 
further.  Thus,  recent  English  writers  of  much  repute  refer  to  the 
fact  that  divorces  from  bed  and  board  are  often  granted  in  that 
countrv,  and  hence  conclude  that  it  is  reasonable  for  the  married 
parties  themselves  to  compromise  litigation,  save  court  fees,  and 
avoid  public  notoriety,  and  therefore  to  agree  to  live  apart,  just 
as  though  the  court  had  entered  a  decree  for  that  purpose.^*  But 
this  argument  proves  too  much;  for  if  marriage  and  divorce  are 
matters  for  private  compromise,  like  ordinary  contracts,  why  should 
not  the  discontented  pair,  upon  just  cause,  agree  to  unloose  the 
yoke  altogether  ?  Why  should  they  not  sometimes  obtain  divorce 
from  the  bonds  of  matrimony  by  collusion  and  default,  and  thus 
take  the  readiest  means  of  avoiding  scandalous  and  expensive 
suits  ?  One  shrinks  from  such  conclusions.  In  fact,  divorce  laws 
do  not  belong  to  the  parties  themselves,  but  to  the  public ;  govern- 
ment guards  the  sanctity  of  marriage,  just  as  it  demands  the  duty 
of  alliegiance ;  only  that  perhaps  its  policy  cannot  be  enforced  in 
the  one  case  as  well  as  the  other.  It  is  because  marriage  is  not 
on  the  footing  of  ordinary  contracts,  that  husband  and  wife  can- 
not, on  principle,  compromise,  arbitrate,  or  modify  their  relation- 
ship at  pleasure.  Furthermore,  the  above  argument  would  seem 
to  suggest  that  where  a  complete  divorce,  instead  of  divorce  from 
bed  and  board,  is  attainable,  deeds  of  separatoin  would  not  hold 
good;  nor,  again,  where  parties  separate  for  causes  which  do  not 
even  justify  divorce  from  bed  and  board;  neither  of  which  posi- 
tions is  sustained  by  the  actual  decisions. 

§  1061.  English  Rule. 

Lord  Eldon  was  of  the  opinion  that  a  settlement  by  way  of 
separate  maintenance,  on  a  voluntary  separation  of  husband  and 
wife,  was  against  the  policy  of  the  law  and  void.  The  ground  of 
his  opinion  was  that  such  settlements,  creating  a  separate  mainte- 

13.  Bergen  v.  Van  Liew,  36  N.  J.       See  also  Jacob,  n.  to  Eoper,  Hus  & 
Eq.   637.  TVife,  277;   Peachey,  Mar.  Settl.  647. 

14.  Macq.  Hus.  &  Wife,  324  et  seq. 


1287  SEPAEATION    AXD   DIVOECE.  §    1061 

nance  hj  voluntary  agreement  between  husband  and  wife,  were 
in  their  consequences  destructive  to  the  indissoluble  nature  and 
the  sanctity  of  the  marriage  contract ;  and  he  considered  the 
question  to  be  the  gravest  and  most  momentous  to  the  public 
interest  that  could  fall  under  discussion  in  a  court  of  justice.^' 
But  in  England  final  and  complete  dissolution  of  marriage  was, 
until  quite  recently,  attainable  only  by  act  of  Parliament.  And 
this  method  of  procediire  was  found  so  difficult,  expensive,  and 
uncertain,  that  parties  who  could  not  live  peaceably  together 
were  led  to  consider  some  lesser  means  of  mitigating  their  mis- 
fortune. To  be  sure  the  ecclesiastical  courts  awarded  sentences 
of  divorce  from  bed  and  board ;  but  these  merelv  discharged  the 
parties  from  the  duty  of  cohabitation,  permitting  them  to  come 
together  afterwards  if  they  should  so  choose;  and  therefore,  as 
a  writer  observes,  these  sentences  "  did  not  often,  it  must  be 
owned,  repay  the  pains  bestowed  in  obtaining  them."^®  The  Eng- 
lish ecclesiastical  courts  steadily  refused,  moreover,  to  recognize 
separation  deeds. ^^  Such  a  policy  seemis,  however,  to  have  turned 
husband  and  wife  to  their  own  devices  for  effecting  the  same  result, 
with  less  delay  and  annoyance,  and  in  order  to  adjust  more  com- 
pletely those  property  arrangements  which  never  could  be  for- 
gotten in  their  misery.  Deeds  of  settlement,  trusts,  and  the  in- 
tervention of  the  equity  courts  readily  furnished  a  plan  of  oper- 
ations ;  and  the  ubiquitous  conveyancer  appeared  once  more  upon 
the  stage  to  open  the  way,  through  subtle  refinements,  to  freedom 
for  discontented  couples,  and  emolument  for  himself. 

After  a  prolonged  struggle,  and  in  spite  of  public  policy,  it  is 
therefore  fully  established  at  length  in  England,  as  a  doctrine 
of  equity,  that  deeds  of  separation  may  and  must,  if  properly 
framed,  be  carried  into  execution  by  the  courts.^^  They  may  be  en- 
forced in  the  common-law  courts  indirectly  through  the  medium  of 
covenants  which  are  entered  into  between  the  husband  and  trus- 
tees ;  and  in  equity  specific  performance  will  be  decreed  where  the 

15,  St.  John  T.  St.  John,  11  Ves.  Settl.  620;  H.  v.  W.,  3  Kay  &  Johns. 
530.      See    Mortimer   t.    Mortimer,   2       386,  387. 

Hag.    Consist.    Rep.    318;    Legard    v.  17.  1  Bish.  Mar  &  Div.,  5th  ed.,  § 

Johnson,    3    Ves.    352;     Mercein    v.  634;    Mortimer  t.   Mortimer,   2   Hag. 

People,  25  Wend.  77.  Con.  310;  Smith  v.  Smith,  4  Hag.  Ec. 

16.  Macq.  Hus.  &  Wife,  326.     See  609. 

Hope  T.   Hope,   3   Jur.    (N.   S.)    456;  18.  Wilson  v.  Wilson,  1  Ho.  Lords 

s.  c.  26  L.  J.  Eq.  425;  Peachey,  Mar.       Cas.    538;     5    Ho.    Lords    Cas.     59; 


§     1062  SEPAKATIOK    AND    DIVOECE.  1288 

Stipulations  are  not  contrary  to  law  nor  in  contravention  of  public 
policy.^*  An  agreement  between  husband  and  wife  to  live  apart 
is,  perhaps,  void  as  against  public  policy;  but  the  husband's  cove- 
nant with  a  third  party  may  be  valid  and  binding,  although  it 
originates  in  this  unauthorized  state  of  separation  and  relates 
directly  to  it.^" 

It  may  seem  strange  that  such  an  auxialary  agreement  should 
be  enforced,  while  the  principal  agreement  is  held  contrary  to  the 
spirit  and  policy  of  the  law.  Lord  Eldon,  who  sitrongly  opposed 
the  whole  doctrine  on  principle,  said  that  if  the  question  were 
res  Integra,  untouched  by  dictum  or  decision,  he  would  not  have 
permitted  such  a  covenant  to  be  the  foundation  of  a  suit  in  equity.^^ 
Sir  William  Grant  appears  to  have  been  the  first  to  call  attention 
to  the  inconsistency  of  the  courts  in  this  respect;  and  his  remark 
has  come  down  through  the  later  judges.^^  Lord  Rosslyn,  however, 
hit  upon  the  explanation  that  an  agreement  for  a  separate  pro- 
vision between  the  husband  and  wife  alone  is  void,  merely  from 
the  general  incapacity  of  the  wife  to  contract;^'  an  explanation 
which,  we  submit,  is  quite  unsatisfactory.  The  true  reason  for  the 
anomalous  distinction  appears  to  be  simply  this :  that  contracts  for 
separation  are  in  general  void  as  against  public  policy,  but  that 
the  courts  saw  fit  to  let  in  exceptions  so  far  as  to  enforce  fair  cove- 
nants.^* 

§  1062.  American  Rule. 

Deeds  of  separation  were  never  very  common  in  the  United 
States.  And  there  are  at  least  three  very  good  reasons  why  they 
should  be  at  this  day  less  encouraged  than  in  England.  The  fir?t 
is  that  our  legislation  strongly  favors  the  separate  control  of  mar- 
ried women  as  to  their  own  acquisitions,  without  the  intervention 
of  trustees  and  formal  deeds  of  settlement,  thus  dispensing  with 
the  necessity  of  intricate  property  arrangements.  The  second  is 
that  equity,  ecclesiastical,  and  common-law  functions  are  usually 

Peachey,  Mar.   Settl.   620,   and   cases  22.  See  Jones  v.  Waite,  5  Bing.  361 ; 

cited;   Macq.  Hus.  &  Wife,  329.  Th-ampton  v.  Frampton,  4  Beav.  293. 

19.  Vansittart  v.  Vansittart,  2  De  23.  Legard  v.  Johnson,  3  Ves.  Jr. 
Gex  &  Jones,  249.  352.    See  2  Bright,  Hus.  &  Wife,  306, 

20.  Worrall  v.  Jacob,  3   Mer.   255;  n.  by  Jacob. 

Peachey,  ^Mar.  Settl.  621 ;  Sanders  v.  24.   Under  English  legislation,  not 

Rodney,  16  Beav.  211;   Warrender  v.  only    are    covenants    in    a    separation 

Warrender,  2  CI.  &  Fin.  488.  deed  enforced,  but  the  court  has  power 

21.  Wcstmeath  v.  Wcstmeath,  Jac.  to   vary  them   after   a   dissolution   of 
126;  2  Kent,  Com.  176.  the  marriage.     Clifford  v.  Clifford,  9 


1289 


SEPAJEtATlON    AND    DIVOKCE. 


§    1062 


blended  in  the  same  courts  of  final  appeal,  so  that  a  State  is  at 
liberty  to  adopt  the  precedents  of  the  ecclesiastical  rather  than 
the  modem  equity  tribunals  of  England  for  its  guidance ;  while  an 
American  court,  on  the  other  hand,  could  not  admit  clearly  the 
right  of  parties  to  declare  terms  of  private  separation,  without 
bringing  confusion  and  uncertainty  upon  its  own  divorce  and 
matrimonial  jurisdiction.  The  third  is  that  sentences  of  divorce 
have  been  procured  in  most  of  the  United  States  with  great  ease, 
moderate  expense,  and  little  publicity. 

Early  in  this  century,  Chancellor  Kent  summed  up  authorities 
which  showed  that  a  private  separation  was  an  illegal  contract,  in 
these  emphatic  words :  "  Nothing  can  be  clearer  or  more  sound 
than  this  conjugal  doctrine.""^  Contrary  to  what  until  quite  lately 
was  the  rule  in  England,  many  of  our  States  have  never  directly 
sanctioned  separation  deeds  at  all.  And  a  recent  Xorth  Carolina 
case  distinctly  maintains  what  ought  to  and  may  yet  become  the 
pronounced  American  doctrine, —  that  separation  deeds  are  void 
as  against  law  and  public  policy.'® 

Nevertheless  there  are  individual  American  cases,  and  numerous 
ones,  where  separation  deeds  have  been  recognized  so  far  as  to 
permit,  and  sometimes  to  require,  parties  to  perform  such  marital 
duties  as  were  incumbent  upon  them,  notwithstanding  the  fact  of 
separation.''^  And  the  text-writer  must  still  further  concede,  how- 
ever reluctantly,  that  out  of  a  regard  for  permitting  married 
parties,  who  are  resolved  upon  separation  without  a  divorce,  to 
arrange  decently  for  the  maintenance  of  wife  and  offspring  and 
for  a  just  mutual  disposition  of  property  rights,  our  courts  are  in 
the  latest  cases  following  the  English  lead  so  as  to  sustain  the 
enforcement  of  whatever  covenants  might  be  pronounced  fair  in 
themselves  on  behalf  of  parties  separated  or  about  to  separate. 
Some  of  these  cases  sustain  such  covenants  upon  a  suggestion  that, 


P.    D.    76;    Fearon    v.    Aylesford,    12 
Q.  B.  D.  53g. 

25.  2  Kent,  Com.  177  n. 

26.  Collins  v.  Collins,  1  Phill.  N.  C. 
Eq.  153.  An  agreement  between  hus- 
band and  -vvife,  having  for  its  object  a 
dissolution  of  the  marriage,  is  con- 
trary to  sound  policy,  and  a  note  and 
mortgage  executed  in  pursuance  there- 
of is  void.  Cross  v.  Cross,  58  N.  H. 
373. 


27.  1  Bishop,  Mar.  &  Div.,  §  639  et 
seq.;  Schouler,  Hus.  &  "Wife,   §   473 
Goodrich    v.    Bryant,    4    Sneed,    325 
McCubin   v.   Patterson,   16   Md.   179 
Griffin  v.  Banks,  ?.7  X.  Y.  621;  Joyce 
V.   :McAvoy,   31    Cal.    273;    Walker   v. 
Stringfellow,   30   Tex.    570;    Hitner's 
Appeal,  54  Pa.  St.  110;  Loud  v.  Loud, 
4   Bush,   453;    Button    v.    Button,   30 
Ind.  452;  McKee  v.  Reynolds,  26  la. 
578;    Walker    v.    Beal,    3    Cliff.    155; 


1063 


SEPAEATION    A^iD    DIVOKCE. 


1290 


separation  being  inevitable,  they  are  prepared  to  make  the  best 
of  it,  not  conceding  the  support  of  contracts  calculated  to  favor  a 
separation  wbicb  bas  not  yet  taken  place  or  been  fully  decided 
upon.'*  An  unsatisfactory  distinction  truly,  nor  likely  to  afford 
a  resting-place ;  as  though  this  half  countenance  were  not  calculated 
of  itself  to  favor  future  separation ;  and  yet  a  legal  distinction, 
since  it  leaves  the  bickering  parties  where  they  have  placed  them- 
selves. It  seems  to  stop  short  of  enforcing  specific  performance  of 
a  written  agreement  for  a  separation  deed,  and  to  refuse  direct 
countenance  to  a  stipulation  that  husband  and  wife  shall  live  apart 


in  time  to  come 


29 


:  §  1063.  What  Covenants  are  Upheld. 

An  indenture  with  the  intervention  of  a  trustee  or  trustees  is  in 

•  this  country  held  the  safer  sort  of  instrument  where  separation 
is  contemplated,  and  such  are  the  deeds  usually  drawn  and  con- 
strued by  our  courts.  It  is  desirable  that  the  husband  and  trustee 
mutually  covenant  together.  But  so  considerably  are  husband 
and  wife  now  emancipated  from  the  need  of  intermediate  parties, 
that  a  fair  transaction  of  the  present  nature  has  been  sometimes 
sustained  in  certain  States,  where  no  trustee  at  all  was  inter- 
posed.^" This  cannot  be  affirmed  of  all,  nor  of  most  of  the  United 
States  ;^^  nor  can  such  a  contract  ever  prevail  against  the  wife's 
interests  where  she,  in  such  negotiation  and  arrangements,  does  not 
appear  to  have  acted  wnth  perfect  freedom  and  a  perfect  under- 
standing of  her  individual  rights.^^  Sometimes  an  agreement  or 
bond  to  separate  is  executed  by  husband  and  wife,  accompanied  by 
the  conveyance  of  property  to  a  trustee  for  the  use  of  the  wife; 


Dupre  V.  Rein,  56  How.  (IST.  Y.)  Prac. 
228;  Deming  v.  "William,  26  Conn. 
226;  Chapman  v.  Gray,  8  Ga.  341. 

28.  Fox  V.  Davis,  113  Mass.  255, 
per  Endicott,  J.,  and  cases  cited ;  Hut- 
ton  V.  Hutton,  3  Barr,  100;  Eandall 
T.  Eandall,  37  Mich.  563,  per  Cooley, 
C.  J.;  Garver  v.  Miller,  16  Ohio  St. 
527;  Robertson  v.  Robertson,  25  la. 
350;  Button  v.  Button,  30  Ind.  452; 
r-arpenter  v.  Osboni,  102  N.  Y.   552. 

29.  See  this  distinction  asserted  in 
the  latest  cases.  Aspinwall  v.  Aspin- 
wall,  49  N.  J.  Eq.  302;  Galusha  v. 
Galusha,  116  N.  Y.  635.  Contra,  Scott's 
Estate,  147  Pa.  St.  102,  where,  how- 


ever, the  application  accords  v.ith  the 
text. 

30.  In  Eandall  v.  Eandall,  37  Mich. 
563,  a  deed  passed  from  husband  to 
wife,  whose  actual  consideration  was 
relinquishment  of  the  right  to  a  sup- 
port on  her  part.  And  see  Common- 
monwealth  v.  Richards,  131  Pa.  St. 
209;  Zimmer  v.  Settle,  124  X.  Y.  37. 

31.  Simpson  v.  Simpson,  4  Bana, 
140;  Carter  v.  Carter,  14  Sm.  &  M. 
69;  Stephenson  v.  Osborne,  41  Miss. 
119;  McKennan  v.  Phillips,  6  Whart. 
571. 

32.  Switzer  v.  Switzer,  26  Gratt. 
574. 


1201 


SEPAKATION    A^D    DIVOKCE. 


10G3 


whicli  later,  however,  is  the  instrument  the  court  construes  and 
upholds.^^ 

Inasmuch,  then,  as  separation  deeds  are  not  enforced  either 
in  England  or  the  United  States,  at  the  present  day,  without 
regard  to  the  policy  of  stipulations  or  covenants  in  question,  the 
limit  of  judicial  support  may  be  drawn  at  the  support  of  pro- 
visions which,  supposing  separation  inevitable,  carry  the  fulfil- 
ment of  conjugal  duties  and  rights  after  a  reasonable  and  becom- 
ing manner  into  that  relation.  For  equity  can  only  sanction  what 
is  fair  and  beneficial ;  and  here  cognizance  is  taken,  not  of  the 
separation,  but  of  circumstances  and  a  settlement  attending  that 
state.  The  covenant  or  stipulation  itself,  the  whole  settlement, 
must  be  free  from  exception  and  such  as  equity  might,  under  other 
instances  of  its  jurisdiction,  have  sustained.^*  Where,  there- 
fore, the  provision  is  for  the  wife,  as  in  providing  suitable  main- 
tenance during  the  separation,  such  a  covenant  or  stipulation  is 
to  be  highly  favored.^^  Where  an  equitable  and  suitable  division 
is  made  of  the  property  whose  benefits  have  been  enjoyed  during 
the  coverture,  this,  too,  may  well  be  upheld.^^  It  is  reasonable 
and  binding  for  the  separating  wife  to  release  all  claims  upon  the 
husband's  estate  as  surviving  spouse,  in  consideration  of  other  fair 
provisions  for  her  benefit  and  support.^^  The  spouse  who  cove- 
nants to  deliver  up  certain  property  to  the  other  should  make  that 
covenant  as  advantageous  to  the  latter  as  was  reasonably  intended.'* 
It  is  fair  that  a  husband's  covenant  or  stipulation  of  proper  al- 
lowance for  the  wife's  support  should  be  accompanied  by  the  trus- 
tee's covenant  or  stipulation  of  indemnity  against  his  wife's 
debts.'*  In  respect  of  directly  compelling  the  married  parties  to 
live  apart  under  their  agreement,  separation  deeds  cannot  be  pro- 


85.  Kevs  V,  Keys,  11  Heisk.  425; 
Dixon  V.  Dixon,  23  N.  J.  Eq.  316. 

S4.  Switzer  v.  Switzer,  26  Gratt. 
574. 

35.  Fox  V.  Davis,  113  Mass.  255; 
Randall  v.  Eandall,  37  Mich.  562; 
Walker  v.  Walker,  9  Wall.  743; 
Aspinwall  v.  Aspinwall,  49  X.  J.  Eq. 
302;  Galusha  v.  Galusha;  116  X.  Y. 
635;  Roll  v.  Roll,  51  Minn.  353;  Clark 
V.  Fosdick,  118  N.  T.  7. 

36.  Cooley,  C.  J.,  in  Randall  v. 
Rr.ndall,  37  Mich.  563, 

37.  Scott's  Estate,  147  Pa.  St.  102 


(especially  if  she  has  means  of  her 
o^vn)  ;  Carpenter  v.  Osborn,  102  N.  T. 
552. 

38.  Thus  it  is  held  that  a  husband 
has  no  right  to  retain  copies  of  his 
■wife  's  journals  and  diaries,  ■which  he, 
under  a  separation  deed,  has  cove- 
nanted to  deliver  up.  Hamilton  v. 
Hector,  L.  R.  13  Eq.  511.  And  see 
McAllister  v.  ^NfcAllister,  10  Heisk. 
345;   §  160,  noie. 

39.  Dupre  v.  Rein,  56  How.  (N.  Y.) 
Prac.  228;  Harshberger  v.  Alger,  3t 
Gratt.  52;  E^ed  v.  Beazley,  1  Blackf. 


§  1063 


SEPAKATION    AND    DIVORCE. 


1292 


nounced  good  upon  any  just  conception  of  public  policy  and  the 
divorce  laws  ;*°  and  especially  must  this  rule  hold  true  where  the 
compulsion  sought  is  under  circumstances  of  separation  not  justify- 
ing a  divorce.  I^o  relief  will  be  afforded  by  equitable  interference 
against  the  executed  provisions.*^ 

The  potential  mingling  of  legal  and  illegal  conditions  in  these 
agreements,  with  the  view  of  entering  upon  a  status  which  of 
itself  is  inconsistent  with  a  due  fulfilment  of  the  moral  and  legal 
duties  of  matrimony,  occasions  judicial  confusion,  which  is  more 
likely  to  increase  than  decrease  while  separation  deeds  are  judici- 
ally recognized.  But  it  is  recently  held  in  England  that  if  some 
covenants  in  such  a  deed  are  legal  and  proper,  while  others  are 
not.  the  former  are  enforceable  by  themselves.'*^     At  all  events, 


97.  Such  a  provision  of  indemnity, 
though  usual,  is  not  essential.  Smith 
V.  Knowles,  2  Grant,  413. 

40.  Warrender  v.  Warrender,  2  CI. 
&  F.  488,  527,  per  Lord  Brougham; 
Brown  v.  Peck,  1  Eden,  140;  Mc- 
Crocklin  v.  McCrocklin,  2  B.  Monr. 
370;  McKennan  v.  Phillips,  6  Whart. 
571,  per  Gibson,  C.  J. 

Whether  articles  of  separation  can 
debar  one  from  procuring  a  divorce 
for  cause,  see  post  Vol.  II;  Moore  v. 
Moore,  12  P.  D.  193.  If  separation 
never  took  place,  the  deed  is  void. 
Hamilton  v.  Hector,  L.  E.  13  Eq.  oil. 

41.  Tallinger  v.  Mandeville,  113  N. 
T.  427. 

42.  Hamilton  v.  Hector,  L.  E.  13 
Eq.  511.  There  is  no  implied  cov- 
enant that  the  wife  shall  remain 
chaste;  such  covenants  should  be 
etated.  Sweet  v.  Sweet  (1894),  W.  N. 
181.  And  see  Chase  v.  Phillips,  153 
Mass.  17,  as  to  husband. 

While  in  many  parts  of  the  United 
States  is  seen  an  increasing  tendency 
to  adopt  the  English  theory  concern- 
ing separation  covenants,  with,  how- 
ever, more  looseness  as  to  the  form 
such  transactions  shall  take,  the  lat- 
est English  cases  quite  transcend  the 
distinctions  behind  which  our  courts 
take  refuge,  and  the  earlier  dicta  of 


their  own  Eldon  and  Brougham.  Di- 
vorce being  there  regarded  with  less 
favor  than  in  the  United  States,  not- 
withstanding the  late  statutes  on  the 
subject,  trust  deeds,  and  voluntary 
separation,  are,  upon  mature  experi- 
ence, treated  as,  on  the  whole,  the 
more  decent  and  respectable  method 
for  unhappy  couples  to  adopt,  than 
that  somewhat  novel  recourse  to 
courts,  which  brings  a  scandalous 
cause  into  public  controversy.  See 
Peachey,  Mar.  Settl.  647,  648.  Eng- 
lish policy,  indeed,  in  its  inception  is 
quite  different  from  American  in  this 
regard,  a  fact  which  American  jurists 
should  bear  well  in  mind. 

And  under  legislation  of  date  much 
later  than  the  divorce  acts  which  were 
copied  from  the  United  States,  sepa- 
ration deeds  are  plainly  legalized. 
Stats.  36  &  37  Vict.,  cited  in  Re 
Besant,  L.  E.  11  Ch.  D.  508.  Thus, 
the  custody  of  the  offspring  may  now 
be  distinctly  provided  for,  as  it  would 
appear,  in  an  English  deed  of  sepa- 
ration. But  at  the  same  time,  chan- 
cery, where  the  child  is  made  a  ward 
of  the  court,  will  protect  the  child's 
welfare.  Be  Besant,  L.  E.  11  Ch.  D. 
508;  Besant  v.  Wood,  L.  E.  12  Ch.  D. 
605.     See,  further,  post,  Vol.  II. 


1293 


SEPAKATION    AND    DIVORCE. 


§    1063 


reconciliation  and  a  renewal  of  cohabitation  will  put  an  end  to 
all  provisions  of  a  separation  deed  whose  scope  relates  to  a  state 
of  continuous  saparation  merely,  and  the  rights  and  interests  of 
each  in  the  other's  property  will  be  resumed  by  inference  as  of  the 
usual  marital  status.*^  Courts  have  shown  a  recent  disposition  to 
aid  the  reconciliation  contracts  of  spouses  who  have  been  living 
apart.**  But  a  postnuptial  contract,  made  in  consideration  of  the 
settlement  of  differences  which  had  caused  a  temporary  separation, 
appears  to  be  founded  on  a  valid  consideration,  and  its  transfers 
will  not  be  disturbed.*^    And  a  decree  of  divorce  without  alimonv 


Upon  still  another  point,  namely, 
the  restitution  of  conjugal  rights,  the 
English  chancery  has,  of  late,  de- 
parted widely  from  its  earlier  prece- 
dents. In  Great  Britain,  where  this 
suit  for  restitution  of  conjugal  rights 
has  always  been  permitted,  it  was 
formerly  ruled  in  the  matrimonial 
courts,  and  seemed  to  be  the  well- 
settled  doctrine,  that  a  deed  of  sepa- 
ration afforded  no  bar  to  such  a  suit 
whenever  either  party  chose  to  en- 
force the  remedy;  and,  this,  even 
though  the  deed  in  terms  forbade  such 
proceedings.  1  Bishop,  Mar.  &  Div., 
§  634,  and  numerous  cases  cited.  This 
was  in  accordance  with  the  first  idea 
that  separation  deeds  might  indirectly 
be  tolerated  for  their  beneficial  cove- 
nants as  concerned  parties  bent  upon 
separation,  but  not  directly  upheld. 
That  rule  has  changed;  for,  as  the 
English  statute  now  provides,  a  deed 
of  separation  which  contains  a  cove- 
nant forbidding  the  suit  for  restitu- 
tion of  conjugal  rights  to  be  brought, 
will  bar  such  a  suit.  Marshall  v. 
Marshall,  39  L.  T.  640. 

And  to  one  separated  spouse  chan- 
cery will  now  grant  an  injunction,  by 
virtue  of  such  a  covenant,  to  restrain 
the  other  spouse  from  suing  for  res- 
stitution  of  conjugal  rights.  Besant 
V.  Wood,  L.  R.  12  Ch.  D.  605,  and 
cases  cited.  Under  the  English  di- 
vorce act  of  20  &  21  Vict.,  ch.  85, 
Buits  for  restitution  of  conjugal  rights 
are  stiJl  permitted.  1  Bishop,  Mar.  & 
Div.,  §  771.     Compromise,  too,  of  the 


suit  for  restitution  of  conjugal  rights 
is  permitted  in  England.  Stanes  v. 
Stanes,  L.  R.  3  P.  D.  42.  There  is 
this  fundamental  distinction  between 
the  English  suit  for  divorce  or  ju- 
dicial separation,  and  the  suit  for 
restitution  of  conjugal  rights:  that  in 
the  former  instance  the  chief  object  is 
to  free  the  petitioner  in  whole  or  in 
part  from  the  marriage  obligations; 
but  in  the  latter,  to  control  the  other 
spouse  so  as  to  compel  once  more  an 
unwilling  cohabitation.  See  language 
of  court  in  Firebrace  v.  Firebrace, 
39  L.  T.  94.  Restitution  of  conjugal 
rights  is  a  remedy  unknown  in  the 
United  States,  where  courts  may 
finally  part,  but  cannot  forcibly  re- 
unite, the  separated  spouses.  See 
post,  Vol.  II;  1  Bishop,  Mar.  &  Div., 
5th  ed.,  §  771.  And  see  as  to  specific 
performance  of  an  agreement  to  separ- 
ate, Gibbs  V.  Harding,  L.  R.  5  Ch.  336. 

43.  Nicol  v.  Nieol,  31  Ch.  D.  524; 
Knapp  V.  Knapp,  9'5  Mich.  474.  Even 
where  the  matrimonial  resumption  is 
not  on  the  full  footing  of  cohab- 
itancy,  a  substantial  resumption  is 
enough.  Zimmer  v.  Settle,  124  N.  T. 
37. 

44.  Barbour  v.  Barbour,  49  N.  J. 
Eq.  429.  But  cf.  Miller  v.  Miller,  7S 
la.  177. 

45.  Phillips  V.  Culliton,  153  Mass. 
17;  Burkholder's  Appeal,  105  Pa.  St. 
31.  See  as  to  the  offer  by  one  party 
to  return,  Farber  v.  Farber,  64  la. 
362.  A  written  agreement  of  spouses, 
where  there  had  been  no  separation, 


lOG-i 


SEPAEATION    AND    DIVOECE. 


1294 


may  rely  upon  the  continuance  of  provisions  for  just  support  under 
a  previous  separation  deed.^*' 

§  1064.  Abandonment;  Rights  o£  Deserted  Wife. 

Abandonment  by  either  spouse  consists  in  leaving  the  other  wil- 
fully and  with  the  intention  of  causing  their  perpetual  separation. 
As  to  the  right  of  the  wife,  when  abandoned  by  her  husband, 
to  earn,  contract,  sue,  and  be  sued,  to  much  the  same  effect  as 
a  feme  sole,  while  such  abandonment  actually  lasts,  the  current  of 
American  authority,  legislative  and  judicial  alike,  decidedly  favors 
so  just  a  doctrine."*^  Modern  Married  Women's  Acts  often  permit 
the  wife  to  do  quite  or  nearly  as  much  when  not  abandoned  at  all. 
And  in  England,  recent  statutes  secure  to  a  married  woman  privi- 
leges to  a  similar  extent  under  like  circunnstances  of  abandon- 
ment.*^ The  test  is,  observes  a  recent  American  case,  whether  the 
husband  may  be  deemed  to  have  renounced  his  marital  rights  and 
relations.*^ 

The  great  contrariety  of  current  legislation  is  a  great  obstruc- 
tion, however,  to  formulating  a  decided  rule  of  English  and 
American  jurisprudence  on  this  point.  We  have  seen  that,  under 
the  old  common-law  doctrine  of  coverture,  the  wife  could  not 
sue  or  be  sued,  or  otherwise  act  as  a  single  woman,  unless  the 
husband  was  under  the  disability  of  a  civil  death,  which  meant 


to  do  certain  things  in  consideration 
of  ignoring  their  former  quarrels  was 
held  unenforceable  in  Miller  v.  Mil- 
ler,  78   la.   177. 

46.  Galusha  v.  Galusha,  116  N.  T. 
635.  A  separation  deed  affords  no 
bar  to  a  legal  divorce  for  causes  sub- 
sequently arising;  nor  for  damages 
against  the  offending  spouse,  where 
the  separation  agreement  was  because 
of  the  intimacy  of  the  wife  with  a 
third  person,  with  whom  she  com- 
mitted adultery  afterwards.  Izard  v. 
Izard,  14  P.  D.  45. 

47.  See  Shaw,  C.  J.,  in  Abbott  v, 
Bayley,  6  Pick.  89 ;  Benadum  v.  Pratt, 
1  Ohio  St.  403;  Spier's  Appeal,  2 
Casey,  233;  Mead  v.  Hughes,  15  Ala. 
141;  Rhea  v.  Rhenner,  1  Pet.  105; 
Moore  v.  Stevenson,  27  Conn.  14; 
see  'poat.  Vol.  II.  And  see  the 
various  statutes  in  almost  every  State 


in    the    Union,    enlarging    the    rights 
of    married    women    in    such    cases 
Peck    V.    Marling,    22    W.    Va.    708 
Phelps     V.     Walther,     78     Mo.     320 
Peru  V.  Poland,  78  Me.  215;  Johnson 
y.  Barnes,  69  la.  641.      A  wife  thus 
abandoned  is  favored  in  applying  the 
crops  of  the  husband's  land  for  the 
family  support.     Loy  v.  Loy,  128  Ind. 
150. 

48.  See  Stat.  20  &  21  Vict.,  ch. 
85;  Midland  R.  R.  Co.  v.  Pye,  10 
C.  B.  (N.  S.)  179.  Chancery  has 
long  moulded  its  proceedings  to  se- 
cure a  like  privilege.  In  re  Lancaster, 
23  E.  L.  &  Eq.  127 ;  Johnson  v.  Kirk- 
wood,  4  Dru.  &  War.  379.  A  right 
of  action  is  conferred,  too,  under  38 
&  34  Viet.,  ch.  93.  Moore  v.  Robin- 
eon,  27  W.  R.  312. 

49.  Ayer  v.  Warren,  47  Me.  217. 


1295  SEPARATION    AND    DIVOKCE.  §    1065 

originally  banishment  and  abjuration  of  the  realm.  The  wife's 
I'ights  being  enlarged  bv  statute  under  such  circumstances,  we 
have  therefore  to  inquire  into  the  scope  of  any  statute  in  point. 
Some  of  our  local  acts  are  construed  as  aifording  a  substitute 
for  the  common-rule  law,  and  not  as  merelv  cumulative,  and  hence 
require  a  literal  interpretation.  In  general,  such  legislation  is  to 
he  considered  as  grafted  upon  the  common  law  of  coverture  which 
prevailed  when  this  country  was  settled,  and  at  the  Revolution. 
It  contemplates  abandonment,  and  not  what  might  be  designed  as 
a  merely  temporary  withdrawal  from  cohabitation ;  and  it  regards 
the  husband  in  general  as  completely  out  of  the  jurisdiction  of 
the  State,  never  having  entered  it,  or  else  having  forsaken  it.®" 
Abandonment  is  now  universally  a  cause  for  divorce.'^ 

§  1065.  Divorce  Legislation  in  General. 

Divorce  laws  have  constantly  given  rise  to  most  interesting  and 
earnest  discussions;  and  men  differ  very  widely  in  their  conclu- 
sions, while  all  admit  the  subject  to  be  of  the  most  vital  importance 
to  the  peace  of  families  and  the  welfare  of  nations.  Some  favor  a 
rigid  divorce  system  as  most  conducive  to  the  moral  health  of  the 
people;  others  urge  a  lax  system  on  the  same  grounds.  On  two 
points  only  do  English  and  American  jurists  seem  to  agree:  first, 
that  the  government  has  the  right  to  dissolve  a  marriage  durine;  the 
lifetime  of  both  parties,  provided  the  reasons  are  weighty ;  second, 
that,  unless  those  reasons  are  weighty,  husband  and  wife  should 
be  divorced  only  by  the  hand  of  death.^^ 

The  ancient  nations,  all  recognizing  the  necessity  of  some  di- 
Torce  legislation,  differed  in  their  method  of  treatment.  Among 
the  Greeks,  despite  their  intellectual  refienment,  the  marriage 
institution  was  degraded,  even  in  the  palmiest  days  of  Athens. 
The  husband  could  send  away  his  wife,  and  the  wife  could  leave 
her  husband;  the  procedure  in  either  case  being  quite  simple.®* 
In  Rome  more  of  the  moral  and  religious  element  prevailed ;  and 

50.    See,    at   length,    'post,   Vol.    II.  Md.  481.     Various  modern  codes  now 

And  as  to  separate  maintenance  to  a  give  the  right  still  more  broadlv. 
■wife,  see  further,  post.  Vol.  II.     It  is  51.   Brummond   v.   Drummond,   171 

humane  and  just  to  construe  the  com-  X.  T.  S.  477. 

mon  law  as  permitting  the  wife,  when  52.    Upon    divorce    causes    and    di- 

permanently   abandoned   by   her   hus-  vorce  procedure,  see  "post.  Vol.  II ;  also 

band,  to  sue  in  her  own  name  for  per-  Bishop,  Mar.  &  Div.,  2  vols.,  -passivx. 
sonal  injuries.     Wolf  v.  Banereis,  72  53.    Woolsey,    Divorce    Legislation, 

31. 


I    1065  SEPAEATIO:^    AKD    DIVOKCE.  1296 

so  strictly  was  marriage  respected  in  the  days  of  the  Republic, 
that  no  divorce  is  supposed  to  have  occurred  for  more  than  five 
hundred  yeare  from  the  foundation  of  the  city;  and  the  earliest 
recorded  instance  may  possibly  have  been  under  the  rightful  head 
of  void  and  voidable  marriage.^*  But  ancient  Eome  was  built  on 
family  discipline,  rather  than  domestic  love;  the  husband  exer- 
cised full  sway,  and  the  stately  and  severe  Roman  matron  disap- 
peared entirely  in  the  later  dissolute  and  corrupt  years  of  the 
Roman  Empire,  and  before  an  empire  succeeded  it.^^  The  ideal 
of  marriage  among  the  Hebrews  was  high :  that  husband  and  wife 
should  cleave  together  and  be  one  flesh ;  nevertheless,  the  usage  of 
this  nation,  founded  upon  the  Mosaic  code,  seems  to  have  per- 
mitted the  husband  to  dismiss  his  wife  at  pleasure.  The  Christian 
influence  and  teaching  has  been  to  condemn  all  arbitrary  exercise 
of  power  in  this  respect,  to  place  man  and  woman  on  more  nearly 
an  equal  footing,  to  discourage  all  lax  and  temporary  unions,  and 
to  warn  the  legislator  that  those  w'hom  God  hath  joined  man  may 
not  with  inpunity  put  asunder/" 

The  influence  of  Christianity  has  been  felt  in  modem  Europe, 
spreading  to  England,  whence,  too,  it  was  brought  to  the  wilds 
of  America ;  the  Christian  rule  ever  shaping  tlie  policy  of  govern- 
ment. But  this  rule  has  received  different  methods  of  interpreta- 
tion The  Church  of  Rome  treats  marriage  as  a  sacrament,  and 
indissoluble  without  a  special  dispensation,  even  for  adultery. 
Protestants  are  divided:  all  regarding  adultery  as  a  sufficient 
source  of  divorce;  many  considering  desertion  equally  so,  others 
cruelty ;  while  a  strong  current  of  local  authority  in  this  country 
tends  to  multiply  the  legal  occasions  for  divorce  even  down  to 
such  pretext  as  incompatibility  of  temper.  So  loose,  indeed,  and 
so  confusing,  is  our  State  marriage  and  divorce  legislation  becom- 
ing, that  it  might  be  well  to  ask  whether  the  cause  of  morality 
would  not  be  promoted,  if,  by  constitutional  amendment,  the 
whole  subject  were  placed  in  the  control  of  the  general  govern- 
ment ;  so  that,  at  least,  one  uniform  system  could  be  applied,  and 
the  experiments  of  well-meaning  reformers  be  subject  to  an  uner- 
ring and  crucial  test. 


57 


54.  Spurius   Carvilius  Ruga,  B.   C.  v.hieh  Horace  divines,  in  Carm.  Lib. 
231,   put   away   his  ■wife   for  barren-  iii.  6. 

ness      1  Bishop,  Mar.  &  Div.,  §   23;  56.  Post,  Vol.  II. 

Woolsey,  Div.  41.  57.    There   is   a   growing   and   dan- 

55.  See  the  cause  of  Rome's  decay,  gerous  laxity  in  the  United  States  as 


1297  SEPARATION    AND    DIVOfiCE.  §    1066 

There  lias  been  a  movement  in  recent  yeans  supported  "by  our 
Bar  Associations  towards  a  uniform  divorce  law.  The  uniform 
negotiable  instruments  act  and  the  uniform  bill  of  sale  law  have 
been  of  wide  benefit  and  a  uniform  divorce  act  would  undoubtedly 
have  most  beneficial  results. 

§  1066.  Legislation  upon  Divorce;  Divorce  from  Bed  and  Board; 
Divorce  from  Bond  of  Matrimony,  &c. 
Private  agreement  for  divorce  is  repungant  to  the  good  sense  of 
England  and  the  United  States;  government  must  interpose  to 
pronounce  the  sentence ;  and  collusion  between  the  parties  to  dis- 
solve their  own  relation  is  so  little  favored  —  however  much  the 
courts  may  have  reluctantly  yielded  -to  uphold  deeds  of  mere  sepa- 
ration ^^  —  that  the  divorce  tribunal  shields  the  public  conscience, 
and  requires  that  even  in  a  default  the  complainant's  case  be  made 
out  properly.'^  The  English  Divorce  Act  (Stat.  20  &  21,  Vict,  ch., 
85,  §  7)  places  the  whole  subject  since  1858,  more  than  formerly, 
upon  the  recognized  American  plane,  by  investing  judicial  tri- 
bunals with  power  competent  to  pronounce  sentence  in  each  case 
conformably  to  general  directions  of  the  statute.  Divorce  may, 
therefore,  be  granted  from  bed  and  board  (a  mensa  et  thoro)  or 
from  the  bonds  of  matrimony  (a  vinculo)  by  the  prevailing  Eng- 
lish and  American  practice.  The  former,  which  is  a  'Sort  of 
judicial  separation,  applies  to  the  less  heinous  offences,  wherever 
a  legislature  recognizes  any  distinction;  while  the  latter,  which 
alone  is  complete,  is  the  remedy  for  the  greater  offences,  or,  ac- 
cording to  the  most  conservative  policy,  for  adultery  only.  The 
one  is  partial  divorce  or  a  legalized  separation ;  the  other  is  final 
and  full  divorce.*"  Divorces  nisi  are  sometimes  decreed,  being  in 
the  nature  of  a  partial  and  not  final  divorce,  so  as  to  afford  delay 
for  remedying  error  or  allowing  a  last  chance  for  reconciliation. 
The  old  ecclesiastical  remedy  for  restitution  of  conjugal  rights, 
still  available  in  England,  had  never  a  foothold  in  the  United  States, 

to   the  permanency   of   the   marriage  58.  Stewart  v.  Stewart  (Ida.),  180 

relation.      One   difficulty   is   our   uni-  P.  165. 

versal  tendency  to  greater  social  free-  59.  Po.it,  Vol.  II;  2  Bishop,  §5  235, 

dom,   freedom   as  between   the   sexes,  236;   Milster  v.  Milster    (Mo.  App.), 

■woman  herself  pressing  for  it ;  another  209  S.  W.  620. 

the  existence  of  some  forty  indepen-  60.  Post,  Vol.  II.  Local  codes  should 

dent   jurisdictions,   which   enable    our  bo  carefully  studied  on  this  point,  as 

citizens  traveling   from  one   State  to  they  differ  in  policy.    Many  causes  for 

another  to  find  facilities  for  divorce  annulling  a  marriage  are  in  these  days 

and  remarriage  always  at  hand. 

82 


§    lOGT  SEPAEATIOX    AXD    DIVOECE.  1298 

the  prejudice  being  too  strong  against  it;  specific  performance  of 
marriage  is  consequently  unenforceable  even  bv  way  of  penalty.®^ 
And  it  is  generally  held  in  this  country  that  the  old  English  eccle- 
siastical law  was  never  adopted  here  as  a  part  of  the  common 
law  ®-  although  its  forms  and  practices  are  often  used  when  neces- 
sary by  our  courts.^^ 

§  1067.  Causes  of  Divorce:  Adultery;  Cruelty;  Desertion;  Mis- 
cellaneous Causes. 
We  shall  only  briefly  advert  to  the  chief  cause  of  divorce  recog- 
nized by  our  modem  legislation.  Adultery  is  the  cause  of  divorce 
most  universally  commended :  a  plain  offence,  and  one  which  in- 
volves conjugal  unfaithfulness  at  the  most  vital  part  of  the  marital 
relation.  By  adultery  we  mean  the  voluntary  sexual  intercourse 
of  either  married  party  vidth  some  one,  married  or  single,  of  the 
opposite  sex,  other  than  the  offender's  own  spouse.  Adultery 
justifies  divorce  from  bond  of  matrimony  under  most  codes ;  and 
while  the  English  statute  has  been  somewhat  partial  to  a  hus- 
band who  sins  without  otherwise  offending  his  wife  or  without 
atrocious  accompaniments  of  the  crime,  American  policy  treats 
both  sexes  alike,  and  visits  the  guilt  of  husband  or  wife  alike.'* 
As  for  cruelty,  legal  cruelty  is  more  readily  expounded  by  negative 
than  aflSrmative  language.  This  cause  of  divorce  is  designed  regu- 
larly for  the  vindication  of  the  weaker  party,  usually  (but  not 
necessarily)  a  wife,  whose  wrong  from  her  husband's  cruelty  may 
be  found  greater,  in  the  average  of  cases,  than  from  his  silent 
infidelities.  In  general,  it  should  be  stated  that  wherever  the 
conduct  of  one  spouse  to  the  other  is  such  that  the  latter  cannot 
continue  cohabitation  without  reasonable  ground  for  fearing  such 
bodily  harm  from  the  former  as  seriously  to  obstruct  the  exercise 
of  marital  duties,  or  render  the  conjugal  state  unendurable,  there 
legal  cruelty  exists,  and  cause  for  divorce;  and  from  this  point  of 
view  violence  actually  committed  and  violence  threatened,  if  \vi+h 

specified  in  local  codes  as  causes  of  64.  Mordaunt  v.  Moncrieffe,  L,  3. 

divorce.  2  H.  L.  Sc.  374;  Pattison  v.  P£.':tisoii 

61.  Post,  Vol.  II.  (Md.),  103  A.  977  J   Slattery  v.  Slat- 

62.  Hodges  v.  Hodges  (N.  Mex.),  tery,  87  N.  J.  Eq.  673,  102  A.  873; 
159  P.  1007;  Erkenbrach  v.  Erken-  Ludcritz  v.  Luderitz,  88  N.  J.  Eq. 
trach,  96  N.  T.  456.  103,  102  A.  661;  Steele  v.  Steele,  170 

63.  Le  Barron  v.  Le  Barron,  35  Vt.  N.  Y.  S.  454;  Evenden  v.  Evenden, 
365  (medical  examination  to  deter-  170  N.  T.  S.  458;  Smith  v.  Smith, 
mine  impotencj)  ;  Robbins  v.  Eob-  181  Ky.  55,203  S.  W.  8S4;  Freeman 
bins,  140  Mass.  523    (connivance).  v.  Freeman    (Ark.),  206  S.  W.  439; 


1299 


SEPAIttVTIOX    AXD    DIVOECE. 


§    106' 


sinister  intention,  are  treated  as  alike  reprehensible,*^  but  it  is 
commonly  held  that  legal  cruelty  cannot  be  shoTSTi  by  anything  less 
than  physical  violence,®^  although  many  States  hold  the  view  that 
physical  violence  is  not  necessary  to  show  cruelty,^^  and  a  false 
charge  of  infidelity  made  in  bad  faith  may  be  held  to  be  cruelty/^ 
Desertion,  or  the  wilful  abandonment  of  one  spouse  by  the  other, 
was  not  a  recognized  cause  of  divorce  under  England's  ecclesiasti- 
cal law,  as  promulgated  at  the  settlement  of  this  country;  but 
the  English  divorce  statute  made  it,  when  without  cause  and  ex- 
tending over  the  space  of  two  years,  a  third  cause  for  judicial 
separation ;  while  meantime,  in  the  United  States,  where  remedies 
for  restitution  of  conjugal  rights  were  discarded,  desertion  for  a 
specified  period  has  long  been  a  permitted  cause  for  divorce ;  per- 
haps for  a  limited  divorce  in  the  first  instance,  and  yet,  quite 
commonly,  as  in  the  case  of  adultery  or  cruelty,  for  a  divorce 


Boss  V.  Eoss  (X.  J.),  104  A.  199, 
105  A.  894;  Bowers  v.  Bowers  (N. 
J.),  104  A.  831. 

65.  England  v.  England  (Ga.),  96 
S.  E.  174;  Smith  v.  Smith  (Tex.  Civ. 
App.),  200  S.  W.  1129;  Unzieker  v. 
Tnzicker,  101  Neb.  837,  166  N.  W. 
241.  See  Thomas  v.  Thomas,  87  IST. 
J.  Eq.  668,  103  A.  675,  101  A.  1055; 
Evans  v.  Evans,  1  Hag.  Con.  35;  1 
Bishop,  Mar.  &  Div.,  §§  715-717; 
Latham  v.  Latham,  30  Gratt.  307;  25 
ZST.  J.  Eq.  526;  Becklej  v.  Beckley,  23 
Ore.  226. 

Legislative  enactments  use  various 
expressions,  some  of  which  stop  short 
of  the  extremity  of  cruelty;  e.  g., 
"excesses,"  "outrages,"  " intolera- 
ble indignities,"  etc.  And  see  such 
phrases  as  "cruel  and  inhuman," 
"cruelty  of  treatment,"  "extreme 
and  repeated  cruelty,"  etc. 

In  some  States  a  husband  who  un- 
justly charges  his  wife  with  unchas- 
tity  is  guilty  of  such  cruelty  as  en- 
titles her  to  a  divorce.  Bahn  v.  Bahn, 
62  Tex.  518 ;  Avery  v.  Avery,  33  Kan. 
1.  And  as  to  the  wife's  unjust  charge, 
see  Carpenter  v.  Carpenter,  30  Kan. 
712;  Kelly  v.  Kelly,  18  Xev.  49. 
Especially  if  these  accusations  are 
publicly    and    harshly    made    and    re- 


peated. 67  Tex.  193.  Chastisement 
of  the  wife  is  cruelty,  and  certainly 
when  repeated;  but  not  such  acts  aa 
laying  his  hand  on  her  shoulder. 
Hawkins  v.  Hawkins,  65  Md.  104 ; 
Donald  v.  Donald,  21  Fla.  571;  suyra, 
§  44. 

As  to  masturbation,  see  W v. 

W ,  141  Mass.  495.      For  cruelty 

by  neglecting  the  wife  wantonly  when 
she  was  critically  ill,  see  Hoyt  v. 
Hoyt,  56  Mich.  50. 

6G.  Cowden  v.  Cowden,  5  Alaska, 
oil;  Armstrong  v.  Armstrong,  229 
Mass.  592,  118  X.  E.  916,  L.  R.  A. 
191SD,  426;  Moir  v.  Moir  (la.),  165 
N.  W.  1001;  Umbach  v.  Umbach,  171 
X.  T.  S.  138,  183  App.  Div.  495; 
Claunch  v.  Claunch  (Tex.  Civ.  App.), 
203  S.  W.  930  (drunkenness  alone  is 
not  cruelty).  See  Germaine  v.  Grer- 
maine  (Mich.),  171  X.  W.  377. 

G7.  Lefevre  v.  Lcfevre  (Tex.  Civ. 
App.),  205  S.  W.  842;  Carson  v.  Car- 
son (la.),  171  X.  W.  584;  Johnson 
v.  Johnson  (Ky.),  209  S.  W.  385; 
Eobertson  v.  Eobertson  (Okla.),  176 
P.  387;  McXabb  v.  McXabb  (Tex. 
Civ.  App.),  207  S.  W.  129;  Koehler 
V.  Koehler   (Ark.),  209  S.  W,  283. 

68.  Johnson  v.  Johnson  (Ky.),  209 
S.  W.   385;    Milster  v.  Milster    (Mo. 


§    1067  SEPARATION    AND   DIVOECE.  1300 

ultimately  if  not  immediately  from  the  bonds  of  matrimony." 
Three  things  are  usually  imported  in  this  legal  desertion :  an  actual 
cessation  of  cohabitation  for  the  period  specified ;  the  wilful  intent 
of  the  absent  spouse  to  desert ;  desertion  by  that  spouse  against  the 
will  of  the  other ; '"'  but  a  wife  may  be  justified  in  leaving  the 
husband  where  he  has  been  guilty  of  matrimonial  misconduct.'^ 

As  to  the  various  other  causes  of  divorce  which  are  specified 
from  time  to  time  by  local  statute,  with  much  variety  of  verbal 
expression,  these  are  for  the  most  part  modifications  of  the  three 
chief  ones  we  have  just  enumerated.  For  with  few  exceptions,  all 
causes  of  divorce  have  one  or  more  of  the  three  leading  elements 
present :  there  is  adultery  or  cruelty  or  desertion ;  or,  to  speak  less 
literally,  sexual  infidelity,  maltreatment,  or  the  wrongful  cessation 
of  marital  intercourse.  Thus,  among  offences  akin  to  adultery 
which  are  specified,  are  sodomy  and  bestial  crimes  against  nature, 
concubinage,  and  habitual  loose  intercourse  with  persons  of  the 
opposite  sex.'^  Offering  indignities  to  the  person  of  a  spouse,'* 
conviction  of  felonious  crime  '*  (which,  besides  separation,  visits 
disgrace  upon  the  innocent),  gross  and  confirmed  habits  of  intox- 

App.),    209    S.    W.    620;    Pearson    v.  A.   20;    Gordon  v.   Gordon,   88   N.  J. 

Pearson,  173  N.  Y.  S.  563;   Olsen  v.  Eq.   436,   103   A.   31    (confinement  in 

Olsen,  5  Alaska,  459;  Wesley  v.  Wes-  insane    asylum    a    defence    to    charge 

ley,  181  Ky.  135,  204  S.  W.  165.  of    desertion    only    if    involuntary)  ; 

69.  Post,  Vol.  II;  Pape  v.  Pape,  Streieher  v.  Streieher  (Mich.),  168  N. 
20  Q.  B.  D.  76;  Act.  20  &  21  Vict.,  W.  409;  Gollehon  v.  Gollehon  (Va.), 
ch.  85,  §  16;  1  Bishop,  Mar.  &  Div.,  96  S.  E.  769;  Axton  v.  Axton  (Ky.) 
§§  771-775;  Schanck  v.  Schanck,  33  206  S.  W.  480;  Nunn  v.  Nunn  (Ore.), 
N.  J.  Eq.  363.  Note  the  varying  178  P.  986;  Wilhelm  v.  Wilhelm 
language  of  local  codes  on  this  sub-  (Ore),  177  P.  57. 

ject:  "wilful  desertion,"  "abandon-  71.  Pattison  v.  Pattison  (Md.),  103 

ment,"  "wilful  absence,"  etc.      The  A.    977;    McCauley   v.   MeCauley,    88 

time  specified  varies  from  one  to  five  N.  J.  Eq.  392,  103  A.  20. 

years;  three  years  being,  perhaps,  the  72.  Stevens  v.  Stevens,  8  R.  I.  557; 

fair  average.      See  Harding  v.  Hard-  Hansley  v.  Hansley,  10  Ire.  506. 

ing,  11   P.  D.   Ill,  as  to  neglect  to  73.   Simpkins  v.   Simpkins    (Ark.), 

comply  with  a  decree  of  restitution.  207  S.  W.   28 ;    Cunningham  v.  Cun- 

70.  Scrgent  v.  Sergent,  33  N.  J.  Eq.  ningham  (Mo.  App.),  202  S.  W.  420 
204;  Latham  v.  Latham,  31  Gratt.  (forcing  wife  to  take  drugs  to  cause 
307;  Morrison  v.  Morrison,  20  Cal.  miscarriage);  Cunningham  v.  Cun- 
431.  There  is  no  cause  of  divorce  ningham  (Mo.  App.),  206  S.  W.  240, 
in    which   the   collusion   of   a   discon-  202  S.  W.  420. 

tented  pair  is  more  likely  to  prevail,  74,    Klasner    v.    Klasner    (N.    M.), 

unless  the  court  is  quite  circumspect,  170   P.   745    (conviction    followed   by 

than  this  alleged  desertion.   McCauley  pardon  as  cause  for  divorce). 
V.   McCauley,  88  N.  J.   Eq.   392,   103 


1301  SEPAEATION    AND    DIVOBCE.  §    1068 

ication  or  habitual  intemperance/''  gross  neglect  of  duty,  abusive 
treatment, —  all  these  are  of  the  nature  of  cruelty/*  Joining  the 
Shakers  (among  whom  the  relation  of  husband  and  wife  is  held 
unlawful),  absenting  one's  self  unreasonably  long, —  causes  like 
these  are  in  the  nature  of  desertion ;  and  insanity,  withholding 
sexual  intercourse,  and  various  other  causes  not  clearly  recognized 
as  justifying  divorce,  are  of  a  like  nature."^  But  other  miscella- 
neous causes  of  divorce  may  be  found  specified  in  American  codes : 
some  mingling  fraud  and  other  nullifying  causes  as  grounds  for 
a  divorce;  some  again  permitting  divorce  to  be  granted  at  judicial 
discretion  for  any  other  cause  or  upon  general  considerations  of 
the  peace  and  morality  of  society, —  a  dangerous  latitude  should 
any  court  choose  to  abuse  its  functions.^* 

§  1068.  Defences. 

There  are  four  common  defences  to  libels  for  divorce.  First, 
provocation,  that  the  defendant  by  his  conduct  so  provoked  the 
plaintiff  as  to  be  the  real  cause  of  the  treatment  complained  of;  '^^ 
second,  collusion,  a  defence  often  resorted  to  in  cases  of  adultery, 
where  the  libellant  is  privy  to  or  aids  and  abets  the  libellee  in  the 

75.  Koehler  v.  Koehler  (Ark.),  209  of  assailing  the  libellant 's  proof,  is 
S.  W.  283  (use  of  drugs  producing  recrimination  (since  the  partv  alleg- 
stupor  is  not  drunkenness).  ing    a   -wrong    must   come    into    court 

76.  Pending  an  appeal  from  a  con-  with  clean  hands),  condonation  (or 
viction  of  a  felony,  the  conviction  conditional  forgiveness),  connivance 
cannot  be  urged  as  ground  for  di-  (or  aiding  and  abetting  the  offence, 
vorce.  Rivers  v.  Rivers,  60  la.  378.  usually  from  corrupt  and  sinister 
But  actual  imprisonment  for  the  stat-  motives,  so  as  to  make  out  a 
ute  period  is  a  cause  of  divorce,  not-  case  for  divorce).  Cross-bills  are 
withstanding  a  bill  of  exceptions  be  often  filed,  each  party  seeking  di- 
filed.     Cone  v.  Cone,   58  N.  H.   152.  vorce  for  the  other's  fault.    The  hus- 

77.  Post,  Vol.  II.  In  some  instances  band's  condonation  of  his  wife's 
it  might  be  hard  to  say  whether  adultery  does  not  debar  her  from  di- 
cruelty  or  desertion  is  the  stronger  vorce  from  him  if  he  afterwards  com- 
element.  niits  adultery.    Gumming  v.  Cumming, 

78.  1  Bishop,  Mar.  &  Div.,  §  827;  135  Mass.  386.  For  the  Scotch  law 
31  Me.  590.  It  matters  not  that  from  of  condonation,  see  Collins  v.  Collins, 
some  perverted  religious  belief  and  9  App.  Cas.  205. 
conscientiously,  and  not  with  crim-  As  to  connivance  at  a  wife's  adul- 
inal  intent,  one  spouse  transgresses;  tery  which  debarred  a  divorce,  see 
the  usual  divorce  remedy  lies  open  Morrison  v.  Morrison,  136  Mass.  310. 
to  the  other  spouse  nevertheless.  74  79.  Thomas  v.  Thomas,  87  N.  J. 
Tex.  414.  Eq.    668,    101    A.    1055,    103    A.    675; 

For  divorce  precedure,  see  2  Smith  v.  Smith  (Tex.  Civ.  App.),  200 
Bishop,  Mar.  &  Div.,  passim.  Among  S.  W.  1129.  See  Closz  v.  Closz  (la.), 
the   permitted   defences,  besides   that      169  N.  W.  183. 


§    1069  SEPAEATION    A^D   DIVORCE.  1302 

adultery ;  ^°  thirds  codonation,  where  tlie  libellant  forgives  or  con- 
dones the  acts  complained  of  by  continuing  to  cohabit  with  the 
libellee  after  knowledge  of  the  acts  complained  of;®^  fourth, 
recrimination,  that  the  libellant  has  himself  been  guilty  of  crimes 
against  the  marriage  relation  similar  or  equal  in  degree  to  those 
complained  of.^  Condonation  is,  however,  supposed  to  be  con- 
ditional on  the  future  good  behavior  of  the  erring  spouse,  so  where 
the  conduct  complained  of  is  repeated  after  forgiveness  this  revives 
the  original  offence.®^ 

§  1069.  Effect  of  Absolute  Divorce  upon  Property  Rights. 

The  effect  of  divorce  from  bonds  of  matrimony  upon  the  prop- 
erty rights  of  married  parties  is  substantially  that  of  death,  or 
rather  annihilation.  We  speak  here  of  bona  fide  and  valid  and 
complete  decree  of  dissolution.^*  And,  save  so  far  as  a  statute 
may  divide  the  property  or  restore  to  each  what  he  or  she  had 
before,  or  a  decree  for  alimony  may  fasten  directly  upon  the 
property  in  question,  the  gTiilt  or  innocence  of  either  spouse  does 
not  affect  the  case.*^  This  is  a  topic  upon  which  the  common  law, 
from  the  infrequency  of  divorce,  furnishes  no  light,  except  by 
analogies.  The  settled  usage  of  Parliament  in  granting  divorce 
has  been  to  introduce  property  clauses  to  the  above  effect  into  the 
sentence  of  dissolution  regulating  the  rights  and  liabilities  of  the 
respective  parties,^®  but  even  in  these  cases  the  rights  of  divorced 

80.  Shilman  v.  Shilman,  174  >r.  T.  Mosier  v.  Hosier  (Ore.),  174  P.  732; 
S.  385,  175  X.  Y.  S.  6S1;  Edleson  v.  Wehrenbrecht  v.  Wehrenbrecht  (Mo. 
Edleson,  179  Ky.  300,  200  S.  W.  625.  App.),  207  S.  W.  290;  McXabb  v. 
See  McCauley  v.  McCauley,  88  N.  J.  McXabb  (Tex.  Civ.  App.),  207  S.  W. 
Eq.  392,  103  A.  20.  129;    Xolker   v.  Nolker    (Mo.   App.), 

81.  Parker  v.  Parker  (Tex.  Civ.  208  S.  W.  128;  Tanton  v.  Tanton. 
App.),  204  S,  W.  493;  Merriam  v.  (Tex.  Civ.  App.),  209  S.  W.  423; 
Merriam,  207  111.  App.  474;  Bush  v.  Wolf  v.  Wolf  (N.  D.),  169  X.  W. 
Bush   (Ark.),  205  S.  W.  895;  Sayles  577. 

T.  Sayles   (E.  I.),  103  A.  225;  Wes-  83.  Deusenberry      v.      Deusenberry 

ley  V.  Wesley,  181  Ky.  135,  204  S.  W.  (W.  Va.),  95   S.  E.   665;    Xeeley  v. 

165;       Satterwhite      v.      Satterwhite  Xeeley  (Cal.),  176  P.  163;  Abbott  v. 

(La.),   80  So.    547;    Millet  v.   Millet  Abbott     (Mich.),    168    X.    W.    950; 

(La.),  81  So.  400;   Mahurin  v.  Ma-  Parker  v.  Parker    (Tex.   Civ.   App.), 

hurin    (Tex.   Civ.   App.),   208    S.   W.  204      S.    W.    493;    James    v.    James 

558;  Davis  v.  Davis  (Mo.  App.),  206  (Xeb.),    171    X.   W.    904;    Quient  v. 

S.  W.  580.  Quient  (Wash.),  177  P.  779. 

82.  Smith  v.  Smith,  ISl  Ky.  55  84.  See  invalid  decree  disregarded 
203  S.  W.  884;  Wesley  v.  Wesley,  in  Cheely  v.  Clayton,  110  IT.  S.  701. 
181  Ky.  135,  204  8.  W.  165;  Walker  85.  See  Harvard  College  v.  Head, 
V.  Walker  (Vt.),  104  A.  828;  MeCartj  111  Mass.  209. 

v.   McCarty    (la.),   169   X.   W.    135;  86.  Macq.  Hus.  &  Wife,  210,  214. 


1303 


SEPABATION    AIsD    DIVOECE. 


10G9 


parties  aa  to  tenancy  by  the  curtesy,  chattels  real,  and  rents  of  the 
wife's  lands,  are  still  unsettled;  and  in  general,  the  consequence 
by  act  of  Parliament  "  does  not  very  clearly  appear."  *^  But  under 
the  new  English  Divorce  Act,*^  it  is  held  that  w^here  the  wife,  at 
the  date  of  the  decree  of  divorce  a  vinculo,  was  entitled  to  a  rever- 
sionary interest  in  a  sum  of  stock  which  was  not  settled  before  her 
marriage,  and  had  been  the  subject  of  a  postnuptial  settlement, 
and  after  the  decree  the  fund  fell  into  possession,  her  divorced 
husband  had  no  right  to  claim  it.*^  The  English  doctrine,  as  thus 
indicated,  is  that  the  same  consequences  as  to  property  must  follow 
the  decree  of  dissolution  by  the  divorce  court  as  if  the  marriage 
contract  had  been  annihilated  and  the  marriage  tie  severed  on  that 
date.     Such,  too,  has  been  the  spirit  of  later  decisions.'" 

In  settlements  and  trusts  involving  intricate  family  arrange- 
ments, however,  the  English  rule  is  not  yet  uniform  and  positive.*'' 

In  this  country  the  effect  of  divorce  a  vinculo  is  frequently 
regulated  by  statute.  And  in  general,  and  independently  of 
statute,  all  transfers  of  property  actually  executed  before  divorce, 
whether  in  law  or  in  fact,  remain  unaffected  by  the  decree.     For 


87.  2  Bright,  Hus.  &  Wife,  366. 

88.  Stats.  20  &  21  Vict.,  ch.  85; 
21  &  22  Vict.,  ch.  108;  23  &  24  Vict., 
ch.  144. 

89.  Says  Vice-Chancellor  Wood: 
"Here  the  contract  has  been  deter- 
mined by  a  mode  unknown  to  the 
old  law,  namely,  by  a  decree  of  dis- 
solution ;  and  as  the  husband  was  un- 
able, during  the  existence  of  the  con- 
tract, to  reduce  this  chattel  into  pos- 
session, I  must  hold  that  the  prop- 
erty remained  the  property  of  the 
wife."  Wilkinson  v.  Gibson,  L.  R. 
4  Eq.  162. 

90.  Pratt  V.  Jenner,  L.  E.  1  Ch. 
493;  Fussell  v.  Dowding,  L.  E.  14 
Eq.  421;  Swift  v.  Wenman,  L,  E.  10 
Eq.  15;  Prole  v.  Soady,  L.  R.  3  Ch. 
220.  And  one  who  obtained  a  sen- 
tence of  dissolution  of  marriage  was 
held,  moreover,  not  liable  to  be  joined 
in  an  action  for  tort  committed  by 
his  wife  during  the  coverture.  Capel 
V.  Powell,  17  C.  B.  (N.  S.)  743. 

91.  The  most  recent  cases  show  a 
decided  indisposition  to  forfeit  a  hus- 


band's rights  to  a  trust  fund,  where, 
at  all  events,  the  effect  of  annihila- 
tion would  be  to  disturb  the  remote 
right  of  some  innocent  party,  or  with- 
out consideration  as  to  which  spouse 
offended.  Fitzgerald  v.  Chapman, 
L,  E.  1  Ch.  D.  563.  Jessel,  M.  E., 
here  discredits  Fussell  v.  Dowding, 
and  other  cases  cited  supra.  And  see 
Burton  v.  Sturgeon,  L.  E.  2  Ch.  D. 
318;  Codrington  v.  Codrington,  L.  E. 
7  H.  L.  854.  And  in  certain  causes 
the  Divorce  Act  confers  the  power  to 
modify  the  marriage  settlement  upon 
final  sentence.  20  &  21  Vict.,  ch.  85, 
§  45.  Where  application  is  made  for 
that  purpose,  the  judicial  object  of 
thus  proceeding  is,  apparently,  to 
prevent  the  innocent  party  from  being 
injuriously  affected  in  property  by 
the  decree.  Maudslay  v.  Maudslay,  L. 
E.  2  P.  D.  256.  On  the  decree  for 
dissolution  of  marriage  becoming  ab- 
solute, it  takes  effect  from  the  date 
of  the  decree  nisi.  Prole  v.  Soady, 
L.  E.  3  Ch.  220. 


§  1069 


SEPARATION    AND   DIVOKCE. 


1304 


instance,  personal  choses  of  the  wife  already  reduced  to  possession 

hy  the  husband  remain  his.*^     A  voluntary  settlement  which  is 

completely  executed  will  not  be  arbitrarily  revoked  by  a  court.'* 

But  as  to  rights  dependent  on  marriage  and  not  actually  and  fully 

vested,  a  full  divorce,  or  the  legal  annihilation,  ends  them.     This 

applies  to  curtesy,  dower,  the  right  to  reduce  choses  prospectively 

into  possession,  rights  of  administration,  and  property  rights  under 

the  statutes  of  distribution.^*     These  doctrines  are  set  forth  in 

local  codes,  which  frequently  save  certain  rights,  such  as  the  wife's 

dower  where  divorce  is  occasioned  by  her  husband's  misconduct. 

And  a  provision  under  an  antenuptial  contract,  which  is  plainly 

intended  as  a  substitute  or  equivalent  for  dower  in  case  the  wife 

survives  the  husband,  is  barred  by  their  divorce.®^ 

As  to  torts  a  similar  rule  would  probably  apply.®*     Separate 
92.   Lawson   v.   Shotwell,    27    Miss.       statute,   in   44   Ohio   St.   645.      Some 


630. 

93.  Thurston,   Be,    154   Mass.    5%. 

94.  Dobson  v.  Butler,  17  Mo.  87; 
4  Kent,  Com.  53;  n.,  54;  Given  v. 
Marr,  27  Me.  112 ;  Wheeler  v.  Hotch- 
kiss,  10  Conn.  225;  Calane  v.  Calane, 
24  N.  J.  Eq.  440;  Hunt  v,  Thompson, 
61  Mo.  148;  Schouler,  Hus.  &  Wife,  § 
559 ;  Eice  v.  Lumley,  10  Ohio  St.  596. 
But  see  Wait  v.  Wait,  4  Comst.  95; 
Ensign,  Be,  103  N.  T.  284.  As  to 
property  of  the  husband  in  the  di- 
vorced wife's  possession,  see  Lane  v. 
Lane,  76  Me.  521.  As  to  community 
property,  see  Moore  v.  Moore,  59  Tex. 
54;  Brown  v.  Brown,  60  Cal.  579. 
Divorce  severs  the  estate  of  husband 
and  wife  by  the  entirety,  92  Tenn. 
695,  §  193. 

95.  Jordan  v.  Clark,  81  111.  465. 
Here  divorce  was  granted  to  A.  for 
the  fault  or  misconduct  of  A. 's  wife, 
but  the  principle  of  the  case  was  that 
the  wife  could  only  be  entitled  to  re- 
ceive the  provision  as  A.  's  widow.  A 
divorce  a  vinculo  obtained  by  the 
wife,  though  for  the  husband's  mis- 
conduct, bars  dower.  Calame  v. 
Calame,  24  N.  J.  Eq.  440.  And  see 
Gleason  v.  Emerson,  51  N.  H.  405; 
Hunt  V.  Thompson,  61  Mo.  148.  Cf. 
New  York  statute  construed  in  Schif- 
fer  V.  Pruden,  64  N.  Y.  47 ;  also  Ohio 


State  codes  provide  how  the  home- 
stead shall  be  disposed  of.  Stahl  v. 
Stahl,  114  111.  375. 

96.  Chase  v.  Chase,  6  Gray,  157;  2 
2  Bishop,  Mar.  &  Div.,  §  724;  Schou- 
ler, Hus.  &  Wife,  §  559-.  And  see 
Capel  v.  Powell,  17  C.  B.  (N.  S.)  743. 

If  the  husband  receives  any  prop- 
erty of  the  wife  after  divorce,  she 
may  recover  it  in  a  suit  for  money 
had  and  received.  2  Bishop,  Mar.  & 
Div.  §  714 ;  Legg  v.  Legg,  8  Mass.  99. 
See  Kintzinger's  Estate,  2  Ashm.  455. 
How  far,  on  the  divorce  of  the  hus- 
band, his  assignee  may  claim  against 
the  wife  does  clearly  appear;  but 
where  the  divorce  was  obtained 
through  his  fault,  the  wife 's  equitable 
provision,  it  seems,  will  be  favorably 
regarded  as  against  him.  2  Bishop, 
§  715,  and  conflicting  cases  compared; 
Woods  V.  Simmons,  20  Mo.  363;  2 
Kent,  Com.  136  et  seq.  Divorce  takes 
away  the  husband's  right  of  admin- 
istration upon  the  estate  of  his  di- 
vorced wife.  2  Bishop,  Mar.  &  Div., 
5th  ed.,  §  725;  Altemus's  Case, 
1  Ashm.  49.  See,  further,  as  to 
the  effect  of  divorce,  Schouler,  Hus. 
&  Wife,  §  561,  and  cases  cited.  For 
implied  revocation  of  a  will  by  di- 
vorce, see  Lansing  v.  Haynes,  95  Mich. 
16. 


1305  SEPARATION    AND    DIVOKCE.  §    1070 

property  of  a  wife  settled,  or  otherwise  vested  in  her,  is  not  to  be 
disturbed  by  a  divorce,*^  nor  property  vested  already  in  the  hus- 
band by  gift  from  his  wife  f^  and  where  the  husband  and  wife  own 
property  jointly  a  divorce  restores  to  each  the  whole  of  the  land 
formerly  held  separately.®' 

§  1070.  Effect  of  Partial  Divorce  upon  Property  Rights. 

Divorce  from  bed  and  board,  or  nisi,  produces,  however,  no  such 
sweeping  results ;  the  cardinal  doctrine  here  being  that  the  mar- 
riage remains  in  full  force,  although  the  parties  are  allowed  to 
live  separate.  Here  we  must  consult  the  phraseology  of  local 
statutes  with  especial  care,  in  order  to  determine  the  respective 
rights  and  duties  of  the  divorced  parties.  Thus  the  consequence 
of  judicial  separation,  under  the  present  divorce  acts  of  England, 
is  to  give  to  the  wife,  so  long  as  separation  lasts,  all  property  of 
every  description  wtich  she  may  acquire,  or  which  may  come  to 
or  devolve  upon  her,  including  estates  in  remainder  or  reversion ; 
and  such  property  may  be  disposed  of  by  her  in  all  respects  as 
if  she  were  a  feme  sole;  and  if  she  dies  intestate  it  goes  as  if  her 
husband  had  then  been  dead.^ 

In  this  country,  independently  of  statutory  aid,  the  property 
rights  of  the  parties  divorced  from  bed  and  board  remain  in  gen- 
eral unchanged.     For  this  divorce  is  only  a  legal  separation,  term- 

97,  Barclay  v.  Waring,  58  Ga.  86;  available  at  the  time  the  right  ac- 
Harvard  College  v.  Head,  111  Mass.  crued  and  during  marriage.  As  to  a 
209;  Schouler,  Hus.  &  Wife,  §  560;  note  from  the  divorced  husband,  see 
Jactson  V.  Jackson,  ffl  U.  S.  122;  Chapin  v.  Chapin,  135  Mass.  393.  A 
Stultz  V.  Stultz,  107  Ind.  400.  debt  of  the  wife  to  her  husband  legal- 
It  is  held,  and  upon  that  principle  ly  extinguished  by  the  marriage  is 
of  sound  policy  ■which  maintains  in-  not  revived  as  a  cause  of  action  on 
violate  the  sanctity  of  the  marriage  their  subsequent  divorce.  Farley  v. 
union,  -while  further  discouraging  Farley,  91  Ky.  497.  But  semile  the 
Btale  and  doubtful  litigation  to  -which  -wife  may  sue  the  husband  in  con- 
their  final  and  angry  rupture  might  tract  upon  mutual  transactions  of 
incite  one  of  the  married  parties,  legal  force  during  the  marriage  state, 
that  a  divorced  -wife  cannot  main-  "Morrison  v.  Bro-wn,  84  Me.  82. 
tain  an  action  against  her  divorced  98.  Tyson  v.  Tyson,  54  Md.  35. 
husband  upon  an  implied  contract  99.  Bo-wling  v.  Little  (Ky.),  206 
arising  during  coverture  (Pittman  v.  S.  W.  1.  See  Stifel's  Union  Brevring 
Pittman,  4  Ore.  29S") ;  nor  for  an  al-  Co.  v.  Saxy,  273  Mo.  159",  201  S.  W. 
leged  assault  committed  upon  her  67,  L.  E.  A.  1919C,  1009  (divorce  dis- 
■while  they  were  husband  and  wife.  solves  tenancy  by  entirety). 
Abbott  V.  Abbott,  67  Me.  304;  1.  Stats.  20  &  21  Viet.,  ch.  85,  § 
Morrison  v.  Brown,  84  Me.  82.  25;  21  &  22  Vict.,  ch.  108,  §  8.  See 
Such  remedies,  so  far  as  available  Romilly,  M.  R.  in  lie  Insole,  L.  E.  1 
at     all,      ought     to      be      sufficiently  Eq.  470. 


1070 


SEPAKATIOi^f    AND    DIVOECE. 


1306 


inable  at  the  will  of  tlie  parties;  the  marriage  continuing  in 
regard  to  everything  not  necessarily  withdrawn  from  its  operation 
by  the  divorce.^  Thus,  the  husband  still  inherits  from  the  wife, 
and  the  wife  from  the  husband;  the  one  takes  his  cvirtesy,  the 
other  her  dower ;  and  even  the  right  of  reducing  the  wife's  choses 
in  action  into  possession  still  remains  to  the  guilty  husband.^  But 
chancery,  by  virtue  of  its  jurisdiction  in  awarding  the  wife  her 
equity  to  a  settlement,  may,  and  doubtless  will,  keep  the  property 
from  his  grasp,  and  do  to  both  what  justice  demands.*  On  prin- 
ciple, the  right  to  administer  would  seem  not  to  be  forfeited  by 
one's  divorce  from  bed  and  board/ 


2.  Dean  v.  Eichmond,  5  Pick.  461; 
2  Bishop,  Mar.  &  Div.,  5th  ed.,  §  726 
et  seq.;  Castlebury  v.  Maynard,  95 
N.  C.  281. 

3.  Clark  v.  Clark,  6  Watts  &  S.  85; 
Kriger  v.  Day,  2  Pick.  316;  Smodt 
V.  Leeatt,  1  Stew.  590 ;  Ames  v.  Chew, 
5  Met.  320. 

4.  Holmes  v.  Holmes,  4  Barb.  295; 
post.  Vol.  II. 

5.  But  see  limitations  suggested  in 
post.  Vol.  II. 

The  recent  English  statutes  give 
the  wife,  upon  sentence  of  judicial 
separation,  the  capacity  to  sue  and 
be  sued  on  somewhat  the  same  foot- 
ing as  a  feme  sole.  The  rule  in  the 
Ignited  States  is  not  uniform;  but  the 
tendency  is  clearly  in  the  same  direc- 
tion. See  2  Bishop,  Mar.  &  Div.,  5th 
ed.,  §  737,  and  cases  cited;  Lefevres 
V.  Murdock,  Wright,  205;  Clark  v. 
Clark,  6  Watts  &  S.  85.  And  see, 
further,  as  to  statutory  provisions, 
including  a  division  of  property, 
post,  Vol.  II;  2  Bishop,  Mar.  &  Div., 
§§  509-519. 

Concerning  the  conflict  of  laws, 
with  respect  of  (1)  marriage,  (2) 
marital  rights  and  duties,  and  (3) 
divorce,  see  Schouler,  Hus.  &  Wife, 
§§  566-575.  As  affecting  the  rights 
and  duties  of  the  marriage  relation, 
Story,  in  his  Conflict  of  Laws,  after 
an  extended  discussion  of  the  great 
diversity  of  laws  existing  in  different 


countries,  as  to  the  incidents  of  mar- 
riage, lays  down  the  following  pri- 
mary rules,  which  are  of  general  ap- 
plication. (1)  Where  parties  are  mar- 
ried in  a  foreign  country,  and  there 
is  an  express  contract  respecting  their 
rights  and  property,  present  and  fu- 
ture, it  will  be  held  equally  valid 
everywhere,  unless,  under  the  circum- 
stances, it  stands  prohibited  by  the 
laws  of  the  country  where  it  is  sought 
to  be  enforced.  It  will  act  directly 
on  movable  property  everywhere.  But 
as  to  immovable  property  in  a  for- 
eign territory,  it  will,  at  most,  confer 
only  a  right  of  action,  to  be  enforced 
according  to  the  jurisdiction  rei  sitfr. 
(2)  Where  such  an  express  contract 
applies  in  terms  or  intent  only  to 
present  property,  and  there  is  a 
change  of  domicile,  the  law  of  the 
actual  domicile  will  govern  the  rights 
of  the  parties  as  to  all  future  acqui- 
sitions. (3)  Where  there  is  no  ex- 
press contract,  the  law  of  the  matri- 
monial domicile  will  govern  as  to  all 
the  rights  of  the  parties  to  their  pres- 
ent property  in  that  place,  and  as 
to  all  personal  property  everywhere, 
upon  the  principle  that  movables  have 
no  situ^,  or,  rather,  that  they  accom- 
pany the  person  everywhere.  As  to 
immovable  property,  the  law  rei  sitce 
will  prevail.  (4)  Where  there  is  no 
change  of  domicile,  the  same  rule 
will  apply  to  future  acquisitions  as  to 


1307 


SEPAEATIOX    AXD    DIVORCE* 


§  ion 


§  1071.  Validity  of  Foreign  Divorces. 

There  has  been  much  controversy  during  the  last  few  years  over 
the  validity  of  foreign  divorce  decrees,  especially  those  obtained 
without  service  or  actual  notice.  The  tendency  of  certain  Western 
States  to  cater  to  Eastern  divorce  business  by  giving  their  courts 
jurisdiction  to  grant  divorces  to  persons  who  have  been  but  a  short 
time  resident  in  the  State,  and  without  personal  service,  has  had 
the  result  of  attracting  many  from  other  States  bent  upon  a  quick 
and  quiet  separation  from  domestic  troubles.  The  question  has 
arisen  whether  a  decree  in  divorce  so  obtained  is  entitled  to  the 
full  faith  and  credit  granted  by  the  United  States  Constitution  to 
the  judgments  of  other  States. 

We  have  here,  on  the  one  hand,  the  principle  that  a  divorce 
valid  where  made  is  valid  everywhere,*  while  on  the  other  hand 
is  the  consideration  that  the  courts  of  a  State  may  and  should 
protect  its  citizens  against  foreign  judgments  made  without  notic 
to  them  and  in  fraud  of  their  rights/  Two  recent  cases  in  the 
Supreme  Court  have  clarified  the  situation  considerably.  In  the 
first  case  the  Court  held  that  the  court  of  the  matrimonial  domicile 
has  jurisdiction  of  divorce  even  though  the  wife  has  left  her  hus- 
band at  the  matrimonial  domicile  for  just  cause  and  established  a 


present  property.  (5)  But  where 
there  is  a  change  of  domicile,  the  law 
of  the  actual  domicile,  and  not  of  the 
matrimonial  domicile,  will  govern  as 
to  all  future  acquisitions  of  movable 
property;  and  as  to  all  immovable 
property,  the  law  rei  sitcr.  Story, 
Confl.  Laws,  §§  184-187.  And  see 
Besse  v.  Pellochoux,  73  111.  285. 

He  further  adds  that  although  in 
a  general  sense  the  law  of  the  matri- 
monial domicile  is  to  govern  in  re- 
lation to  the  incidents  and  effects  of 
marriage,  yet  this  doctrine  must  be 
received  with  many  qualifications  and 
exceptions,  inasmuch  as  no  nation  will 
will  recognize  such  incidents  and  ef- 
fects when  incompatible  with  its  ovra 
policy,  or  injurious  to  its  own  interests. 
So,  too,  perplexing  questions  will 
sometimes  arise  in  determining  upon 
the  real  matrimonial  domicile  of  par- 


ties who  marry  in  transitu,  during  a 
temporary  residence  abroad,  or  on  a 
journey  made  for  that  purpose  with 
the  intention  of  returning.  But  the 
true  principle  in  such  case  is  to  con- 
sider as  the  real  matrimonial  domicile, 
the  place  where,  at  the  time  of  mar- 
riage, the  parties  intended  to  fix  their 
abode,  and  not  the  place  where  the 
ceremony  was  in  fact  performed. 
Story,  Confl.  Laws,  §§  189-199,  and 
cases  cited.  See  also  1  Burge,  Cc- 
&  For.  Laws,  244-639 ;  Wharton,  Conf 
Laws,  §§  118-151,  166,  187-202;  and 
post,  Vol.  II. 

6.  McLaughlin  v.  McLaughlin- 
(Ala.),  79  So.  354;  In  re  Pusey  J 
Estate   (Cal.),  170  P.  846. 

7.  Thompson  v.  Thompson  (N.  J. 
Ch.),  103  A.  856;  State  v.  Duncan 
(S.  C),  9G  S.  E.  294;  Deyette  v. 
Deyette  (Vt.),  104  A.  232. 


I    1071  SEFARATIOK    AKD    DIVOBCE.  1308 

different  domicile  elsewhere.*  But  in  the  second  and  last  case  on 
the  subject  a  somewhat  different  rule  was  laid  down  that  the  mere  i 

domicile  of  one  spouse  within  a  State  is  not  sufficient  to  give 
jurisdiction  in  divorce  where  there  was  neither  appearance  hy  the 
libelee  or  personal  service  within  the  State/  This  decision  does 
not  hold,  however,  that  a  State  court  cannot  recognize  the  validity 
of  a  foreign  divorce  obtained  without  service  of  process,  but  only 
that  it  does  not  need  to  do  so,  and  therefore  the  principle  has  been 
laid  down  that  State  courts  will  recognize  foreign  divorces  ob- 
tained under  statutes  similar  to  their  own  although  obtained  on 
publication  without  personal  service.^" 

8.  Atherton  v.  Atherton,  181  U.  S.  174  N.  T.  S.  259;  In  re  Grossman 'b 
155.     See  Searles  v.  Searles  (Minn.),  Estate    (Pa.),   106  A.   86,  88. 
168  N.  W.  133.  10.  Thompson  v.  Thompson   (N.  J. 

9.  Haddock  t.  Haddock,  201  U.  S.  CL),  103  A.  856  (where  matrimonial 
562.  See  In  re  Caltabellotta 's  Will,  domicile  is  in  State) ;  Kenner  v.  Ken- 
171  N.  Y.  S.  82,  183  App.  Di\.  753.  ner,  139  Tenn.  211,  TOO,  201  S.  W. 
See  Thompson  t.  Thompson  (N.  J.  779,  202  S.  W,  723  (where  no  fraud 
Ch,),  103  A.  856;  Pearson  v,  Pearson,  appears). 
173  N.  Y.  8.  563.    S>&e  Ball  v.  Cross, 


INDEX 


(References  are  to  Section*.) 


A  Sac. 

ABAlfDOITMENT  of  children 7&9.  800 

of  wife,  enect  of  on  actions 630 

on     :=:-::         '  r   '    rtr 614 

on  -i:-'i    ;.i::i;:s..' 225.  431 

on  -i:-"5  dr-i 216.  464 

tm  liabilirj-  for  necessaries 101,  102 

rights  of  "Wife _..... 1064 

ABATE^IENT,     :'  :.  -;:.nbT  spouses 673 

ABDUCTION  ::      .:i...' 750 

of  w::t;  -^itrris  to 64 

ACCOUNTnfG,  •:■:•  :— r:c'.::v  -'r'-.^? 618.  tSS 

of  r::ari;3.-.  945efae9. 

:-:-^   ;-:--.      -.'-■-.■=  ■:::.  , 963 

-:^  ::-'---     -         .-.^:d--i  bond 964 

:"'.=      :                      ward 990 

^ari=  i:      '   :  r 983 

ACKNOWLEDGMENT  of  wife's  deed 2!3,  468 

ACTIONS,   ---~-:-::t  rr.T'-rr e06,  e^"    '^:;,  623 

d-a:h    ^  -             ■'...■...; 51 

^--i  -r.   ^r^:-=t    922 

-      :i     - 9^  923 

:;:      i  3ri  ^  :e 627-673 

;--^=-   •:vi:e   P?:.  684 

c y   :v ::e  against  third  persons 643 

W  wife  as  sole  trado* 31? 

relating  to  wife's  realty 222 

infants.     .".  1055-1059 

parent  and  child 691 

parer:*'?  right  of  for  child's  labor 755 

ADMINISTRATORraction  bv 146 

2=   J   i-i  an    \ S3S 

nrru     :v  rr-rr-tv   624 

d\.:rz':te  '-■'>:■: re  aetate S55 

ADULTERY 60,  66 

as  cTim? 60 

as    - :  r  ^  against  other  sponse 65.      66 

C!-=  rr :  -  ;.  1  ;  ro^ecufion  for 60 

"     '"-g  wife's  right  to  settlement 177 

;au ~    --r  dlTorce 10^7 

e5     :     '    antenuptial  settlement 516 

r "^    :            -     ny  from  husband 60 

• :~                     ;  adrilterT  on  liabilitT  for  necessaries .  I '4 

h-.:  =  :  ?.r  i  ?.'■  i  -^   '       -  witnesses c6 

ADVANCE^'IENTS             -'^-.-n            504 

ADVANCES  '---x     -    -                              542 

.ADVERSE  P0?SES5I0:;     _•     ■  - .'         207 

^v  ■-  -■^^t 1O05 

AGE  c:  ziajority 993.  994 

1309 


1310  INDEX. 

Sec. 

AGENCY,  child  as  agent  for  parent 788 

infant \ 1052 

husband  for  wife 376-390 

for  trading  wife 312 

in  making  contracts 396 

liability  for  torts  of  wife 132 

wife  as  agent  of  husband 135-144 

for  necessaries  93  e*  seq. 

ALIEN,  wife  of,  may  contract 225 

barred  from  rights  in  Irasband's  real  estate 203 

ALIENATION  OF  AFFECTIONS,  joint  liability  of  husband  and  wife  for.     129 

ALIMONY  as  wife's  separate  estate 331 

effect  of  on  liability  for  necessaries 105 

ANTENUPTIAL  SETTLEMENTS 490-519 

effect  on  wife's  equity  to  settlement 178 

wife  as  sole  trader  under 300 

ANTICIPATION,  restraint  on 273 

APPRENTICESHIP 1026 

ARBITRATION  of  claims  of  guardian 926 

of  claim  by  infant 1035a 

contract  by  wife  for     404 

possession  of  wife's  choses  in  action  by 167 

submission  to  by  wife 654 

ARSON  bv  husband  of  wife's  property 59 

ASSAULT  AND  BATTERY,  action  by  wife  for 659 

as  crime  betw^een  husband  and  wife 64,       65 

by  husband  and  wife 634 

action  bv  ward 982 

ASSIGNMENT  of  wife's  choses  in  action 168 

eouitable  bv  wife 476 

ATTAINDER  affecting  estate  by  entireties 568 

of  husband  as  bar  to  interest  in  wife's  realty 189,     203 

ATTORNEY'S  FEES  as  necessaries Ill 

charged  bv  guardian 905,     912 

AUTOMOBILE,  parent's  liability  for  child  driving 779 

AVOIDANCE,  by  infant 1015,  1036  et  aeq. 

of  contract  by  infant lOOS 

husband  and  wife,  gifts  between  spouses 558 

of  wife's  contracts 420,     457 

of  wife's  deed 221,     480 

of  postnuptial  settlement 534 

B 

BANISHMENT,  efTect  of  on  liability  for  necessaries  of  wife 106 

BANK  ACCOUNTS  of  guardian 904 

BANKRUPTCY  of  husband 160 

effect  on  wife's  debts 80 

on  wife's  antenuptial  debts 80 

on  postnuptial  settlements 528 

affecting  wife's  equitable  estate 252 

wife  as  sole  trader 310 

BARON  AND  FEME 35 

BASTARDS.      Pop  ILLEGITIMATE  CHILDREN. 

BAWDY  HOUSE,  wife  guilty  of  keeping 56,       67 

BIGAMY,  illegal  21 

as  crime  against  wife 65 

BILLS  AND  NOTES,  of  guardian 913 

by  in-fant   1003,  1010 

for  necessaries   1020 

as  community  debt 610 

between  spou&ee 641 

of  wife 171,  230-233,  405-407,  412,     452 


INDEX.  1311 

Sec. 

BLANK,  deed  by  wife  in 471 

BOARD  as  necessaries 110 

BOARDERS,  keeping  as  separate  earnings  of  wife 339 

BODILY  HEIR,  adopted  child  as 718 

BOND,  guardian's  956  et  seq. 

by  infant 1010 

for  necessaries 1020 

BREACH  OF  MARRIAGE  CONTRACT,  bv  infant 1022 

BURDEN  OF  PROOF  as  to  community  property 596 

of  husband's  agency 382 

as  to  wife's  separate  estate 349 

C 

CANCELLATION.     See  Avoidanci:. 

CELEBRATION  of  marriage 25 

CHASTISEMENT,  husband's  right  of 48 

parent's  right 737 

CHILD,  defined 685 

adopted  children  718-735 

custody  of 53 

illegitimate  children 704-717 

legitimate  children   694-703 

provided  for  in  antenuptial  agreement 505 

Tights  of  adult 806 

See  Pabent  and  Child. 

CHILDREN,  custody  of 53 

CHOSES  IN  ACTION  of  wife 157-164 

CHOSES  IN  POSSESSION,  riirhts  of  husband  in 149 

CHURCH,  husband's  right  to  control 52 

CIVIL  LAW  of  husband  and  wife 6 

in  guardianship 848 

sales  of  ward's  lands 930 

CLOTHING,  of  child 689 

of  wife,  title  to 150 

as  necessaries 110 

CO-DEFENDANTS,  spouse  of  one  as  witness 67 

COERCION,  presumption  of  in  wife's  torts 56,     123 

may  extend  to  a  series  of  crimes 58 

of  husband  over  wife's  crimes  presumed 56 

over  wife's  crimes 56 

s-eries  of  crimes 58 

COGNOVIT,  bv  infant 1012 

COHABITATION  as  evidence  of  wife's  agency 93 

COMMISSIONS  of  fniardians 955 

COMMUNITY  PROPERTY 7,  579-626 

See  Husband  and  Wife. 

COMPENSATION  of  guardians 953  e<  aeq. 

child's  right  to 756 

COMPOUND  INTEREST,  when  guardian  dhergeable  with 902 

COMPROMISE  of  claims  by  guardian 925 

of  claim  by  infant 1035a 

of  claim  bv  Avife 651 

CONFIDENTIAL  COMMUNICATIONS  between  husband  and  wife 70 

to  parent 692 

CONFLICT  OF  LAWS,  adoption 735 

age  of  majority 995 

bastards,  property  of 710 

community  property 583 

divorces,  effect  of  foreign 1071 

domicile  and  legitima<;y 703 

guardiane 868  et  seq. 

husband  and  wife,  contracts  between  spouses 536 


13]  2  INDEX. 

CONFLICT  OF  LAWS  —  Continued.  Sbo. 

validity  of  wife's  contracts 224 

wife's  conveyance 459 

wife's  notes 233 

marriage 33 

married  women's  acts 292 

CONSANGUINITY  making  marriage  void 16 

CONSENT,  age  of 20 

to  intercourse  by  infant 997 

CONSIDERATION  in  antenuptial  settlement 497 

in  postniuptial  settlements 530 

restoration  when  infant  disaffirms 1051 

for  wife's  contracts 407 

for  wife's  convevance 460 

CONSORTIUM,  action  by  husband  for  loss  of 677 

action  by  wife  for  loss  of 668 

CONSPIRACY,  husband  and  wife  as  witnesses 67 

bv  husband  and  wife 58 

CONSTITUTIONAL  LAW,  validity  of  statutes  concerning  guardians 871 

right  to  interfere  with  parent 693 

power  to  control  wards 827 

CONTRACTS  of  guardiam 910 

husband  and  wife 638 

between  spouses 535-546 

action  by  wife  in 652 

as  to  antenuptial  debts 81 

of  wife,  her  power  to  charge  her  separate  estate 421-457 

husband's  liability  for  wife's 73 

effect  of  coverture  on  wife's 223-229 

effect  of  coverture  on  wife's  particular 230-242 

between  spouses  as  to  community  property 605 

validity  of  wife's  as  to  separate  estate 394-420 

of  wife  for  sale  of  land 239 

•by  infants 1006  et  seq.,  1013 

affirmance 1047 

void  or  voidable 1007,  1009 

for  service  of  infant 1028 

of  service  by  infant,  affirmance 104S 

liability  distinguished  from  tort 1031 

between  parent  and  child 690 

adoption 721,  729 

for  custody  of  children 751 

■for  support  of  cfhild 789 

transferring  parental,  rights 748 

CONTRIBUTION,  amon^  sureties  on  guardian's  bond 973 

CONTRIBUTORY  NEGLIGENCE  of  child 766 

of  infant   1034 

of  parent  1035 

CONVERSION,  by  guardian 921 

of  wife's  real  estate 202 

CONVEYANCES  of  commoinity  property 601,  602,  620 

for  husband's  debts 445 

by  infant,  ratification 1044 

between  spouses 560 

by  wife   458-489 

CORPORATIONS  as  guardians 841 

infants'  rights  in 1024 

COSTS,  sureties  on  guardian's  bond  liable  for 968 

COUNSEL  FEES.     See  Attobney's  Fees. 

COVENANTS  of  wife 218,  242 

in  settlement  deeds 1063 

to  settle  aftor^acquired  property 504 

wife's  liability  on 4dl 


INDEX.  131 


COVERTURE  at  common  law 35 

affecting  crimes  55 

effect  of  on  wife's  personal  property 145-185 

on  wife's  real  estate 186-222 

on  wife's  contracts 223,  229 

CREVTE,  infant's  responsibility  for 997 

assault  by  hu&band  on  wife 54 

husband  and  wife 55-61,  634 

or  injuries  inflicted  by  one  on  the  other 65 

presumption  of  husband's  coercion  and  wife's  innocence 56 

husband  and  wife  as  witnesses  to 65 

CRIMES,  separate  penalties  for  women 61 

assault  by  husband  on  wife 54 

CRUELTY  as  cause  for  divorce 1067 

husband's  control  of  visitors  or  church  as 52 

use  of  force  as 49 

CURTESY,  in  comnmnity  property 615 

release  by  contract 501 

CUSTODY  of  children 53 

parent's  right  to 740-751 

of  illegitimate  children 707,  708 

CUSTOM  OF  LONDON  as  to  wife's  rights  to  contract 75 

wife  as  sole  trader 297 

D 

DAMAGES,  dhild,  injuries  to 770 

husband,   punitive  against 133 

recovered  by  wife  as  her  separate  estate 332 

in  action  by  wife 672 

parent,  for  death  of 786 

DANGEROUS  EMPLOYMENT  of  minor 760 

DEAF  AND  DUMB,  marriage  by 18 

DEATH,  action  by  s.pouse  for 51,  677,  679 

of  guardian 853 

of  ward 851 

parent's  action  for 762 

damages  for  death  of  parent 786 

wife's  action  for  death  of  husband 669 

DECEIT,  actions  by  spouses  for 663 

DECLARATIONS  of  husband  and  wife  as  to  res  gestos 68 

in  collateral  proceedings 68 

DEDICATION,  by  wife 477 

DEED,  guardian's,  rights  of  purchaser  under 930 

of  ward's  property 916 

infant's 1011 

for  necessaries  1 020 

of  separation   1060-1063 

bv  wife 458-^89 

DEFINITIONS,  adoption 718 

child ^ 685 

domestic  relations 1 

guardian  and  ward 2 

guardianship 810 

husband  and  wife 2 

marriage.  .  .  , 12 

parent 685 

DELAY,  as  ratification  by  infant 1041 

DENTAL  services  as  necessaries 113 

DESERTION  as  cause  for  divorce 1067 

by  husband 342 

effect  on  right  to  wife's  earnings 342 

See  Abattooxmejst. 
83 


1314  INDEX. 

Sec. 

DEVASTAVIT  by  wife 127 

DISAFFIRMAWCE  by  infant 10^5,  1039,  1040 

DIVORCE 1065-1071 

ag  remedy  for  breach  of  matrimonial  obligation 54 

divorce  from  bed  and  board;  divorce  from  bond  of  matrimony,  etc. .    1066 

causes  of  divorce 1067 

adultery.  .  .  ^ 1067 

cruelty 39,  1067 

desertion 38,  1067 

defenses,  .  .  . 1068 

effect  of  on  actions 630 

on  community  property 614 

on  duty  to  support  child 796 

on  estate  by  entireties 568 

on  husband's  right  to  emblements 204 

on  husband's  rights  in  wife's  property 148 

on  liability  for  necessaries 105 

on  husband  and  wife  as  witnesses 69 

of  absolute  divorce  upon  property  rights 1069 

of  partial  divorce  upon  property  rights 1070 

on  wife's  deed 464 

wife's  right  to  settlement 177 

foreign  divorces,  validity  of 1071 

legislation  in  general 1065 

legitimacy  of  children  born  after 699 

prohibition  on  remarriage 22 

DOMICILE  of  children 702 

guardian's  right  to  change  ward's 878 

husband  established 41,       42 

matrimonial 40 

minor 831 

naturalization,  effect  of 43 

DOTAL  PROPERTY 599 

DOWER,  in  community  property 615 

release  bv  contract 501 

DRUNKEN NiESS,  rendering  marriage  void 18 

DURESS,  marriage  under 23,       24 

in  wife's  deed 219 

of  wife  to  obtain  her  signature  as  surety 420 

DYING  DECLARATIONS  of  spouse 64 

E 

EARNINGS  OF  CHILD,  parent's  right  to ^. .  755 

guardian's  right  to 879,  8^4 

EARNINGS  OF  WIFE 336-340 

as  Iipr  separate  estate 336 

l>roperty  purchased  with 340 

actions  to  recover 343 

as  communitv  property 590 

EDUCATION,  of  "ward 886 

parent's  duty  of 774 

value  of 786 

L-JECTMENT,  husband  and  wife 635 

action  by  wife  for 660 

for  wife's  real  estate 222 

ELECTION,  for  infant  in  chancery 1054 

by  ward ^^0 

ELIZABETH,   statutes  of 527,  532,  533,  559 

EMANCIPATION  of  child 807-809 

effect  on  suits  bv  infant 1035a 

EMBEZZLEMENT,  ward's  action  for 085 

EMBLEMENTS,  husband's  right  to 191,  204 


lADEX.  1315 

Sec. 

EMINENT  DOMAIN,  taking  of  infant's  property 1025 

ENLISTMENT  by  infant 1026 

ENTICEMENT  of  child 750 

damages  for 770 

ENTIRETIES,  estate  by '.564ef  seff. 

EQUITABLE  SEPARATE  ESTATE  of  vnfe 247-285 

EQUITY,  actions  by  and  against  infants 1069 

actions  between  spouses  in 628,  644 

charge  on  separate  estate 453 

relief  in  ease  of  husband  and  wife 578 

rule  as  to  conveyance  to  spouses 574 

ESCROW,  delivery  of  deed  by  wife  in 469 

ESTATE,  by  entirety 564  e«  seg. 

ESTOPPEL,  of  infant  misrepresenting  age 1032 

of  ward   987 

by  wife 487 

to  deny  husband's  agency 385 

to  claim  separate  estate 285 

to  claim  separate  property 351-358 

jn  wife  as  sole  trader 309 

in  wife's  deed 220 

>  o  deny  validity  of  wife's  contracts 456 

EVIDENCE  in  action  by  child 768 

of  adoption 725 

of  agency  by  husband 381 

confidential  communications  between  husband  and  wife 70 

of  husband's  assent 467 

husband  and  wife  as  witnesses 62-71 

privileged  communication  to  parent 692 

in  action  for  support 797 

EXECUTOR,  acting  also  as  guardian 891 

infant  as 1023 

P 

FAMILY,  law  of 3 

expenses  as  necessaries 116,  121 

necessaries  of 90 

services  by  wife 47 

FORCE,  compelling  marriage 23 

See  Duress. 

FOREIGN  GUARDIAN  868-870 

FRAUD,  guardian  and  ward ? 

conveyances,  impeached  by  ward 977,  986 

dealings  between  guardian  and  ward 98*9 

of  guardian OOS 

settlement  with  ward 976 

husband  and  wife ? 

actions  by  spouses  for 663 

antenuptial  settlements 496,  513,  518 

creditors,  against   527 

in  gifts  between  spouses 559 

creditors  of  hiisband,  against 375 

husband's,  in  relation  to  wife's  estate 361,  360 

;)duoing  marriage 23,  24 

postnuptial  settlements  fraudulent  as  against  creditors 527 

intent  of  settler 531 

settlement  in  fraud  of  husband 506 

wife's  conveyance  in  fraud  of  creditors 484 

wife's  deed   219 

wife's,  as  estoppel  to  claim  property 355 

wife's  equitable  estate 252 

wife's  equity  to  settlement 1 80 

wife's  liabiiitv  for 126 


131G  INDEX. 

FRAUD  —  Continued.  Sec. 

wife's,  under  married  women's  acts 131 

infants 102S-ia35a 

roisrepresemting  acre    1031,  1032 

FRAUDS,  STATUTE  OF.     See  Statute  of  Fraxjds^ 

FUNERAL  expenses  as  necessaries 114,  792 

of  infant's  wife 1022 

parent's  right  to  attend 747 

FURNITURE  as  necessaries 1 10 

6 

GIFTS,  bastards,  to 714 

community  property 593 

spouses,  between   547-559 

of  community  property 606 

parent  and  cliild,  between 688 

spouses,  to,  in  equity 574 

wife,  by 474 

wife  to  husband 283 

wife,  to,  creating  separate  estate 255 

GROCERIES,   as  necessaries 110 

GUARDIAN  AD  LITEM 824 

for  infant   1058 

in  suits  between  spouses 648 

GUARDIAN  AND  WARD. 

KINDS  OF  GUARDIANS 810-826 

ad  litem 824 

American  doctrine,  guardians  by  nature  and  nurture 817 

chancery  and  probate  guardianship .' 818 

guardians  in  socage 819 

testamentary  guardians  in  this  country 820 

civil  law   .~ 826 

de  facto 825 

defined 2 

applied  to  person  and  estate 810 

English  doctrine;  guardianship  by  nature  and  nurture 811 

classification  of  guardians  in  England;  obsolete  species 812 

chancery  guardianship 815 

goiardianship  by  election  of  infant 816 

guardianship  in  socage 813 

testamentary  guardianship  814 

growth  of  law 11 

idiots,  lunatics,  spendthrifts,  etc 821 

married  women   822 

next  friend   824 

special  guardians;  miscellaneous  trusts 823 

APPOINTMENT  OF  GUARDIANS 827-848 

administrator 838 

adverse  interest,  one  having 838 

American  practice ;  notice ;  trial  by  jnry 846 

appointment  of  infant;  right  to  nominate 844 

constitutional  power  of  legislature 827 

corporations 841 

civil-law  rule  of  appointing  guardians 848 

courts,  authority  of 828 

jurisdiction   in   general 829 

what  courts  may  appoint 830 

domacile  or  residence  of  minor 831 

efToot  of 847 

Eni<rlish  practice   845 

father  alive  833 


INDEX.  1317 

GUARDIAN  AND  WARD  —  Continued. 

APPOINTMENT  OF  GJJ ARIHANS—  Continued.  Sec, 

interest  of  the  ward  as  a  tost 837 

married  women   839 

nature,  guardians  by 843 

non-residents.  .  ^ 840 

parents  or  relative  preferred 834 

parent's  choice 83(5 

prior  petition  preferred 842 

property,  necessity  of 832 

testamentary  guardianship ;  how  constituted 835 

BOND 956-978 

accountino;  as  prerequisite 963 

is  conclusive 964 

action  on  the  guardian's  bond 961 

capacity  in  which  guardian  acting 969 

costs 968 

fraudulent  settlement  with  ward 976 

fraudulent  transfers,  ward's  right  to  impeadh 977 

interest 968 

liability  of  guardian  and  sureties 968,  959 

limitation  of  action 975 

penalty 968 

real  estate,  special  bonds  in  sales  of 960 

receiver 956 

recognizance ;  English  Chancery  rule 956 

American  rule  957 

sureties  held,  on  breach  occurring  while  bond  outstanding 965 

collateral,  surety  taking 972 

contribution  among  sureties 973 

duty  of  sureties  as  to  estate 971 

for  what  acts  of  guardian  is  surety  liable 967 

for  what  property  liable 970 

on  different  bonds;  special  bonds 966 

release  of   978 

subrogation  of  sureties 974 

validity  of  bond 962 

INVENTORY  AND  ACCOUNTS 944-955 

accounts ;  English  Chancery  practice 945 

duty  to  render 947 

form 949 

in  case  of  death,  etc.,  of  guardian 952 

intermediate  and  final,  distinguished 949a 

jurisdiction  over   946 

with  what  property  guardian  chargeable 951 

when  required  948 

commissions 955 

compensation  of  guardians  in  England 953 

in  this  country 954 

inventory.  , ^^^ 

NATURE  OF  THE  GUARDIAN'S  OFFICE 861-871 

administration  durante  minore  aetate 866 

constitutional  questions  relating  to  guardianship 871 

de  facto ^67 

foreign  guardian,  rights  of,  as  to  ward's  person 869 

as  to  ward's  property S^O 

extra-territorial  rights  of  guardians  in  general 8C8 

giuardiansliip  and  other  trusts  blended 865 

joint  guardians   ^^^ 

judicial  control  of  the  ward's  property 864 

relates  to  person  and  estate ""^ 

trustee,  whether  a  guardian  is S62 


1318  INDEX. 

GUARDIAN  AND  WARD  — Continued. 

Sko. 
RIGHTS  AND  DUTIES  OF  GUARDIANS  CONCERNING  THE  WARD'S 

PERSON 872-887 

access,  parent's  right  of 876 

allowance  to  parent  for  ward's  support;  Chancery  rules 885 

bastard,  guardianship  of 717 

board  furnished  by  guardian 883 

custody',  right  of 873 

parent's  rights  to 875 

domicile,  guardian's  right  to  change  ward''s 878 

education  of  ward,  secular  and  religious 880 

guardian's  duties  as  to  ward's  person;  in  general 880 

habeas  corpus  to  determine  custody 877 

income  or  principal,  use  of 887 

services  of  ward,  right  to 87d 

of  ward  to  guardian  to  be  credited 884 

fiiupport  of  ward 881 

by  guardian  before  and  after  guardianship 882 

testamentary  guardians 874 

RIGHTS  AND  DUTIES  OF  THE  GUARDIAN  AS  TO  THE  WARD'S 

ESTATE 8S8-92G 

in  general ;  leading  principles , 888 

actions,  right  to  sue  and  be  sued 922 

for  benefit  of  ward 923 

arbitration 926 

assets,  collection  of 895 

what  property  is 896 

authority  before  or  after  termination  of  office 891 

bank  aceovxnts    904 

character  in  whioh  holds  funds 893 

comipromise  of  claims 925 

continuance  in  business 907 

contracts  in  general 910 

contract  by,  not  binding  on  infant 1049 

for  necessaries 911 

for  services  to  ward  or  estate 912 

debts,  payment  of 906 

deeds  of  property 910 

exchanges.  .  .  ., 921 

expenditures  allowed    905 

general  powers  and  duties  as  to  ward's  estate 889 

insurance 917 

interest,  when  chargeable  with 902 

investment,  reasonable  time  allowed  for 897 

character  of 808 

separation  of  funds 809 

statutes  covering 901 

lease 918 

liability  for  negligence  or  fraiud 90S 

loans  by  guardian 903 

to  guardian    914 

loyalty,  duty  of;  not  to  make  money  from  estate 890 

mortgage  or  pledge 919 

parties 9?  ; 

possession  of  estate 894 

promissory  notes 91 .) 


real  estate,  management  of 91 

guardian's   occoipation    of 920 

reinvestment 900 

repairs 917 

sales 921 

title  in  ward's  estate 892 

unauthorized  acts   909 

wife  of  ward,  care  of 912 


INDEX.  1319 

GUARDIAN  AND  WARD  — Continued. 

Sec. 

SALES  OF  THE  WARD'S  REAL  ESTATE 927-9+3 

American  practice 931 

statutes  on  this  subject  considered 932 

civil-law  rule  as  to  sales  of  ward''s  lands 930 

confirmation  of  sale 942 

decree,  requisites  of 938 

guardian's  own  sale  not  binding:  public  sale  usually  .required 933 

interests  in  land  which  may  be  sold 934 

non-residents,  sales  in  cases  of ' 943 

parties  to  proceedings 935 

petition,  requisites  of 937 

proceeds,  disposition  of 941 

poirchaser.  rights  of,  under  guardian's  deed 939 

purpose  of  sales 936 

rule  as  to  sales  of  ward's  personal  property 927 

rule  as  to  real  estate:  whether  chancery  can  sell  infant's  lands 925 

I]nglish  chancery  doctrine 929 

sales  void  or  voidable 940 

TERMINATION  OF  GUARDIAN'S  AUTHORITY 849-860 

death  of  guardian 853 

death  of  the  ward 851 

how  the  guardian's  authority  is  terminated 849 

marriage,  effect  of 146 

marriage  of  female  guardian 850 

marriage  of  the  ward 852 

natural  limitation,  ward  of  age,  etc 850 

other  cases  where  a  new  guardian  is  appointed 860 

resignation  of  the  guardian 854 

removal ;  who  may  remove 855 

procedure 856 

causes  of  857 

successor,  appointment  of  ;  duties 858 

WARD,  RIGHTS  AND  LIABILITIES  OF 979-992 

action  by  ward  or  bill  for  account 983 

election  as  to  wards,  insaiu'  or  infant 9S0 

embezzled  property,  right  to  recover 985 

estoppel  of  ward 987 

fraudulent  transactions  set  aside  on  ward's  behalf 986 

general  rights  of  the  ward 979 

insane  persons  and  infants  contrasted 981 

limitations,  laches    984 

marriage  of  ward  against  consent  of  chancery  or  guardian 992 

ratify  or  repudiate  transactions  of  guardian 987 

responsibility  of  guardian  to  ward  as  wrongdoer,  etc 982 

resulting  trusts:    guardian's  misuse  of   funds:    purchase   of  ward's 

property,  etc f'S^ 

situation  of  parties  at  final  settlem^ent  of  accounts 990 

transactions  after  gardians-.ip  is  ended 991 

transactions  between  jruardian  and  ward;  undue  influence 089 


H 

HABEAS  CORPUS,  use  of,  by  husband  and  wife 54 

HEIRS,  rights  of.  in  community  property 616,  62.'; 

HISTORY  of  adoption " 710 

of  law  of  family 3 

of  married  women's  acts 8,  287 

HOMESTEAD,  commiinity  property  in 586 

HORSE  as  necessaries 110 


1320  INDEX. 

HUSBAND  AND  WIFE. 

Sec. 

IN  GENERAL 

law  in  transition  state 4 

common-law  property  soheme 5 

civil-law  scheme 6 

general  conclu5ion8 10 

ACTIONS 627-684 

abandonment,  effect  of 630 

abatement  of  action 673 

actions  between  spouses  at  law 627 

in  equity 628 

arbitration,  submission  to 654 

assault  and   battery 634,  659 

by  husband  on  wife 634 

compromise  of  claim 651 

consortium  and  services,  for  loss  of 668,  677 

contract 638,  652 

damages 672 

death  of  husband 66& 

of  wife 679 

deceit. 663 

defenses  to  action  by  wife 671 

iiivorce,  effect  of 630 

ejectment 635,  660 

forcible  detainer 660 

fraud 663 

guardian  ad  litem,  necessity  of 648 

husband,  rights  of 674 

necessity  of  joining,  as  party  at  law 646 

in  equity 647 

effect  of  husband's  refusal  to  join 649 

judgment,  confession  of 641,  653 

husband's  rights  in  action  by  wife 674 

libel 664 

limitations,  statute  of 629 

malicious  prosecution 665 

married  women's  acts 631,  656,  682 

implied  statutory  power  to  maintain  action 632 

medical  expenses  677 

necessaries,  amounts  exjp'ended  for 640 

negligence 637 

professional 658 

next  friend,  necessity  of 648 

parties,  husband  as 646,  647,  649 

wife  as 680 

partition 639 

pleading 670 

remedies  of  spouses  against  one  another  for  breach  of  matrimonial 

obligations. 54 

replevin 636,  661 

seduction  of  wife 676 

separation,  effect  of 650 

services,  for  loss  of 678 

slander 664 

8urvi\'^l  of  action 673 

torts  in  general 633,  655 

trespass 657 

trover 642,  667,  683 

■wife,  actions  against 661,  684 

by  wife  against  third  persons 643 

in  equity 644 

under  miarried  women's  acts 645 

mental  anguish  suffered  by 675 


INDEX.  1321 

HUSBAND  AND  "WIFE  ~  Continued. 

ACTIONS  —  Continued.  Seo. 

necessity  of  joinder  of 680 

personal  injuries  to 662 

personal  property,  injury  to 666 

AGENCY,  WIFE  AS  AGENT  OF  HUSBAND 135-144 

as  to  real  estate 142 

evidence  of  agency 138 

extent  of  wife's  power  as  agent 137 

in  liousehold  matters  and  care  of  husband's  property 141 

under  express  power 139 

under   implied  power 140 

ratification  of  wife's  unauthorized  acts 144   \ 

when  wife  may  bind  husband  as  agent 136 

where  contract  by  wife  in  her  own  name 143 

ANTENUPTIAL  DEBTS,  WIFE'S 76-82 

actions  to  recover  antenuptial  debts 77,  79 

bankruptcy  of  husband,  effect  of,  on  wife's  debts 80 

contract  between  spouses,  effect  of,  as  to  antenuptial  debts 81 

hardship  of  husband's  liability  for  wife's  antenuptial  debts 76,  78 

husband's  liability  for  wife's  antenuptial  debts 76 

husband's  liability  for  wife's  antenuptial  necessaries 76 

husband's  liability  for  necessaries  of  infant  wife 76 

liabilitv  for  wife's  antenuptial  debts  as  affected  by  statute 82 

ANTENUPTIAL  SETTLEMENTS 490-519 

acts  in  pais 517 

adultery 516 

breach  of 514 

children,  rights  of 510 

or  heirs,  provisions  for 505 

consideration 497 

construction 507 

contracts  releasing  rights  in  estate  of  other  spouse 501 

covenant  to  settle  after-acquired  property 504 

creditors,  rights  of 519 

enforcement 510 

form 494 

fraud 513,  518 

general  considerations  492 

infancy 515 

jointure 516 

liens,  effect  of 494 

marriage  settlements  favored  by  public  policy 491 

misconduct  of  spouse 516 

mistakes  in 496 

operation  and  effect 509 

oral  promise  to  make  settlement 499 

parol  representations   517 

postnuptial  settlements  in  execution  of  antenuptial  agreement 500 

power  of  disposition 508 

promises  to  marry  distinguished 493 

recording 494 

reformation 496 

rescission 511 

agreement  to  rescind 512 

secret  settlement  on  third  person  in  fraud  of  husl>and 506 

settlement  by  third  person 503 

statute  of  frauds 502 

effect  of 499 

trustee,  necessity  of 495 

validity  in  general 498 

what  law  governs 490 

wife,  inadequacy  of  provision  for 518 


1322  ixDEx. 

HUSBAND  AND  VflFE  — Continued. 

Sec. 

COMMUNITY  DOCTRINE  579-626 

abandonment,  effect  of 614 

acceptance,  necessity  of &li^ 

accounting  and  settlement 626 

of  community  rights 618 

actions  by  or  against  heirs 623 

by  or  against  survivor 622 

by  spouses 606 

against  spouses   607 

administration  in  general 624 

control,  management,  and  collection  of  community  assets 625 

bills  and  notes 610 

burden  of  proof 596 

2ontract3,  between  spouses 605 

control  and  disposition 600 

conveyances 601,  602 

between  spouses 605 

creditors,  rights  and  remedies  of,  during  existence  of  community.  .  . .  613 

Jaireges  recovered  by  spouses 589 

dissolution  of  community;  effect  of  abandonment,  separation,  insan- 
ity or  divorce 614 

divorce,  effect  of 614 

.loctrine,  nature  of 579 

European  doctrine   580 

effect  of  doctrine 581 

dotal  property   599 

earnings  of  wife  as 590 

evidence 596 

gifts 593 

between  spouses 605 

heirs,  rights  of 616 

history  of  doctrine 579 

improvements  on  separate  estates 588 

insanity,  effect  of 614 

insurance  policies   594 

lease 603 

liabilities  chargeable  on  commiunity  property,  community  debts  gen- 
erally  " 608 

mortgages 601,  602 

to  pay  debts 620 

nature  of  comni'unity 582 

paraphernal  property 599 

presumptions 595 

property,  commiunity   7 

property  acquired  during  coverture 585 

property  in  part  community 591 

public  lands  acquired  bv  grant  or  entry 586 

purchasers  under  sale  to  pay  debts,  rights  and  liabilities  of 621 

purchasers,  rights  and  liabilities  of,  during  coverture 604 

:ents  and  profits  of  separate  estates 587 

'enunciation,  necessity  of 61^ 

sales,  mortgages  and  conveyances;  by  husband 601 

by  wife ' .' 602 

sale  to  pay  debts 620 

separate  debts   612 

separate  estate  distinguished 592 

soiparation,  effect  of 614 

status  of  property,  change  of 597 

determination  of   595 

surety,  obligations  as 609 

survivor,  rights  and  liabilities  of 615 

effect  of  remarriage  of 617 


INDEX.  1323 

HUSBAND  AND  "WIFE  —  Continued. 

COMMUNITY  DOCTRINE— Co»<i>iMecf.  Sec. 

torts 611 

what  constitutes 584 

what  law  governs 583 

wife's  interest,  nature  of 598 

CONTRACTS  BETWEEN  SPOUSES 535-546 

advances 542 

bills  and  notes 541 

consideration 540 

contracts  existing  at  marriage 536 

debts  existing  at  marriage 536 

interest,  between  spouses 544 

liability  for 544 

loans.  .  .  .  '. 542 

married  women's  acts 53 1 

partnership  between    545 

releases  between    546 

separate  estate  concerning 538 

services,  contracts  for 543 

validity 539 

what  law  sroverns 535 

CONVEYANCES  AND  MORTGAGES  BETWEEN  SPOUSES 560-563 

conveyances 560 

leases, 560 

mortg£.ge3 561 

operation  and  effect 562 

personalty,  transfers  of 563 

CONVEYANCES  TO  SPOUSES 564-578 

attainder 568 

creditors,  rights  of 5/2 

divorce 568 

entireties  in  land,  estate  by 564 

in  personalty   565 

conveyances  of 573 

essentials  of  estate 566 

mortgage  of   573 

equitable  relief   578 

gifts  to  spouses  in  equity 574 

insurance  on  hiisband's  life  in  favor  of  wife 577 

joint  tenants,  spouses  as 571 

mortgage  to  spouses 565 

partition 568 

possession  as  between  spouses 56/ 

purchase  at  judicial  sale 576 

statutes,  effect  of 569 

tenants  in  common,  spouses  as 570 

trusts,  resulting    575 

COVERTURE,  EFFECT  OF,  ON  WIFE'S  CONTRACTS 223-22I> 

common-law  rule -23 

exceptions  to  rule 225 

disability  of  wife  to  contract 223 

removal  of  disability 227 

married  women's  acts 229 

ratification  of  wife's  contract 228 

what  law  governs 224 

widow's  contracts 226 

COVERTURE,  EFFECT  OF,  ON  WIFE'S  PARTICULAR  CONTRACTS .  230-242 

contracts  for  sale  of  land 239 

contracts  of  wife  for  services 237 

covenants  of  wife 242 

judgment,  wife's  confession  of 238 

notes  of  wife 230 


1324  INDEX. 

HUSBAND  AND  "WIFE —  Continued. 

COVERTURE,  EFFECT  OF,  ON  WIFE'S  PARTICULAR  CONTRACTS  — 

Continued.  Seo. 

for  husband's  debt 232 

"vvife  as  accommodation  party 231 

what  law  governs 233 

release  by  wife 241 

eealed  instrument  by  wife 240 

suretyship  by  wife 234 

wife  as  surety  for  husband 235 

guaranty  by  wife 236 

COVERTURE,  EFFECT  OF,  ON  WIFE'S  PERSONAL  PROPERTY. .  .145-185 

bank  deposits  of  wife 154 

bankruptcy  of  htisband 160 

choses  hi  action 157 

reduction  to  possession  of 158-161 

reduction  to  possession,  what  constitutes,  in  general 161 

constructive  possession  of 164 

recovery  of,  by  suit 167 

wife's,  reduction  of,  to  possession  by  assignment 168 

reduction  of  wife's,  to  possession  by  delivery  to  agent  of  husband.  169 

joint  or  sole  receipt  for  wife's 170 

/possession  by  husband  of 163 

failure  to  reduce,  to  possession 159 

waiver  of  right  to 159 

choses  in  possession ;  rights  of  husband  in 149 

clothes  of  wife;  title  to 150 

commercial  paper 171 

divorce,  effect  of,  on  husband's  rights  in  wife's  property 148 

earnings,  wife's  152 

property  purchased  with 153 

joint 156 

insanity  of  husband 162 

legacies,  right  to 172 

marriage  as  gift  to  husband 145 

money  of  wife,  title  to 151 

money  of  wife ;  reduction  to  possession 173 

pledge  of  wife's  property 166 

release  by  husband ;  effect  of 165 

Settlement ;  wife's  equity  to 175 

nature  of  right 176 

amount  of  settlement 185 

effect  of  divorce  or  separation  on 177 

antenuptial  settlement;  effect  of  on 176 

affected  by  fraud 180 

in  property  in  hands  of  third  person 181 

in  life  estates  and  remainders 183 

of  vested  estate 182 

property  in  litigation 184 

waiver* 179 

slaves  of  wife 155 

stock  of  wife ;  reduction  to  possession 174 

trust,  personal  property  held  by  wife  in 146 

what  law  governs  rights  in  'her  propertv 147 

COVERTURE,  EFFECT  OF,  ON  WIFE'S  REAL  ESTATE 186-222 

abandonment  of  wife;  effect  on  her  deed 216 

actions  relating  to  wife's  realty 222 

adverse  possession  against  wife 207 

adverse  possession  by  husband  of  wife's  lands 208 

alien  barred  from  rights  in  husband's  real  estate 203 

attainder  of  husband 189,  203 

bor  of  icife's  rights IF;9 

mortgage 189,  198 

lease 189,  199 


INDEX,  1325 

HUSBAOT)  AND  WIFE  —  Continued. 

COVERTURE,  EFFECT  OF,  ON  WIFE'S  REAL  ESTATE  —  Continued.  6ec. 

chattels  real 186 

nature  of  husband's  interest 187 

conversion  of  her  real  estate ;  effect  of 202 

creditors  of  husband,  rights  of,  in  wife's  real  estate 196 

deed  to  wife;  effect  of 190 

divorce;  effect  of,  on  husband's  rights  to  emblements 204 

husband's  rights  in  wife's  real  estate 191 

alienate,  husband's  right  to 188 

contract  to  convey  wife's  real  estate 200 

dissent  from  purchase  or  gift  to  wife 201 

emblements 191,  204 

in  wife's  future  estate 193 

in  wife's  life  estates 194 

in  wife's  realty  in  possession  of  another 196 

joint  tenancy  194 

to  lease  wife's  real  estate 199 

to  mortgage  wife's  real  estate 198 

to  sell  wife's  real  estate 197 

what  law  governs 192 

limitations;  effect  of,  on  husband's  interest  in  wife's  realty 203 

married  women's  acts;  effect  of,  on  husband's  rights  in  wife's  realty.  206 

waste  of  wife's  realty,  remedy  for 205 

wife's  contract  to  buy  or  sell 208 

effect  of  wife's  agreement  to  buy  or  sell 209 

wife's  power  of  attorney  to  convey 210 

ttn/e's  conveyance,  form  and  requisites 211 

acknowledgment 213 

avoidance  of  wife's  deed 221 

avoidance  of  infant  wife's  deed 221 

covenants  of  wife 219 

effect  of  English  statute 216 

estoppel  in  wife's  deed 220 

fraud  or  duress  in  wife's  deed 219 

joinder  of  husband 212 

mortgage  by  wife 217 

privy  examination  of  wife 214 

CRIMINALS,  AS 55-61 

adultery 60 

coercion  by  husband  presumed 56 

coverture  affecting 55 

inmocenee  of  wife  presumed 56,  57 

separate  penalties  for  women 61 

GENERAL  INEQUALITIES 72-75 

hus'band's  banishment  or  leaving  kingdom,  effect  of 75 

husband's  liability  for  wife's  contracts 73  ■ 

property,  what  each  yields  as  to 72 

torts,  wife's   immunity 74 

wife's  riffht  to  sue  at  common  law 73,  75 

GIFTS  BETWEEN  SPOUSES 547-559 

bank  deposits  550 

by  husband  to  wife 554 

by  wife  to  husband 553,  555 

consideration 556 

delivery 552 

fraud  against  creditors 559 

intention  to  make  gift 551 

operation  and  effect 557 

presumptions 554 

property  subject  of  gift 549 

rescission  or  avoidance 558 

trustee,  necessity  of 548 


1326  INDEX. 

HUSBAND  AND  "WIFE  —  Continued. 

GIFTS  BETWEEN  SFOUSES  — Continued.  Sec. 

validity 556 

what  constitutes .  547 

MARRIED  WOMEN'S  ACTS 286-295 

changes  made  by 295 

construction 291 

English  act  of  1S70 289 

New  York  and  Pennsylvania 288 

retrospective,  not    292 

rights  of  husband 293 

rights  of  wife 294 

scope  and  validity 290 

tendency  and  purpose 286 

what  law  governs 292 

See  further  Mabbied  Women's  Acts. 

NECESSARIES,  foundation  of  common-law  doctrine 83 

summary  of  modern  rule 84 

rule  of  husband's  liability 85 

measure  of  liability 117 

abandonment,  effect  of 101 

by  wife 102 

adultery  by  wife 104 

agency  of  wife 93 

articles  partly  necessaries 91 

banishment,  eflfect  of 106 

cohabitation  as  evidence  of  wife's  agency 93 

credit  to  wife  or  third  party 97 

divorce  and  alimony,  effect  of 105 

good  faith  in  husband's  liability 94 

husband  giving  wife  money  for  necessaries 9S 

husband's  liability  for  things  not  necessaries  furnished  to  wife.  9*2 

'ianiprisonm'ent,  effect  of 106 

infancy,  effect  of 95 

infant  wife 76 

insanity,  effect  of 106 

notice  not  to  sell  to  wife 96 

ratification  by  husband  of  wife's  unauthorized  purchases 99 

relatives,  claim  of 87 

separation,  effect  of 100,  119 

by  consent 103 

third  persons,  claim  of 88 

wife,  claim  of 86 

wife's  liability  108 

wife's  liability  under  modern  statutes 108 

wife's  right  to  sell  property  to  obtain 107 

What  constitutes   109,  110 

counsel  fees Ill 

dental  services 113 

family   expenses    116,  120,  121 

funeral  expenses   114 

house  rent 119 

last  sickness 114 

medical  services   112,  114,  120,  121 

what  are  not 115 

PERSON  OF  THE  SPOUSE 34-54 

actions  between  spouses 54 

for  death   51 

chastisement,  husband's  right  to 48 

children,  custody  of 53 

coverture  at  common  law 35 

death,  action  for 51 

desertion 38 


I^■DEx.  1327 

HUSBAND  AND  WIFE  — Con^inwed. 

PERSON  OF  THE  SPOUSE  —  Continued.  Sec. 

domicile 40 

husband  establishes 41,  42 

effect  of  naturalization  on 43 

duty  to  live  together 37 

duty  of  making  coiliabitation  tolerable 39 

husband  head  of  family 36,  52 

use  of  habeas  corpus 54 

right  to  go  to  house  where  wife  is 49 

name,  woman's,  changed  by  marriage 44 

restraint,  husband's  right  to  gentle 49 

support,  husband's  duty  of 45 

when  husband  relieved  from  duty  of 45 

criminal  liability  for  failure 46 

surgical  operation,  wife's  right  to  submit  to 50 

wife's  duty  to  render  services 47 

right  to  submit  to  surgical  operation 50 

PIN  MONEY 243-246 

pin  money,  arrears  of 24.3 

housekeeping  allowance   246 

paraphernalia  distinguished  from  separate  estate 244 

POSTNUPTIAL  SETTLEMENTS 520-534 

avoidanccj 534 

bankruptcy  acts,  effect  of 528 

consideration 521,  524 

effect  of  payment  of  valuable  consideration  by  spouse 530 

construction 526 

creditors,  claims  of 525 

settlements  in  fraud  of  creditors;  Statutes  of  Elizabeth 527 

subsequent  creditors 529 

fraud  in 523 

in  general 520 

intent  of  settler 531 

purchasers,  rights  of  bona  fide;  English  doctrine 532 

American  doctrine 533 

rescission 534 

trustee,   necessity   of 522 

SEPARATE  ESTATE,  EQUITABLE 247-285 

ambulatory 253 

bankruptcy :  effect  of 252 

contracts  relating  to 280 

contracts  not  beneficial  to  wife 281 

creation 254 

by  parol  gift 2'5 

by  contract 256 

by  instrument  vesting  power  of  appointment 257 

construction  of  instrument  creating 261 

words  creating   262,  265 

in  the  United  States 263 

what  words  are  insufficient  to  create  estate;  in  England 264 

in  the  United  States 265 

deed,  form  of 277 

of  real  estate 278 

of  income  or  profits 270 

distinguished  from  statutory  separate  estate 240 

duration 26.^ 

estoppel  to  claim  property 285 

fraud ;  effect  of 252 

gift  of  income  as  gift  of  principal 2>S 

gifts  and  transfers  to  husband 283 

enforcement 284 


1328  INDEX. 

HUSBAND  AND  WIFE  —  Continued. 

SEPARATE  ESTATE,  EQUITABLE  —  Continued.  Sec. 

history 247 

in  England 247 

in  this  country 248 

identity  of  estate,  preserving 266 

husband's  rights,  on  wife's  decease 269 

bar  husband's  rights 270 

effect  on  husband's  marital  ohligations 271 

insolvency ;  effect  of 252 

mortgage  or  pledge  to  secure  husband's  debts 282 

origin 247 

of  purchasers  from  husband,  rights 272 

recognized  at  law 250 

renunciation  by  wife 251 

restraint  on  alienation 273 

savings  from  wife's  income 269 

trust  fund  for  wife's  debts 267 

trustee ;   necessity  of 260 

wife's  power  to  dispose  of 274 

in  the  United  States 275 

concurrence  of  trustee 276 

SEPARATE  ESTATE,  WIFE'S  STATUTORY 319-368 

alimony 331 

bastardy,  trust  fund  in,  as  wife's  separate  estate 335 

creation  of 319 

by  written  instrument 320 

by  parol  transfer 321 

damages  recovered  by  wife 332 

earnings  of  wife  in  general 336 

principles 337 

in  separate  business 338 

keeping  boarders  339 

property  purchased  with 340 

waiver  by  husband 341 

desertion  by  husband 342 

actions  to  recover 343 

estoppel  by  wife 351,  362 

to  claim  property  as  separate  estate  in  general 352 

by  deed   353 

by  record 354 

by  fraud   356 

by  silence 356 

by  failure  to  assert  title 357 

by  clothing  husband  with  authority 35.8 

goods  bought  by  husband  on  wife's  credit 334 

insurance  policy  on  life  or  property  of  husband,  proceeds  of 333 

judicial  sale,  property  purchased  at 328 

land  conveyed  to  wife 325 

personal  property   330 

presumptions,  as  between  spouses 344 

property  standing  in  name  of  husband 346 

property  standing  in  name  of  third  persons 346 

against  haisiband's  creditors 347 

statutory  .  j. 348 

burden  of  proof  as  against  creditors  of  husband 349 

property  acquired  before  marriage 323 

property  acquired  diurimg  marriage 324 

property  held  by  husband  as  trustee  for  wife 329 

questions  for  jury  as  against  creditors  of  husband 350 

rents  and  profits 326 

Bale  of  land,  proceeds  of 327 

schedule,  necessity  of 322 

trust  fund  in  bastardy  proceedings 336 


INDEX.  1329 

HUSBAND  AND  WIFE  —  Continued. 

Sko. 
SEPARATE   ESTATE,    CONVEYANCE,   MORTGAGE    OR   LEASE   OF 

WIFE'S  STATUTORY 458^-489 

abandonment,  effect  of 464 

acknowledgmient 468 

assignment,  equitable 476 

avoidance 489 

cancellation  of  deed 489 

consideration.  .  .  , 460 

construction  and  operation 480 

conveyance 471 

in  fraud  of  creditors 484 

covenants,  liability  on 481 

dedication 477 

deed  in  blank 471 

sole.  .  .  , 471 

by  power  of  attorney 479 

delivery  in  escrow 469 

divorce,  effect  of 464 

estoppel 487 

execution 462 

form  and  requisites 461 

gift. 474 

luisband,  joinder  by,  not  required 465 

necessity  of 463 

evidence  of  assent 467 

presumption  as  to  husband's  assent 466 

insanity  of  husband,  effect  of - 464 

laches 486 

lease 475 

mortgage. 472 

extent  of  lien 482 

novation 483 

extension  by  wife 483 

parol  transfers 478 

power  of  wife  to  dispose  of 458 

purchasers,  rights  and  liabilities  of 485 

ratification 488 

record.  .  . 470 

separation,  effect  of 464 

trust,  declaration  of 473 

deed  of 472 

what  law  governs 459 

SEPARATE  ESTATE,  HUSBAND'S  RIGHTS  AND  LIABILITIES  OVER 

WIFE'S  STATUTORY 359-393 

ad'vances,  recovery  for. 390 

agent,  husband  as 376 

burden  of  proof 382 

declarations,  power  to  bind  wife  by 380 

estoppel  to  deny 386 

evidence  of   381,  384 

general  agency 378 

implied  authority   379 

presumptions 383 

ratification 386,  387 

scope  of  agency 377 

silence  of  wife 382 

what  constitutes  ratification 387 

contract 367 

creditors  of  husband 372 

dispose  of  personal  property 363 

dispose  of  real  estate 362 

fraud  of  creditors,  transactions  in 37& 

84 


1330  INDEX. 

HUSBAND  AND  WIFE  — Continued. 

SEPARATE  ESTATE,  HUSBAND'S  RIGHTS  AND  LIABILITIES  OVER 

WIFE'S  STATUTORY  —  Continued.  Sec. 

fraud  of  husband 361 

liability  for   366 

improvements  by  husband 388 

lease 365 

liabilities  for  wife's  property  received 392 

to  third  person 393 

lien 368 

mortgage.  .  ...  364 

necessaries,  liabilities  for  money  used  by  husband 391 

notice  to  husband,  effect  of 371 

possession  of  husband 374- 

power  to  control 360 

purchasers  from  husband 370 

reduce  to  possession,  rig'ht  to 359 

release 369 

services  of  husband 373,  389 

SEPARATE  ESTATE,  VALIDITY  OF  WIFE'S  CONTRACTS  RELATING 

TO  STATUTORY 394-420 

advances 410 

arbitration 404 

avoidance 420 

consideration 407 

contracts  of  wife  by  agent 396 

enforcement 418 

insurance 408 

joinder  or  assent  of  husband 397 

jointly  with  husband 400 

judicial  proceedings  in 399 

leases 411 

loans 410 

power  to  contract 304 

(promissory  notes 405,  412 

notes  jointly  with  husband 406 

purchase  of  property 401 

on  credit 402 

improvements  and  repairs 403 

ratification 419 

release  by  divorced  woman 398 

statute  of  frauds 395 

stockholder,  as 409 

suretyship 413 

securing  husband's  debts 412 

for  third  persons 414 

what  constitutes ;  contract  of 415 

illustrations 416 

wife  as  surotv 417 

SEPARATE   ESTATE,   WIFE'S   POWER   TO    CHARGE   STATUTORY 

WITH  LIABILITY  FOR  DEBT 421-457 

abandonment,  effect  of 431 

avoidan-ce 457 

charge,  what  constitutes 422 

contract  in  general 432 

for  benefit  of  her  separate  estate 424 

necessity  of  express 434 

not  for  benefit  of  separate  estate 425 

conveyance  for  husband's  debts 445 

debts  of  husband,  wife's  liability 445 

estoppel  to  deny  validity ' 456 

evidence  of  debt  in  general 433 

husband's  joinder  or  assent 430 


INDEX.  1331 

HUSBAND  AND  WIFE —  Continued. 

SEPARATE  ESTATE,  WIFE'S  POWER   TO    CHARGE   STATUTORY 

WITH  LIABILITY  FOR  DEBT  —  Continued.  Sec. 

improvements  to  land , 443a 

intention  to  charge  separate  estate 428 

evidence  of   429 

joint  debt,  liability  for 427 

jointly  with  husband 442 

judgment,   confession    of 439 

liability  for  breaches  of  trust 447 

lien,  meclianic's  441 

lien,  A'endor's   440 

loans 451 

mortgage 435 

assumption  of  existing 437 

deficiency  decree 43S 

equitable 4?.6 

for  husband's  debts 445 

pledge  for  husband's  debts 445 

power  of  wife  to  charge  her  separate  estate 42" 

limitation  of  power , , .  42 

proceedings  to  charge  separate  estate  in  equity 45b 

at  law  454 

promissory  note 452 

property  subject  to  liability 426 

purchase  price  of  land 443 

ratification 455 

separate  business,  debts  contracted  in 448 

separation,  eflFcet  of 431 

services  rendered  444 

support  of  husband,  liability  for 446 

suretyship , 440 

rule  of  Yale  v.  Dederer 450 

TORTS  OF  WIFE,  LIABILITY  FOR 122-134 

agent  of  wife 132 

alienation  of  affections 129 

contract  arising  from 126 

damages,  punitive 133 

devastavit 127 

divorce  or  separation 126 

English  rule  in  equity 134 

joint  liability  of  spouses 129 

liability  of  husband  for  torts  of  wife 122 

liability  where  wife  not  liable 128 

marriage,  necessity  of  valid 124 

married  women's  acts,  effect  of 130,  131 

presumption  of  coercion 123 

■wife's  liability  under  statute 131 

"wife's  imnmnity  as  to  torts 7  ' 

death  of  wife 1^ 

WIFE  AS  SOLE  TRADER,  PARTNER  AND  STOCKHOLDER 296-3  • 

actions •'^l'^ 

American  doctrine  in  equity 301 

antenuptial  agreement 300 

bankruptcy  of  wife 310 

civil  law  '. 298 

coonnion  law   299 

Custom  of  London 297 

Englislh  doctrine   296 

estoppel,  effect  of 309 

husband  as  agent 312 

husband's  creditors 313 

liability  of  husband 311 


1332  INDEX. 

HUSBAJTD  AND  WIFE  — Continued. 

WIFE  AS  SOLE  TRADER,  PARTNER  AND  STOCKHOLDER  —  Con.  Sea 

partner,  wife  as 314 

with  husband 315 

with  third  persons 316 

sole  trader,  wife  as 302,  307 

assent  of  husband 303 

English  statutory  rule 304 

in  Massachusetts  and  Pennsylvania 306 

proceedings  to  enable  wife  to  become 302 

under  married  women's  acts 306 

validity  of  wife's  trading  contracts 308 

what  constitutes  sole  trading 307 

stockholder,  wife  as 317 

WITNESSES,  DISQUALIFICATIONS  AS 62-71 

adultery 66 

agency 68 

confidential  communications  between 70 

bruises  or  injuries  inter  se 66 

deceased  person  as  witness  in  action  with 71 

declarations  in  collateral  proceedings 68 

declarations  as  res  gestae 68 

interested  witnesses   71 

joint  defendants 67 

mutual  disqualifications  as  witnesses 62 

res  gestae   6S 

rule  restricted  to  bona  fide  spouses 63 

termination  of  relation,  as  witnesses  aft«r 69 

I 

IDIOTS,  guardians  of 821 

See  Insane  Persons. 

ILLEGITIMATE  CHILDREN 604-703 

bequests  to   714 

See  Parent  and  Child. 

ILLICIT  COHABITATION,  as  crime 60 

IMPOTENCE  annulling  marriage 19 

as  bearinsr  on  legitimacv 696 

IMPRISONIMENT,  effect  of  on  liabilitv  for  necessaries  of  wife 106 

IMPROVEMENTS  charged  on  wife's  land 443a 

contract  by  wife  for 403 

husband,  by,  on  wife's  property 388 

on  separate  estate  as  communitv  property 588 

INCOME,  gift  of  as  gift  of  capital.' 258 

support  from    794 

See  Peincipai,  and  Income. 

INDIANS,  marriage  of 17 

INFANCY,  antenuptial  settlements 516 

defence  of   1036 

effect  of,  on  liability  for  wife's  necessaries 95 

impediment  to  marriage 20 

void  and  voidable  acts  of 1006-1016 

INFANTS. 

ACTS  BINDING  UPON  THE  INFANT 1016-1028 

general  principle  of  binding  acts  and  contracts 1016 

acts  which  the  law  would  ha^-e  compelled 1026 

contracts  binding  because  of  statute 1026 

enlistment.  .  .      1026 

indenture 1026 

infant  members  of  corporations 1024 


INDEX. 


INFANTS  —  Continued. 


1333 


ACTS  BINDING  UPON  THE  INFANT  —  Continued.  SeO. 
marriage  relation,  binding  contracts  as  to;   promise  to  marry  con- 
trasted   1022 

necessaries,  contracts  for;  what  are  such  for  infanta 1017-1019 

money  advanced  for  necessaries;  infant's  deed,  note,  etc.;  equity 

rules   1020-1021 

officer 1023 

recognizance  for  appearance  on  criminal  charge 1027 

service,  contract  for 1028 

trustee 1023 

ACTS  VOID  AND  VOIDABLE 1006-1015 

general  principles   1006 

test  as  to  void  or  voidable 1007 

privilege  of  avoidance  personal  to  infant;   rule  aa  to  third  person, 

etc.  r 1008 

modern  tendency   1009 

bonds,  notes,  etc 1010 

rule  of  Zoucli  v.  Parsons 101 1 

power  of  attorney 1012,  1013 

cognovit 1012,  1013 

trading  and  partnership  contracts 1014 

void  and  voidable  acts  contrasted;  when  may  voidable  acts  be  affirmed 

or  disaffirmed 1015 

GENERAL  DISABILITIES  OF  INFANTS 993-1005 

adverse  possession  1005 

commercial    paper,    infant's 1003 

crime,  infant's  responsibility  for 997 

criminal  complaint '  998 

deed  by  infant  wife 221 

discretion  in  case  of  peril,  etc 908 

domicile  of   831 

marriage  settlements  of  infants 1001 

majority,  age  of 9^ 

conflict  of  laws  as  to  true  date  of  majority 996 

enlarging  capacity  during  non-age;  legislative  relief  from  non- 
age   994 

office,  infant's  right  of  holding  and  performing  official  functions 996 

power,  infant's  exercise  of  a 1002 

rights  different  from  insane  persons 981 

right  to  appoint  a  guardian 844 

testimony  of  infants 1000 

trusts 1004 

will,  power  to  make  a 999 

INJURIES  AND  FRAUDS  OF  INFANTS 1029-1035a 

contributory  negligence  of  child 1034 

of  parent,  protector,  etc 1035 

dangerous  employment 760 

fraudulent  representation  as  to  age,  etc 1031 

estoppel  by  misrepresentation  of  age 1032 

immoinity  for  violation  of  contract  distinguished 1031 

injuries  committed  by  infant;  infant  civilly  respvonsible 1030 

rape  by 997 

injuries  suffered  bv  infants 1033 

RATIFICATION  AND' AVOIDANCE  OF  INFANT'S  ACTS  AND  CON- 
TRACTS. .  .  ,  1036-1054 

avoidance  througQi  agents,  etc 1052 

consideration,  restoration  of 1051 

contract  of  service,  infant's 1048 

contracts,  executory,  etc.,  voidable  during  infancy;  how  affirmed  or 

disaffirmed 1047 

conveyance  of  infant's  lands 1044 

lapse  of  time,  etc 1046 


1334  INDEX. 

INFANTS  —  Continued. 

RATIFICATION  AND  AVOIDANCE  OF  INFANT'S  ACTS  AND  CON- 
TRACTS —  Continued.  Sec. 

defence  of  infancy 1036 

statute;  Lord  Tenderden'a  act;  other  statutes 1037 

American  doctrine   1038 

disaffirmance,  what  constitutes 1039 

guardian,  right  to  bind  infant 1049 

lease 1044 

.mortgage 1044 

lew  promise 1050 

parent's  right  to  bind  infant 1049 

ratification  and  disaffirmance 1040-1042 

infant  married  spouse 1063 

summary  of  doctrine 1043 

whether  infant  affirming  must  know  his  legal  rights 1060 

whether  infant  who  disaffirms  must  restore  consideration 1051 

rules;  how  far  chancery  mav  elect  for  the  infant 1054 

INHERITANCE,  adopted  children,  by 727,  728,  733 

adopted  child,  by  contract 729 

adopted  children,  from,  by  parents 731 

bastards,  from   713,  731 

disability  of   711,  712 

child's  right  of 805 

widow,  by,  effect  of  adoption 733 

INSANE  PERSON,  action  by 981 

child,  liability  for  acts  of  insane 778 

guardians  of 821 

nursing  of,  by  wife 47 

will  by 981 

INSANITY,  commiunity  property,  effect  on 614 

husband,  of 162 

marriage  void 18 

wife's  deed,  effect  of  on 464 

wife's  necessaries,  effect  of  on  liability  for 106 

INSURANCE,  child 689 

husband's  life,  on,  in  favor  of  wife 677 

policies  as  community  property 594 

policy  as  wife's  separate  estate 333 

policy  on  life  or  property  of  husband 333 

ward's  property  917 

wife's  contract  for 408 

INTENT  of  settler  in  postnuptial  settlement 531 

INTEREST,  sureties  on  guardian's  bond  liable  for 968 

when  guardian  chargeable  with 902 

INTOXICATING  LIQUOR,  wife  guilty  of  sale  of 57 

INVENTORY  of  guardian 944 

INVESTMENT,  by  guardian 897-903 

J 

JEWELRY  as  necessaries 115,  120,  121 

JOINDER  by  husband  in  wife's  deed 463 

JOINT  DEBT,  of  wife 427 

JOINT  DEFENDANTS,  husband  and  wife  as 67 

spouse  of  one  as  witness 67 

JOINT  TENANTS,  spouses  as 571 

husband's  rights  in  wife's  realty 194 

JOINTURE,  antenuptial   516 

cfToct  on  wife's  equity  to  settlement 178 

JUDGMENT,  confession  by  wife 238,  439 

by  spouses 641 ,  653 

JUDICIAL  SALE,  purchase  by  spouse  at 676 

JURY,  trial  by,  In  guardianship 845 


INDEX.  1335 

K  Sec. 

KEEPING  BOARDERS  339 

L 

LACHES,  antenuptial  settlements 515 

ward  in  obtaining  accounts 984 

wife 486 

LARCENY,  by  one  spouse  vs.  another 59 

effect  of  adultery  of  wife 60 

LEASE  of  community  property 603 

by  guardian    918 

by  husband  of  wife's  estate 365 

by  infant,  ratification 1044 

between'  spouses 560 

by  wife 411,  458-489 

LEGACIES  of  wife 172 

LIBEL,   action  for 757, 

by  spouses 664 

LIEN,  by  husband,  on  wife's  property 368, 

mechanic's,  on  wife's  property 4411 

vendor's,  on  wife's  property 440! 

LIMITATIONS,  action  on  guardian's  bond 97^. 

action  by  spouses 629, 

iisafi3rmance  by  infant 1043,  1045 

ward's  action  for  account 984 

LOANS  by  guardian 903 

to  guardian   914 

between  spouses 542i 

by  wife 451 

LOCO  PARENTIS,  one  in 686,  687,  716 

LOYALTY,  of  guardian 890 

LUNATICS.     See  Insane  Persons. 

M 

MAINTENANCE  of  children 780-801 

of  illegitimate  children 709 

of  ward 881-883 

MALICIOUS  PROSECUTION,  action  for 665 

MANN  ACT,  wife  as  witness  to  violation  of,  by  husband 65 

MARRIAGE,  general  conclusions 10 

celebration,  formal    28,  29 

informal 26 

third  person  to  officiate  necessary 29 

coition   unnecessary    29 

common  law 26 

consent  of  parents  and  guardians .' 30 

contract,  more  than 13 

deceased  wife's  sister,  to 16 

defined 12 

disqualification  by  blood Ifi 

of  civil  condition 17 

of  prior  marriage 21 

distinguished  from  an  engagement 27 

duress 23 

essentials ^-^ 

of  celebration 25 

force  compelling   23 

foreign p-^ 

fraud  inducing   23,  24 

gift  to  husband,  operating  as 145 

guardian,  female   8"'^" 

innpediments  following  divorce 22 

impotency 1^ 


1336  INDEX. 

MARRIAGE  —  Continued.  SEa 

Indian 17,  29 

infancy 20 

effect  on  acts 1053 

innocent  person,  by,  with  one  already  married 21 

legalizing  defective  Sil 

legislative 31 

legitimating  offspring   697 

mental  capacity   18 

minor 30 

mistake.  .  , 23,  24 

name  of  woman,  changing 44 

negro 17 

physical  capacity 19 

pregnant,  with  one 23 

presumption   from   reputation 29 

religion  as  disqualification 17 

restraints  upon  32 

result  of   36 

softened  by  affection 9 

void  and  voidable 14 

ward,  of   852,  992 

words  of  present  consent  and  future  promise 27 

MARRIAGE  ARTICLES 502 

MARRIAGE  SETTLEMENTS,  effect  of  divorce  on 1069,  1070 

of  infant 1001 

MARRIAGE  PROMISE,  antenuptial  settlement  under 493 

MARRIED  WOMEN,  guardians  of 822 

as  .guardians 839 

MARRIED  WOMEN'S  ACTS,  actions  by  spouses  under '. 645 

actions  against  wife 682,  684 

actions  under 631 

contract,  effect  of,  on  wife's 229 

contracts  for  services,  effect  on  wife's 237 

contracts,  validity  of  wife's 394-420 

contracts  between  spouses,  effect  on 537 

conveyance,  effect  of,  on  wife's 216 

crimes,  effect  on  wife's  liability  for 56 

estate  by  entireties,  effect  on 569 

equitable  estate,  as  to  wife's 260 

fratids  of  wife 131 

history 8 

infant  married  women 1063 

necessaries 118,  119 

family  expenses  as  necessaries 116,  121 

larceny  between  husband  and  wife,  effect  on 59 

liability  of  wife  for  necessaries  under 106 

paraphernalia,  effect  on 150 

personal  property,  effect  of,  on  wife's 147 

realty,  effect  of,  on  husband's  rights  in  wife's 206 

rights  in  wife's  real  estate 192 

separation,  effect  of 118 

separate  estate,  husband's  rights  and  liaibilities  on  wife's 359^393 

separate  estate,  wife's  statutory .319-358 

sole  trader,  effect  on  wife  as 305,  306 

surety  contracts  of  wife,  effect  on 234,  235 

torts  of  wife,  effect  of,  on  liability  for 130,  131 

MATERIALS  charged  on  wife's  land 443a 

MEDICAL  EXPENSES,  action  by  husband  for 677 

as  necessaries 112,  114,  120,  121,  791 

liability  for  operation  on  child. . .  .> 759 

to  wifo 60 

MENTAL  CAPACITY  FOR  MARRIAGE Ig 


INDEX.  1337 

Sec. 

MENTAL  ANGUISH,  recovery  by  husband  for  wife's 675 

MINORS.     See  Infants. 

MISTAKE  inducing  marriage 23,  24 

in  antenuptial  settlement  reformed 496 

MONEY  of  child 68^ 

MORTGAGES  between  spouses 561 

commjunity  property 601,  602,  620 

extension  of  wife's 483 

extent  of  lien 482 

of  wife's    482 

guardian,  by 919 

husband  of  wife's  estate 364 

infant  for  necessaries 102O 

discharge  by  infant 1025 

ratification 1044 

wife's 217,  435,  458-489 

for  husband's  debts 282,  445 

novation  of 483 

MOTHER'S  PENSION 7S3 

MURDER,  wife  guilty  of 67 

H 

NAME  of  woman  changed  by  marriage 44 

NATURALIZATION,  effect  on  domicile 43 

NECESSARIES,  what  constitutes 790  et  seq. 

guardian's  liaibility  for 881,     885 

husband  and  wife,  as  between 83-121 

of  wlhole  family 90 

husband's  liability  using  wife's  property  for 391 

infants 1017  e*  seq. 

parent,  liability  of,  for 787,     789 

putative  wife 89 

ward 911 

wife's  antenuptial,  liability  for 76 

See  further  Husband  and  Wife. 

NEGLIGENCE,  child,  actions  for  injury  to 757,     769 

contributory,  of  infant 1034 

contributory,  of  parent 1035 

guardian 908 

husband  and  wife 637 

infant 1030 

(parent 765 

wife 658,     662 

NEGOTIABLE  INSTRUMENTS.     See  Bn-LS  and  Notes. 

NEGRO,  marriages  of 17 

NEXT  FRIEND,  for  infant  actions  by 1055,  1057 

for  ward  824 

suit  by  wife  as 648 

NON-RESIDENTS  as  guardians 840 

sales  of  ward's  property 943 

NON-SUPPORT.     See  Husband  and  Wife. 

NOTICE,  not  to  sell  to  wife 96 

to  husband  as  notice  to  wife 371 

NOVATION,  of  wife's  mortgage 483 

0 

OFFENCES  against  the  property  of  either  spouse 69 

OFFICE,  infant's  right  to  hold S9€ 


1338  INDEX. 

P  Sbc. 

PARAPHERNALIA  of  wife 72,  325 

aa  community    599 

distinguished  from  separate  estate 244 

mortgage  of   363 

title  to   150 

PARENT,  defined 685 

in  law 716 

PARENT  AND  CHILD. 

THE  RELATION  IN  GENERAL 685-693 

abandonment  of  children 799,  800 

actions  between   691 

constitutional  right  of  legislature  to  interfere  with  parent 693 

contracts  between   690 

definitions 685 

domicile,  change  of  716,  878 

gifts  between  parent  and  child 688 

growth  of  law 11 

clothing,  money,  etc.,  given  to  the  child 689 

insurance,  right  to 689 

loco  parentis,  one  standing  in 686,  687.  716 

privileged  communication  to  parent 692 

fttepchildren 686 

ACTIONS  FOR  INJURY  TO  CHILD 757-771 

in  general  757 

contributory  negligenee  of  child 766 

damages  for  injuries  or  enticement 770 

dangerous  employment ;  father's  consent 760 

death,  parent's  action  for 762 

evidence 768 

fraudulent  misstatement  of  age,  father's  liability  for 763 

negligence  of  parent 765 

parties 764 

pleadings 767 

questions  for  jury 769 

seduction  of  a  child 761 

damages  for  771 

etatutes  affecting  right  of  action 758 

sureeon's  liabilitv  for  operation  on  child 759 

ADOPTED  CHILDREN  718-735 

adoption  by  deed  or  bv  judicial  act 723 

effect  of ' 726 

89  revocation  of  will  of  adopting  parent 730 

conflict  of  laws  relating  to  adoption 736 

consent  of  parents 722 

contracts  to  adopt 721 

definitions 718 

evidence 725 

history 719 

inheritance,  child's  rights  of,  from  parents 727 

from  kindred  of  parents 728 

by  contract 729 

by  children  of  adopted  child 732 

by  parents 731 

by  widow  of  adiopting  parent 733 

parties 724 

revocation  of  adoption 734 

statutes  permitting  adoption 720 

CHILDREN.  RIGHTS  OF 802-806 

in  gener.il   802 

advancements g04 


INDEX.  1339 

PARENT  AND  CHILD  —  Continued. 

CHILDREN,  RIGHTS  OF  —  Continued.  Sue. 

claims  against  the  parental  estate  for  Bervices  rendered 803 

inheritance,  child's  rights  of 805 

rights  of  full-grown  children 8(K-> 

EMANCIPATION 807-800 

in  general 807 

what  constitutes 808 

effect  of 809 

ILLEGITIMATE  CHILDREN 704-717 

bastards,  who  are 705 

bequests  to  illegitimate  children 714 

custody  under  English  law 707 

under  American  law 708 

gifts  to  bastards 714 

guardianship  of 717 

inheritance,  disability  of,  at  common  law 711 

by  bastards  under  modern  statutes 712 

from  bastards    713 

loco  parentis,  persons  in,  distant  relatives,  etc 71fi 

maintenance 709 

presumption  of  legitimacy 70B 

recognition,  effect  of 715 

status  of 704 

what  law  governs  property  rights 710 

LEGITIMATE  CHILDREN  IN  GENERAL 694-703 

in  general 695 

children  legitimate  and   illegitimate 694 

conflict  of  laAvs  as  to  domicile  and  legitimacy 703' 

domicile  of  children  ;  citizenship,  etc 702 

legitimation  of  illicit  offspring  by  subsequent  marriage 697 

not  favored  in  England 698 

marriages  null  but  hn^ia  fide  contracted 700 

by  the  state  or  sovereign 701 

presumption  of  legitimacy 696 

PARENT'S  DUTIES  AND  LIABILITIES 772-779 

leading  duties  of  parents  enumerated 772 

education 774 

religious 776 

liability  for  torts  of  child 777 

for  acts  of  insane  child 778 

for  child's  acts  in  driving  automobile,  etc 779 

protection,  duty  of:  defence,  personal  and  legal 773 

trado  or  profession,  providing  a 77.') 

PARENT'S  DUTY  OF  SUPPORT. 780-801 

ability  of  parent  to  .support  child 784 

agency,  child  as  agent  for  parent 788 

agreements  to  support 789 

allowance  to  parent  for  ward's  siipport 88" 

American  penal  statutes  enforcing  support 791 

chancery  maintenance,  allowance  from  child's  fortune 793 

out  of  income  or  principal 79" 

defence,  support  by  others  as 80( 

divorce  of  parents 796 

Enarlish  statute  enforcing  support 798 

father's  support 781 

funeral  expenses   792 

liability  of  parents  to  third  persona  in  absence  of  agreement 787 

medical  expenses  791 

mother's  support _ 782 

maintenance,  duty  of,  in  general 75tO 

pleadings  and  evidence  in  actions  for  support 797 


1340  INDEX. 

PARENT  AND  CHILD  —  Continued. 

PARENT'S  DUTY  OF  SUFFORT  —  Contimied.  Sec. 

proceedings  to  comipel  support 801 

separation  of  parents 796 

stepchildren,  duty  towards 7i85 

value  of  parental  education,  s>upport,  etc 786 

what  constitutes  support  or  "  necessaries  " 790 

when  duty  ceases 795 

PARENTS,  RIGHTS  OF 736-739 

chastisement,  right  of 737 

child's  duty  to  care  for  parents 739 

contract  by,  not  binding  on  infant 1049 

foundation  of  parental  rights 736 

mother's  pension  acts 78^ 

riglhts  to  child's  property 73& 

PARENTS'  RIGHT  OF  CUSTODY 740-761 

abductioni 750 

access,  parent's  right  of 876 

American  rule   743 

chancery  jurisdiction  in  custody;  common  law  overruled 741 

child's  own  wishes 745 

common-law  rule;  English  doctrine 740 

contests  for  custody  between  husband  and  wife,  etc 751 

contracts  transferring  parental  rights 748 

divorce,  custody  under 746 

English  rule ;  statute 742 

enticement,  action  for 750 

funeral  of  child,  parent's  right  to  attend 747 

gTiardian,  as  against 875 

proceedings  to  dtetermine  custody;  prior  adjudication 749 

welfare  of  child 744 

PARENT'S  RIGHT  TO  SERVICES  OF  CHILD 7oa-756 

child's  right  of  compensation  for  services  to  parent 756 

guardian's  right  to 879,  884 

father's  right  to  child's  labor  and  services 752 

loss  of  right  to  child's  services 754 

mother's  rights  to  child's  services  and  earnings 753 

parent's  right  of  action  for  child's  labor 755 

PAROLE  transfers  by  wife 478 

PARTIES  to  actions  for  injuries  to  child 764 

to  adoption 724 

joinder  of  husband  in  suit  by  wife 646,  649 

joinder  of  wife 680 

suits  concerning  ward 924 

proceedings  for  sale  of  ward's  landi. 9135 

PARTITION,  community  property 618 

estate  by  entireties 668 

husband  and  wife 639,  640 

infant 1025 

PARTNERSHIP  between  spouses 315,  545 

by  infant 1014 

PENALTY,  sureties  on  guardian's  bond,  liable  for 968 

PERJURY,  wife  guilty  of 57 

PERSON  of  the  spouse 34-54 

PERSONAL  PROPERTY,  transfers  between  spouses 563 

PIANO  as  necessaries 1 10 

PIN  MONEY  of  wife 243-246 

PLAN  of  book 2 

PLEADINGS,  in  action  by  child 767 

in  actions  by  spooises 670 

in  action  for  support 797 


INDEX.  1341 

Seo. 

PLEDGE,  by  guardian 919 

for  husband's  debts 445 

of  wife's  property 166 

by  wife  to  secure  husband's  debts 282 

POLYGAMY,  illegal   21 

POSTNUPTIAL  SETTLEMENTS   520-534 

distinguished:   from   antenuptial 521 

POWER,  creation  of  separate  estate  by 257 

exercise  by  infant 1002 

POWER  OF  ATTORNEY,  by  infant 1012 

to  convey  given  by  wife 210 

wife's  conveyance  by 479 

PRESUMPTIONS,  community  property 595 

husband's  agency 383 

iusband's  assent 4G6 

husband's  coercion 56 

in  wife's  torts 123 

legitimacy 696,  706 

wife's  coercion 56,  57 

wife's  evidence  of  crime 56,  57 

wife's  innocence 57 

wife's  separate  property 344-348 

PRINCIPAL,  support  from 794 

PRINCIPAL  AND  INCOME,  use  bv  guardian 887 

PRIVILEGED  COMMUNICATIONS.     See  Ev'dence. 

PROTECTION,  parent's  duty  of 773 

PURCHASERS  in  good  faith,  rights  of 532 

risrhts  and  liabilities  of  community  property 604,  621 

PURCHASES  bv  infant,  ratification 1046 

PUTATIVE  WIFE,  necessaries  of 89 

H 

EAPE,  bv  infant 9'97 

RATIFICATION,  .husband's  agency 386,  387 

by  infant 1037,  1038,  1040  et  seq. 

ward 987 

of  wife's  acts 144 

contract 228,  419,  455 

deed 488 

RAVISHMENT,  writ  of 923 

REAL  ESTATE  of  ward,  control  of 915 

of  wife.     See  Husband  and  Wife. 

RECEIPT  for  wife's  choses  in  action 170 

RECEIVING  stolen  goods:  liabilitv  of  wife 58 

RECOGNITION,  of  bastards ". 715 

RECOGNIZANCE  by  infant 1027 

RECORD  of  dc(xl  by  wife 470 

REFORMATION  of  antenuptial  settlements 496 

REGULATION  of  household,  visitors,  etc 52 

REINVESTMENT  by  guardian 900 

RELEASE  between  spouses 546 

by  divorced  woman 397 

by  husband ;   effect  of 1 65 

by  husband  of  ^vife's  claim 369,  674 

sureties  on  guardian's  bond 978 

of  wife   241,  398 

RELIGION,  as  affecting  custody  of  child 741 

as  disqualification  to  marriage 17 

education  of  child 776 

education  of  ward 886 

REMARRIAGE  of  survivor,  effect  of  on  community  property 617 

REMOVAL  of  guardian 855-  et  seq. 


1342  INDEX. 

Sec. 

RENT,  action  by  wife  for 652 

as  necessaries 119 

of  separate  estate 326 

as  community  property 587 

REPAIRS,  binding  on  wife's  estate 403 

of  ward's  property 917 

REPLEVIN,  action  by  wife  for 661 

husband  and  wife 636 

RES  GESTAE,  declarations  of  husband  and  ^vife  as  to 68 

RESCISSION.     See  AvoiDA?fCE. 

RESIDENCE,  guardian's  right  to  change  -ward's 878 

RESIGNATION  of  guardian 854 

RESTRAINT,  alienation  of  wife's  separate  estate 273 

husband''s  right  of 49 

marriatre 32 

REVOCATION  of  adoption 734 

of  will  by  adoption 730 

S 

SALES,  between  spouses 563 

of  community  property 601,  602,  620 

real  estate  of  ward 927-943 

SEALED  INSTRUMENT  of  wife 240 

SEDUCTION  of  child 761,  771 

damages  for  771 

consideration  for  deed 709 

wife,  action  for 676 

SEPARATE  BUSINESS,  wife's  debts  in 448 

SEPARATE  ESTATE  distinguished  from  community  property 592 

improvements  on 588 

contracts  as  to 538 

equitable  estate  of  wife 247-285 

See  Husband  and  Wife. 

SEPARATE  PENALTIES  for  women 61 

SEPARATION. 1060-1071 

abandonment ;  rights  of  deserted  wife 1064 

action  by  wife  in  case  of 650 

consent,  by;  effect  of,  on  liability  for  necessaries 103 

in  England  1061 

d€ed  oJF ;  general  doctrine 1060 

English  rule 1061 

American  rule 1062 

what  covenants  are  upheld 1063 

effect  on  community  property 614 

diuty  to  support  child 796 

liability  for  necessaries 100,  103,  118 

wife's  contracts 431 

wife's  deed   464 

wife's  risfht  to  settlement 177 

SERVICES  of  child,  parent's  right  to 752-756 

as  claim  against  parent 803 

by  husband 380 

of  wife,  action  for  loss  of 678 

rendored  to  wife 444- 

SETTLEMENT,  wife's  equity  to 175-185 

on  third  person  in  fraud  of  husband 506 

SILENCE,  as  ratification  bv  infant 1041 

SLANDER,  action  of .' 664 

SOCAGE,  guardianship  in 813,  819 

SODOMY,  as  cause  for  divorce 1067 

SPENDTHRIFTS,  guardians  of 821 

STATUTE,  requiring  infant's  aflRrmance  to  be  in  writing 1037 

enforcing  support  of  children 799^ 


I^'DEX.  1343 

Sec. 

STATUTES  OF  ELIZABETH 627,  632,  633,     559 

duty  of  support 778 

STATUTE  OF  FRAUDS,  antenuptial  settlements 499 

marriage  articles 502 

wife's  contracts 395 

STEPCHILDREN 686 

support  of 785 

STOCK  of  wife,  reduction  to  possession 174 

STOCKHOLDERS,  infants  as 1024 

wife  as 317 

wife's  contract  as 409 

SUBROGATION  of  sureties 974 

SUPPLICAVIT,  writ  of 54 

SUPPORT,  child's  duty  of 739 

by  guardian  881 

parent's  duty  of 780-801 

wife's  equity  to  settlement  for 175,     185 

SURETY,  of  community  property 609 

guardian's  bond   966  et  seq. 

minor  as  lOlO 

wife's  contract  of 234r-236,  413-417,  449,     450 

SURGEON'S  liability  for  operation  on  child 759 

SURGICAL  OPERATION,  wife's  right  to  submit  to 50 

SURVIVAL  of  actions  by  spouses 673 

SURVIVOR,  rights  of,  i'n  community  property 615,     622 

T 

TENANTS  IN  COMMON,  spouses  as 570 

TESTAMENTARY  GUARDIANSHIP 814,  820,  835,  871 

resignation 854 

TORTS,  actions  for  by  spouses 633,  655 

community   liability  for 61 1 

infant's 1030 

parent's  liability  for  torts  of  child 777 

wife's 74 

immunity  for 74 

liability^for   122-134 

TRADE,  duty  of  proA-iding  for  child 775 

TRADER,  wife  as  sole 296-318 

TRADING,  by  infant 1014 

TREASON,  wife  as  witness  to 64 

TRESPASS,  action  by  spouses  for 657 

by  one  spouse  vs.  another 59 

Avife's  real  estate,  action  for 222 

TROVER,  action  against  wife 683 

by  spouses   642,  667 

TRUST  declaration  by  wife 473 

deed  of,  by  wife 472 

infant  as  trustee ^^^ 

resulting  in  conyeyances  to  spouses 575 

resulting  to  ward ^88 

wife's  liability  for  breach  of 447 

TRUSTEE,  guardian  as 862 

necessity  of,  in  postnuptial  settlement 622 

U 

UNBORN  INFANT,  right  of  action  for  injury  to 1033 

UNDUE  INFLUENCE  in  dealings  between  guardian  and  ward '989 

See  Fraud. 

USURY,  infant's  right  to  avoid 1013 


1344:  INDEX. 

W  6b!C. 

WAGES  of  wife 152 

WAIVER  of  marital  rights 341 

of  wife's  equity  to  settlement 179 

WASTE,  guardian  liable  for 982 

WIFE'S  duty  to  render  services 47 

right  to  submit  to  surgical  operation 50 

WILL,  by  infant 990 

revoked  by  adoption 730 

WITNESS  abduction  of  wife 64 

crime  by  husband  against  wife 65 

deceased  person  involved 71 

husband  and  wife  as 62-71 

spouse  of  co-defendant  as 67 

infant  as 1000 

interest  of 71 

marriage,  parties  to  de  facto 63 

mistress  as  63 

wife  as  witness  in  crime  against  her 65 

to  will  containing  devise  to  husband 62 

Z 

ZOUCH  V.  Parsons,  rule  of 1011 

Total  number  of  pages,    1372. 


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